Wideman v. Hines

• Decision Date: 10 October 1921
• Docket Number: 10741.
• Parties: WIDEMAN v. HINES, DIRECTOR GENERAL OF RAILROADS.
• Court: South Carolina Supreme Court

109 S.E. 123

117 S.C. 516

WIDEMAN v. HINES, DIRECTOR GENERAL OF RAILROADS.

No. 10741.

Supreme Court of South Carolina

October 10, 1921

Appeal from Common Pleas Circuit Court of Greenwood County; Thomas S. Sease, Judge.

Action by Jane Wideman, as administratrix, etc., against Walker D Hines, Director General of Railroads. Judgment for plaintiff and defendant appeals. Affirmed.

Cothran J., dissenting.

Grier Park & Nicholson, of Greenwood, for appellant.

Tillman & Mays, of Greenwood, and O. L. Long, of Laurens, for respondent.

WATTS, J.

This is an appeal from judgment rendered and entered for $5,000. Plaintiff's intestate was killed at a crossing collision with one of the trains of C. & W. C. Railway Company, operated by the defendant. The verdict of the jury was for actual damages. The exceptions, five in number, can be considered under the following heads:

Was it error on the part of his honor in refusing to direct a verdict as moved for by the defendant?

In making the motion defendant relied, in a large measure, on the case of Cable Piano Co. v. Southern Ry. Co., 94 S.C. 144, 77 S.E. 868. The facts of this case are very different from the facts of that case. In that case no other inference could be drawn than that it was the failure of the driver to look. This was the sole cause of the injury. In this case there was conflict of evidence, and that presents an entirely different situation. There is plenty of evidence that the driver of the car looked, and his view was cut off by the way the public road ran, and the way the railroad ran, and that his view was obstructed by a ridge and the contour of the land and weeds and bushes. There was evidence that the railroad did not give the statutory signals; this was negligence per se. There was evidence to be submitted to the jury for their proper determination as to who was negligent.

The plaintiffs by evidence showed defendant was negligent; the defendant introduced evidence showing plaintiff's intestate was. This court nor the circuit court is called upon to decide such issues when there is a conflict of evidence, and more than one inference can be drawn. The jury is the one to decide such issues. Cable Piano Co. v. Railway, was decided upon the particular facts of that case; so was Callison v. Railway, 106 S.C. 123, 90 S.E. 260; and every other case will be so decided. His honor committed no error in refusing to direct a verdict.

Did his honor restrict the defense to a want of slight care in his charge, and did he commit an error in his charge with reference to statutory signals, as complained of in exceptions 2 and 3? The charge taken as a whole could not have prejudiced the defendant as complained of. He read to the jury the statute (Civ. Code, §§ 3222, 3230) in reference to crossing. This was a compliance of law as decided in Mercer v. Railway, 44 S.E. 750. His charge was full and clear, and did not deprive the defendant of the defense relied on, and he did not invade the province of the jury by a charge on fact or intimation that was prejudicial as to the force or effect of the evidence. He fully charged the law, and left to the jury to find the facts, uninfluenced in any way as to what he thought. The attention of the court below was not called to the questions relied on in exceptions 4 and 5. The points were not made in circuit court, and cannot be considered by us, but we will say in passing there was no merit in them.

All exceptions are overruled, and judgment affirmed.

GARY, C.J., and FRASER, J., concur.

COTHRAN J. (dissenting).

The intestate John Wideman, was killed at a railroad crossing by a collision between the automobile in which he was riding and an engine "running light" (that is, without a train) on December 18, 1919. The case was tried before Judge Sease and a jury April term, 1920, and resulted in a verdict of $5,000 in favor of the plaintiff.

At the close of all of the testimony the defendant made a motion for a directed verdict in his favor, upon two grounds: (1) That there is no testimony tending to establish the allegations of negligence as the proximate cause of intestate's injury and death, and no testimony tending to establish willfulness and wantonness; (2) that the testimony shows conclusively that intestate's injury and death was due to and caused by his own contributory negligence and his gross and willful negligence under the statute, as the direct and proximate cause of his injury and death, and without which the same would not have happened.

It will therefore be necessary to make a statement of the facts and circumstances attending the collision:

The railroad, at the locus in question, runs approximately east and west, between the two stations of Bradley and Troy; between these two stations is a crossing of the railroad and the highway which runs from Abbeville to Edgefield; about 200 yards south of the crossing is what has been known for many years as "Chiles' crossroads," a crossing of the highway above referred to, and the highway between Bradley and Troy; the highway last referred to runs from Bradley towards Troy, in a measure parallel with the railroad and on the south side of it; the intestate lived on the north side of the railroad, and, returning to his home from Bradley, along this highway, he was compelled to cross the railroad at the crossing referred to; he was riding in an automobile owned by him and driven by his son; the driver was on the left front seat, and the intestate on the right, with another colored man sitting in his lap; three other colored men were on the back seat; the party left Bradley in the afternoon bound for home; the living occupants of the car testified that they were traveling at the rate of from 10 to 15 miles an hour, until just before reaching the crossing when they speeded up to make the incline which led up to the crossing; at Chiles' crossroad they turned to the right, making for the crossing; about 200 feet from the crossing is the mouth of a cut, extending some 500 feet back towards Bradley, the deepest part of it being some 10 or 12 feet deep; along the top of the banks of the cut were some weeds and small bushes, and in the field on the right as they turned into the Abbeville road; cotton and corn were planted, both naturally having been harvested at that time of the year; upon the question whether or not the engine could have been seen after they turned into the Abbeville road, Lewis Whitlock, one of the occupants of the car, stated that it could not have been seen; John Wideman, the driver, made no statement as to this; Daniel Wideman, another of the occupants, stated:

"Looking to the right of the crossroad you can see the top of an engine through the cut, and when it comes out of the cut you can see it all right before it gets to the crossing."

The witness, Lewis Whitlock stated that he was looking to the front, "looking straight ahead"; his statement, therefore, that the engine could not be seen coming through the cut goes for nothing; the witness for the defendant testified that the cut was not more than 10 feet deep at any point, and that the top part of an engine could easily have been seen at any point from the crossroads to the railroad crossing. In view of the testimony both for the plaintiff and for the defendant, I think that it is abundantly established that the engine could have been seen coming through the cut at any point along the road from the crossroads. It further appeared that the distance from the crossing to the mouth of the cut was 200 feet, and that at a point 30 feet from the crossing the engine could have been seen on the track 500 feet in the direction of Bradley; the driver of the car made no stop or slacking of speed between the crossroads and the crossing, but in fact speeded up to make the incline. The fact that a witness states that he looked and did not see the engine goes for nothing if the situation is such that if he had looked he would have seen.

"Nor will be be permitted to say that he did not see what he must have seen, had be looked, or that he did not hear what he must have heard, had he listened." Hines v. Smith (C. C. A.) 270 F. 132.

I think that the case comes squarely within the Cable Case and is ruled by it. The only difference between the two cases that I can see is that in the Cable Case it was conceded that, approaching the crossing, a train could have been seen for three-quarters of a mile; while here, notwithstanding the testimony of the plaintiff's witnesses, it is contended that the engine could not have been seen, a fact that has absolutely no testimony to support it.

But assume that the engine could not have been seen at all points along the road between the crossroads and the crossing, as it came through the cut; it is well-established law that, the more dangerous a crossing may be, the greater vigilance is required of both the traveler and the railroad company; if the traveler cannot see, the demand is imperative upon him that he listen for an approaching train, and, if listening will not avail him on account of the noise of his own vehicle, it is his duty to stop. The railroad track itself is a warning of danger; he cannot go heedlessly upon it, with increased speed, without exercising the senses which Providence has given him. The most available sense that can be exercised is vision. The Cable Case holds that, if by looking he could see the approaching train, and he did not look, he is guilty of gross contributory negligence. If that sense of vision should be rendered useless by obstructions, does that fact relieve him of the necessity of using such other senses as may avail? Does it give him a license to rush into a place of known danger without the use of other means available to him of...