Still v. Hampton and Branchville R. R., 19421
| Decision Date | 22 May 1972 |
| Docket Number | No. 19421,19421 |
| Parties | Emmett C. STILL, Appellant, v. HAMPTON AND BRANCHVILLE RAILROAD and the South Carolina State HighwayDepartment, Respondents. |
| Court | South Carolina Supreme Court |
I. A. Smoak, Jr., Walterboro, and Henry Hammer, Columbia, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. J. C. Coleman and C. Tolbert Goolsby, Jr., Columbia, Isadore Bogoslow, J. P. Harrelson and Gerald Smoak, Walterboro, and Randolph Murdaugh, of Murdaugh, Eltzroth & Peters, Hampton, for respondents.
Plaintiff sustained personal injuries and property damage on August 26, 1964, in a collision of his automobile with the thirty-second car of a forty-car train crossing South Carolina Highway No. 64 in Colleton County. Two days later, he commenced this action against the railroad company and the South Carolina Highway Department, alleging that the crossing was unusually dangerous, and that his injuries were proximately caused, without negligence on his part, by the negligent and reckless failure of the defendants to adequately mark and protect it. Upon trial of the case in December, 1970, the trial judge concluded that the evidence was insufficient to establish that either defendant was guilty of causal negligence, and that the only reasonable inference therefrom was that plaintiff's injuries were caused by his own negligence in the operation of his automobile. Accordingly, he granted defendants' motion for a directed verdict, from which plaintiff has appealed. A somewhat detailed statement of the facts is required.
On the morning of August 26, 1964, plaintiff accompanied by his wife, his niece, Mrs. Robert Guest, and Mrs. Guest's young daughter drove from Belton to Walterboro where they attended an evening wedding and reception. At about 9:00 P.M. plaintiff and his party left Walterboro driving north on South Carolina Highway No. 64 toward Barnwell, which was the same route they had traveled earlier in the day.
The track of the defendant railroad company crosses the highway, at about a 45 angle, between Bell Crossroads on the south, where plaintiff made a short stop, and nearby Lodge on the north. The terrain in this vicinity is moderately rolling. The asphalt highway is of standard width with grass shoulders on each side. The highway is straight on both approaches to the crossing, which can be seen in the day-time from a crest one-half mile to the south. There is a lower crest at about fifteen hundred feet from the track; thence, the highway is moderately downgrade some fourteen hundred feet to a culvert, variously estimated at sixty to one hundred feet south of the crossing. A slight upgrade commences at or near the culvert. According to the only testimony on the point, the elevation at the track is not more than six inches higher than that at the culvert. Again, according to the only testimony on the point, the incline of the highway for several hundred feet north of the crossing is at the rate of about one foot per hundred feet, or a modest one percent grade. The upgrade continues for an unspecified distance through a curve to another crest. The area to the right of this curve is wooded, and the trees form a background against which a train occupying the crossing is seen by a traveler approaching within five hundred feet from the south. There was much testimony about other trees and vegetation in the vicinity of the crossing, but none encroached on the shoulders or highway; hence, none bore significantly upon the opportunity of a motorist to see a train occupying the crossing.
The night was moonless and the weather fair. Plaintiff was driving between fifty and fifty-five miles per hour. He testified that his lights were on high beam and that he had good visibility for four hundred feet ahead as he proceeded along the highway. He was unaware of the crossing, and was no signs indicating its presence. He testified that the first warning he had of danger was when he saw the dark cars across the highway eighty or ninety feet in front of him. He jerked his car to the right and applied his brakes, leaving skid marks which commenced thirty-two feet from the track. At that moment he saw a railroad sign for the first time. When asked why he could not see the train at a greater distance, he testified that '(i)t just wasn't visible to me.' He also testified 'at the incline is the time as the car raised up--that was when I saw the train.'
The testimony of Mrs. Guest and of Mrs. Still was of the same tenor. Both testified that they were watching the highway but neither saw any sign indicating the presence of a railway crossing. The appearance of the dark cars across the highway in close proximity to the automobile--eighty to ninety feet according to Mrs. Still, the length of the courtroom according to Mrs. Guest--was the first notice to them of the presence of the track. Mrs. Still testified that it was dark and she could barely see the cars; that the train was not visible to her from a greater distance than eighty to ninety feet.
All of the occupants of the car were injured in the collision and were taken by ambulance to a hospital in Walterboro. Robert Guest was advised of the whereabouts and condition of his wife and daughter. Destined to become plaintiff's star witness, he stopped at the crossing on his way to Walterboro that night, as he put it, 'to see what I could see--how it happened any evidence around.' He noticed, according to his testimony, that the standard highway advance warning sign was too close to the track, and ascertained by counting steps that it was only fifty feet. (The South Carolina Highway Department Manual requires three hundred to five hundred feet.) He testified positively that the sign was north of the culvert, which it had to be if within fifty feet of the crossing; further that the sign was faded, rusty and had lost most of its light reflective quality. The witness also observed and described the railroad crossbuck signs, as to which there is no material conflict in the testimony.
This witness testified that he revisited the scene on the morning of August 28, and was astonished to see that the highway advance warning sign had been replaced by a freshly painted one at an appropriate distance from the crossing. He elaborated that he found fresh paint drippings on the ground under the new sign, and he found the hole, freshly filled with loose sand, near the track from which the old one had been removed.
By coincidence, the wedding photographer learned of the accident shortly after it occurred and went to the scene. He found plaintiff's demolished automobile there and took a picture of it. He also took a picture of the crossing from a point about three hundred feet south of it. The markers on the shoulder of the road at the culvert and the crossbuck signs at the crossing are conspicuous in this photograph. The absence of a highway warning sign within the range of the camera is equally conspicuous. That the picture was taken before the witness Guest made the observations about which he testified is made clear by his testimony that the wrecked automobile had been removed before he arrived.
There is no suggestion that the photograph, which jibes with all of the other testimony as to the location of the warning sign on the night of the accident, is counterfeit. Indeed, plaintiff makes no serious attempt to explain the damning disparity between Guest's testimony as to the location of the sign and the photograph; instead, he attempts to sweep it under the rug with the assertion that the photograph 'lends support to the plaintiff's testimony that the advance warning sign was invisible.'
During the ensuing week, while his wife and daughter remained in the Walterboro hospital, this witness revisited the scene several times at night. He testified that he made tests to determine the point at which a northbound motorist could first see a train occupying the crossing. He stated that he had no opportunity on these occasions to observe a train but, based upon his view of the crossbuck sign, he concluded that a train on the crossing would not be revealed by automobile lights until the vehicle was within ninety to one hundred feet of the track. He essayed the following explanation of this phenomenon.
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