Pinckney v. A.C.L.R. Co.

I shall discuss this appeal from these angles only:

(1) So far as the Coast Line is concerned, the only inference that can be legitimately drawn from the evidence is that, assuming the negligence of the railroad company in the matter of signaling for the crossing, the plaintiff was guilty of such gross contributory negligence as bars his recovery.

(2) So far as the Coast Line is concerned, the only inference that can be legitimately drawn from the evidence is that, assuming the negligence of the railroad company in the acts charged other than the signaling for the crossing, the plaintiff was guilty of such ordinary negligence as bars his recovery.

(3) So far as the Camp Company is concerned, the only inference that can be legitimately drawn from the evidence is that, assuming the negligence of that company in the acts charged, the plaintiff was guilty of such ordinary negligence as bars his recovery.

(4) So far as the Camp Company is concerned, assuming the negligence of that company in the acts charged, its delicts in these respects were not and could not have been the proximate cause of the collision between the railroad company's train and the automobile driven by the plaintiff.

(5) The Circuit Judge was right in striking punitive damages from the verdict.

I. So far as the Coast Line is concerned, the only inferencethat can be legitimately drawn from the evidence isthat, assuming the negligence of the railroad company in thematter of signaling for the crossing, the plaintiff was guiltyof such gross contributory negligence as bars his recovery.

The undisputed facts from the mouths of the plaintiffand his witnesses, appear as follows:

The detailed circumstances of the collision will be best understood by reference to the diagram in the Miller case, 140 S.C. at page 156, 138 S.C. 675. It appears that the Atlantic Coast Line Railroad Company (hereinafter referred to as the Coast Line) operated its trains upon double tracks, which ran practically north and south at the point in question; the track upon which northbound trains operated being the extreme eastern track. Near and parallel therewith, to the west, was the track upon which southbound trains were operated, the eastern rail of which was about eight feet from the western rail of the northbound track. To the west of the southbound main line, and about eight feet from it, was a side track serving the station depot. The space between the rails of each of the two main line tracks was four feet eight and a half inches; so that the space between the eastern rail of the northbound main line and the eastern rail of the side track was approximately 25 feet. These three parallel tracks crossed the principal street in the town at right angle.

In the evening of December 19, 1922, the date of the collision, a logging train composed of several box cars and flat cars, which belonged to the defendant, Camp Manufacturing Company (hereinafter referred to as the Camp Company), and was being operated by the defendant, Arthur Pulley, engineer, backed into the side track from the north, for the purpose of loading certain freight then in the depot into one of the box cars. The logging train had stopped north of the street crossing and entirely clear of it, Pulley, the engineer, inquired of Clintworth, the station agent of the Coast Line, for the freight, and was directed by him to back the train until the box car into which the freight was to be loaded was opposite the door of the warehouse, and was told by him that he was permitted under the law to block the crossing with the flat cars at the end of the train for ten minutes. Pulley proceeded to follow these directions, and, while the freight was being loaded, the flat cars blocking the crossing, the collision occurred.

The movements of the plaintiff converging to the tragedy were as follows: The plaintiff and a young man by the name of Miller, each traveling for a grocery house in Charleston, had engaged a room in St. Stephens at a Mrs. Locklear's on the west side of the railroad about ninety feet from the side track. Every Tuesday night they would meet and stay together in this room. On this particular Tuesday, Miller had left Charleston in the morning on his usual trip, and had gone some three miles out of the city, when his automobile stopped. The plaintiff, Pinckney, overtook him on a similar mission, traveling in a Ford roadster. Miller joined Pinckney. They traveled north together, Pinckney operating his car, and reached the vicinity of St. Stephens about dark. About one-half mile from the station at St. Stephens, the road traveled by them crossed the railroad from west to east. Pinckney testified that he stopped his car and looked for trains; that he saw a light up at the depot, which appeared to be stationary; that they then crossed the track safely and proceeded along the road parallel with the railroad some 350 feet to the store of one Shuler; that they stopped for a few minutes at Shuler's store, and then resumed their journey up the same street toward the street crossing. The night was dark, misty and very cold; the street was soft and muddy; the curtain was in place on Pinckney's side of the car, the left, but not on Miller's side; the windshield and isinglass lookout in the curtain on Pinckney's side were both spattered with mud. The approach to the crossing was on a slight upgrade and Pinckney testified that they stopped at the foot of this grade; that he told Miller to look to the right, and that he looked to the left, neither seeing a train; that he could see the lights on the opposite side of the railroad, but did not see the obstructing flat cars until he got on the northbound track; that, when he saw the obstruction, he tried to reverse his engine for the purpose of backing off the track, when instantly the crash came.

In the case of Miller v. Atlantic Coast Line Railroad Co.,140 S.C. 123, 138 S.E., 675, a companion case to the one at bar, in my dissenting opinion, I insisted that the Court should either follow or overrule the well-considered cases of Cable Piano Co. v. Southern Air Line Railway Co., 94 S.C. 143,77 S.E., 868; Chisolm v. Seaboard Air Line RailwayCo., 121 S.C. 394, 114 S.E., 500, and Osteen v. AtlanticCoast Line Railroad Co., 119 S.C. 438, 112 S.E., 352, and other cases along the same line, but the suggestion met with no response.

In the Cable Piano case the facts were these: A Negro boy was driving plaintiff's team, drawing a covered piano wagon along a highway which ran close to and parallel with the railroad for three-quarters of a mile and then turned abruptly across the track, the distance from the turn in the highway to the crossing being from twenty to thirty feet. He testified that, on account of the cover of the wagon, he could not see the train, which was approaching from his rear, without leaning out of the wagon, and that he could not hear it because of the noise made by the wagon. The track was straight, and the view unobstructed for at least three-quarters of a mile in both directions. The Court held as follows:

"It necessarily follows that, if the driver had looked, before going upon the crossing, he would have seen the train in time to prevent the collision. The law imposes upon every capable person the duty of observing due care for his own safety, when about to cross a railroad track, which necessarily involves the exercise of his senses. And, while it is ordinarily a question of fact for the jury to say whether, under the circumstances of the particular case, the traveler did exercise such care, when the facts are undisputed and susceptible of only one inference, it becomes a question of law for the Court. Zeigler v. R. Co., 5 S.C. 221; Edwards v. Railway, 63 S.C. 271, 41 S.E., 458; Bamberg v. Railway,72 S.C. 389, 51 S.E., 988; Osteen v. Railway, 76 S.C. 378,57 S.E., 196; Drawdy v. Railway, 78 S.C. 379,58 S.E., 980; Griskell v. Railway, 81 S.C. 193,62 S.E., 205. In this case plaintiff's driver did not observe the slightest care for his own safety, or that of the property in his custody, and the failure to observe such a slight precaution as to look for approaching trains, before driving upon the crossing, was gross negligence. The evidence warrants no other inference than that his failure to look was the sole cause of the accident, or at least, a proximate contributing cause. Therefore, defendant's motion to direct the verdict should have been granted."

The Cable Piano case has been reaffirmed in the following cases: Dix v. Atlantic Coast Line Railroad Co., 98 S.C. 492,82 S.E., 798; Callison v. Charleston W.C.R.Co., 106 S.C. 123, 90 S.E., 260; Gibson v. Atlantic CoastLine Railroad Co., 110 S.C. 331, 96 S.E., 519; Widemanv. Hines, 117 S.C. 516, 109 S.E., 123; Osteen v. AtlanticCoast Line Railroad Co., 119 S.C. 438, 112 S.E., 352;Bain v. Northwestern Railroad Co., 120 S.C. 370,113 S.E., 277; Chisolm v. Seaboard Air Line Railway Co., 121 S.C. 394,114 S.E., 500.

In the Osteen case it was decided by the Court en banc (quoting syllabus in 112 S.E. [119 S.C. 438]):

"If a truck driver attempted to cross immediately in front of an approaching train, although he saw the train, or by exercising the slightest degree of care could could have seen and heard it, and to a person of ordinary prudence such an attempt to cross was obviously dangerous, reckless, or wanton, he was guilty of gross contributory negligence, recklessness, and wantonness as a matter of law." (Italics by the Court.)

The rule as laid down in the Chisolm case is as follows:

"On reaching a railroad crossing and before attempting to go upon the track, a traveler must use his senses of sight and hearing to the best of his ability under the existing and surrounding circumstances; he must look and listen in both directions for approaching trains, if not prevented from so doing by the fault of the railroad company, and to the extent the matter is under his control must look and listen at a place and in a manner that will make the use of his senses effective. This is merely a statement in the concrete of the fundamental principle of the law of negligence that — `Ordinary prudence requires every person who is in the full enjoyment of his faculties of hearing and seeing, before attempting a dangerous act or operation, to exercise them for the purpose of discovering and avoiding peril.' 20 R.C.L., 113.

"Applied, as it must be, in connection with the rule next stated, it is in accord with the settled law of this jurisdiction.Mack v. Railroad Co., 52 S.C. 340, 29 S.E., 905, 40 L.R.A., 679, 68 Am. St. Rep., 913; Edwards v. RailwayCo., supra [63 S.C. 271, 41 S.E., 458]; Bamberg v. RailroadCo., 72 S.C. 389, 51 S.E., 988; Drawdy v. RailroadCo., 78 S.C. 374, 58 S.E., 980; Osteen v. Railway Co.,76 S.C. 368, 57 S.E., 196; Cable Piano Co. v. Railway,94 S.C. 143, 77 S.E., 868."

In Southern R. Co. v. Priester (C.C.A.) 289 F., 945, in an opinion by Judge Woods, at one time a distinguished member of this Court, the Court said:

"The presumption is in favor of due care by a traveler at a crossing because his safety is involved. There is no hard and fast rule of law that under all circumstances due care requires a traveler to look and listen before going on a railroad crossing. But it is well settled that when the railroad company has done nothing to allay his sense of danger, and there are no extraordinary conditions sufficient to distract the attention of a man of ordinary prudence and self-possession from the duty of taking precaution, a traveler will be held guilty of contributory negligence, as a matter of law, when the evidence shows affirmatively beyond dispute that he walked or drove his vehicle on a crossing without taking any precaution whatever to ascertain if a train was approaching. [Chicago, R.I. P.] Railroad Co. v.Houston, 95 U.S. 697, 24 L.Ed., 542, and numerous cases cited under it in Rose's Notes; Dernberger v. B. O. Ry.Co. (4th Cir.), 243 F., 21, 155 C.C.A., 551; U.S. DirectorGeneral of Railroads v. Zanzinger (C.C.A., 4th Cir.), 269 F., 552 and authorities cited; Payne v. Blevins (C.C.A.), 280 F., 310; Bush v. B. O. Ry. Co. (C.C.A., 4th Cir.), 288 F., 845 (filed March 30, 1923).

"The federal case apparently most like that before us isNorthern Pacific Ry. v. Freeman, 174 U.S. 279,19 S.Ct., 763, 43 L.Ed., 1014. There it was held there was no question for the jury, because the undisputed evidence showed that the traveler who was killed took no precaution before going on the crossing. The South Carolina Court, in construing and giving effect to the state statutes above cited, has held to the same rule, namely, that although those in charge of the train be guilty of negligence or recklessness according to the circumstances, yet the traveler is guilty of gross negligence, and cannot recover if, without excuse, he takes no precaution, when any precaution would have warned him before going on the track and prevented the injury. Cable Piano Co. v. Southern Ry. Co., 94 S.C. 143,77 S.E., 868; Drawdy v. Atlantic Coast Line Ry. Co.,78 S.C. 374, 379, 58 S.E., 980; Osteen v. Atlantic CoastLine Ry. Co., [119] S.C. [438], 112 S.E., 352, 360;Bain v. Northwestern R. Co. [120] S.C. [370],113 S.E., 277; Chisolm v. Seaboard Air Line Ry. Co., [121] S.C. [394], 114 S.E., 500. Indeed Section 3222 of the South Carolina Code of 1912 itself, by the strongest implication, provides that, even if the signals are not given, a traveler cannot recover if his own gross negligence has contributed to the injury."

This has been followed by the most recent case from the Supreme Court of the U.S., B. O.R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct., 24, 72 L.Ed. — , which is in exact accord with the Cable and other South Carolina cases cited above. The entire opinion by Justice Holmes is as follows:

"This is a suit brought by the widow and administratrix of Nathan Goodman against the petitioner for causing his death by running him down at a grade crossing. The defense is that Goodman's own negligence caused the death. At the trial the defendant asked the Court to direct a verdict for it, but the request and others looking to the same direction were refused, and the plaintiff got a verdict and a judgment which was affirmed by the Circuit Court of Appeals.10 F.2d 58.

"Goodman was driving an automobile truck in an easterly direction and was killed by a train running southwesterly across the road at a rate of not less than 60 miles an hour. The line was straight but it is said by the respondent that Goodman `had no practical view' beyond a section house 243 feet north of the crossing until he was about 20 feet from the first rail, or, as the respondent argues, 12 feet from danger, and that then the engine was still obscured by the section house. He had been driving at the rate of 10 or 12 miles an hour, but had cut down his rate to 5 or 6 miles at about 40 feet from the crossing. It is thought that there was an emergency in which, so far as appears, Goodman did all that he could.

"We do not go into further details as to Goodman's precise situation, beyond mentioning that it was daylight and that he was familiar with the crossing, for it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death. When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself in an emergency it was his own fault that he did not reduce his speed earlier or come to a stop. It is true as said in Flannelly v.Delaware Hudson Co., 225 U.S. 597, 603,32 S.Ct., 783, 56 L.Ed., 1221, 1222, 44 L.R.A. (N.S.), 154, that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the Courts. See Southern Pacific Co. v. Berkshire, 254 U.S. 415,417, 419, 41 S.Ct., 162, 65 L.Ed., 335, 337, 338.

"Judgment reversed."

In Atlantic Coast Line R. Co. v. McLeod (C.C.A.),11 F.2d 22, the Court said:

"Plaintiff's testimony that as he approached the crossing he looked and listened for the train is not sufficient to carry the case to the jury. The testimony clearly shows that, if he had looked, and listened immediately before going upon the track, he must necessarily have both seen and heard the train, and we conclude that, if he did in fact look and listen when approaching the crossing, he must have done so some distance away, and not immediately before going upon the track as he should have done. If we regard the statement of plaintiff as meaning that he looked and listened immediately before going upon the track, and that he did not see or hear the train at that time, the testimony is so repugnant to the undisputed physical facts that neither the Court nor the jury could, without stultifying themselves, concede to it any probative value whatever. Moore on Facts, Par. 321. If he had used his senses, he could not have failed both to hear and to see the oncoming train. If he omitted to use them, and walked carelessly upon the track, he was guilty of culpable negligence, and so far contributed to his injury as to deprive him of any right to complain of another.[Chicago, R.I. P.] Railroad v. Houston, 95 U.S. 697,24 L.Ed., 542."

In Delaware H. Co. v. Nahas (C.C.A.),14 F.2d 56, the Court said:

"While under general rule it is the province of the jury to determine whether such care has been exercised, it is also a rule that where there is a clear view of the approaching train and where the plaintiff either looked and did not see, or failed to look, he is, as matter of law, guilty of contributory negligence and not entitled to have that question go to the jury."

In Farley v. Norfolk W.R. Co. (C.C.A.),14 F.2d 93, the Court said:

"And, in this connection, the defendant relies upon the well-established rule that it is the duty of a traveler along a street or highway to look and listen for approaching trains before going upon a railroad track, and that one who goes upon a track without looking or listening and is injured by an approaching train or cars, which, in the exercise of due care, he should have seen and avoided, will be held guilty of contributory negligence as a matter of law."

In Bergman v. Northern Pac. R. Co. (C.C.A.),14 F.2d 580, the Court said:

"Although there is imposed upon railroad companies the duty to sound their whistles or ring their bells as the trains approach the crossings, there is also a duty that the travelers upon the highways exercise ordinary care for their own safety, by the use of their senses of sight and hearing, to prevent collisions. It is a settled rule that one who drives his team or his automobile upon a railroad track at a highway crossing, in front of an approaching train, which he could have seen, had he looked, or could have heard, had he listened, is in law guilty of contributory negligence."

In Kutchma v. Atkinson, T. S.F.R. Co. (C.C.A.),23 F.2d 183, the Court said:

"There are many other cases in this circuit applying the rule that traveler approaching these known places of danger must look and listen at places and at times where and when his senses will give notice of approaching trains; and if he fails to do so and is injured on the crossing by a train whose approach he might have discovered by a reasonable use of his senses, such failure is negligence on his part contributing to the infliction of the injuries which he receives and for that reason his right of recovery is barred."

It will be observed that the plaintiff in this case was in control of the car; his companion, Miller, the plaintiff in the case which has been disposed of, was by his side. I do not think that as to Miller this made any difference, but in the consideration of Pinckney's case there is no room for argument that he was not responsible for Miller's negligence. Pinckney was the owner of the car and at the helm.

The plaintiff was in full possession of his faculties, and familiar with the tracks and crossing in question; he drove a little past the crossing, then turned slightly back and approached the tracks on a diagonal, the car being pointed slightly south of west; within five feet of the first track he states that he stopped and looked, and, changing into low gear, proceeded across the track with one of the fast approaching passenger trains of the Coast Line bearing down upon it, its headlight burning, and with the rush and roar that is incident to the progress of such a train.

The principal witness for the plaintiff (Funk) states that he saw the automobile first about five feet from the track and had started to slow down, but that he thought that they were fixing to stop, but that they went on; that the train approaching was in full view of the witness, and the evidence is that it could have been seen as far as eleven miles down the track. Pinckney himself testified that he stopped to look toward the south, the direction from which the train was coming, about five feet from the track, at which point the approaching train could have been observed for many miles. This is the only point from which he did look, which fact negatives any weight that might be given to the contention of the plaintiff that there were trees further to the south which might obstruct the view. The evidence is that these trees were no nearer than twelve feet from the track, and, of course, at a distance of five feet from the track would not have obscured his view. The curtain was in place on his side of the car, and the only opportunity to see of which he availed himself in looking toward the south was through an isinglass lookout in the curtain, which was spattered with mud, and which, as he admits, did not afford a clear vision. The windshield was also spattered with mud. This on a misty, rainy night afforded slight opportunity for observation in going ahead. Under these circumstances, fully aware of the position of the tracks, claiming to be aware of the possibility of danger and of the duty of stopping to ascertain whether it was safe to proceed, he drove on the tracks directly in front of the coming train, which, by the slightest exercise of his senses of sight and hearing, he could have discovered.

II. So far as the Coast Line is concerned, the only inferencethat can be legitimately drawn from the evidence isthat, assuming the negligence of the railroad company in theacts charged other than the signaling for the crossing, theplaintiff was guilty of such ordinary negligence as bars hisrecovery.

As to other acts than signaling for the crossing, the defendant railroad company must be excused from liability upon the ordinary contributory negligence of the plaintiff, instead of his gross negligence, as required under the signaling statute. If the conclusion is correct that the plaintiff was guilty of gross negligence as above outlined, the greater would include the less.

III. So far as the Camp Manufacturing Company is concerned,the only inference that can be legitimately drawnfrom the evidence is that, assuming the negligence of that company in the acts charged, the plaintiff was guilty of suchordinary negligence as bars his recovery.

The same argument is applicable to this phase of the case as is indicated in II.

IV. So far as the Camp Company is concerned, assumingthe negligence of that company in the acts charged, its delictsin these respects were not and could not have been the proximatecause of the collision between the railroad company'strain and the automobile driven by the plaintiff.

The prime act of negligence charged to the Camp Company was the obstruction of the crossing; of itself it was impossible that it could have produced a collision between the onrushing engine of the passenger train and the automobile in which the plaintiff was riding. There is obliged to have been between this act of negligence and the collision an intervening and efficient cause. According to the allegation of the plaintiff's complaint, the immediate cause of the collision was the failure of the railroad company to sound the proper warning signal of the approach of the passenger train to the highway crossing. According to the evidence, the immediate cause of the collision was the failure of the plaintiff before entering upon the railroad track to exercise the simplest precaution to ascertain whether he could safely enter upon the railroad track.

In this connection, as relating to the Camp Company, which is not charged with a violation of the signaling statute, and to the issue of proximate cause, it is proper to emphasize the fact that the Camp Company is not obliged to show that the entry of the plaintiff upon the railroad track was an act of gross negligence.

If the plaintiff's contention, as alleged in the complaint, be sustained, the signals for the crossing were not given by the railroad company; that failure caused the intestate to enter upon the track without the usual and necessary precautions; it caused it without justifying it, and was an intervening and efficient cause of the collision. If it be not sustained, as the verdict of the jury exonerating the employees of the railroad indicates, in fact adjudicates, the plaintiff's entry was without the shadow of an excuse itself an intervening, efficient cause, due to his negligence, which surely the Camp Company cannot be held bound to anticipate as a result of its act. So that, between the prime act of negligence, the obstruction of the crossing, and the injury, certainly one or the other, or perhaps both, of two distinct, efficient causes intervened — the failure of the railroad company to sound the warnings, or the entry of the plaintiff upon the railroad track without precaution — neither of which can be said to have been a natural, probable, or reasonably to be apprehended result of the prime act.

In the case of Foster v. City of Union, 129 S.C. 257,123 S.E., 839, the intervening act was that of the father of the plaintiff. The rule should at least be as strong where the intervening immediate act was that of the person injured. The immediate cause of the collision being the entry upon the railroad track without the necessary precautions, the question resolves itself into this: Was that a result reasonably to be apprehended by the Camp Company under the circumstances?

To characterize the obstruction of the crossing, therefore, as the proximate cause of the injury, requires the utmost strain of mental processes to conclude either that the Camp Company should have foreseen that, if it obstructed the crossing, either the railroad company would omit the crossing signals, or that the driver of an automobile, in defiance of all safeguards for his own protection, would drive upon a railroad track, in the face of a train traveling 40 miles an hour, the headlight of which could have been seen for eleven miles down the track. But it is said the absence of lights, or other warning of the presence of the obstructing cars, induced the intestate to enter upon the tracks. Possibly so, and it might have been a perfectly harmless venture; but it did not induce him to enter without reasonable precautions against what the presence of the rails warned him might happen, the coming of a train. Nor did it induce the railroad company to omit giving the statutory signals or other warnings of the approach of the train, which omission the plaintiff claimed, as against the railroad company, was the proximate cause of the injury, and which he had the Circuit Judge to charge that presumptively it was. Nor could the Camp Company reasonably have anticipated that the plaintiff would not avail himself of a perfectly safe space of 25 feet between the northbound track and the side track. track.

V. The Circuit Judge was right in striking punitivedamages from the verdict.

I do not think that there is a particle of evidence in the case of wanton or willful conduct of either defendant such as to justify the imposition of punitive damages. The case was tried before a level-headed judge, with rare common sense and a passion for justice. He heard the witnesses, was in the atmosphere of the trial, and could see no such evidence. I think that his opinion is entitled to great weight.

Consider the conduct of the Camp Company complained of: That it and its engineer, Pulley, had placed and kept a train of cars across the street obstructing the railroad crossing unnecessarily and for an unreasonable time, and without safeguards, lights, or warning to the public of such obstruction, in violation of law.

Assume that it was guilty of all of these specifications, where is the evidence of willfulness or wantonness? The accident occurred in a very small town, in bad weather, when traveling had practically ceased for the day. In order to make out a case of willfulness, it must have appeared that the crossing was being constantly used and that the Camp Company must have anticipated that a belated traveler would attempt the crossing in the very face of an approaching engine and train.

Consider the conduct of the Coast Line complained of: The allegations of negligence in the operation of the train by the engineer and fireman have been eliminated by the verdict exonerating these defendants. There is left nothing but the charge that it acquiesced in, consented to, and approved of the act of the Camp Company and its engineer in so obstructing the crossing.

I think that the motion of the defendants for a directed verdict should have been granted, and that at the least the remission of punitive damages should be allowed to stand.

The opinion of Mr. Justice Carter declares that there was evidence tending to show that the railroad company provided no lights at the street crossing; that it had no flagman there to warn approaching travelers of the approaching cars; that the Camp Company was operating its train in violation of Section 4898 (Civ. Code 1922), which requires the presence of one flagman on the last car of a freight train. It is a sufficient answer to these suggestions that no such acts of negligence are alleged in the complaint; as to the railroad company, the complaint does not count upon a breach of duty on its part to safeguard life or warn. It only alleges that it acquiesced in, consented to, and approved of the delinquencies charged to the Camp Company through its engineer, delinquencies which the verdict has established did not exist.