Miller, Administrator v. A.C.L.R. Co. , 140 S.C. 123 ( 1926 )

In addition to the order indorsed on the back of the original petition in this case, I wish to add a few points to the opinion of the Court filed by Mr. Justice Watts.

The first point I wish to make is in reference to the criticism of the Circuit Judge in adding the words "unnecessary or" to the request to charge of the defendants. I think the addition of these words not reversible error. Webster defines these words as follows:

"Unnecessary: Not required under the circumstances; useless; needless."

"Unreasonable: Irrational; immoderate; exorbitant."

I think the jury ought to have understood and did understand the Circuit Judge in the sense above given by Webster, and not in the sense that the law imposed on the defendants the burden of showing an absolute necessity. It is further my judgment that his Honor put the matter in a way that cut rather in favor of the defendants, when he made the request to read that the "obstruction is unnecessary or for an unreasonable length of time considered with reference to existing circumstances."

"A delay may be ``necessary,' and yet ``unreasonable,' if it is made necessary by the negligence of the party chargeable therewith, and such delay is in legal contemplation ``unreasonable,' however imperatively necessary it may have been. In an action for delay in the shipment of cattle, an instruction holding the carrier liable only in case the delay was both unreasonable and unnecessary was erroneous, since it would be liable if the delay was unreasonable, though rendered necessary by its negligence." Rogers v. Texas PacificRailroad Co. (Tex.Civ.App.), 94 S.W. 158, 162.

So it appears that this addition, as stated above, was in favor of the defendant; as the Texas Court shows that, if the delay was necessary, no matter from what cause the necessity arose, yet the defendants would be well within their rights under the charge of Judge Townsend, even though the said delay at the same time was unreasonable. Furthermore, the charge of the Judge below is sustained by the following authority:

"But a railroad is liable for injuries caused by reason of such obstruction, when it amounts to negligence, as where it allows its train or cars to remain on the crossing unnecessarily, or for an unreasonable length of time, by reason of which injuries are received by one who attempts, with due care, to cross or go around the obstruction." 22 Ruling Case Law, p. 994.

The next matter we shall take up is the question as to whether or not the Circuit Judge erred in refusing a request to charge by defendant, which, among other things, contained this expression, "That these defendants could not reasonably have anticipated the collision would result from such obstruction," and in substituting the words, "Some injury to travelers on the highway." It does seem that the action of Judge Townsend carries its own justification on its face. To allow a party guilty of negligence or willfulness which injures some one else as a proximate cause to escape, unless a person of ordinary prudence and foresight could have foreseen the particular injury inflicted, would be tantamount to saying that the guilty party could not be held liable; for in most cases it is impossible to foresee the thing that actually happens, no matter how culpable the guilty party may be. The Judge's charge was in strict accord with the decided weight of authority on this subject.

"In order, however, that a party may be liable for negligence, it is not necessary that he should have contemplated, or even been able to anticipate, the particular consequences which ensued or the precise injuries sustained by the plaintiff. It is sufficient, if by the exercise of ordinary care, the defendant might have foreseen that some injury would result from his act of omission, or that consequences of a greatly injurious nature might have been expected. It is likewise unnecessary to the constitution of negligence that the defendant should have been able to anticipate the form of the injuries sustained or the particular manner of their occurrence." 21 American English Encyclopedia of Law (2d Ed.), p. 487.

This is the universally accepted doctrine, and is the law of South Carolina, and the Judge below properly left the matter of proximate cause to the jury under the facts of this case.

The next point is: That his Honor did not charge that:

While "violation of the statute, although declared negligence per se, must be shown to have been the proximate cause of the injury, and the burden of showing this devolves upon the plaintiff throughout."

It is clear to me that the Judge did not err as charged, but that he clearly left the matter of a proximate cause to the jury, and plainly stated to the jury that the plaintiff must prove by the greater weight of the evidence that the violation of the statute was a proximate cause of the injury. See folios 929, 931, 937, 938, 945, 953, 983, and other statements to the same effect. (The reporter will preserve in reporting the charge the marginal figures, so that these excerpts may not have to be set out twice.)

His Honor's charge is also borne out by the following and other excerpts from Lawson v. Railway Co., 91 S.C. 201;74 S.E., 473:

"Where 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 negligence per se, contributed to the injury."

So we see no basis in the charge itself for the objection thus urged to it. Under the facts in this case, all this was properly left to the jury.

The point is further made that the majority, through the opinion of Mr. Justice Watts, did not consider the fifth exception. It has never been deemed essential to name every exception by number in writing an opinion. Such an ironclad rule would destroy the beautiful symmetry of many of our great decisions. It is only necessary to consider and decide the questions really determinative of the appeal.

Now, Justice Watts wrote a full and adequate opinion in this case, and one that fairly covered all questions arising on this appeal. It has formerly been deemed adequate for the opinion to show in any decisive way clearly how the case was decided, and the reasons therefor. This may be done by reference to other decided cases, to an extract from a text-book, to a decree, or charge, or sometimes merely overruling the exceptions. To lay down any "hard and fast" formula would be to stifle the infinite variety that we find, even among the best decisions of the Courts, and would be a bane to originality in the building of judicial opinions. All this must depend upon the case, the nature and training of the judge, and many other factors too numerous to mention. If the Court makes it clear what disposition has been made of the case, and the reasons for its action, nothing more is essential. Sometimes a short opinion, that hits the mark, will be better than one of more extended length. However, this is largely a matter of taste, and the old Latin maxim, "De gustibus non est disputandum" ought to suffice. Judge Watts' opinion was and is eminently satisfactory to the majority of the Court, and leaves no doubt whatever as to the disposition the Court had made of the case. And, too, to set all matters at rest, he winds up his opinion in these words: "All exceptions are overruled and judgment affirmed." This includes the fifth as well as all other exceptions.

The point is next made that there is no allegation in the complaint charging wrongdoing to Camp Manufacturing Company, except as made in reference to its engineer, Arthur Pulley, who was exonerated by the verdict of the jury. An inspection of the pleadings will not bear out this contention. The complaint alleges:

"Defendant Camp Manufacturing Company and its engineer, Arthur Pulley, with the consent, acquiescence, and approval of its codefendant, Atlantic Coast Line Railroad Company, had placed and kept a train of cars on a track of Atlantic Coast Line Railroad Company and across the public highway and crossing of said road, obstructing the crossing of said highway and said railroad unnecessarily, and for an unreasonable length of time, and without any safeguards, lights, or warnings to the public of such obstruction. The said obstruction was in violation of the laws of the State and the ordinances of the town of St. Stephens, in which it occurred."

Arthur Pulley and Camp Manufacturing Company are both charged here, and it is hard to see how any one could fail to see this.

The Camp Manufacturing Company in its answer admits that its train was temporarily on a side track, and does not in its answer deny responsibility for the train's being there. In other words, Camp Manufacturing Company admits that the train was there, put there by them "by permission of said Atlantic Coast Line Railroad Company," and does not repudiate the action of the parties who put the train here, but attempts to justify itself on other grounds. Hence it would be unfair for the Camp Manufacturing Company to make its fight all through the case, justifying the fact of blocking the street and claiming that the train's being there was not wrongful, and then, when there was an adverse verdict against it, claim that it was not responsible, but that its agent, Arthur Pulley, was at fault, after a favorableverdict had been rendered in favor of Pulley.

This position would commend itself more to a sense of justice, had it been taken by the Camp Manufacturing Company while the case was being tried; but it comes suspiciously late after Pulley is out of the case. In other words, the Camp Manufacturing Company took the position before the jury that Pulley was not liable and now, on appeal, it attempts to exonerate itself by throwing all the blame on Pulley, when it is too late to hold Pulley.

It is further contended that nothing is alleged in the complaint about there being an insufficiency of help on the Camp Manufacturing Company's train. I think that the absence of sufficient help in the train crew would be admissible under the following allegations of the complaint: "Without any safeguards, lights, or warnings to the public of such obstructions." The following matters were brought out in the testimony: The crossing was blocked completely, and that this was habitual; that it was done by Camp Manufacturing Company by direction of the Atlantic Coast Line Railroad Company's representative on the spot; that the train backed with no rear light or flagman; that the train remained over the crossing and that the two flat cars were calculated to make one traveling the road to think that the crossing was not blocked till one got right up to the track; that there was an insufficiency of help; that the light on the Camp engine was shut off; that the blocking was unnecessary and for an unreasonably long time; that the night was dark, cold, and rainy. There are other facts to go to the jury on the allegations of the complaint, and it is not necessary to rehearse them here. Even if the jury did find no verdict against the engineers of the two trains personally, yet these engineers were agents and servants of the two defendants, respectively, and their acts would still be imputed to the masters, if the jury under the testimony saw fit to do this.

It is suggested that the two defendants against whom verdicts have been found are being deprived of property without due process of law. This expression, so often invoked by litigants in the last desperate struggles to avert an adverse decision, simply means "the law of the land," Bouv., Law Dict. (1914 Ed.), p. 947. The following cases have laid down the law substantially as the rule has been applied in the opinion of Mr. Justice Watts: Littlejohn v.Railway, 49 S.C. 12; 26 S.E., 967. Fletcher v. Railway,57 S.C. 205; 35 S.E., 513. Mack v. Railway, 52 S.C. 323;29 S.E., 905; 40 L.R.A., 679; 68 Am. St. Rep., 913.Nohrden v. Railroad Co., 59 S.C. 87; 37 S.E., 228; 82 Am. St. Rep., 286. Mercer v. Railway, 66 S.C. 246;44 S.E., 750. Burns v. Railway Co., 61 S.C. 404;39 S.E., 567. Hutto v. Railway Co., 61 S.C. 495; 39 S.E., 710.Edwards v. Railway Co., 63 S.C. 271; 41 S.E., 458.Davis v. Railway Co., 63 S.C. 370; 41 S.E., 468. Kirbyv. Railway Co., 63 S.C. 494; 41 S.E., 765. Bishop v. RailwayCo., 63 S.C. 532; 41 S.E., 808. Cooper v. RailwayCo., 65 S.C. 214; 43 S.E., 682. Mercer v. Railway Co.,66 S.C. 246; 44 S.E., 750. Gosa v. Railway Co., 67 S.C. 247;45 S.E., 810. Osteen v. Railway Co., 76 S.C. 368; 57 S.E., 196. Sanders v. Railway Co., 93 S.C. 543;77 S.E., 289.

We refer especially to Folk v. Seaboard Air Line R. Co.,99 S.C. 284; 83 S.E., 452. We have not named any of the recent cases to the same effect, but most of these were decided by men long gone to their reward, and the crossing law was laid down time and again by these men, and it is no new doctrine that we are laying down here. Legislatures and Courts in practically every civilized country have recognized the principles reiterated in the present case. The humblest citizen traveling along the highway is under the protecting arm of the law, and it would be a sad day for any land or country in which the Courts failed to render every man his due.

We are satisfied that the majority opinion is based on both law and justice, and the petition for a rehearing ought to be and is dismissed.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.