Lee v. Northwestern R. R. , 84 S.C. 125 ( 1909 )

November 3, 1909. The opinion of the Court was delivered by This was an action for damages for injuries sustained by plaintiff by collision with defendant's cars at a highway crossing.

In the first paragraph of the complaint it is alleged that while plaintiff was attempting to cross defendant's track, "without any warning whatsoever the defendant * * * at a rapid and reckless rate of speed, running its cars backwards, ran into and collided with plaintiff," etc. The fourth specification of negligence is alleged in the third paragraph as follows: "In failing to give the statutory signals in approaching said highway, against the statutes so made and provided."

The answer was a general denial and plea of contributory negligence.

The jury found for the plaintiff $3,500. His Honor granted a new trial, unless plaintiff would remit one-half the verdict. This was done, and judgment entered for the balance. In his order granting a new trial, nisi, his Honor stated that his refusal of the motion for a new trial absolute was based "upon the testimony and an inspection of the locus." With regard to defendant's objection to testimony tending to prove a failure to ring the bell or blow the whistle, under the fourth specification of negligence, his Honor stated that "defendant was not prejudiced thereby, for it had full testimony on the issue and against the testimony of plaintiff," and the "case" so shows.

The charge and the exceptions will be reported.

The first exception cannot be sustained, because when it appears that an injury occurred at a crossing, and that the statutory signals were not given, there arises a presumption that the failure to give the signals, which is negligenceper se, contributed to the injury. Strother v.Ry., 47 S.C. 375, 25 S.E., 272. Therefore, if nothing further appeared, the plaintiff would be entitled to a verdict. And to prevent that result the defendant may show that, notwithstanding the failure to give the signals, the plaintiff knew of the approach of the train in time to avoid the collision, for the object of requiring the signals is to give notice of the approach of the train. Edwards v.Ry., 63 S.C. 271, 41 S.E., 458; Bishop v. Ry., 63 S.C. 532,41 S.E., 808; Nohrden v. Ry., 59 S.C. 99,37 S.E., 228. The portion of the charge excepted to contains nothing but a proposition of law. We see nothing in it which justifies the complaint that it was a charge on the facts.

An action for injuries at a highway crossing generally presents a two-fold aspect: 1. As an action at common law; and, 2, as an action under the statute, or, at least, as the principles of the common law, which would otherwise be applicable, may be modified by the provisions of the statute. To get the advantage of the statutory modifications of the principles of the common law applicable to such an action, the plaintiff must prove a failure to give the signals required by the statutes at such crossings; and when the fact whether the signals were given is in dispute, the case must be viewed in its two-fold aspect. Hence, it becomes necessary for the trial Judge to charge the law applicable in either view which the jury may take of the facts, for there are certain principles which are applicable, when the case is viewed wholly in its common law aspect, which are not applicable when the facts bring the case within the provisions of the statutes. In this case his Honor seems to have overlooked this distinction.

Under the principles above announced his Honor erred in modifying the defendant's second request, set out in the second exception (Edwards v. Ry., supra), because the modification limited the scope of the action to one under the statute, and assumed that the statutory signals had not been given, which was a disputed fact.

The third exception cannot be sustained. The defendant's third request was: "The mere fact that the plaintiff may have been injured does not entitle him to a verdict against the road; to enable him to recover he must show, by the greater weight of the evidence, that the railroad was negligent, and that such negligence caused the injury." His Honor struck out the word "caused" and substituted for it the words "contributed to." This charge made the language of the request conform to the language of the statute. It would have been error if his Honor had not already charged the jury the plaintiff's seventh request, to wit: "When the law speaks of an act of negligence as contributing to the injury, it means as a direct and proximate cause thereof, without which the injury would not have occurred." This Court has held that "when the law speaks of an act of negligence as contributing to an injury, it means as a direct and proximate cause thereof."Bowen v. Ry., 58 S.C. 228, 36 S.E., 590; Burns v. Ry.,65 S.C. 234, 43 S.E., 679; Duncan v. Greenville, 73 S.C. 254,53 S.E., 367; Turbyfill v. Ry., 83 S.C. 325.

There was no error in refusing defendant's fourth request. The proposition was too broadly stated. It assumed that the statutory signals were given; for, if they were not, the plaintiff was entitled to recover, unless he was guilty of "gross or wilful negligence." Moreover, the proposition was faulty in failing to add that the want of care on the part of the plaintiff must have contributed to the injury as the proximate cause thereof.

The fifth exception cannot be sustained, because it does not appear in the "case" that the Judge inspected the place of the accident after the trial. For aught that appears in the "case," his inspection may have been made during the trial and along with the jury. He had the right, under the statute, to send the jury to inspect the place, and, of course, the right to go with them. We are bound to assume that the motion for a new trial on the minutes was heard only upon the testimony properly before the Court, unless the contrary is made to appear in the "case." It certainly should have been so heard, and the decision based thereupon. It may be that the trial Judge would have the right, in such a case, to view the locus, in order that he might properly understand and apply the oral testimony descriptive of it; but, in that event, counsel should be notified and allowed to argue the testimony, so understood and applied, before the decision of the motion. 29 Cyc., 1008. His Honor does state that his refusal of the motion was based "upon the testimony and upon the inspection of the locus," but he does not say when, or under what circumstances, that inspection was made.

The second subdivision of the fifth exception cannot be sustained. His Honor did not say, as alleged, that the testimony of the plaintiff was false. He said only that his "confidence in his integrity was sorely shaken by the testimony," and that the testimony of impartial witnesses left no doubt in his mind as to the falsity of plaintiff's testimony, that he was knocked senseless and remained so for some minutes; and that the doctor's testimony did not satisfactorily fix the plaintiff's injuries. But there was testimony that the plaintiff was injured, and as to the extent of his injuries, and, in such cases, this Court cannot review the conclusions of the Circuit Judge.

The next question is whether there was error in refusing the defendant's request, not to submit the case to the jury as one under the statute, on the ground that the allegation of the complaint was insufficient to bring the case under the statute. Such an objection to the complaint should have been taken by a motion to make more definite and certain. The allegation of the complaint is that the plaintiff's injuries were "caused" by the negligence of the defendant, in failing to give the statutory signals in approaching said highway, against the statute so made and provided. The allegation of failure to give signals is an allegation of fact. What the statutory signals are is a question of law, which the defendant is conclusively presumed to know. The contention that the failure to allege that the neglect to give the statutory signals "contributed to" plaintiff's injury cannot be sustained. The defendant contended, under its third exception, that his Honor erred in substituting the words "contributed to" for the word "caused." Now, it contends that plaintiff's attorneys erred in using the word "caused," when they should have used the words "contributed to." These contentions are both inconsistent and untenable.

It will be seen, from a consideration of the whole charge, that the eleventh exception is unfounded. The jury had been instructed several times that it must appear that defendant was negligent, and that its negligence caused plaintiff's injuries, and also as to the character of negligence, on the part of plaintiff, which would defeat recovery.

Judgment reversed.