Vernon v. Atlantic Coast Line R. Co.

• Decision Date: 02 April 1952
• Docket Number: No. 16611,16611
• Citation: 70 S.E.2d 862,221 S.C. 376
• Court: South Carolina Supreme Court
• Parties: VERNON v. ATLANTIC COAST LINE R. CO.

Page 862

70 S.E.2d 862

221 S.C. 376

VERNON v. ATLANTIC COAST LINE R. CO.

No. 16611.

Supreme Court of South Carolina.

April 2, 1952.

W. S. Houck, Florence, Stevenson & Lindsay, Neville Bennett, Bennettsville, for appellant.

Russell D. Miller, Sidney S. Tison, N. W. Edens and William C. Goldberg, all of Bennettsville, for respondent.

STUKES, Justice.

This action is the same in which decision upon a former appeal is reported in 218 S.C. 402, 63 S.E.2d 53, to which reference may be had. It is for damages for injuries to the person and property of plaintiff, medical and hospital expenses, and for the loss to him of the services of his wife. She was riding in the cab of plaintiff's heavily loaded truck and trailer, which he was driving, when in collision with a locomotive of defendant's freight train just within the city limits of Cheraw at about six o'clock in the early morning twilight of January 23, 1946; the engineer on the leader-locomotive of the 'double-header' testified that it was dark. Separate action by the wife for damages for her personal injuries was tried in the Federal court and resulted in verdict and judgment in her favor. Upon trial of the case sub judice the jury returned verdict for the plaintiff of $5,000 actual and $20,000 punitive damages. On defendant's motion the trial court reduced the amount of punitive damages to $13,000 by order nisi, and plaintiff accordingly remitted $7,000 of the verdict for punitive damages.

Timely motions were made by defendant in the court below for nonsuit, directed verdict, judgment notwithstanding the verdict and for new trial, all of which were refused except as above stated. During the progress of the trial there was also a motion by defendant for mistrial because of an improper remark by one of plaintiff's examining counsel, which was likewise denied. Defendant's exception to the latter ruling and some of the other points of the appeal need not be considered because the grounds of them are not apt to occur upon the new trial which will have to be ordered for the reason hereinafter assigned. The questions which arise from the refusal of the trial court to direct verdict generally for the defendant and, separately, in respect to punitive damages, will have to be answered; and for that purpose the evidence will be reviewed, but only to the limited extent which is thought to be necessary for that purpose. Of course, upon a subsequent trial the evidence may not be the same and the conclusions now reached, upon the evidence at the trial under review, may not be applicable to the evidence which will be adduced anew.

At the time of the accident plaintiff was engaged in the business of buying fruits and vegetables where produced and carrying them by motor truck to Winston-Salem, North Carolina, for sale on the market there. His wife companied him on a trip to Florida where they purchased a cargo of citrus fruit and left with it at about 9 or 9:30 o'clock on the morning of January 22nd and proceeded with only brief stops for refreshments until the accident. He had used this route numerous times before so was familiar with it, but did not recall previously traveling over the particular railroad crossing at night. He and his wife alternated at driving on this trip and plaintiff had relieved his wife at the wheel only two or three miles back when he got out and walked around the truck, inspecting the tires.

The highway was the heavily-traveled combined U. S. routes 1 and 52 which plaintiff was traveling northward. He successfully crossed the track of the Seaboard Airline Railroad where there was a crossing signal light and bell which were not operating at the moment because there was no approaching train on that track; however, he saw the sign and slowed to a speed of about fifteen miles per hour, increasing it thereafter to twenty or twenty-five. Less than three hundred feet beyond the Seaboard crossing lies the track of the defendant where the collision occurred. At it was also a warning flasher light which was not operated automatically upon the approach of a train; a signalman in a tower about 275 feet from the crossing in an easterly direction (where defendant's track and that of the Seaboard intersect) had the duty of operating defendant's highway crossing light warning by hand lever in the tower, which threw a switch. (He also operated the signals and apparatus of the railroad intersection.) The railroad track crosses the highway at such an angle that the train came from rather the rear of the motor truck, and from the side opposite that of the driver and was therefore more difficult for him to see. He testified that he looked and listened, particularly at the Seaboard crossing but continued to do so, with both of his cab windows partly open for safety despite the extreme cold, and failed to discover the approach of the train until his truck was about eighteen or twenty feet from the track when the signal light first flashed its warning of danger. He applied his brakes and turned sharply to the left where there was an unpaved road which paralleled the track. However, it was too late and the truck skidded into collision with the engine and was dragged along the track. The truck was so entangled with the locomotive that it was extricated with difficulty by a wrecker. Meanwhile, of course, the train was delayed and the plaintiff and his wife were removed to a hospital in Bennettsville.

The train crew testified in chief for the defense that the statutory crossing signals were given in accord with law. Sec. 8355, Code of 1942. Plaintiff's testimony on direct examination was sufficient to carry the issue to the jury, but he so qualified and weakened it on cross-examination that we think perhaps the issue should have been withdrawn from the jury but for relevant admissions of certain of the railroad employee-witnesses, particularly the signal towerman, the section master, who happened to be in the tower, and the engineer of the second of the two locomotives. (The record indicates that the towerman was a Seaboard employee, but he nevertheless had the duty of operating the defendant's crossing flasher light.) Under cross-examination plaintiff testified that he did not remember hearing the whistle. When asked whether he told another soon after the accident that he heard the whistle and bell, he said, substantially, that he did not know, but if he had to answer the query, he would say no with respect to whistle and bell. However, upon careful consideration of the entire evidence and viewing it most favorably for plaintiff, as the trial court was also bound to do, we are constrained to conclude that it was not error to submit to the jury the question of whether the crossing signals were given in conformity with the statute.

If the jury found the fact that the statutory crossing signals were not given, plaintiff was not barred from recovery by his simple contributory negligence; it must have been gross or wilful. Code sec. 8377. The degree of his negligence, if any, was, we think, under all of the evidence, also an issue for factual determination by the jury. It cannot be fairly said that it bears only one reasonable inference, one way or the other. Failure to give the signals, if found, gave rise to a rebuttable presumption of its proximate cause of the collision, and was evidence of wilfulness an wantonness which would justify an award of punitive damages. Callison v. Charleston & W. C. Ry. Co., 106 S.C. 123, 90 S.E. 260; McBride v. Atlantic Coast Line. R. Co., 140 S.C. 260, 138 S.E. 803; Brogdon v. Northwestern R. Co., 141 S.C. 238, 139 S.E. 459; Ford v. Atlantic Coast Line R. Co., 169 S.C. 41, 168 S.E. 143, affirmed 287 U. S. 502, 53 S.Ct. 249, 77 L.Ed. 457; Jennings v. McCowan, 215 S.C. 404, 55 S.E.2d 522, certiorari denied Atlantic Coast Line R. Co. v. Jennings, 338 U.S. 956, 70 S.Ct. 494, 94 L.Ed. 590.

The recent case last cited, Jennings v. McCowan, was similar to the case in hand in that it was a railroad crossing case in which there was conflicting evidence relating to the giving of the statutory signals and with respect to the warning light. There the issue concerning the light was whether it properly functioned automatically and in time, upon the approach of the train; here it is whether the manual operator of the device failed in the timely performance of his duty. Significantly, we think, he admitted on cross-examination that he had so failed on former occasion or occasions, which indicates wilfulness and wantonness. There was a very large verdict for actual and punitive damages in the Jennings case, which was affirmed on appeal by a majority of the court. Division arose only concerning the amount of the verdict. The members of the court were unanimous that the issues of actual and punitive damages should have been submitted to the jury, as here.

Some of the railroad crossing cases, cited supra, were interesentingly reviewed in Hider v. Gelbach, 4 Cir., 1943, 135 F.2d 693, especially with reference to punitive damages, and they were distinguished from Cubbage v. Roos, 181 S.C. 188, 186 S.E. 794, and Bell v. Atlantic Coast Line R. Co., 202 S.C. 160, 24 S.E.2d 177. The two latter decisions are heavily relied upon by the defendant in the instant case in its brief on appeal. There is no conflict; primarily, those cases simply came within the concluding words of the following quotation from the discussion of the presumption that arises from the violation of statute, which appears in the opinion by Mr. Justice Hydrick in Callison v. Charleston & W. C. Ry. Co., supra, 106 S.C. at page 129, 90 S.E. at page 262:

'The reason upon which the rule is based is that, when anything is commanded or prohibited by legislative authority, every one is conclusively presumed to know it and is bound to act accordingly, and, the matter having been brought to his attention in such a solemn and impressive way, his violation or disobedience cannot be entirely...