Southern Ry. Co. v. Priester

• Decision Date: 23 May 1923
• Docket Number: 2055.
• Parties: SOUTHERN RY. CO. v. PRIESTER et al.
• Court: U.S. Court of Appeals — Fourth Circuit

289 F. 945

SOUTHERN RY. CO. v. PRIESTER et al.

No. 2055.

United States Court of Appeals, Fourth Circuit.

May 23, 1923

Frank G. Tompkins, of Columbia, S.C. (J. W. Manuel, of Hampton S.C., on the brief), for plaintiff in error.

George Warren, of Hampton, S.C., for defendants in error.

Before WOODS and WADDILL, Circuit Judges, and GRONER, District Judge.

WOODS Circuit Judge.

On July 3, 1921, defendant's north-bound passenger train struck the automobile in which Mrs. M. A. Priester and her husband were riding at the crossing near Valentine, S.C. Plaintiffs recovered judgment for injuries inflicted on Mrs. Priester. Error is assigned in the refusal of the District Court to direct a verdict in favor of the defendant on three grounds:

(1) That no reasonable inference could be drawn from the testimony, except that no negligence had been proven against the defendant which could have any causal connection with the collision in question.

(2) That no reasonable inference could be drawn from the testimony, except that the collision was caused by the sole negligence of the plaintiff's husband and agent, who was driving the car, for which the plaintiff was responsible, in that it appears conclusively that plaintiff and her husband were in full view of the train, and had ample time to have stopped their automobile before going upon the track, and that they saw or should have seen the approach of the train and have avoided the accident.

(3) That if the railroad company had been guilty of any negligence, no reasonable inference could be drawn from the testimony, except that the plaintiff and her husband, who was her agent, were guilty of gross and willful contributory negligence in driving upon the track without looking and listening for the train, when they had ample opportunity to do so, in that the plaintiffs had a full view of the train in ample time to have stopped their automobile before coming upon the track, and in spite of this fact plaintiffs either willfully refused to look and listen for the train, or they handled their car in such a reckless and negligent manner as to place it on the track without sufficient time to cross over before the approach of the train.

The evidence is to be considered in the light of the South Carolina statutes. Section 3222 of the South Carolina Code of 1912 requires a bell to be rung or a whistle sounded by the engineer or fireman of an approaching train at the distance of at least 500 yards from a public crossing. Section 3230 provides that the railroad shall be liable for injuries inflicted by collision at a crossing if the failure to give the statutory signals contributed to the injury-- 'unless it is shown that, in addition to a mere want of ordinary care, the person injured, or the person having charge of his person or property, was, at the time of the collision, guilty of gross or willful negligence, or was acting in violation of the law; and that such gross or willful negligence or unlawful act contributed to the injury.'

Section 3288 requires:

'A railroad corporation whose road is crossed by a highway or other way on a level therewith shall, at its own expense so guard or protect its rails by plank, timber or otherwise as to secure a safe and easy passage across its road.'

The automobile was the property of Mrs. Priester. Priester drove it when he and his wife were together, but she often drove in his absence. Both frequently drove over the crossing and were familiar with it. At the time of the accident plaintiffs were approaching the railroad from the east on the public road, which crossed the track at a right angle. On the south side of the public road the view of the railroad was shut off by a field of tall corn to a point 33 feet from the track. On the other side of the public road, near the edge of the cornfield, the railroad company had made holes-- or, in Priester's language, 'a holey place'-- in the public road by digging up earth to fill a hole dug for a sign post. The railroad is higher than the level of the public road, the rise being 3 1/2 feet in 15 feet. On both sides of the east rail thick boards had been placed. Against these boards earth had been thrown, so as to make the ascent and crossing easier. But the earth had been washed or worn away, so that the boards and rails were about 4 inches above the level. From the end of the cornfield, 33 feet from the track, the view of the railroad was clear both ways, and one looking down the track would see a train approaching from the south at least a half mile. The road being narrow, driving across the hole required unusual attention and care. According to the testimony of plaintiffs the approaching train must have been in full view when they reached the end of the cornfield. That neither of them looked south down the track at this point is evident from their own testimony and from the fact that they did not see the train. Priester, after driving to the end of the cornfield, slowed down to pass the holes. He then put on speed to make the rise of 3 1/2 feet and cross the track. Still neither of the plaintiffs saw the train, or looked, or heard its noise. When plaintiffs did finally see the train, almost at the instant that the automobile reached the east rail, it was within 50 or 60 feet of them. Then Priester attempted to apply the emergency brake, but missed it and applied the clutch. The momentum of the automobile not being sufficient to drive it over the board and first rail, it was 'choked down,' and stopped with the front projecting over the rail. But for this 'choke down,' the automobile probably would have been struck midway of the track and both the plaintiffs would have been killed.

The conductor, engineer, fireman, and two disinterested witnesses testified that the statutory signals were given. The plaintiffs testifie...