Stabler v. Southern Ry. Co.
| Decision Date | 23 April 1931 |
| Docket Number | 13130. |
| Parties | STABLER v. SOUTHERN RY. CO. et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Calhoun County; C. C Featherstone, Judge.
Action by Irene E. Stabler against the Southern Railway Company and others. From the judgment, defendants appeal.
Affirmed.
Adam H Moss and P. F. Haigler, both of Orangeburg, and Frank G Tompkins, of Columbia, for appellants.
T. P Taylor, of Chapel Hill, N. C., Jas. S. Verner and A. F. Spigner, of Columbia, and J. C. Hiott, of St. Matthews, for respondents.
TOWNSEND, A. A. J.
This is an appeal from a judgment for damages under Lord Campbell's Act, Code of Civil Procedure, § § 367, 368 and the Railroad Crossing Act, Civil Code, § § 4903, 4925, growing out of a collision at a grade crossing.
The exceptions raise the questions: (1) Was there evidence of a failure on part of defendant railway company to give the statutory signals? (2) Did the intestate contribute to his death by gross carelessness and willfulness on his part? (3) Did the circuit judge err in refusing to charge the defendant's ninth request?
As to the first question: T. R. Arant, a witness for plaintiff, testified, that train was running backwards at a rate of 25 or 30 miles an hour toward the crossing without giving the statutory signals by either sounding the bell or whistle within 530 feet of the crossing. This evidence required the submission of the first question to the jury. McBride v. Ry., 140 S.C. 260, 138 S.E. 803; Brogdon v. R. R. Co., 141 S.C. 238, 139 S.E. 459; Glenn v. Ry. Co., 145 S.C. 41, 142 S.E. 801; Whitehead v. A. C. L. Ry. Co., 153 S.C. 339, 150 S.E. 769.
As to the second question: The appellant contends that, under the authority of Cable Piano Co. v. So. Ry. Co., 94 S.C. 143, 77 S.E. 868, and Chisolm v. Ry. Co., 121 S.C. 394, 114 S.E. 500, the court should have held, as a matter of law that the intestate was guilty of such gross or willful negligence as to bar a recovery.
While the Legislature has commanded a traveler on a highway to bring his vehicle to a full and complete stop (35 Stats. at Large 1316) before entering or crossing any express highway in the state highway system (Townsend v. State Highway Department, 156 S.C. 545, 153 S.E. 572), it has never seen fit to command that travelers either stop, look, or listen before entering upon or crossing a railroad track. The duty so to do is not absolute; whether a failure so to do is reckless gross negligence or willful misconduct depends upon the then surrounding circumstances and the state of the traveler's mind.
The decision in the Cable Case has been modified by the fourth and fifth paragraphs (pages 402, 403, of 121 S. C., 114 S.E. 500, 503) of the decision in the Chisolm Case.
As held in the Chisolm Case: "It is ordinarily a question for the jury *** to say whether the attempt of the traveler to cross without looking and listening effectively was excusable or culpable; that is, whether or not it amounted to negligence or willful misconduct." See, also, Whitehead v. A. C. L. R. R. Co., 153 S.C. 339, 150 S.E. 769.
Testing this case by the Chisolm Case, we find evidence that neither the bell nor whistle on the engine was sounded while the engine was between the station and the crossing, that the attention of the intestate was probably distracted by the noise of his own automobile engine and that of a passing truck, and that the situation required the deceased to look in three other directions during the brief time the train, running at 25 or 30 miles an hour, was approaching the crossing, so that it was too late for the intestate to avoid getting on the track when, his attention being aroused by the shouts of the man on the tender, he saw the train almost upon him. The intestate's failure to look in the direction of the approaching train may under the evidence have been due to inadvertence. That question was for the jury. As said in the Chisolm Case, 121 S.C. 394, 114 S.E. 500, 504, "The facts do not warrant the court in pronouncing the intestate's omission such a conscious or reckless disregard of his duty to look in the circumstances surrounding him as would charge him with contributory willfulness."
For these reasons, the first seven exceptions are overruled.
The defendant's ninth request to charge was properly refused as upon the facts, under the authority of Richardson v. N.W. R. R. Co., 124 S.C. 314, 117 S.E. 510; Priester v. So. Ry. Co., 151 S.C. 433, 437, 149 S.E. 226.
For this reason, the eighth exception is overruled.
The judgment of this court is that the judgment below be affirmed.
Let the defendant's ninth request to charge be included in the report of the case.
STABLER, J., disqualified.
The plaintiff, Mrs. Irene Elizabeth Stabler, as administratrix of the estate of Tillman Stabler, deceased, commenced this action against the defendants, Southern Railway Company, Earle Utsey, and R. T. Hilton, in the court of common pleas for Richland county, December 17, 1928, for the benefit of herself and infant daughter, widow and daughter, respectively, of the deceased, for damages suffered on account of the death of the said deceased, alleged to have been caused by the defendants in a collision with a train of the defendant Southern Railway Company, at a railroad crossing in the town of Ft. Motte, S. C., on or about the 25th of September, 1928; said Earle Utsey and R. T. Hilton being in charge of said train as conductor and engineer, respectively, at the time of the collision. After issues were joined, on motion of the defendants, the case was transferred from Richland County to the court of common pleas for Calhoun county, and the case came on for trial before his honor, Judge William H. Grimball, and a jury, resulting in a mistrial. At the November, 1929, term of said court, the case was tried before his honor, Judge C. C. Featherstone, and a jury. At the close of the testimony in behalf of the plaintiff, motion for nonsuit was made by the defendants, which motion being refused the defendants offered testimony, and at the close of all of the testimony the defendants moved for direction of a verdict. This motion was also refused by the court, and the case was submitted to the jury, resulting in a verdict for the plaintiff in the sum of $2,500 actual damages. A motion on the part of the defendants for a new trial being refused, from the entry of judgment on the verdict the defendants have appealed to this court.
The exceptions raise only three questions, which, adopting the language of counsel for appellants, may be stated as follows:
(1) Is there any testimony in the case tending to show any negligence or gross negligence on the part of the defendants which contributed to the fatal injuries of plaintiff's intestate as a proximate cause?
(2) At the time of the collision, was there gross or willful negligence or violation of law on the part of plaintiff's intestate, contributing to his fatal injuries as a proximate cause?
(3) Did the court commit error in refusing to charge defendant's ninth request?
The first and second questions we shall consider together.
The accident occurred in the town of Ft. Motte, S. C., at a point where the highway crosses the railroad track of the defendant Southern Railway Company, about 530 feet from the depot, on the western side in the direction of St. Matthews, S.C. The train in question which struck the plaintiff's intestate was a work train engaged in hauling dirt, and approached from the direction of Columbia going in the direction of St. Matthews.
The train was of considerable length, consisting of twenty-one cars, the engine, the caboose, and an extra tender or water tank. The engine was facing toward Columbia, and was pushing the cars, caboose, and tender in the direction of St. Matthews; that is, the train was running backward. The conductor, the defendant, Earle Utsey, was riding in the cab; the defendant, R. T. Hilton, the engineer, was at his usual place on the engine; and the fireman, it appears, was in his accustomed place. The brakeman was riding on the front tender. The plaintiff's intestate was operating a Chevrolet truck, and the collision which resulted in his death occurred as he attempted to drive over the said railroad at this crossing. It appears from the testimony that the highway on which the plaintiff's intestate was traveling is not over 30 yards from the railroad track and runs almost parallel with the railroad track, from a point near the depot to a point near the crossing where the accident occurred, at which point the highway makes a slight curve to a point within a few feet of the intersection of the railroad track with the highway. The plaintiff's intestate drove off in the truck from a point near the depot down the highway a short time before the train approached from his rear. The train did not stop at the depot, or at any point in the town, but proceeded in the same direction the plaintiff's intestate was going, and when he (plaintiff's intestate) turned in the direction of the railroad track, and drove upon the railroad track for the purpose of crossing the same, the train struck him, causing serious injuries, resulting in his death a short time afterwards.
From the record in the case it appears that the appellants concede that the plaintiff's intestate was injured in a collision with the train of the defendant Southern Railway Company at the crossing in question, and that he died from the injuries thus received, but they contend that there was no testimony adduced at the trial which shows or tends to show any negligence or gross...
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