Taylor v. Powell , 195 S.C. 486 ( 1940 )

I concur in the result but for the reason that in my opinion the testimony thereabout is reasonably susceptible only of the inference that the statutory crossing signals were properly given by the defendants, and further that plaintiff's testimony is likewise reasonably susceptible only of the inference that he was guilty of negligence which contributed to his injury as a proximate cause. Under the circumstances here it would serve no useful purpose to undertake to review the evidence relating to the giving of the statutory signals in order to justify the conclusion first stated. Suffice it to say that the testimony of plaintiff himself made no issue thereabout for the jury. His one other witness was also unsatisfactory.

Plaintiff's testimony, much of which is narrated and some quoted in the main opinion, demonstrates, in my judgment, his guilt of negligence within the "reasonable inference" rule; but I think it was the result of unconscious failure to observe due care and not gross and willful negligence, not the "conscious disregard of the obligation of due care", necessary to defeat recovery for his injuries under the statute, Code, Section 8377, applicable here if the evidence had been susceptible of a reasonable inference that the required crossing signals had not been given.

I am in disagreement with the broad statement that obstructions to the view of a highway traveler approaching a railroad crossing require a degree of care in proportion to the increase of danger occasioned by the presence of the obstructions, for carried to its conclusion it would mean that the traveler must overcome such hazards by whatever increase of care that may be necessitated, resulting practically in the application of the rule projected in the famous case of Baltimore O.R. Co. v. Goodman,275 U.S. 66, 48 S.Ct., 24, 72 L.Ed., 167, 56 A.L.R., 645, which this Court has consistently declined to follow (Key v. Railroad Co., 150 S.C. 29, 147 S.E., 625; Holladayv. Railroad Co., 150 S.C. 243, 147 S.E., 927), and the Federal Courts likewise. See Carter v. Atlantic CoastLine R. Co., 192 S.C. 441, 452, 7 S.E.2d 163, and note in 91 A.L.R., 1055.