126 S.E. 449 | S.C. | 1924
Lead Opinion
October 28, 1924. The opinion of the Court was delivered by "This action was commenced July 13, 1921, for the recovery of $2,999 damages for the destruction of a Ford roadster automobile by collision with a train of defendant at Seven Mile Crossing, Charleston, S.C. September 11, 1920. The case was brought to trial October 17, 1922, and, the jury failing to agree, a mistrial was ordered. The case again came on for trial April 12, 1923, before his Honor, *217 Judge Rice, and a jury, when a verdict for the full amount claimed, $2,999, was rendered for plaintiff ($500 actual, and $2,499 punitive, damages). A motion for a directed verdict made by defendant was refused. A motion for a new trial was duly made and on July 20, 1923, Judge Rice made an order setting aside the verdict and granting a new trial, unless the plaintiff within 10 days consent to remit all of the verdict as to punitive damages, except $1,200. Plaintiff duly remitted and consented to a verdict of $1,700, ($500 actual damages and $1,200 punitive damages), in conformity with said order. Judgment upon said verdict was duly entered, and this appeal is from said judgment and the order for new trial nisi. The exceptions for appeal are to the refusal of the motion for directed verdict, the Judge's charge, and refusal to charge, modifications of requests to charge, and to the order for new trial nisi."
The exceptions are nine in number. As to the exceptions complaining of error in not directing a verdict as asked for by the appellant we see no error on the part of his Honor in refusing, under the decisions of this Court in the cases of Callison v. Railway,
As to the exceptions which complain of error as to his Honor's charge and his refusal to charge certain requests and his modifications of requests to charge, we see no error on the part of his Honor as complained of by the exceptions.
His Honor gave a full, complete, and fair charge, covering the duties of a traveler upon approaching a railroad crossing. The charge as a whole was fair and impartial, *218 and covered the whole law of the case as applicable to the pleadings and the evidence in the case, and was nowhere prejudicial to the appellant.
His Honor fully and fairly instructed the jury as to the law of the case, and left the facts to them, and they found a verdict against the defendant for $2,999. Upon a motion for a new trial his Honor granted an order nisi, cutting the verdict down to $1,700.00.
A motion for a new trial rests in the sound discretion of the Judge. We see no error as complained of in the exceptions. All exceptions are overruled and judgment affirmed.
MR. CHIEF JUSTICE GARY and MR. JUSTICE FRASER concur.
Dissenting Opinion
Unless the immunity accorded to a railroad company, in crossing cases, by reason of the gross contributory negligence of the traveler upon the highway, is by judicial decisions to be relegated to the realm of negligible myths, I cannot conceive of a clearer case for its application than the present, taking the account given by the driver of the automobile at its face value.
The local situation was this: Running north from Charleston there are four tracks of the railroad; on the extreme right is the northbound passing track; next (to the left) is the northbound main line; then still further to the left is the southbound main line; and on the extreme left is the southbound passing track. For convenience, I will refer to them as tracks 1, 2, 3, and 4. The driver of the automobile approached a highway crossing some seven miles north of Charleston from the west; the City of Charleston being on his right. He would naturally reach track No. 4 first. He says that he approached the crossing traveling at about 5 miles per hour; that a string of box cars on track No. 3 obstructed his view of the track in the direction of Charleston; that they were located about 20 feet below the crossing, to his right; that he crossed over the first track he *219 came to, track No. 4, and got to the middle of track No. 3 upon which the box cars were standing when he heard the train coming from the direction of Charleston, running on track No. 2. He states the distance between the nearest rails of track No. 2 and track No. 3 to be 8 feet, 4 inches, and the width between the rails of track No. 3 to be more than 4 feet. The Court may take judicial notice of the fact that the standard gauge is 4 feet, 8 1/2 inches; so that at a point in the middle of track No. 3 he was 10 feet, 6 inches from the nearest rail of track No. 2, up to this time, although his view was obstructed in the direction from which the train was approaching, he had made no effort to stop, and, although he could have stopped his car in 5 or 10 feet, he still made no effort to stop after he admits that he heard the train coming. If his view of the train was obstructed, necessarily the view of the engineer and fireman was also obstructed. It is inconceivable to me that the collision could have occurred, according to the driver's own statement, otherwise than by his emerging from behind the string of box cars and heedlessly getting on the track, without the slightest effort on his part to look out for an approaching train.
It is not an unfounded assumption that the last deliberate deliverance of this Court (Chisolm v. R. Co.,
It is not necessary to repeat the principles declared in that case, but an examination of it will demonstrate the flagrant breach of the traveler's duty in the present case, and lead to the conclusion of his gross contributory negligence. *220
A primary inquiry is whether or not there was any evidence tending to show that the statutory signals were not given. There was only one witness for the plaintiff, the driver of the car, and he testified that he did not hear either bell or whistle.
The testimony was received without objection; it was, therefore, evidence in the case. The probative value of the evidence depended upon the circumstances. The mere statement of a witness that he did not hear the ringing of the bell is valueless as evidence, unless it further appears that the witness was able to hear and was in a position and under conditions where he would probably have heard the sound had it been made; this inference is for the jury. The plaintiff's driver testified that he was driving slowly, at a the rate of 5 miles an hour; that his hearing was good. He certainly was where he could have heard the signals if he had been standing on the ground or had stopped his car. Whether the conditions in which he was at the time, in a Ford car, going at 5 miles an hour, were such as to render it improbable that he could have heard the signals if given is a question which this Court could not decide. Callisonv. R. Co.,
The authorities characterize this evidence as "slight", but sufficient to carry the issue to the jury. The rule declared inCallison v. R. Co.,
"True, the facts and circumstances may repel such an inference, but it is for the jury to decide whether they do or not, unless the evidence is susceptible of but one inference."
Now, in view of the utter absence of evidence to sustain any of the other allegations contained in the complaint, of the slender thread which holds this particular act of negligence in the case, and of the overwhelming positive evidence, buttressed by the physical situation that the signals were given, I think that the Circuit Judge would have been thoroughly justified in holding that the evidence was susceptible of but one inference; namely, that, if there was a failure to give the signals, it was not due to recklessness, willfulness, or wantonness.
I think that the Circuit Judge was in error in refusing the defendant's eighth, tenth, and thirteenth requests. (The requests to charge will be reported.)
The eighth request contained a perfectly sound legal proposition, sustained by Bamberg v. R. Co.,
He, in effect, held that in this case it was not necessary for the driver of the automobile to have stopped as well as looked and listened, if the circumstances required it, practically a charge upon the facts.
His refusal of the tenth request was in direct conflict with the decision of this Court in the Chisolm Case, where it is declared that the traveler "must look and listen at a *222 place and in a manner that will make the use of his senses effective."
The thirteenth request was in conformity with the decisions of this Court without exception, particularly in theBain Case,
MR. JUSTICE MARION concurs.