Edwards v. Atlantic Coast Line R. , 148 S.C. 266 ( 1928 )

I do not agree with the reasoning and conclusions announced in the opinion of Mr. Justice Carter for the reasons which follow.

This is an action against the Atlantic Coast Line Railroad Company for damages on account of personal injuries sustained by the plaintiff, a yard conductor employed by the Seaboard Air Line Railway Company, in a collision between a freight train operated under his control, upon which he was riding, and a switch engine of the defendant Coast Line, operated under the control of the defendant Sanford, yard conductor, at a grade crossing of the two railroads, near Charleston.

Taking the allegations of the complaint in connection with the testimony in the case, the admitted facts are as follows:

A short distance from the City of Charleston, the two railroads cross each other at grade; the Coast Line track runs east and west; the Seaboard track runs north and south. The plaintiff, as yard conductor of the Seaboard, was in charge of a freight train consisting of an engine and 24 cars; the train was being backed in the direction of Charleston, southward; the plaintiff was riding on top of the leading box car as the train was backing; on the side of the track, about 200 feet from the crossing of the two railroad tracks at grade, the Seaboard Company had erected a "Stop Board," calling upon the operators of a train moving in the direction of the crossing to come to a full stop before attempting to make the crossing, as the Statute (Section 4902, Vol. 3, Code 1922) required; as the train approached the "stop board," the plaintiff signaled to the engineer to slowdown, which he did, bringing the speed of the train down to about 4 miles an hour; seeing the crossing clear from that point he gave the engineer a signal to proceed, which he did, at the rate of about 12 miles an hour.

In the meantime a switch engine on the Coast Line intersecting track was moving eastward, towards the crossing; it neither stopped nor gave any signal of its approach; a house on the side of the Coast Line track obscured the view of the operators of each of the trains; when the plaintiff did see the switch engine, it was impossible for the freight train to be stopped (as the plaintiff claimed) in time to avoid the collision; as the switch engine reached the crossing it was stopped on the crossing to change a switch, and the collision occurred; the leading box car of the backing freight train struck the switch engine on the side and overturned it. The plaintiff, who was on top of the leading car of the backing freight train, was thrown violently between it and the next following car and seriously injured.

The complaint alleges substantially the foregoing facts. The answer denied the material allegations of the complaint, set up the defense of contributory negligence on the part of the plaintiff, and pleaded as a satisfaction of any claim which the plaintiff may have had against the Coast Line a release which he had executed to the Seaboard for all damages to which he might have been entitled as against that company; the defendants claimed that the injury was caused by the joint and concurrent acts of negligence of both companies, and that a release of one joint tort-feasor constituted, in law, a release of the other.

The case was tried by his Honor, Judge Bonham, and a jury at the April term, 1926.

At the close of the testimony for the plaintiff, the defendants moved for a nonsuit upon the following grounds, which was refused:

"First: That under the testimony of the plaintiff and all the testimony in the case there is an admission of a violation of the statute which we have pleaded in the answer; the statute provides that before crossing a crossing the train must come to a stop. Now there is a very strong inference that if they had stopped the accident would never have happened, so that was the direct and proximate cause of the injury; there is no use talking about stopping somewhere else and he judged he had the right of way and because there was a house there and he did not think anything was coming; the statute says, Section 4902, ``Whenever any railroad track crosses the track of any other railroad except where interlocking signals and safety devices are in use, it shall be the duty of the engineer or person in control of the train, etc., to come to a full or complete stop before crossing said crossing.'

"Now here is a release discharging the Seaboard Air Line Railway Company by the payment of $600; now they come together on the crossing the one claiming that the other was at fault and vice versa, and if there was any liability it was a joint liability and the question is who is responsible, and the question is whether both were responsible, now here is a release which discharges the Seaboard Air Line; now what is the result of that if it does not protect us; if this verdict is against us we can't claim against the Seaboard Air Line because the plaintiff has released them, where two parties are concerned, so that if one has to pay he has a right of action against the other, that is a joint liability in law."

At the close of all of the testimony the defendants moved for a directed verdict upon the following grounds, which was also refused:

"We move for a directed verdict on the same grounds as argued on the motion for a nonsuit with the additional ground that the testimony of the defendant shows absolutely that the negligence of the plaintiff was the proximate cause of the accident; the S.A.L. train came on the crossing without stopping at the crossing and without giving any signals and it seems that the only reasonable inference is that while we were there for the purpose of changing the switch, their train came right down on us in violation of law."

The case was then submitted to the jury which rendered a verdict in favor of the plaintiff for $50,000.

Upon motion for a new trial the trial Judge granted an order of new trial nisi, requiring the plaintiff to remit $10,000 of the verdict or submit to a new trial; this he did. Judgment was then entered for $40,000 and from it the defendants have appealed.

The grounds of the motion for a new trial and the order of the Circuit Judge thereupon will be reported.

There are three main questions to be considered in the determination of this appeal:

1. Was there error in refusing the motion of the defendants for a nonsuit and their motion for a directed verdict, upon the ground that no other reasonable inference can be drawn from the evidence than that the plaintiff was guilty of such contributory negligence as bars a recovery?

2. Was the order refusing a new trial, out and out, based upon an erroneous construction of the law?

3. Was there error in refusing the motion of the defendants for a nonsuit and their motion for a directed verdict, upon the ground that the release of the Seaboard, one of the joint tort-feasors, by the plaintiff, constituted a release of the Coast Line, the other?

I. The refusal of the motion of the defendants for a nonsuitand the motion for a directed verdict upon the groundof the plaintiff's contributory negligence.

Section 4902 of the Code provides:

"Whenever any railroad crosses the track of any other railroad, except where interlocking and signalling safety devices are in use, it shall be the duty of the engineer, or person in control of the train, besides giving the signals required to be given near all crossings, to bring the train to a full or complete stop before crossing the said track; the same rule to apply to the running of a locomotive by itself without a train."

The clause "besides giving the signals required to be given near all crossings" has not been construed, so far as I am advised. It apparently refers to the signals required to be given before crossing a highway, Section 4903, immediately following Section 4902, both enacted in the same Act of 1882, 17 St. at Large, p. 824.

The first question to be decided is whether or not the evidence admits only of the inference that the plaintiff failed to stop his train before attempting to cross the track of the Coast Line, as required by this Statute.

The plaintiff is estopped from disputing the truth of this allegation of his complaint:

"That, as said train approached, what is known as the ``Etiwan Lead Track,' an industrial spur railroad track leading to the Etiwan Fertilizer Works, and as said train was approaching the point where the tracks of the Seaboard Air Line Railway Company cross said Etiwan Lead Track, hesignaled to the engineer in charge of said train of 24 emptycars to slow down, which said engineer did, bringing thespeed of said train down to about 4 miles an hour; that plaintiff then looked down said Etiwan Lead Track to the west and saw that the road was clear. He then gave the engineer in charge of his train a signal to proceed, which said engineer immediately did. * * *"

The defendant Coast Line relied upon the contributory negligence of the plaintiff in violating the statute by not stopping his train as he alleged in his complaint. It was therefore, under the pleadings, a conceded and agreed fact in the case that he slowed down, but did not stop; he is estopped from denying that fact.

"As a general rule a party is estopped from taking a position which is inconsistent with one previously assumed in the cause of the same action or proceeding. He is bound byallegations or admissions in his own pleadings. * * *" 10 R.C.L., 699.

In La Follett v. Mitchell, 42 Or., 465, 69 P., 916, 95 Am. St. Rep., 780, the defendant, in his answer having alleged the official character of a constable who made a certain seizure, was not permitted upon trial to question the fact admitted in his answer.

In Aultman Taylor Co. v. Gunderson, 6 S.D., 226,60 N.W., 859, 55 Am. St. Rep., 837, it was held that one cannot at the same time assert that a fact exists and prove that it does not exist.

In Wilcoxson v. Burton, 27 Cal., 228, 87 Am. Dec., 66, it was held: "Party is estopped by his answer from showing the averments therein contained to be untrue."

In Knoop v. Kelsey, 102 Mo., 291, 14 S.W. 110, 22 Am. St. Rep., 777, it was held: "A party is estopped by the allegations in his own pleadings." "A party must abide by the statements made in his own pleading." Glanz v. Smith, 177 Ill., 156, 52 N.E., 486; Stone v. Young, 4 Kan., 17; Welbornv. Ritter (Ky.), 16 S.W. 360; Cousins v. Bowling,100 Mo. App., 452, 74 S.W. 168; Wells v. Ragsdale,102 Ga. 53, 29 S.E., 165; Denison N.R. Co. v. Raney-AltonMercantile Co., 3 Ind. T., 104, 53 S.W. 496; Seivers v.Martin (Ky.) 82 S.W. 631; Lane Implement Co. v. Lowder,11 Okla. 61, 65 P., 926; Rogers v. Brown, 15 Okla. 524,86 P., 443; Miller v. Camp, 45 Or., 192, 77 P., 83; Crane v.Franklin, 17 Ariz., 476, 154 P., 1036; Sims v. Farson,220 N Y, 710, 116 N.E., 1075; Holbrook v. Quinlan,84 Vt., 411, 80 A., 339. For other cases see Dec. Dig. Pleading, 36 (1).

"Where a plea both admits and denies the execution of a contract which binds the pleader, * * * the admission and not the denial must prevail," Moultire v. Schofield,6 Ga. App., 464, 65 S.E., 315; Sheppard v. Daniel Miller Co., 11, Ga. App., 514, 75 S.E., 907. "An admission in a pleading is conclusive, and evidence showing the contrary, though admitted without objection, must be disregarded." Pennachiov. Greco, 107 App. Div., 225, 94 N.Y.S., 1061. " * * It is true, as a general rule, that an admission in a pleading is taken as conclusive of the fact admitted. * * *"Talbert v. Hamlin, 86 S.C. 523, 68 S.E., 764. "Any departure in the evidence from the substance constitutes a variance and is fatal, or is frequently the effect, constitutes a failure of proof." 21 R.C.L., 609.

But aside from this estoppel, his testimony, over and over again, is most positive that he slowed down the train to 4 miles an hour, but did not come to a full stop.

In his testimony, mostly in the direct examination (naturally where his case would be most strongly presented), he said:

"I had 24 empty cars backing to the city and I had an air hose on the back and when I came to this crossing when I got to my stop board I brought down my train to about 4 miles an hour; there was nothing in sight and I transferred my signal to the engineer to back up. * * *"

Again:

"Q. How fast were you going when you went on the crossing? A. About 12 miles when I got to the stop board.

"Q. How far was the stop board from the crossing? A. about 4 lengths, I brought my train down to about 4 mileswhen I got there.

"Q. You did not stop? A. No, sir, never came to a deadstop, I blew my back-up whistle for the crossing and proceeded back."

Again:

"When I got to the stop board I had my train down toabout 4 miles an hour, I saw the crossing clear."

Again:

"If I had stopped still it could have happened the same way."

Again:

"I brought the train down to 4 miles at the stop board and the crossing was clear and I proceeded back."

Again:

"You say you brought it down to 4 miles at the stop board and you proceeded on? A. Yes, sir."

Again:

"I saw him when I got to my stop board and brought mytrain down to about 4 miles an hour and saw the crossing was clear."

Again:

"I brought my train down to 4 miles an hour at the stopboard, and I blew for the crossing."

It is true that, at times in his cross-examination, the plaintiff testified that he stopped at the "stop board," but manifestly, as Mr. Justice Carter observes:

"* * * We are rather of the opinion that when the plaintiff spoke of his train stopping, he meant that it slowed down to about 4 miles an hour, that is, practically stopped."

In the vernacular of the calling, as shown by the testimony of the switchman, who was on the car with the plaintiff:

"We came down to a stop of about 4 miles an hour at ourstop board, and blew the back-up whistle and proceeded about a car length from the crossing."

The same switchman, Mall, further testified, as a witness for the plaintiff:

"Q. Did you stop at the crossing? A. No, sir."

Again:

"We could not see that crossing until we got up to it, webrought the train down to 4 miles at the stop board provided by law. * * * When we gave the signal to back up, I would judge around 6 miles an hour. * * *

"Q. So you never did stop the train? A. Not to a deadstop.

"Q. Don't you know the law requires a dead stop? A. I know the rules require it. * * *

"Q. And you did not come to a full stop? A. Not a deadstop, we stopped about 200 feet from there and brought thetrain down to about 4 miles an hour."

It must be assumed that the complaint, "the story of plaintiff's wrongs," which alleges that the plaintiff did not stopfor the crossing as the statute requires, that he only sloweddown to 4 miles an hour, was but the replication of the plaintiff's narrative to his attorneys.

It appears beyond question that, by the plaintiff's own complaint and testimony and the testimony of his witness, the man who was with him when the collision occurred, the Seaboard train was not brought to a "full and complete stop before crossing the said track," as specifically enjoined by the statute. It is absolutely certain that the ordinary signals for a highway crossing were not attempted to be given.

Now, then what is the legal effect of the fact that the plaintiff violated the statute law of the State, thus established beyond even a doubt?

It must be borne in mind that he violated not only the requirement of the statute that he bring his train to a "full and complete stop," but also the requirement that he give "the signals required to be given near all crossings," in addition.

It has been held in many cases that the failure to observe the precautions required by law for the safety of others, whether by statute or municipal ordinance, is as a matter of law negligence, or as commonly termed, negligence per se (which in fact adds nothing to the pronouncement that it constitutes negligence as a matter of law).

It was decided in the case of McBride v. Atlantic CoastLine R. Co., 140 S.C. 260, 138 S.E., 803 (a decision with which I did not agree, but which is now the law of this Court), that the failure of a railroad company to sound the statutory signals for a crossing at which a collision occurred is not only negligence per se, but it raises a presumption that the neglect to give the signals was the proximate cause of the collision; and in numerous cases it has been held that the neglect is sufficient to carry the case to the jury upon the issue of willfulness. Folk v. R. Co., 99 S.C. 284,83 S.E., 452, and others.

It is true that in the McBride case, the Court, while holding that the failure to comply with the signaling statute raises a presumption that such failure was the proximate cause of the collision, held that it "merely establishes a prima facie case, which may be overcome by testimony, whether given for the plaintiff or for the defendant."

I think that a distinction should be drawn between the legal effect of the violation of a safety statute as evidence of negligence and as evidence of that negligence being the proximate cause of the injury. While under the McBridecase it furnishes a legal presumption of having been the proximate cause, it is a rebuttable presumption. On the other hand, it is a mistake to say that the law presumes negligence, makes it negligence per se by presumption, where there appears the violation of a safety statute; the law does not presume it; it declares it to be negligence. There is no possibility of avoiding that conclusion by any kind or amount of evidence; it is a legal principle that continues through the entire trial, unaffected by any evidence that might be produced.

The question of its having been the proximate cause or a proximate, contributing cause is quite another one. The very discussion of the question presupposes the continuance of the principle of negligence per se. The conclusion that it was not the proximate cause, or not a proximate, contributing cause (resolved as the case may be, by the Judge or by the jury does not overthrow the legal principle that the act was negligence per se; it simply relegated the act to the category of innocuous instances of negligence. In the case ofGlenn v. R.C., 21 S.C. 466, it was held that a railroad company that ran an engine at night without a headlight, was guilty of negligence, but as the injured party was aware of the train's approach, notwithstanding the absence of the headlight, there was no proximate connection between the negligence and the injury. The fact that there was no such connectiondid not change the legally fixed character of the act.

In McCown v. Muldrow, 91 S.C. 523, 74 S.E., 386, Ann. Cas. 1914A, 139, the Court said:

"There was testimony tending to show that the defendant was driving his automobile when the injury was sustained at a rate of speed greater than was allowed by the ordinance of the city; and this was evidence per se, and not merelyprima facie, of negligence. In Whaley v. Ostendorff, 90 S.C. 281 (73 S.E., 186), the Court says: ``When evidence * * * is only prima facie, it is subject to rebuttal, but when there is negligence per se, it is conclusive of that question. The fact that there is negligence per se does not, however, tend to show that such negligence is actionable. The question whether negligence is actionable depends upon the further question whether such negligence was the direct and proximate cause of the injury.'"

As said in 3 Elliott R.R. (3d Ed.), § 1648:

"Negligence per se may work no serious injury to any person, not because it is not wrongful in itself, but because no one is in position at a particular time to be injured."

So that in the case at bar we have the conclusion that the plaintiff, in failing to comply with the "stop" statute, was guilty of an act of negligence which continued unchanged and unchangeable throughout the trial, and the prima facie presumption under the McBride case, that it was at least a proximate cause of the collision.

I submit that there is not a particle of evidence in the case that tends even to detract from the force of this presumption. The conclusion is irresistible, therefore, that the plaintiff's neglect was a proximate, contributing cause, and as such should have barred his recovery.

II. The erroneous principle of law announced as the basisof refusing the motion of the defendants for a new trial.

It appears appropriate to discuss certain conclusions announced in the opinion of Mr. Justice Carter, in connection with the order of his Honor Judge Bonham in refusing the motion of the defendants for a new trial, for the reason that they disclose the identical misconception of the law: That the proximate, contributing character of the plaintiff's act is to be determined by the absence of negligence on the part of the defendants; in other words, no matter how reprehensible the plaintiff's act may have been, as regards due care under the circumstances, his act cannot be considered a proximate cause of the collision if it appears that the defendants were guilty of an act of negligence which was a proximate cause.

In the opinion proposed, it is said:

"Assuming, however, that the Seaboard train did not come to a full and complete stop before going upon the crossing, as required by the Section of the Code referred to, and that the plaintiff was therefore guilty of negligence per se, it does not follow that plaintiff's action would be defeated, unless such failure was the proximate cause of the plaintiff's injuries, or contributed thereto as a proximate cause, combining and concurring with the negligence of the defendants."

All of which is entirely correct, and necessarily implies that if "such failure was the proximate cause of the plaintiff's injuries, or contributed thereto as a proximate cause, combining and concurring with the negligence of the defendants," the defendants would be entirely relieved of liability; but the learned Justice, after declaring that the question of contributing, proximate cause was one for the jury, proceeds to declare that that issue is to be determined not bythe character of the plaintiff's act, but by the question whetherthe defendants were guilty of negligence in violating theterms of the statute, a matter about which there was no controversy, as if the negligence of the defendants would absolve the plaintiff from his admitted negligence. If that be the law, the defense of contributory negligence may as well be wiped from the books. To say that the proximate, contributing character of the plaintiff's act is to be determined by the absence of negligence on the part of the defendant, which itself is an essential element in the application of the doctrine of contributory negligence, is to declare that there can be no such defense as contributory negligence.

The error is accentuated also in the following statement:

"A review of the evidence disclosed by the transcript shows that more than one reasonable inference may be drawn from the testimony as to whose act of negligence wasthe proximate cause of the plaintiff's injuries."

If that is intended to mean that there was evidence tending to show that the negligence of the Coast Line was the sole proximate cause of the collision, I think that the error is manifest, for it overwhelmingly appears that both railroads were guilty of negligence in not obeying the statute, and, of course, the act of neither could have been the sole proximate cause.

His Honor, the Circuit Judge, fell into the same error in assuming that the proximate, contributing character of the plaintiff's act was to be determined by the absence of negligence on the part of the defendants.

He held in the order:

"There was evidence from which the jury might conclude that, in spite of plaintiff's failure to stop the train, the accidentwould not have happened but for the negligence of thedefendants. There was evidence from which they might conclude that defendant's engine was being run in a careless and negligent manner, amounting indeed to recklessness, by the regular crew and an extra crew going over to the Fertilizer Works to bring back a train; that they were paying no attention to the crossing; that they were keeping no lookout; that they did not heed the signals of the train approaching on the Seaboard tracks, but that they gave no signals when approaching the crossing, and did not stop the engine when approaching it, but ran the engine upon it and stopped it there in the face of an approaching train, which, with the exercise of ordinary case, they were bound to have seen; and were bound to have seen that the other train was so close to the crossing that it was not possible to stop it before reaching it. It was the consideration of those facts whichconstrained me to refuse the motions for nonsuit and fordirected verdict, and which now constrain me to overrulethis ground of the motion for new trial."

The learned Circuit Judge appears to have been of the same mind with Mr. Justice Carter in supposing that the issue of the proximate, contributing character of the plaintiff's act must be decided in his favor, if it appeared that the defendants were guilty of a proximate, contributing cause; the very condition that gives birth to the defense of contributory negligence. It goes without saying that if the negligence of the defendants was the sole, proximate cause, there is no room for a contributing cause on the part of the plaintiff, and that if the negligence of the plaintiff was the sole, proximate cause, there is no room for the negligence of the defendants; but if each was guilty of an act which was a direct, proximate, contributing cause, the law leaves both parties where it found them.

If it be assumed, as it is by both the Circuit Judge and Mr. Justice Carter, that the Seaboard did not stop for the crossing, I do not see how it is possible to conclude that there is a question even, but that its negligence was at least a proximate, contributing cause of the collision. The statement of the plaintiff that, even if he had stopped his train before reaching the crossing, the collision would have occurred anyhow is absurd and worthy of no consideration. It is as certain as any probability can possibly be that if he had obeyed the injunction of the statute, the collision would not have occurred. His act was an act of negligence, so declared by the law; it as certainly had a most active part in producing the disaster.

I concede that the negligence of the plaintiff cannot be held to have been a contributing cause to the extent of relieving the defendants, unless it be shown to have been a proximate cause of the collision; but that issue is to be determinedby the acts of the plaintiff, not by the absence ofnegligence on the part of the Coast Line.

In Frese v. Railroad Co., 263 U.S. 1, 44 S.Ct., 1,68 L.Ed., 131, the case was governed by an Illinois statute quite similar to Section 4902. The plaintiff's intestate was an engineer; he brought his train to a full stop about 200 feet from a crossing of two railroads at grade; the train on the other track stopped about 300 feet away. His was the Burlington track; the other the Wabash track; the view of the Wabash track from the Burlington was obstructed intermittently until the crossing was reached. The two trains did not discover each other, but both started on again and collided, killing Frese. The Court held that notwithstanding his stopping it was the duty of Frese positively to ascertain that his train could safely resume its course and that on account of his breach of this personal duty his administratrix could not recover.

Granting every allegation and charge of negligence made against the defendants to be absolutely true, it is evident that the plaintiff in charge of the Seaboard train was guilty of like negligence in every respect, and primarily was guilty of violating the statutory law of the State enacted to prevent such accidents , and by that violation of law brought about his own injuries. He charges that the defendants did not stop at the crossing; he did not stop at the crossing; he charges that the defendants did not see his train; he did not see the defendants' engine any sooner; he charges that the defendants' engine could have stopped; his testimony shows that he could have stopped his train; he says that the engineer and fireman on the defendants' engine were not looking and did not see his train, and yet he says that he was looking and saw that they were not looking; he says that if the defendants had not broken the law requiring the engine to stop before proceeding on the crossing, the accident would not have happened; his testimony unmistakably shows that ifhe had not broken the same law, requiring his train to stop, the accident would not have happened. There is nothing which the defendants did that the plaintiff himself did not do; there is nothing which the defendants failed to do that the plaintiff did.

If the act of the plaintiff, negligence per se, in not bringing the train to a full stop was not a proximate cause of the collision, for the reason that the Coast Line employeeswere negligent in not bringing the switch engine to a fullstop, and that for that reason the plaintiff was not guilty of contributory negligence, it seems clear that, so far as the conduct of the plaintiff is concerned, the Seaboard was guilty of no negligence in the matter. And by the same process of reasoning the act of the employees of the Coast Line, negligence per se, in not bringing the switch engine to a full stop was not a proximate cause of the collision, forthe reason that the Seaboard employees were negligent innot bringing the freight train to a full stop. The net result of this conclusion would be that where both companies admittedly violated the statute, and a collision resulted, neither one was guilty of negligence.

Turn the case around, and suppose that the engineer of the switch engine had been the injured party, and was the plaintiff in an action against the Seaboard, can there be any doubt but that the Seaboard could have successfully defended his action upon the ground of his contributory negligence, even with the admission that the operators of its train had not obeyed the statute?

The defense of the defendant railroad company, the contributory negligence of the plaintiff, is based upon the assumption,pro hac vice, of its negligence. To hold that proof of its negligence renders negligible further consideration of the plaintiff's negligence is necessarily to eliminate the defense of contributory negligence.

In the case of Cooper v. Railroad Co., 56 S.C. 91,34 S.E., 16, the presiding Judge charged, in effect, that, although the plaintiff may have been guilty of negligence, yet if notwithstanding his negligence the defendant might have avoided the injury by the exercise of due care, the plaintiff might recover. The Court held that this was error, saying: "It is thus seen that contributory negligence by a plaintiff can never exist except when the injury has resulted from the negligence of the defendant as a concurring proximate cause. In view of this, and of the well-established rule that contributory negligence [constituting a proximate cause, I interpolate], to any extent will always defeat a recovery, it was error to instruct the jury as above. The effectof the instruction was to eliminate contributory negligenceas a defense."

"It is thus seen that contributory negligence by plaintiff can never exist except when the injury has resulted from the negligence of the defendant as a ``concurring proximate cause.'" Wilson v. Railroad Co., 73 S.C. 481,53 S.E., 968.

"This definition [of contributory negligence] imports that there must be negligence of the defendant operating with that of the plaintiff to produce the injury. * * *" Charpingv. Toxaway, 70 S.C. 470, 50 S.E., 186.

In Kennedy v. Railroad Co., 59 S.C. 535, 38 S.E., 169, the Court said:

"Indeed, we may add, that the defense of contributory negligence, so far from tending to deny or disprove negligence on the part of the defendant, necessarily involves, by the very meaning of the term ``contributory,' and admission of defendant's negligence, but the plaintiff's negligence combining and concurring with the negligence of defendant, as a proximate cause thereof, has produced the injury complained of. See 7 Am. Eng. Ency. of Law (2d Ed.), at page 371; Cooper v. Railway Co., 56 S.C. 91 [34 S.E., 16];Bowen v. Railway Co., 58 S.C. 222 [36 S.E., 590]; Simmsv. Railway Co., 26 S.C. at page 490 [2 S.E., 486]."

In Jones v. Railroad Co., 61 S.C. 556, 39 S.E., 758, the charge excepted to was this:

"But unless the contributory negligence was the proximate cause of the accident, and if in spite of such contributory negligence [that is, negligence which contributed as a proximate cause], the accident could have been avoided by the use of ordinary care on the part of the defendant, then plaintiff is still entitled to recover."

The Court held it error, saying:

"The charge destroyed the defense of contributory negligence. In every case where there is contributory negligence, the defendant could have avoided the injury by ordinary care, for the simple reason that there can be no such thing as contributory negligence unless the defendant be negligent. The error complained of is the same error which was condemned in Cooper v. Railway Co., 56 S.C. 94 [34 S.E., 16]. The law in this State is settled that contributory negligence as defined in the Cooper case, supra, to any extent will always defeat plaintiff's recovery, unless the injury is wantonly or willfully inflicted; for the law cannot measure how much of the injury is due to the plaintiff's own fault, and will not recompense one for injury resulting to himself from his own misconduct. The objection to the charge is that it instructed the jury that although plaintiff's negligence contributed to her injury as a proximate cause, she could recover if the defendant by ordinary care could have avoided the injury. Is it not manifest that such a rule would abolish contributory negligence as a defense?" (Italics by the Court.)

There is abundant evidence of the fact, admitted by the defendant railroad company, that those operating the switch engine also failed in their duty to come to a full and complete stop for the crossing, but the negligence of the defendant railroad company and the individual defendant, in thus violating the statute, does not relieve the plaintiff from his share in the events that brought about the collision, manifestly an act of negligence per se, presumptively at least a proximate cause of the collision (McBride case), and sufficient to go to the jury upon the charge or willfulness.

It appears conclusively that the proximate character of theplaintiff's alleged contributory negligence is not to be determinedby the absence of negligence upon the part of theCoast Line.

If an order refusing a new trial be based upon an erroneous conception of the law, the appellant is entitled to a reversal of it. That it was sufficiently appears from what is said above.

III. The refusal of the motion of the defendants fornonsuit and the motion for a directed verdict upon the ground that the release of the Seaboard constituted a releaseof the Coast Line.

It is conceded in the opinion of Mr. Justice Carter that the release of one joint tort-feasor from liability releases the other, as to which I think that there can be no question.

It is admitted that the Coast Line employees did not obey the statute; their failure was negligence per se, and under the McBride case was presumptively, prima facie, a proximate cause of the collision. There being no evidence tending to weaken that presumption, it becomes a fixed fact that it was a proximate cause.

There is an exceedingly diluted contention that the plaintiff did not fail in this duty, a matter which I have endeavored to dispose of in an earlier part of this opinion. If my conclusion in reference to it is sound, it follows that both companies violated the law and that the act of each was a proximate, contributing cause of the collision, making them joint tort-feasors. The release of one discharges the other, as is conceded.

I think, therefore, that the judgment of this Court should be that the judgment of the Circuit Court be reversed and that the case be remanded to that Court for judgment in favor of the defendants under rule 27; at the least, that there should be a new trial for error in refusing the motion for a new trial, based as that refusal was, upon a misconception of the law.

ON PETITION FOR REHEARING