Turbyfill v. Atlanta & C. Air Line Ry. Co.

• Decision Date: 10 August 1909
• Parties: TURBYFILL v. ATLANTA & C. AIR LINE RY. CO.
• Court: South Carolina Supreme Court

65 S.E. 278

83 S.C. 325

TURBYFILL v. ATLANTA & C. AIR LINE RY. CO.

Supreme Court of South Carolina

August 10, 1909

Appeal from Common Pleas Circuit Court of Spartanburg County; J. C Klugh, Judge.

Action by I. M. Turbyfill, as administrator of the estate of Belinda R. Hand, deceased, against the Atlanta & Charlotte Air Line Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Sanders & De Pass, for appellant. Wilson & Osborne, for respondent.

GARY A. J.

This is an action for damages, alleged to have been sustained as the result of negligence and recklessness on the part of the defendant in causing the death of plaintiff's intestate while traveling the public highway, where it crosses the railroad track, at Duncans, S.C. One of the specifications of negligence and recklessness was that the death of plaintiff's intestate was caused by collision with defendant's train of cars, through its failure to give the statutory signals when approaching said highway. The jury rendered a verdict in favor of the plaintiff for $5,000, and the defendant appealed.

At the close of the plaintiff's testimony the defendant made a motion for a nonsuit, on the ground that the negligence of the plaintiff's intestate was the proximate cause of the injury, in that she did not stop, look, or listen before attempting to cross the track. The motion was refused, and this is assigned as error. " The failure on the part of the defendant's servants to ring the bell or sound the whistle in the manner provided by statute was negligence per se. When the defendant violates the requirements of the statute as to ringing the bell or sounding the whistle, and a person is injured by its locomotives while crossing a highway or street, or traveled place, it will be presumed that such negligence caused the injury, unless the testimony shows that the injury was caused in some other manner." Strother v. Railway, 47 S.C. 375, 25 S.E. 272. When there is a failure to give the statutory signals, and a person is injured at a place where the railroad track crosses a public highway, street, or traveled place, a nonsuit on the ground of negligence cannot be granted, for the reason that there is a presumption of negligence, on the part of the railroad in causing the injury.

Nonsuit is only proper when it appears from the testimony that the person injured was guilty of gross negligence, which was not the ground upon which the motion in this case was made. Drawdy v. Railway, 78 S.C. 374, 58 S.E. 980. The appellant's attorneys have, however, asked that the case of Strother v. Railway, 47 S.C. 375, 25 S.E. 272, be reviewed, in so far as it decides that if the railroad fails to give the statutory signals, and a person is injured at a railroad crossing, there is a presumption that such negligence caused the injury. In the case of Davis v Railway, 63 S.C. 370, 41 S.E. 468, permission was granted to review the case of Strother v. Railway, 47 S.C. 375, 25 S.E. 272, as to this principle, and, after considering the argument of the appellant's attorneys with great care, this court adhered to the doctrine of that case, which was affirmed in Bishop v. Railway, 63 S.C. 532, 41 S.E. 808, and Drawdy v. Railway, 78 S.C. 374, 58 S.E. 980. The court again adheres to the doctrine announced in Strother v. Railway, 47 S.C. 375, 25 S.E. 272.

These reasons also dispose of the question whether there was error in refusing the motion to direct a verdict at the close of all the...