Smith v. Southern Ry. Co., Carolina Div.

• Decision Date: 07 September 1945
• Docket Number: 15771.
• Parties: SMITH v. SOUTHERN RY. CO., CAROLINA DIV.
• Court: South Carolina Supreme Court

35 S.E.2d 225

207 S.C. 179

SMITH v. SOUTHERN RY. CO., CAROLINA DIV.

No. 15771.

Supreme Court of South Carolina

September 7, 1945

Appeal from Common Pleas Circuit Court of Hampton County; P. H Stoll, Judge.

Action by Orren Smith, by his guardian ad litem, Winnie G. Smith against the Southern Railway Company, Carolina Division A for personal injuries received in a collision with a freight train. From a judgment for plaintiff for $12,000, the defendant appeals.

Verdict will not be set aside as excessive unless the Supreme Court can say that the facts are susceptible of no other reasonable inference than that the verdict was so excessive as to indicate that it was the result of prejudice, caprice, or passion, or other considerations not founded on the evidence.

Edgar A. Brown, of Barnwell, and J. W. Manuel, of Hampton, for appellant.

Randolph Murdaugh, of Hampton, for respondent.

OXNER, Justice.

Respondent Orren Smith, recovered a verdict for $12,000 actual damages against appellant, Southern Railway Company, on account of personal injuries received in a collision between a Chevrolet Coupe in which he was riding and a backing freight train which occurred about 2:30 A. M. on Sunday, August 29, 1943, at a crossing in the village of Lena in Hampton County. Appellant has appealed from the judgment entered on said verdict. There are two questions to be determined: (1) Was the respondent or the driver of the automobile guilty of gross contributory negligence or wilfulness as a matter of law? (2) Did the lower Court abuse its discretion in refusing to grant a new trial on the ground that the verdict was so excessive as to show caprice, passion, and prejudice on the part of the jury?

Viewing the testimony and all reasonable inferences to be drawn therefrom in the light most favorable to respondent and disregarding any controverting evidence offered by appellant, the following material facts appear:

Respondent was seventeen years old at the time of the accident, resided with his father and mother on a farm about seven miles east of Lena, and attended the rural schools in that community where he had reached the tenth grade. About 8:00 P. M. on the night of the accident, he and two companions, Bernard Long and John Wooten, who resided in the same community and were approximately the same age as respondent, drove from their homes to attend a dance at Varnville. After attending the dance, they left Varnville shortly after midnight and went to Fairfax to get something to eat. Fairfax was the nearest town which had a restaurant open at this hour. They ate sandwiches and drank coca-colas and started home about 1:30 A. M. by way of Estill and Lena. Long, who owned the Chevrolet Coupe, was driving; Wooten was sitting in the middle and respondent on the right side. The road between Estill and Lena is a paved, heavily traveled highway, extending east and west, and for some distance on each side of Lena is straight and level. In driving from Estill to Lena these boys were traveling in an easterly direction. There is no contention that they were under the influence of intoxicants of any kind. In approaching the village of Lena they were traveling approximately 35 miles an hour. The car was in good mechanical condition.

This highway intersects the tracks of appellant in the village of Lena at approximately right angles. The railroad line runs north and south and is straight for more than a mile in each direction from the village. There are two parallel tracks, a main line which is first reached by one traveling in the direction respondent was going, and a side track which is 8 or 10 feet east of the main line. In approaching the crossing in the direction traveled by these boys, the view to the left is obstructed by a filling station, the depot and a water tank until one gets within about 15 or 20 feet of the crossing, at which point there is an unobstructed view of the tracks for a distance of more than one-half mile in each direction. All of these boys had traveled this highway at frequent intervals and were thoroughly familiar with the crossing and its surroundings.

The night in question was dark. As respondent and his companions approached the crossing, they reduced the speed of the car when at a distance of about 50 yards from the crossing. About this time another car, going in the same direction, passed them and proceeded across the tracks. When respondent's car was about 25 or 30 feet from the crossing and about to stop, still another car, going in the opposite direction, came across the tracks and passed. After meeting this car, respondent's car was driven about five feet farther and brought to a complete stop at a point approximately 20 feet from the crossing. Both the driver and respondent looked in both directions and listened for approaching trains, and seeing or hearing none, then proceeded to cross the tracks while continuing to keep a proper lookout. They passed over the main line, and when between the tracks of the main line and the siding first saw a box car on the end of a train backing in a southerly direction. The driver of the car could not estimate exactly how far he was from the end of the train when he first saw it, but feeling he did not have time to stop the car, swerved to the right to avoid a collision, and the automobile collided with the side of the box car on the rear end of the train. As a result of the collision respondent suffered certain personal injuries which will be hereinafter referred to. The record does not disclose the exact speed of the train, but there is some testimony that it was running between 10 and 15 miles per hour. The statutory crossing signals were not given. The end of the train was unlighted. There was no flagman stationed at the crossing and no notice or warning whatsoever was given of the approach of the train, which was being backed on a dark night without any lights or markers whatsoever.

Appellant offered testimony tending to show the following facts: The freight train, consisting of 31 heavily loaded cars besides the caboose, was proceeding north and arrived at Lena shortly after 2:00 A. M. The train pulled into that part of the siding which was north of the crossing and stopped at a point where the engine was standing about five car lengths from the north switch and the caboose 10 or 15 feet north of the crossing. After waiting for about one-half hour for two passenger trains to pass, the back-up signal, consisting of three short blasts of the whistle, was given and the automatic bell started ringing. The flagman and brakeman were at the crossing with electric lanterns to warn any travelers approaching the crossing. The train was backed in a southerly direction and when the rear end passed over the crossing, the brakeman and the flagman boarded the caboose. According to appellant's contention, when the collision occurred, about eleven cars had passed over the crossing and respondent's automobile collided with the southern end of the twelfth car from the caboose, at a 45 degree angle, causing the uncoupling of the train between the eleventh and twelfth cars. None of the train crew saw the collision, but knew something had happened and stopped the train. The greater portion of the siding is on the north side of the crossing. Instead of going forward through the north switch of the siding, the train was backing so as to enter the main line through the south switch in order to allow time for the train to get sufficient momentum to pull a grade at some distance north of the crossing. According to the testimony of the train crew, all statutory signals required at crossings were given; the entire train was stationed north of the crossing; the caboose was the forward car of the train as it was being backed; the rear of the caboose was lighted with standard lights and markers which were all burning brightly, and in addition there was a red lantern hanging and burning on the rear of the caboose; in fact, the flagman testified that the rear of the train 'looked like a circus.' The crew estimated the total length of the train to be from 1500 to 2000 feet.

The foregoing review of the testimony discloses an irreconcilable conflict in the evidence. According to the testimony of the members of the train crew, the train was never broken when placed in siding; all necessary signals and warnings of the approach of the backing train were given; and respondent's car was negligently and recklessly driven into the train after eleven cars had passed over the crossing. There is abundant testimony by respondent tending to show that the train was disconnected, part of it being stationed on the siding north of the crossing and the other part on the siding south of the crossing, and that the automobile collided with a box car on the end of the train which was backed, without any warning whatsoever of its approach, for the purpose of coupling the two sections. One witness for respondent testified in reply that he had measured the length of the siding north of the crossing which showed a distance of 1400 feet from a point 15 feet north of the crossing to the north switch (the engine was five car lengths south of the north switch). According to this testimony, the length of the train, as estimated by the train crew, was such that the entire train could not have been placed north of the crossing. There is further testimony on the part of respondent to the effect, as heretofore adverted to, that two cars passed over the crossing just before respondent's car entered the crossing.

The automobile, which passed respondent's car 50 yards from the crossing while going in the same direction, was driven by the owner of the cafe at Fairfax where respondent and his companions had eaten. He was taking home two...