The opinion of the Court was delivered by
Mr. Chiee Justice Bonham,
with all other Justices concurring in the result. Mr. Associate Justice Fishburne writes a concurring and dissenting opinion in which the other Justices concur.
J. P. Bell, as plaintiff, instituted an action for the recovery of actual and punitive damages in the Court of Common Pleas for Sumter County, by the service of summons and complaint, against the Atlantic Coast Fine Railroad Company, as defendant, about February 24, 1942, arising out of injuries which the plaintiff, a policeman in the Town of Mayesville, alleges that he sustained on or about the night of November 28, 1941, while he was making his rounds of duty in the town and in the county named. In the complaint it is alleged that the main highway through that town crosses a track of the defendant, and that while the plaintiff was standing about twenty feet from that crossing, a freight train which the defendant was operating on that track passed through the town at a high and rapid rate of speed, in the course of which it “picked up from the planking placed
by the defendant at said crossing, a piece thereof which had pulled
off
of said planking, which said piece of planking was about three inches in diameter and about eight feet long, and threw the same against the right side” of plaintiff.
The complaint further alleged “that under the law the defendant is required to maintain said crossing in a proper manner so as tee make the said crossing safe for the use of the public generally and this plaintiff.in particular,” and “that the law further imposes the duty upon the defendant, at the expense of the defendant, to so guard or protect its rails by plank, timber or otherwise, as to secure a safe and easy passage across its roadbed, and that the defendant did so construct the crossing hereinbefore referred to, by the placing of heavy planking near the iron rails across said highway, said planking having been placed by the said railroad at said crossing a number of years ago,” and that “it was the duty of the defendant to so keep and maintain the planking at said railroad crossing placed there by the defendant” (at a point which it is alleged the defendant knew to be a greatly traveled place) “in a good and sound condition and not permit the same to become cracked or weather-worn, then to replace the same with sound planking, all of which duties the defendant failed to do and perform”, and that in such failure, and in its failure to inspect the said planking, and in its operation of a freight train in such a manner as to permit some part of the train to catch and throw the broken part of the planking endwise against the plaintiff, the defendant was “negligent, reckless, careless, wanton and willful.”
In its answer, the defendant denied all of. the allegations of the complaint, and the cause came on to be heard before the Honorable S. J. Royall, Special Judge, and a jury, on April 23, 1942. At the close of the testimony counsel for the defendant made a motion for the direction of a verdict upon two grounds, the first of which was “that there is no evidence of willfulness in this case to warrant the
issue of punitive damages being submitted to the jury.” The motion was overruled by the Court, and the jury found a verdict in favor of the plaintiff for $500.00 actual damages and $500.00 punitive damages, following which the defendant moved for a new trial solely upon the ground that the jury erred in awarding punitive damages. On the following day an order was signed by the trial Judge denying the motion for a new trial, in which order it is stated: “The defendant moved for a new trial as to punitive damages. * * * I am of opinion that the question of punitive damages was properly submitted to the jury under the testimony.” From this order, and the judgment entered thereon, the defendant appealed to this Court upon six exceptions, two of which we quote at this point:
“4. The trial Court erred in refusing to direct a verdict against punitive damages and in submitting the issue to the jury on the ground that evidence of violation of a statute alone warranted sufficient implication or evidence of willfulness, since there was no real evidence of willful or wanton or even grossly negligent misconduct on defendant’s part to sustain punitive damages.
“6. The trial Judge erred in refusing to set aside the verdict as to punitive damages and in holding that in addition to the implication arising from evidence of statutory violation there was evidence of gross negligence on the part of defendant’s section master, in that there is no reasonable inference to be drawn from the testimony that the section master was grossly negligent, and furthermore that willfulness and more than gross negligence would have to be reasonably inferable to sustain the finding of punitive damages.”
It will be seen, therefore, that no question pertaining to actual damages is before this Court.
The portions of the complaint which we have quoted allege certain requirements which the law of this State im
poses upon this defendant, and it will be seen that some of these specific, statutory requirements are set forth in the two following quoted sections of the Code of Raws of South Carolina for 1942:
Ҥ 8433. A railroad corporation whose road is crossed by a highway or other way within the corporate limits of any city, town or village, on a level therewith shall, at its own expense, so guard or protect its rails by plank, timber or otherwise as to secure a safe and easy passage across its road; and if, in the opinion of the proper municipal authorities thereof, any subsequent alteration of the highway or other way, or any additional safeguards, are required at the crossing, they may order the corporation to establish the same.
Ҥ 8473. Whenever any steam or electric railway operated in this State is now or may hereafter be crossed at. grade by a public highway, the persons, firms or corporations operating such railways are hereby required to construct and maintain safe and adequate grade crossing meeting the requirements of the authorities responsible for such highways; that is to say, that in case of grade crossings of State highways over such railways, the state-highway department shall have the power to specify the character of the grade crossings, and the owners of the railways shall at their own expense construct and maintain the said crossings to meet the specifications of the state highway department, and in .case of grade crossing of county or township highways over such railways, the same power shall be vested in the county or township' authorities.
“Any persons, firms or corporations owning any electric or steam railway and failing or refusing to comply with the provisions of this section after having been notified by the proper authorities, in writing, and after the lapse of thirty (30) days from the date of such notice, shall upon conviction, pay a fine of ten ($10.00) dollars per day for
each day’s delay. It shall be the duty of the state highway department in the case of State highways and county or township authorities in case of county or township highways to make complaint to any court of competent jurisdiction within the county where the offense is committed, and t<3 furnish evidence before such court, whenever a violation or violations of this section may occur.”
Before discussing the general law and the statutes which are involved here, we wish to examine briefly the testimony from which an inference of such a degree of negligence as would support an award of punitive damages was held to exist upon the trial in the Circuit Court.
Mr. G. A. Simpson, who for more than thirty years had been the section master for the defendant company, and who has charge of maintenance of the tracks and the crossings in the Town of Mayesville, testified that he was familiar with the crossing in question which is used by heavy trucks and caterpillars, and where the traffic is heavy, and where the highway department had been doing some work about the time of the accident. He testified that he inspected or “watched” the crossing under consideration approximately once or twice a week; that its condition looked all right to him, that he had inspected it only a few hours prior to the occurrence of the accident now under discussion, at which time there was no evidence of a long cracked plank, or any other defect which he could see in passing over the crossing; that “if that board came from there it was right in place and I never saw the cracks”; that no complaint had been made to him by the town officials that the crossing was not in good condition; that the board which was exhibited to him at the hearing was of cypress; that the plaintiff, who is an old section master himself, is a friend of his, and that two or three days after the accident the witness called on him and inquired whether anything was wrong with the crossing, whereupon the plaintiff said “no, not a thing, it
had to be something dragging on the train to choke that piece of board, or whatever it was, off.”
Upon cross examination by counsel for the plaintiff, the witness testified that in his opinion the planking at the crossing had been put in place about two years prior to the accident; that whenever a split .is discovered, the board is removed and is replaced with another if one is immediately available, otherwise the witness orders new boards, and until they arrive, the cavity caused by the removal of the split board is filled with rock; that if the crack in the present board had been visible, he would have seen it, and that the split in the board which was exhibited to him appeared to have been held together by spikes which prevented the crack from being visible.
In the order of the trial Judge refusing defendant’s motion for a new trial, no other testimony than that concerning the above-mentioned witness is specifically referred to. In that connection the trial Judge in that order stated that “the jury had a right to consider whether the conduct of ■the section master in the performance or failure to perform his duties amounted to more than ordinary negligence or in fact amounted to gross negligence.” The only detailed testimony relating to the conduct and duties of the section master was contained in his own testimony upon which apparently was the basis upon which the trial Judge ruled that “the testimony in this case was susceptible of more than one inference.”
Mr. C. H. Pack, an inspector for the defendant, who inspected the train in question on the afternoon and evening of the accident, testified upon cross examination by counsel for the plaintiff that he had had eighteen years of railroad experience, that the suction caused by a rapidly moving train will pick up paper or something light and will pull it along behind the train, but that it would not, in his opinion, pick up heavy articles, although the vibration from the passage of the train would cause a loose board to “quiver a little
bit”, but that in his opinion such suction would not result in picking up a piece of board as heavy as the one in evidence; that although no mechanism is perfect, and something about the train could possibly have come loose en route, that there was nothing loose, or hanging down in such a way that it could have struck the planking, when the train left Florence before it reached Mayesville, on its way to Sumter. A'Vith reference to his inspection at Florence he testified: “If I see anything that would cause anything to go wrong about the train, before it leaves there, I don’t sign for nothing unless I see everything is right.”
FI. F. Robinson, another car inspector for the defendant, testified that he and Mr. J. F. Pack inspected the train on the night in question at Sumter, after it had passed through Mayesville, and that he found nothing hanging down or out of place and that he found nothing at all wrong with the train. Mr. J. F. Pack, who inspected the train with Mr. Robinson in Sumter, testified that he observed nothing out of the way about the train, that he has never missed seeing on an inspection, and that he would have seen anything wrong if it had existed. Two other inspectors testified that they found no defective condition in any of the mechanism of the cars upon the arrival of the train in Columbia a few hours after the accident, after having made a very careful inspection.
The engineer on the train in question testified that its rate of speed through Mayesville was about thirty to thirty-five miles per hour, that the trip on that evening was a normal run in which no difficulty was experienced, such as the dragging of any of the mechanism of the cars. He testified that if anything had been dragging which would reach down from the truck of the cars, he would have had notice of it because the object would throw up rock ballast which would strike the cars and constitute a warning to the conductor at the rear of the train. The conductor, who was riding in the caboose, testified that he found no defect in
the brake rigging or anything of the kind on the entire trip; that if he discovers anything wrong with the mechanism of the cars he applies air from the emergency valve and stops the train.
Mr. J. F. Mcllwaine, resident engineer on construction of roads for the State Highway Department, testified that at the time in question he was in charge of the highway construction at Mayesville, including the portion of the highway at the crossing under consideration, that he passed over this crossing about once or twice each day, and considered it a safe crossing, and that it would have been a part of his duties to have had it remedied if it had been dangerous, but that he would not consider a long piece of cracked plank dangerous to the public even if he had seen it, unless it had been loose, and that it is entirely possible that a heavy truck on the highway might pass at any time and crack a plank.
The plaintiff testified that before he became a policeman in Mayesville he was an old section master for the Seaboard, that he customarily passed over this crossing more than two or three times a day, that he did not know how the piece of plank hit him or what caused it to do so, but that as he stood near the crossing “something” flew up and hit him after a part of the train had passed; that the space between the rails is filled in with dirt and ballast, and there is only one track at this point.
. William Dean, a witness for the plaintiff testified on cross examination that he passes over this crossing two or three times a week, and that so far as he knew, the crossing had been in perfect condition. Another witness for the plaintiff, who sees the crossing almost every day, testified on cross examination that he had never noticed anything wrong with the crossing except that it was bumpy. There was also testimony by a witness for the plaintiff, upon cross examination, that the plaintiff being a policeman of
the town, it was his duty to report any dangerous condition.
While some of the testimony was more favorable to the plaintiff than that which we have cited, and might properly support a verdict for actual damages resulting from a lack of ordinary care (that question not being in issue here), there is no testimony, in our opinion, which indicates any approach .to gross negligence by the defendant, or which supports the allegations of the complaint pertaining thereto.
Nor do we find in the testimony such evidence of will full failure on the part of the section master or any of the agents of the defendant as would warrant the issue of punitive damages being submitted to the jury by the trial Judge, or to sustain any award therefor.
Mr. B. C. Webster, town clerk and treasurer of Mayesville, and Mr. Harvey Tiller, a councilman of that town, each testified for the plaintiff (who, himself, was a policeman), but no one of the three was sufficiently impressed with the condition of the crossing to demand any improvement, and yet all were persons vested with certain powers and responsibilities in that town. If these persons, including the plaintiff, saw no such danger in the crossing as to take steps such as are directed in the sections of the statutes which we have quoted, how can the actions of the section master, under the evidence here, be regarded as gross negligence ?
In the case of
Sample v. Gulf Refining Co.,
183 S. C., 399, 191 S. E’., 209, this Court said on page 411 of the State Reports, 183 S. C., 191 S. E., on page 214; “While punitive damages are recoverable for negligence so gross or reckless of consequences as to imply or to assume the nature of wantonness, willfulness, or recklessness, yet they are not awarded in this State for mere gross negligence.
Watts v. South Bound R. Co.,
60 S. C., 67, 38 S. E., 240;
Proctor v. Southern Ry. Co.,
61 S. C., 170, 39
S. E., 351;
Boyd v. Blue Ridge R. Co.,
65 S. C., 326, 43 S. E., 817;
Webb v. Atlantic Coast Line R. Co.,
76 S. C., 193, 56 S. E., 954, 9 L. R. A. (N. S.), 1218, 11 Ann. Cas., 834.' * *
See also the more extensive discussion contained in the opinion of this Court in the case of
Cubbage v. Roos,
181 S. C., 188, 186 S. E., 794, in which it was held that where only one reasonable inference can be deduced from the evidence, the question becomes one of law for the Court, and hence the Court can peremptorily instruct the jury that it cannot award punitive damages, even though the letter of some statute has not been observed by the defendant.
We find nothing in the testimony to indicate that a dangerous condition at the crossing was reasonably discoverable for any appreciable time before the accident. The time during which the plank was allegedly defective was not shown, and there was, in fact, testimony tending to show that its condition might have been brought about by some passing truck or other vehicle immediately before the accident. It was not shown that the defendant, or anyone else, by the exercise of ordinary care, could reasonably have discovered the existence of a hazard in the condition of the plank, or reasonably have anticipated .the event which occurred.
Furthermore, we do not see how the defendant can be held to have been grossly negligent when the testimony for the plaintiff fails to reveal whether his injury was caused by a plank, whose dangerous condition no one seems to have been able to observe prior to the accident, or by some unusual condition on the passing train. The plaintiff himself testified that “in some way, which I am unable to explain, the train ripped up a part of that board.”
The sixth exception of the defendant is based partly upon the holding of the trial Judge, in refusing to set aside the verdict as to punitive damages, with reference to the im
plication arising from evidence of statutory violation. We have already seen that the allegations of the complaint are largely based upon Sections 8433 and 8473 of the 1942 Code, which we have quoted herein, but under the authority of the case of
Cubbage v. Roos, supra,
we do not think that the existence of these statutes is controlling of the question of punitive damages under the testimony herein, if indeed, such statutes had any bearing on any phase of the case.
Under the provisions of Section 8433, the defendant was required to “so guard or protect its rails by plank, timber or otherwise as to secure a safe and easy passage across its road” at crossings similar to the one under consideration. There is no evidence or implication that this was not done by the defendant at this crossing. The remainder of that section provides that “if, in the opinion of the proper municipal authorities” any additional safeguards are required at the crossing, those authorities may order the corporation to establish them. It does not appear that the municipal authorities were of the opinion that any additional safeguards were required, or that any order was issued to establish them.
Section‘8473 provides a method whereby owners of railways who refuse to construct and maintain grade crossings (after proper notice in writing) meeting the requirements of the proper authorities, may be punished. The statute states what authorities shall be responsible for such highways over such railways, and provides that the proper authority shall have the power to specify the character of the grade crossing which the owners of the railway must construct and maintain in accordance with such specifications, the penalty for such refusal to take effect only after the owners of the railway have been notified by the proper authorities, in writing, and after the lapse of thirty days from the date of such notice.
There is no evidence here that the defendant failed to construct the crossing in this case in accordance with the specifications of the proper authorities, or that the authorities gave any notice in writing pertaining to the construction or maintenance of the crossing. In fact the resident highway engineer testified that the crossing was a safe one.
In its discussion of negligence, we find in 38 Am. Jur., 834, Section 163, the following pertinent paragraph: “An action for negligence based upon an alleged violation of a statute or ordinance cannot be maintained where it appears that the statute or ordinance was enacted or ordained for a purpose wholly different from that of preventing the injury of which complaint is made. To afford a right of action for injury from the violation of a statute or ordinance the complainant’s injury must have been such as the statute or ordinance was intended to prevent. If hone of the consequences which the enactment was designed to guard against have resulted from its breach, such a breach does not constitute an actionable wrong, even though some other injurious consequence has resulted. It is not enough for a plaintiff to show that the defendant-neglected a duty imposed by statute and that he would not have been injured if the duty had been performed. He musí go further and show that his injury was caused by his exposure to a hazard from which it was the purpose of the statute to protect him.” (Citing many authorities.)
We have seen that Code Section 8433 contemplates “a safe and easy passage across” the railroad tracks, whereas the plaintiff here was not engaged in using the crossing, or waiting for the train to pass' so that he could use it, but was standing some twenty feet distant for the purpose of watching the train go by.
In the case of
Hutto v. Southern R.
Co., 100 S. C., 181, 84 S. E., 719, L. R. A., 1915-D, 962, Mr. Justice Hydrick, in delivering the opinion of this Court, said at page 184 of
the State Reports, 100 S. C-, 84 S. E., at page 720: “* * * in actions under the common law, proof of the failure to give the signals required by the statute at nearby crossings has been held in numerous cases to be competent evidence in support of the charge of negligence. But such failure has never been held to be negligence
per se,
except as to those using or intending to use such crossings.”
For the reasons which we have stated, we are of the opinion that the trial Judge erred in refusing to direct a verdict against punitive damages, and in submitting the question of punitive damages to the jury, and that his Honor also erred in overruling the defendant’s motion for a new trial with respect to punitive damages.
The fifth exception of the defendant charged error in the Court’s refusal to charge the jury, as requested by the defendant, that the two sections of the Code which we have quoted in connection with our consideration of the foregoing questions, were not applicable to this case since “the sole purpose of these Sections is to protect the members of the public in the use of the crossing.” Such refusal to charge-, however, was not included among the grounds of the motion for a new trial in this case, and therefore it, along with three other exceptions, cannot be held to be before this Court for determination.
Dinkins v. Robbins,
200 S. C., 475, 21 S. E. (2d), 10;
Griffin v. State Highway Department of South Carolina,
170 S. C., 403, 170 S. E., 459. However, in view of our decisions as to other phases of this case, in which the same two sections of the Code were involved, we may say that we think the trial Judge should have charged the jury as requested, for the reasons which we have already stated in our discussion of other phases of this case.
The judgment of the trial Court, insofar as it pertains to punitive damages, is reversed; and the case is remanded to the Circuit Court for a new trial, unless the respondent shall remit on the record, to the appellant, the amount of $500.00 punitive damages.
Messrs. Associate Justices Baker, Fishburne and Stukes, and Circuit Judge L. D. Eide, Acting Associate Justice, concur in result.