62 S.E.2d 478 | S.C. | 1950
This is an action under Lord Campbell’s Act, Sections 411 and 412 of the 1942 Code, to recover damages for .the alleged wrongful death of George Lee Conyers, who died instantly as a result of injuries received in a collision between an automobile driven by him and a freight train of the Atlantic Coast Line Railroad Company, which occurred about 9 :20 P.M., on Saturday, March 19, 1949, at a crossing within the corporate limits of the town of Pinewood, where the main line and a side track of the Railroad Company are intersected by State Highway No. 261. The case was tried in January, 1950, and resulted in a verdict for the plaintiff against the Railroad Company, the engineer, and the conductor in charge of the train, all of whom were joined as parties defendant, in the sum of $3,250.00. From the
Respondent’s intestate, a Negro boy seventeen years of age, resided with his father and mother about eight miles from Pinewood. Although the deceased had made occasional trips to Pinewood, it may be reasonably inferred from the evidence that he was not very familiar with this crossing. On the night in question he was driving his father’s car. There were two Negroes sitting beside him and two- on the back seat. It is not contended that any of them were under the influence of intoxicants.
State Plighway No. 261, a heavily traveled thoroughfare, is paved and runs approximately eas*- and west. That portion within the corporate limits of the town of Pinewood is known as Main Street and intersects the main line and side track of the railroad company at approximately right angles. The side track is about eight or ten feet east of the main track. For a considerable distance in the town of Pinewood, State Highway No. 120 runs parallel to the railroad track and adjoins the right of way. It is intersected at right angles by Highway No. 261 at a distance of 65 or 70 feet from the main line track of the railroad company. The railroad track is elevated about two or three feet above these highways, making a slight upgrade in approaching the crossing in controversy along State Highway No. 261.
Respondent’s intestate was traveling on State Highway No. 261 and approached the crossing from the west. In doing so, he first crossed Highway 120 and then proceeded approximately 65 or 70 feet to the crossing where he collided with a train traveling on the main line track in a southerly
It is undisputed that the deceased was driving between ten and fifteen miles an hour as he approached this crossing. Respondent’s witnesses testified that the train, which consisted of sixty cars, approached the crossing at a speed of approximately sixty miles an hour. Several of appellants’ witnesses estimated the speed of the train at 45 to 50 miles an hour. The engineer- and fireman testified that as the train approached the crossing, the speedometer showed that it was traveling between 34 and 35 miles an hour .The maximum speed permitted by an ordinance of the town of Pinewood was 35 miles an hour. Thirty-six cars passed over the crossing before the train stopped. According to respondent’s testimony, the engine struck the left front side of the automobile and “knocked it around”, while the engineer said that the automobile ran into the side of the engine.
We now turn to the only questions raised by appellants. Was the death of deceased brought about by his own negligent or reckless conduct? If not, was he guilty of contributory negligence, gross negligence and wilfulness as a matter of law? It must be conceded that he was not driving at an excessive rate of speed, so that we need only inquire whether he was guilty of negligence and recklessness as a matter of law in failing to properly look and listen for approaching trains. Although there were four other occupants of the car, all of whom survived the accident, only the two who sat on the back seat testified. Both said that in approaching the
While the jury would have been fully warranted in finding that the deceased was guilty of contributory negligence, we are not inclined to think that this is the only reasonable inference to be drawn from the testimony. In any event, we cannot say as a matter of law that the deceased was guilty of gross contributory negligence or recklessness.
Viewing the evidence in the light most favorable to respondent, as we must iii determining whether the Court below erred in refusing appellants’ motion for a directed verdict, the situation is this: The deceased was approaching on a dark night an obstructed railroad crossing with which he was not very familiar. He first had to cross a state highway which intersected the highway on which he was traveling a short distance from the railroad crossing. His view of a train approaching from the left was very limited. It was his duty to look not only to the left but also to the right for approaching trains. His view to the right was also obstructed by a truck and several automobiles parked between State Highway No. 120 and the railroad tracks. It was also his duty to watch for automobiles along the highway. He looked both to the right and to the left as
It is true that ordinarily the beam of the headlight might have been sufficient to warn him that a train was approaching but the crossing in question was in the center of the town near stores, filling stations and other business establishments, some of which had their lights burning. There were also street lights burning in this area. All of these lights, along with those from any approaching cars, might have been confusing. The light from the engine might have been confused with that of an automobile traveling along State Highway No. 120' which is parallel to the railroad track. In fact, such possibility was conceded by one of appellants’ witnesses who testified as follows :
“Q. Was it (light from the train) an exceeding bright light? A. No, no more than usual, looked about like all train lights to me.
“Q. Did it look sort of like a car light? A. I wouldn’t say it looked like a car light.
“Q. Well, could it be confused with a car light? A. I imagine it could be if the traffic was very heavy.”
We shall not undertake to separately evaluate each of the circumstances which we have mentioned. It is sufficient to say that all of them, when considered together, do not show contributory gross negligence and recklessness as a matter of law. As stated by the Court in Cook v. Atlantic Coast Line Railway Co., 196 S. C. 230, 13 S. E. (2d) 1, 4, 133 A. L. R. 1144: “It is rare that negligence or contributory negligence is dependent on a single fact. On the contrary,
The law governing the relative duties of a traveler and those in charge of a train in approaching a railroad crossing is well settled. The difficulty is in applying these well established principles to the facts of a particular case. Without undertaking to review the numerous decisions of this Court bearing on the question under consideration, none of which perhaps can be said to be precisely in point, we think the following cases tend to sustain the conclusion herein reached: Jennings v. Northwestern Railroad Co. of S. C., 138 S. C. 385, 136 S. E. 639; Brogdon v. Northwestern Railroad Co. of S. C., 141 S. C. 238, 139 S. E. 459; Cook v. Atlantic Coast Line Railway Co. et al., supra; Harrison v. Atlantic Coast Line Railway Co., 196 S. C. 259, 13 S. E. (2d) 137; Langston v. Atlantic Coast Line Railway Co., 197 S. C. 469, 15 S. E. (2d) 758; Norwood v. Atlantic Coast Line Railway Co., 203 S. C. 456, 27 S. E. (2d) 803; Gleaton v. Southern Railway Co., 208 S. C. 507, 38 S. E. (2d) 710.
Judgment affirmed.