Carter v. Southern Railway

The opinion of the Court was delivered by

This was an action for punitive and actual damages brought by the plaintiff as administratrix, for the wrongful killing of her husband by the defendants.

The defendant, J. IT. Herring, was the engineer operating the train that killed the deceased. The verdict was against the railway company alone, and was for twelve thousand five hundred dollars. This verdict was reduced to nine thousand dollars by an order of Hon. R. C. Watts and accepted by the plaintiff. Judgment was entered for nine thousand dollars and costs. From this judgment the defendant railway appealed on the grounds set out in the exceptions, which will be reported.

It seems that the deceased lived near Blackstock, in Fair-field county, and was going to said town to* his business on the morning of the 6th of Juoe, 1910, and walked on the railway track and not on the public highway that adjoined the track. The deceased had been deaf and dumb, but 'he had learned to^ talk, but was still deaf. The complaint alleged that the deceased was traveling on the track where the public had been accustomed to walk for more than twenty years and the deceased had the right to walk there. The defendant claimed that the deceased was a trespasser, and, being deaf, was guilty of contributory negligence in walking on a railroad track, especially when he ought to have known that the train that killed him was due, and walked in the same direction as the approaching train with his back to it.

*339 The defendant moved for a nonsuit, for the direction of a verdict, and for a new trial, all of which were refused except the partial relief of a new trial nisi. The exceptions raise four questions:

I. Was there any evidence to go> to the jury on the. question of negligence of the defendants ?

II. Did the defendants owe to the deceased due care?

III. When the complaint alleged the joint negligence of the two defendants, could judgment be given against one?

IV. Was there indisputable evidence of contributory negligence.

I. Was there any evidence to go to the jury on the question of negligence of the defendants?

1 There was evidence that the whistle sounded at the whistle post over a thousand feet away, but that the deceased did not get off the track. That from that point the deceased was in full view of those on the engine and it was a question on the nonsuit as to whether they did see him or not. If they did see him, then the question is answered by Haltiwanger v. Railroad Company, 64 S. C. 23, 41 S. E. 810. “An examination of the ‘Case’ shows that there was some testimony tending to show that the engineer did see the deceased on the track, and as a person walking on a railroad track in front of an approaching train is always ‘in a position of apparent danger,’ we think there was, at least, some evidence tending to show that the engineer running the train saw that the deceased was in a position of apparent danger; and, therefore, we are of opinion that there was no error in refusing the motion for a nonsuit upon either of the grounds upon which such motion was based.”

The testimony for the defendants shows that as a matter of fact both the engineer and fireman saw him. The testimony further shows that for more than a thousand feet the fireman said nothing to' the engineer about it until the engineer had reached for the brake and whistle. He said, “Mr. *340 Herring blew the whistle before I said anything. He reached up to the whistle. I said, we are going to hit him. Hold it.” The conductor said, “About the time the brakes went down, we struck him.”

Thus it seems that there was evidence that no effort was made to stop the train or give the danger signal until it was apparent that the deceased would be struck.

Again, the flagman said, “Well, I heard the engineer sound the danger signal, and about the same time felt the brakes go on in emergency and I looked out of the window right quick on the right-hand side and saw the man fly out to one side.”

The answer to this question is, there was evidence of negligence.

II. Did the defendant owe the deceased due care ?

2 It is true his Honor erred in charging that the public could acquire a rig'ht to travel the road, but the practical question is, when the agents of the defendant saw the deceased in a position of danger, did they owe him and to humanity due care?

This question is answered by Sanders v. Railway, 90 S. C. 335. “Plaintiff’s testimony tended to show that he was struck while walking alongside of defendant’s track in a well-beaten path at a place where the general public had been accustomed to walk for many years, without any objection from defendant; that the train which struck him was running backwards, at the -rate of from twelve -to twenty miles an hour, through a populous section of the city of Charleston -at a place where men, women and children were constantly passing -and repassing along defendant’s right of way and upon and near its tracks; that the .train ran upon him from behind, without any signal or warning of its approach being given.

“We think this testimony made out a prima facie case for plaintiff. From it the jury might reasonably have inferred that the use of its right of way by the public was known to *341 and acquiesced in by defendant, and, therefore, that plaintiff was a licensee and entitled to- ordinary care on the part o-f defendant to prevent injury to him; and also-, from the frequency of the use 'by the general public, that defendant should have anticipated the presence o-f persons on or near its tracks at that place, and should have exercised due care to prevent injury to them. Jones v. Ry., 61 S. C. 556, 39 S. E. 758; Matthews v. Ry., 67 S. C. 499, 46 S. E. 335; McKeown v. R. Co., 68 S. C. 483, 47 S. E. 713; Goodwin v. R. Co., 82 S. C. 321, 64 S. E. 242; Bamberg v. R Co., 72 S. C. 389, 51 S. E. 988; Lamb v. R. Co., 86 S. C. 106, 67 S. E. 958.”

The testimony here showed that the railroad track to Blacksto-ck had been used for more than twenty years by pedestrians without objection and a great many people used it. But if the deceased had been a trespasser, then in Jones v. Railway, 61 S. C. 559, 39 S. E. 758, it is said: “It is the trespasser’s duty to- lookout for himself and to give the railway company a clear track by getting.out of the way. If, however, -the servants of the railroad company should discover a trespasser upon the track, and should then fail to use ordinary care under the circumstances to avoid running him down, this would be evidence from which a jury might infer that the injury was the result no-t o-f mere inadvertence, but of a conscious f ailure to observe due care or of wantonness or wilfulness.”

3 It may be said that wanto-nness and wilfulness had been eliminated from the case. As a foundation f-o-r punitive damages, they were eliminated from the case, but the defendant was still required to- make o-ut its affirmative defense of contrbufo-ry negligence and if the facts subsequently proven showed wilfulness, the p-lea could not prevail.

III. When the complaint alleged the joint negligence of the two defendants, could judgment be given against one?

*342 4 This question is answered by several comparatively recent cases, and the answer is that it cao. Ruddell v. Ry., 75 S. C. 293-4, 55 S. E. 528. “In the next place, it is insisted the verdict should have been set aside 'because the fact, that the finding was against the railroad company and not against its agent, who was directly responsible for the digging and proper guarding of the hole, shows that the verdict was due to prejudice or partiality; the evidence of negligence and wantonness being much stronger against him than against the railroad company. There was no error of law in refusing the motion on this ground, 'because the liability of -the railway company and Brinkley, its agents and codefendant, was joint and several. Schumpert v. Railway and Hutchinson, 65 S. C. 332, 43 S. E. 813; Gardner v. Railway Company and Pierson, 65 S. C. 341, 43 S. E. 816; Carson v. Railway, Arwood and Miller, 68 S. C. 55, 46 S. E. 525.”

The testimony was not clear as to what the engineer could see on the left of the center of the track. The jury may have thought that the engineer’s view was obstructed by the boiler and that the fireman, the agent of the defendant company, who was on the left side of the engine, was at fault in not notifying him of the danger in time.

IV. Was there indisputable evidence of contributory negligence ?

5 The deceased had been warned not to -go on the railroad track and his reply “that an automobile had brushed his clothes and it looked as if there was no place for him to walk on the railroad or public road.” There was evidence that when his employer desired to attract the attention of the deceased,, he stamped the floor and the deceased feeling the vibrations of the floor, gave attention. The deceased seems to have depended on the telephonic message of a coming train transmitted along the railroad irons and perceived through his feet.

*343 The deceased had considered the matter and seemed to have considered the railroad the safer place. He had considered the matter and it was for the jury ho say whether his conclusion was negligently formed or was simply an error of judgment.

The judgment of this Court is that the judgment appealed from be affirmed.

dissenting. In this action against the Southern Railway Company and J. H. Herring, one of its engineers, the plaintiff, as administratrix, recovered judgment against the defendant railway company on a complaint containing the following allegations attributing the death of J. T. Carter, plaintiff’s intestate, tO' the actionable negligence of the defendants: “That on the morning of the 6th day of June, A. D. 1910, the said J. T. Carter, since deceased, was walking along the track of the said Southern Railway from his home, situate a short distance south of the town of Blackstock, in the State aforesaid, a station on defendant, Southern Railway Company’s railroad, on his way to engage in his lawful business in said town, which said track on and along which plaintiff’s intestate was walking having been used by the public as a traveled place for twenty years or more last past before said sixth day of June, A. D. 1910, and while said intestate was on said traveled place, as aforesaid, he was negligently, recklessly, wantonly, unexpectedly approached from his rear, he being totally deaf, by one of the defendant, Southern Railway Company’s locomotives, operated by the defendant, J. H. Herring, as engineer thereon, drawing a train of cars at a very high rate of speed, and without due and reasonable precaution, and *344 through the joint and concurrent negligence, recklessness and wantonness of said defendants, as aforesaid, caused said locomotive drawing said train of cars to strike said intestate, and so injured him that he then and there died.”

The main question to be decided is whether the Circuit Judge should have granted a nonsuit on the evidence offered by the plaintiff, or should have directed a verdict in favor of defendant at the close of the evidence on both sides, on the grounds: first, that the testimony on behalf of the plaintiff did not tend to prove that'Carter’s death was due to the negligence of the defendant, but, on the contrary, admitted of no other inference than that the fatality was due solely to his own negligence; and, second, that if the testimony admitted of an inference of negligence against the defendants, it showed conclusively that intestate was guilty of contributory negligence.

Though railroad companies are held to the exercise of great care in running trains through the country at high speed, the established right of railroads to the use of their tracks and the right of the public to require of railroads prompt and efficient service should not be sacrificed or impaired in favor of pedestrians who-, for their own convenience, recklessly take the risk of walking the track in the face of obvious danger.

The general rules of reason applied by this Court and by Courts generally may be thus stated:

■ 1. Due care requires that those in charge of such a dangerous instrumentality as a railroad train should keep a lookout ahead; and failure to keep such a lookout may be evidence of negligence, or wilfulness or wantonness according to the circumstances.

2. Persons who used a railroad track as a walkway without a license either express or implied are trespassers, and those in charge of a railroad train owe them no duty except not to injure them wilfully or wantonly. Hence, if the failure to' keep a lookout is found to be merely negligence *345 and not a wanton or wilful disregard of duty, such trespassers cannot complain or avail themselves of the failure.

3. When a railroad servant charged with the duty of keeping a lookout sees a trespasser on the track he may assume that he is aware of the danger and will get off; but if he has reason to infer from appearances that the trespasser has not heard the train, the duty arises to signal him, and failure to signal in such circumstances may be some evidence of wilfulness and wantonness,

4. If by a wanton or wilful disregard of the duty to keep a lookout, the employee in charge of the engine fails to see even a trespasser helpless on the track, or if such employee fails to stop when he observes the trespasser to be helpless, the trespasser is not precluded by his own mere negligence from recovering for the resulting injuries.

5. When the failure to keep a lookout, or to signal, or to observe one helpless on the track, or to stop the train to rescue such helpless person is due to mere negligence, a trespasser who receives injuries cannot recover; but one who is a licensee on the track, either by express permission to use it or by implied acquiescence in its use, may recover for injuries due to mere negligence in the particulars mentioned, unless he has himself been guilty of contributory negligence.

6. A railroad servant in charge of a train discharges his duty when he duly signals even a licensee on the track of the approach of the train, unless from appearances or otherwise he, as a reasonable man, ought to have observed that the person on the track was oblivious of the danger notwithstanding the noise and the signals, or was unable to get off the track.

Taking the testimony of the plaintiff as true, the circumstances of the killing were as follows: the deceased, J. T. Carter, was an intelligent deaf man who had been educated and taught to speak at the Cedar Springs Institute. He was thirty-nine years old and was living with his wife, also deaf, and his children near the line of the Southern Railway, *346 between the stations Blackstock and Woodward. He was learning bookkeeping at Blackstock and had occasion to go there frequently. There was a public road running parallel with the railroad, but the railroad was used to a large extent by pedestrians as it furnished better walking than the public road. There were several curves in the track. On 6 June, 1910, Carter was walking on the track, going from his home to Blackstock, and was seen by Herring, the engineman of defendant’s train, which passed about 7 :30 o’clock in the morning, in time to' stop' the train and gO' forward and move Carter off, but the whistle had been blown for the station a few hundred yards away and there was nothing to prevent the signal and the noise of the train from being heard, so that it was impossible that a man who could hear would not have heard and known that the train was very near. When within twenty or thirty feet, or some very short distance of Carter, the engineman gave one or more short, warning-blasts of the whistle and stopped the train very quickly, but Carter remained on the track and the stop was not quick enough to prevent the engine from striking and killing him. There was no evidence that the train was not equipped with approved air brakes or that the engineman could have stopped it more quickly after he gave the alarm.

I think it by no means clear that there was evidence to go to the jury tending to show that the use of the track, where deceased was walking, was so general, constant, and usual, by the people of a populous community, as to put the railroad company on notice of such use and to require it either to actively forbid it or to treat those who used the track as licensees, with the right to have their probable presence on the track taken into special consideration in the running of trains. On the contrary, it seems to me that the proof shows nothing more than -the usual unbidden use of a railroad track by the people of an ordinary country neighborhood, at their own risk, — such a use as imposed no special duty on the railroad company with respect to' them. There *347 were few families living in the vicinity, and what the witnesses said of the use of the track could be said of the use by almost every average community adjacent to a railroad. The doctrine that such an average or ordinary use implies acquiescence or license by the railroad company is without judicial sanction, and has never been announced in this State, as will be seen by the careful distinction made in Sanders v. So. Ry. Co., 90 S. C. 331, and the cases therein cited.

But laying aside that question with the assumption that the deceased was entitled to have the defendant exercise ordinary care for his protection from injury while walking-on the track, we next inquire was there evidence of the lack of such care? The rule is well established that those in charge of a railroad train may presume that a pedestrian will get off the track after they have given a signal' sufficient to put him on notice, and that they need not stop the train for his sake, unless there is notice from appearances or otherwise that the person on the track has not heard the train or is not able to take care of himself. Smalley v. So. Ry., 57 S. C. 243, 35 S. E. 489; Sentell v. So. Ry., 70 S. C. 183, 49 S. E. 215. In the open country, where there is nothing- to prevent the pedestrian from stepping off, even if the railroad has acquiesced in the use of its track by others, surely a licensee under no infirmity can demand nothing more than that he shall have warning of the approach of the train The authorities are clear on this subject: Drawdy v. R. R., 78 S. C. 374, 58 S. E. 980; Griskell v. Ry., 81 S. C. 193, 62 S. E. 205; N. & W. R. R. v. Harmons, Admr., 83 Va. 553, 8 S. E. 251; McAdoo v. R. R., 105 N. C. 140, 11 S. E. 316; Meredith v. R. R., 108 N. C. 616, 13 S. E. 137; High v. R. R., 112 N. C. 385, 17 S. E. 79; Tyler v. Sites, Admr., 90 Va. 539, 19 S. E. 174; Beach v. R. R. (N. C.) 61 S. E. 664. In this case the station signal had been blown, there was nothing to prevent the hearing of the noise of the train, and the deceased was walking erect with every appear *348 anee of ability to make himself safe 'by leaving the track. There was nothing to put the engineman on notice when he first saw him that he did not hear the station signal or would not leave the track in time.

• ¿ut I think there was a question of fact made by the evidence whether the engineer or fireman, having the deceased in sight, should not have inferred from his conduct that he had not heard the signal and was not aware of the approach of the train and should have endeavored to stop the train before it was within twenty or thirty feet of him.

Continuing the assumption that Carter was entitled to ordinary care on the part of those in charge of the railroad company’s trains, and assuming further that the engineer and fireman should have taken notice, before they did, that the deceased would not get off the .track and that the engine-man was negligent in failing to stop his train in time to prevent striking deceased, the evidence offered by the plaintiff proved conclusively that the death of her husband would not have occurred but for his own gross, contributory negligence. He was entirely destitute of the sense of hearing. As an intelligent man, he certainly knew that he could not expect the employees of the railroad company to- know and take account of his infirmity; and in fact it was not kno-wn to the engineman or fireman of this train. The train by which he was killed had been running by his house on the same schedule for several years, and was about -on time on this occasion. Carter had, therefore, the strongest reason to expect that it would come up- behind him, and that he would be entirely oblivious of its approach. He had been expressly warmed of the danger o-f walking on the railroad by one friend, and another had, on a previous occasion, gone to him and got him off the track in time. The case is altogether different in its facts from McKeown v. R. R., 68 S. C. 483, 47 S. E. 713, relied on by the plaintiff’s counsel. In that case, the Court held that there -was evidence of wilfulmess and wantonness in running the train at night without *349 lights, and for this reason even if there had been conclusive evidence' of contributory negligence, it would, not have been available on a motion for a nonsuit. In this case all charges of wilfulness were withdrawn, and as to such charges a nonsuit was granted. On this point then the case stood just as if no charge of wilfulness had been made in the complaint, and the action had been for negligence alone. In such case the issue of wilfulness being entirely absent, the plaintiff could not claim that contributory negligence would not defeat the action. If negligence be imputed to the engineman for failing by a second or two to realize Carter’s danger in time to stop the train and avert his death, beyond all doubt contributory negligence must be imputed to Carter when he went on the railroad in reckless disregard of danger which was imminent and obvious. In Lamb v. Southern Ry., 86 S. C. 106, 67 S. E. 958, the Court held that a person in full possession of his senses who undertook to walk across a railroad bridge over a river undertook a peril so obvious that he was guilty of contributory negligence.

A deaf man who deliberately chooses to take his course on a railroad track takes a still more obvious peril. His only hope of escape from a train coming up behind is the chance that those in charge of the train may possibly discover his infirmity in time to stop the train and take him off. It would be difficult to mark out a course of conduct more grossly negligent. The Courts have held that it is contributory negligence for a deaf man to take such an obvious risk. Schexnadrye v. R. R., 46 La. Ann. 248, 49 Am. St. Rep. 321; Johnson v. L. & N. R. R., 91 Ky. 651, 25 S. W. 754; International G. & G. N. R. R. v. Garcia, 75 Tex. 583, 13 S. W. 223.

In Central R. R. & B. Co. v. Smith, 78 Ga. 698, 3 S. E. 397, the plaintiff was injured while walking on the railroad track at night by a train running at an excessive rate of speed, but carrying a headlight. Chief Justice Bleckley, in *350 holding that there could be no recovery, said: “As matter of fact, to walk along the middle of a railroad track between crossings, when it is dark, and without knowing and remembering whether a train is due or not, and without looking out in both directions for trains that may be due, and without listening attentively and anxiously for the roar and rattle of machinery, as well as for the sound of bell or whistle, is gross negligence.”

The deceased in this case was still more negligent, for he chose to walk on the track knowing that it was impossible for those in charge of the train to' give him warning of its approach. I cannot escape the conclusion that the judgment of the Circuit Court should be reversed, and that a nonsuit should have been granted.

It seems to me that there were other errors in the charge also in failing to distinguish between the duties owed by the railroad to a trespasser and a licensee, and in giving the instruction that the public might acquire a right to use the railroad as a footpath by its continuous use for ten years, but I do not think further discussion necessary. Matthews v. Ry., 67 S. C. 499, 46 S. E. 335, 65 L. R. A. 286.

The position that a verdict against the railroad company and not against the engineman is contradictory is unsound and is disposed of by the case of Ruddell v. Ry., 75 S. C. 290, 55 S. E. 528, and the cases there cited.

I think there should be a reversal.