Turbyfill v. Railway Co. , 86 S.C. 379 ( 1910 )

July 18, 1910. The opinion of the Court was delivered by This is an action for damages alleged to have been sustained through the wrongful acts of the defendant in causing the death of plaintiff's intestate.

The complaint alleges: "That at Duncans, S.C. the railroad crosses the public highway. That on the 9th day of November, 1906, Miss Belinda Rutledge Hand was traveling along said highway when she was struck and killed at said crossing by the engine of a train, operated by the Southern Railway Company, under and by virtue of its lease or other contract with the defendant company. That her death was caused by the negligence, recklessness and wantonness of the defendant — through said Southern Railway Company — in the following respects:

a. "The train was off schedule time by several hours, and was running within a few minutes of the schedule time of train No. 11, for which latter train Duncans station was a regular stopping station, the place of stopping being east of said highway.

b. "The train approached said crossing at a very great and excessive rate of speed, some sixty miles an hour, notwithstanding the fact that by reason of the curves of the track east of the crossing, and obstructing buildings along the line or side of the track, that crossing was such as to demand of approaching trains, a slow rate of speed, of which fact, said operating company had been repeatedly notified, warned and cautioned by municipal authorities of said town for the protection of its residents, which notifications and warnings were wilfully and wantonly disregarded.

c. "The bell was not rung, nor whistle sounded by the engineer or fireman of said train at a distance of five hundred yards from said crossing, nor kept ringing or whistling until the engine had crossed said highway, such omission being in violation of the statute law of the State.

d. "In having no one at said crossing to warn or inform her of the approach of said train, as ordinary prudence required for a train, approaching such a crossing, at such an excessive speed.

e. "Neither the engineer nor fireman were looking ahead down the track, as was their duty — which neglect contributed as a direct cause to said injury."

The defendant denied the allegations of the complaint and set up the defenses of contributory negligence and assumption of risk.

The jury rendered a verdict in favor of the plaintiff for $4,700, and the defendant appealed upon exceptions, which will be reported.

First Exception: In their argument, the appellant's attorneys say: "If this action was brought under the statute alone, on account of the failure to ring the bell or blow the whistle, the admission of this evidence might have been harmless, but the complaint contains allegations of common law, as well as of statutory negligence." Railroad crossing are inherently dangerous, and were so regarded by the law, before the statute was enacted. The statutory provisions were not enacted for the purpose of declaring the crossing to be dangerous, but to minimize the danger, by requiring sign boards with the words "Railroad Crossing" printed thereon, and the blowing of the whistle and the ringing of the bell, when approaching the crossing. Therefore, even if the ruling was erroneous, it was harmless, both as to the statutory and common law causes of action.

Second Exception: This part of the charge is free from error, when considered in connection with other portions thereof. Time and again throughout the charge, his Honor, the presiding Judge, instructed the jury, in effect, that when the word "contributed" is used, whether applied to the alleged negligence of the defendant, or the contributory negligence on the part of the plaintiff, it was necessary that it should be a proximate cause of the injury. We deem it only necessary to cite two instances: "A railway company may fail to ring the bell or sound the whistle, as the statute requires, and such failure might contribute to an injury, but unless such failure does more than merely contribute to the injury, there can be no recovery, because our Supreme Court has said that such failure must contribute as a proximate cause to the injury complained of, otherwise there can be no recovery."

"If it appears that a person was injured by collision with a railway train at a highway crossing, and that such person failed to exercise slight care, and that such failure on the part of the injured person, to exercise slight care, combined and concurred in any degree whatsoever with the failure of the railway company to ring the bell or sound the whistle, as required by the statute, as a proximate cause in producing the injury, then there can be no recovery against the railway company on account of the failure to ring the bell or sound the whistle, as the statute requires."

These were requests which were charged by the presiding Judge. The case of Lee v. Ry., 84 S.C. 125, shows that even if there was error in the use of the word "contributed," it was rendered harmless by the charge embodied in said request. In that case the Court said: "His Honor struck out the word `caused,' and substituted for it the words `contributed to.' This charge made the language of the request conform to the language of the statute. It would have been error if his Honor had not already charged the jury the plaintiff's seventh request, to wit: `When the law speaks of an act of negligence as contributing to the injury, it means as a direct and proximate cause thereof, without which the injury would not have occurred.' This Court has held that `when the law speaks of an act of negligence as contributing to an injury, it means as a direct and proximate cause thereof.'" Citing Bowen v. Ry., 58 S.C. 228,36 S.E., 590; Burns v. Ry., 65 S.C. 234,43 S.E., 679; Duncan v. Greenville, 73 S.C. 254, 53 S.E., 367;Turbyfill v. Ry., 83 S.C. 325.

Third Exception: The words "as it is alleged in this case" were used merely by way of illustration in calling attention to cases where the statute is specially applicable.

Fourth, Fifth, Seventh and Eighth Exceptions: "The issue of negligence should go to the jury: 1. When the facts which, if true, would constitute evidence of negligence are controverted. 2. When such facts are not disputed, but there may be a fair difference of opinion, as to whether the inference of negligence should be drawn. 3. When the facts are in dispute, and the inferences to be drawn therefrom are doubtful." 16 Enc. of Law, 465, et seq. (1st ed.);Whaley v. Stevens, 27 S.C. 549, 4 S.E., 145; State v.Aughtry, 49 S.C. 305, 26 S.E., 619; Lampley v. Ry., 71 S.C. 156,50 S.E., 773; Pickens v. Ry., 54 S.C. 494,32 S.E., 567; Rinake v. Victor Mfg. Co., 55 S.C. 179,32 S.E., 983; Wood v. Mfg. Co., 66 S.C. 482; Weaver v. Ry., 76 S.C. 49, 56 S.E., 657; Turbyfill v. Ry., 83 S.C. 325.

On the former hearing in this case (83 S.C. 325) the Court had under consideration exceptions raising similar questions, and overruled them on the ground that they were concluded by the case of Weaver v. Ry., 76 S.C. 49,56 S.E., 657, in which the Court said: "The presiding Judge could not have charged the request without intimating to the jury, the inference to be drawn from the facts, therein so carefully set out in detail. The instructions would have been in violation of article V, section 26, of the Constitution, and were therefore properly refused."

Sixth and Ninth Exceptions: These exceptions are overruled on the ground, that the refusal to charge the requests therein mentioned was not error, because they had already been substantially charged in the first request of the defendant, which was submitted to the jury.

Tenth Exception: In the first place, this request would have been a charge upon the facts, and, in the second place, the presiding Judge charged the defendant's first, second, fourth and fifth requests relative to the measure of damages, which show that even if there was error in refusing the third request, it was not prejudicial to the rights of the appellant.

Eleventh Exception: The ruling of the presiding Judge is sustained by the case of Trimmier v. Ry., 81 S.C. 213,62 S.E., 209. Upon request, the appellant's attorneys were granted permission to review that case, as to this question. The Court, however, adheres to the doctrine therein announced.

Twelfth, Thirteenth and Fourteenth Exceptions: The appellant's attorneys have not argued these exceptions; therefore they will not be considered.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.