Young v. Charleston & Western Carolina Railway Co. ( 1956 )

Taylor, Justice.

This appeal arises out of an action brought in the Court of Common Pleas for Laurens County by Respondent for the wrongful death of one Bennie Young.

The specifications of negligence set forth in the complaint are as follows:

“8. That the aforesaid wrongful death of plaintiff’s intestate and the resultant damages, were directly and proximately caused by the following acts of negligence, carelessness, recklessness, willfullness and wantonness of the defendant, to wit:

“(a) In failing to equip the freight car leading the train in this instance with proper head light, as required by the statutes of this State.

“(b) In failing to equip said freight car with whistle or bell so that the signals required by the statutes of the State could be given.

“(c) In failing and neglecting to give the signals required by the statutes of the State should be given at public crossings and traveled ways.

“(d) In failing and neglecting to have a flagman upon said freight car to warn the public and particularly the plaintiff’s intestate, of the approach of said train.

“(e) In failing and neglecting to have any communication system from any watchman or flagman who may have been about said freight car and the crew in control of said locomotive to warn them of any dangers or of any helpless persons on the track.

“(f) In failing and neglecting to give the statutory signals or any warnings whatever of the approach of said train by way of a head light, ringing of a bell, blowing of a whistle or otherwise.

“(g) In failing to keep a proper or any kind of lookout for persons helpless upon said track.

“(h) In failing to provide reasonable, capable and competent agents, servants and employees to operate said train át the time and place.

“(i) In failing to stop said train upon striking plaintiff’s intestate thereby aggravating the wounds inflicted about his body.

“(j) In failing to have on said freight car any equipment that would aid or assist a watchman or flagman in detecting plaintiff’s intestate upon the track in time to stop said train before injuring him.”

Appellant set up by way of answer a general denial and contributory negligence, willfullness, wantonness, and recklessness.

The cause was tried before the Honorable Steve C. Griffith and a jury at the May, 1954, Term of Court and resulted in a verdict for Respondent in the sum of $750.00 actual damages.

Appellant made timely motions for a nonsuit, directed verdict, and judgment non obstante veredicto, all of which were overruled; and this appeal presents the questions of whether or not the Court erred, first, in overruling the aforesaid motions, and, second, whether or not it was error to charge the principles applicable to the last clear chance rule.

In the early hours of the morning of June 6, 1953, Appellant’s train of thirteen cars and cab was being backed upgrade and around a curve at the rate of ten to twelve miles per hour in the switching yards at Laurens, South Carolina. The conductor and flagman were riding the rear of the cab when they observed a dark object, across the East rail, which they did not recognize at first as human; but the conductor applied the emergency brakes immediately. The train came to a stop after the cab and four and one-half cars had passed over the legs of Respondent’s intestate. The bell was ringing on the engine and the air whistle, which was operated by the conductor at the rear of the train was being sounded for a crossing immediately adjacent to where the deceased was lying. Both the flagman and conductor had electric lanterns, a burning fusee had been placed at the end of the cab by the flagman, and the tail lights on the cab were burning. The deceased was conscious after the crew reached him; and when asked what happened, replied: “Well, I don’t know, sir. I had a spell, went to sleep or something, I guess * * * I don’t know what happened. * * * We just left town. Harris left me at the end of the trestle and said he was going to a cousin’s house. I don’t know why I’m here.” Respondent’s intestate was admitted to the hospital emergency room at 2:45 A. M. and died at 6:30 A. M. of the same day, Tune 6, 1953.

The conductor, who operated the air whistle from the rear of the cab, was also in position to apply the emergency brakes and testified that he did so as soon as he became aware that there was an object across the tracks. The application of the brakes by the conductor from his position on the rear of the caboose was just as effective as though they had been applied by the engineer from the cab of the engine, and there was no act necessary on the part of the engineer to bring the train to a stop. The stop was described as a “normal stop” and a “good stop.”

Johnny Harris, the person referred to in the statement of deceased prior to his death, testified that he and the deceased drank approximately two quarts of whiskey that night and were on their way to the home of his sister-in-law to obtain more. The sister-in-law lived adjacent to the railroad right of way, and he had left deceased only a few minutes before and was in the house at the time of the occurrence.

The switching yard is located in a thickly populated area, and there is evidence to the effect that there are well-worn paths in the immediate vicinity both parallel to and across the tracks which are used by the public generally from which the jury could have concluded that such use was known to and acquiesced in by the railroad company.

The flagman and conductor who were riding the rear of the caboose testified that they were keeping a proper lookout at all times but the night was dark; that when they were close enough to recognize the object upon the rail as human, the train could not be stopped in time. The flagman stated that they were “almost upon it,” and the conductor estimated the distance from where the deceased lay to the end of the cab as being 240 feet and the distance from the cab when he first saw the object as being 90 feet; therefore, according to this testimony, the train, which was going ten to twelve miles per hour, upgrade and around a curve, continued approximately 330 feet after the emergency brakes were applied before coming to a stop.

“* * * if a .railroad train shall be operated backwards along its track on a dark night, and at a place accustomed to be used by the people for a walkway, with the knowledge of the operators, then the operators must use due care to prevent injuries to the people.” Carter v. Seaboard Air Line Railway Co., 114 S. C. 517, 104 S. E. 186, 188; Browder v. Southern Railway Co., 226 S. C. 26, 83 S. E. (2d) 455.

Appellant contends that there was no evidence of lack of due care on its part: The tail lights on the cab, the fusee, and the two lanterns were all burning; the point where deceased was lying was 'on a curve, and it would have made no difference had the engine with its headlight been in the front of the train, rather than backing, as the light would have shown straight ahead; however, the conductor did admit upon cross-examination that such light would have furnished illumination straight ahead for 800-1,000 feet and was not sure as to what effect it would have had on the position where deceased was lying as there was a slight curve in the tracks.

Respondent’s position throughout was that the ringing of the bell on the engine, fourteen cars and cab away, was of little or no warning to the public at large of a backing train and that while the tail lights, lanterns and fusee on the back of the train might have been sufficient warning to persons who had control of their faculties and were aware of their surroundings, it was of no value whatever to one who was lying helpless upon the tracks; and these lights did not provide sufficient illumination for the train crew to observe far enough ahead of the advancing cab to stop the train in sufficient time to prevent running over Respondent’s intestate who was helpless upon the tracks.

According to the testimony of the conductor and flagman, they were keeping such lookout as was possible and such was a proper lookout, but their testimony also reveals that with the lights used, they were unable to distinguish the object upon the track until they were almost upon it; that although the train was traveling from ten to twelve miles per hour around a curve and on an upgrade, it was not stopped until it had traveled approximately 330 feet; and that the train could not have been stopped in a shorter distance. It, therefore, became a question for the jury as to whether or not the lights used were adequate and by their use Appellant had exercised or failed to exercise ordinary or due care under the circumstances.

There being sufficient evidence regarding one of the specifications of negligence as to require consideration by the jury, the motions for nonsuit, directed verdict, and judgment non obstante veredicto were properly overruled. Miller v. Atlantic Coast Line R. Co., 225 S. C. 217, 81 S. E. (2d) 335.

The next question must also be resolved against Ap-pedant’s contention as ‘Under the doctrine of last clear chance, which prevails in this State, even though the deceased negligently exposed himself to a risk of danger while intoxicated or became intoxicated after a negligent exposure to danger, if he was on the track in a helpless condition and those in charge of the train discovered, or in the exercise of ordinary care should have discovered, him in such perilous situation in time to avoid injuring him by the exercise of ordinary care, the railroad company would be liable. Jones v. Atlantic-Charlotte Air Line Railway Co., supra, 218 S. C. 537, 63 S. E. (2d) 476, 26 A. L. R. (2d) 297, and Miller v. Atlantic Coast Line Railway Co., supra * * *” Annotations, 26 A. L. R. (2d), beginning on page 308; Browder v. Southern Railway Co., supra.

For the foregoing reasons, we are of the opinion that all exceptions should .be dismissed, and it is so ordered.

Affirmed.

Stukes, C. J., and Moss, J., concur. Oxner and Legge, JJ., dissent.