Carter v. Southern Railway ( 1913 )

January 8, 1913. The opinion of the Court was delivered by This was an action for punitive and actual damages brought by the plaintiff as administratrix, for the wrongful killing of her husband by the defendants.

The defendant, J.H. Herring, was the engineer operating the train that killed the deceased. The verdict was against the railway company alone, and was for twelve thousand five hundred dollars. This verdict was reduced to nine thousand dollars by an order of Hon. R.C. Watts and accepted by the plaintiff. Judgment was entered for nine thousand dollars and costs. From this judgment the defendant railway appealed on the grounds set out in the exceptions, which will be reported.

It seems that the deceased lived near Blackstock, in Fairfield county, and was going to said town to his business on the morning of the 6th of June, 1910, and walked on the railway track and not on the public highway that adjoined the track. The deceased had been deaf and dumb, but he had learned to talk, but was still deaf. The complaint alleged that the deceased was traveling on the track where the public had been accustomed to walk for more than twenty years and the deceased had the right to walk there. The defendant claimed that the deceased was a trespasser, and, being deaf, was guilty of contributory negligence in walking on a railroad track, especially when he ought to have known that the train that killed him was due, and walked in the same direction as the approaching train with his back to it.

The defendant moved for a nonsuit, for the direction of a verdict, and for a new trial, all of which were refused except the partial relief of a new trial nisi. The exceptions raise four questions:

I. Was there any evidence to go the jury on the question of negligence of the defendants?

II. Did the defendants owe tot he deceased due care?

III. When the complaint alleged the joint negligence of the two defendants, could judgment be given against one?

IV. Was there indisputable evidence of contributory negligence.

I. Was there any evidence to got the jury on the question of negligence of the defendants?

There was evidence that the whistle sounded at the whistle post over a thousand feet away, but that the deceased did not get off the track. That from the point the deceased was in full view of those on the engine and it was a question on the nonsuit as to whether they did see him or not. If they did see him, then the question is answered by Haltiwanger v. Railroad Company, 64 S.C. 23,41 S.E. 810. "An examination of the ``Case' shows that there was some testimony tending to show that the engineer did see the deceased on the track, and as a person walking on the railroad track in front of an approaching train is always ``in a position of apparent danger,' we think there was, at least, some evidence tending to show that the engineer running the train saw that the deceased was in a position of apparent danger; and, therefore, we are of opinion that there was no error in refusing the motion for a nonsuit upon either of the grounds upon which such motion was based."

The testimony for the defendants shows that as a matter of fact both the engineer and fireman saw him. The testimony further shows that for more than a thousand feet the fireman said nothing to the engineer about it until the engineer had reached for the brake and whistle. He said, "Mr. Herring blew the whistle before I said anything. He reached up to the whistle. I said, we are going to hit him. Hold it." The conductor said, "About the time the brakes went down, we struck him."

Thus it seems that there was evidence that no effort was made to stop the train or give the danger signal until it was apparent that the deceased would be struck.

Again, the flagman said, "Well, I heard the engineer sound the danger signal, and about the same time felt the brakes go on in emergency and I looked out of the window right quick on other right-hand side and saw the man fly out to one side."

The answer to this question is, there was evidence of negligence.

II. Did the defendant owe the deceased due care?

It is true his Honor erred in charging that the public could acquire a right to travel the road, but the practical question is, when the agents of the defendant saw the deceased in a position of danger, did they owe him and to humanity due care?

This question is answered by Sanders v. Railway, 90 S.C. 335. "Plaintiff's testimony tended to show that he was struck while walking alongside of defendant's track in a well-beaten path at a place where the general public had been accustomed to walk for many years, without any objection from defendant; that the train which struck him was running backwards, at the rate of from twelve to twenty miles an hour, through a populous section of the city of Charleston at a place where men, women and children were constantly passing and repassing along defendant's right of way and upon and near its tracks; that the train ran upon him from behind, without any signal or warning of its approach being given.

"We think this testimony made out a prima facie case for plaintiff. From it the jury might reasonably have inferred that the use of its right of way by the public was known to and acquiesced in by defendant, and, therefore, that plaintiff was a licensee and entitled to ordinary care on the part of defendant to prevent injury to him; and also, from the frequency of the use by the general public, that defendant should have anticipated the presence of persons on or near its tracks at that place, and should have exercised due care to prevent injury to them. Jones v. Ry., 61 S.C. 556,39 S.E. 758; Matthews v. Ry., 67 S.C. 499, 46 S.E. 335;McKeown v. R. Co., 68 S.C. 483, 47 S.E. 713; Goodwin v. R. Co., 82 S.C. 321, 64 S.E. 242; Bamberg v. R. Co.,72 S.C. 389, 51 S.E. 988; Lamb v. R. Co., 86 S.C. 106,67 S.E. 958."

The testimony here showed that the railroad track to Blackstock had been used for more than twenty years by pedestrians without objection and a great many people used it. But if the deceased had been a trespasser, then in Jones v. Railway, 61 S.C. 559, 39 S.E. 758, it is said: "It is the trespasser's duty to lookout for himself and to give the railway company a clear track by getting out of the way. If, however, the servants of the railroad company should discover a trespasser upon the track, and should then fail to use ordinary care under the circumstances to avoid running him down, this would be evidence from which a jury might infer that the injury was the result not of mere inadvertence, but of a conscious failure to observe due care or of wantonness or wilfulness."

It may be said that wantonness and wilfulness had been eliminated from the case. As a foundation for punitive damages, they were eliminated from the case, but the defendant was still required to make out its affirmative defense of contributory negligence and if the facts subsequently proven showed wilfulness, the plea could not prevail.

III. When the complaint alleged the joint negligence of the two defendants, could judgment be given against one?

This question is answered by several comparatively recent cases, and the answer is that it can. Ruddell v. Ry., 75 S.C. 293-4, 55 S.E. 528. "In the next place, it is insisted the verdict should have been set aside because the fact, that the finding was against the railroad company and not against its agent, who was directly responsible for the digging and proper guarding of the hold, shows that the verdict was due to prejudice or partiality; the evidence of negligence and wantonness being much stronger against him than against the railroad company. There was no error of law in refusing the motion on this ground, because the liability of the railway company and Brinkley, its agents and codefendant, was joint and several. Schumpert v.Railway and Hutchinson, 65 S.C. 332, 43 S.E. 813; Gardner v. Railway Company and Pierson, 65 S.C. 341,43 S.E. 816; Carson v. Railway, Arwood and Miller, 68 S.C. 55,46 S.E. 525."

The testimony was not clear as to what the engineer could see on the left of the center of the track. The jury may have though that the engineer's view was obstructed by the boiler and that the fireman, the agent of the defendant company, who was on the left side of the engine, was at fault in not notifying him of the danger in time.

IV. Was there indisputable evidence of contributory negligence?

The deceased had been warned not to go on the railroad track and his reply "tat an automobile had brushed his cloths and it looked as if there was no place for him to walk on the railroad or public road." There was evidence that when his employer desired to attract the attention of the deceased, he stamped the floor and the deceased feeling the vibrations of the floor, gave attention. The deceased seems to have depended on the telephone message of a coming train transmitted along the railroad irons and perceived through his feet.

The deceased had considered the matter and seemed to have considered the railroad the safer place. He had considered the matter and it was for the jury to say whether his conclusion was negligently formed or was simply an error of judgment.

The judgment of this Court is that the judgment appealed from be affirmed.

MR. CHIEF JUSTICE GARY and MR. E.M. RUCKER, ACTING ASSOCIATE JUSTICE, concur.

MR. JUSTICE WATTS, disqualified.