Jacobs v. Atlantic Coast Line R.

145 S.E. 146, 147 S.C. 184, 1928 S.C. LEXIS 156

• Court: Supreme Court of South Carolina
• Decided: October 2, 1928
• Docket: 12505
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Chief Justice Watts.

The statement and statement of issues are:

“This action was commenced in January, 1926, for the purpose of recovering damages for the death of the child of plaintiffs which it was alleged was caused by the negligent, willful and wanton acts of the defendant as set forth in the complaint.

“The cause came on for trial before Honorable C. C. Simms, presiding Judge, and a jury at the April, 1926, term of Common Pleas for Chesterfield County. Upon the close of the plaintiff’s case, the presiding Judge granted a nonsuit as to willfulness, wantonness and recklessness.

“Upon the close of all the testimony, the presiding Judge directed a verdict for the defendants on the grounds that even if the acts of the defendants, or either of them, in emitting the steam as alleged in the complaint were negligent, that such acts were not the direct and proximate cause of the injury and death of plaintiff’s intestate.

“Prom order of nonsuit and from the directed verdict for the defendants the plaintiff appealed to the Supreme Court and by the exceptions hereinafter set out challenged the holdings and rulings of his Plonor, the presiding Judge.”

The appellant contends that the issues are:

“1. Whether or not there was any evidence to submit to the jury on the question of punitive damages.

“2. Whether or not the injury and death of plaintiff’s intestate was caused by the negligent and willful acts of the defendants, or either of them.

“3. Was the injury and death of the plaintiff’s intestate due tO' an independent, intervening cause, or was such intervening cause merely one of the proximate and concurring causes of the injury and death, and was the act or acts of the defendants, or either of them, another combining and concurring proximate cause of the injury and death ?”

The respondent contends that the issues before this Court are:

“L Whether or not there was any evidence to submit to the jury on the question of punitive damages.

“2. Whether or not there was any evidence of negligence to submit to the jury.

“3. Whether or not the acts of the defendants, or either of them, in emitting the steam, if negligent, were the direct and proximate cause of the injury and death of plaintiff’s intestate.”

Exception 1 is to granting of nonsuit by his Honor as to punitive damages. This exception is overruled; under the evidence his Honor was clearly right, as there was no’ evidence by which punitive damages could be found.

The position of the appellants is that the intestate was crossing the railroad at a regular public, much-used street crossing; that the defendants, the railroad and its engineer, by their negligent manner in operating the train, had let out a large quantity of steam, which apparently moved away from the railroad crossing and then, by the operation of the laws of nature, was carried back across it, rendering the use of the crossing unsafe and dangerous and confronting the intestate and the driver of an automobile with a sudden and unexpected peril; that the driver of the automobile, when the steam had cleared away and apparently rendered the crossing safe, started to use the crossing, and while using it in a safe and prudent manner, the steam was suddenly wafted back over it, obstructing his vision and that of the intestate, and a collision occurred between the two on the crossing, resulting fatally to the intestate; that the acts of the defendants were at least proximate causes of the injury, even if they combined and concurred with an act of the driver of the automobile, and the plaintiff had a right to hold either or all of the tort-feasors responsible. This was for the death of Nephi Jacobs, a child of the plaintiffs, 10 years old, by reason of a collision between the child and an automobile driven by Boyd Braddock, a cousin of the child, at the crossing of a public street and the Atlantic Coast Tine Railroad. The collision occurred because the driver of the car, and doubtless the child also, were both blinded by steam left on and covering the crossing after the train had backed off from it. The suit is against the railroad and its engineer for unnecessarily, recklessly, and wantonly causing and permitting steam to be emitted at this crossing, obstructing and obscuring the vision of the driver and of the child; and for providing no safeguard signals or warnings.

There is no dispute about the fact that the railroad itself lies in the center of an opening or street 130 feet in width, which is used on both sides of the railroad as a street and is known as Atlantic Coast Tine avenue or street, and that another street, designated on the map as Second Street, crosses this street and the railroad, and runs in a northwestern direction towards the main business part of the Town of Cheraw. The defendant, Johnson, states that this is a public crossing, and that he knew it was a public crossing. See, also, Judge’s ruling, also testimony of defendant’s witness Harper.

The width of the street crossing of the railroad at that time was very narrow, to wit, 16 feet by actual measurement of the civil engineer, Gillespie. T. F. Braddock puts it by estimation 18 feet. Defendants’ witness, M. A. Quick, put it something like 15 or 16 feet. And the defendants’ witness, Harper, puts it 12 or 15 feet; probably 16. The crossing was later, after the accident, made wider.

There are a considerable number of houses east of this crossing, situated both on Railroad Street and on Second Street, only a few of which are shown on the map, and one of these houses was the home and dwelling place of this child and its parents. At the time of the accident, there was on the west side of the crossing and nearest to it two frame store buildings, one of which was of considerable size, and was burned after that time and is not shown on one of the maps. This building left the open or driveway between it and the depot rather narrow, and may have had something to do with turning the stream of steam emitted by the engine as it backed, so that it came back over the crossing and caused or contributed directly to the accident.

L. F. Braddock, who occupied the store building which afterwards burned, knew and fixed its size as exactly 50 by 50 feet. There were several manufacturing enterprises situated on the east side of this crossing and in the neighborhood of it. Several hundred people lived on these streets just east of the crossing. All schools were situated to the west of this, up towards or in the main part of the town. And this was the crossing used by and for all the children. This street was also the natural crossing to go to and from McDonald’s store.

The railroad has a Y on the track or tracks coming in from Florence and Wadesboro. The train uses this Y, turning completely around on it, either at night or in the morning-coming in from Florence or going out back towards Florence. In fact, so far as known, it always heads in and the next morning backs out on another leg of the Y, thus enabling it to turn around and go back towards Florence. Mr. Johnson, who was the engineer, tells us he found this custom when he started on this line four months before, and that he would not change it without an order.

The train was in the habit of letting out steam at and over the crossing sometimes, and sometimes it did not, and the steam was more considerable at times than at others. As it moved on this particular morning, it let out much steam. Witness testified that they had to stop and wait for the steam to move out of the way before crossing. The steam comes out through cocks, which shoot or press it out near the ground and at each side, and this has a tendency to blind or obstruct the vision of those who are on foot.

The witness L. F. Braddock, says:

“Yes, sir; it would blind anyone crossing at the time the steam came out. It came out in large quantities.”

And the same witness says that the steam traveled over to this building and then back.

It was entirely practicable and safe to avoid letting off steam at the crossing. And this defendant, Johnson, states :

“Well, if I saw anybody, I would shut it off. I would not blow steam on anybody.”

And also says that he did not see any one that particular morning. But further examination of his testimony shows that his attention was not called to it until suit brought eight months later, and he did not remember anything about what happened that morning. Likewise, the conductor, Jeffords, offered by defendant, and the fireman, John Rainey, had no recollection of occurrences of that morning. Furthermore, the testimony of the defendant, Johnson, shows that he backed the train down to the depot the first thing that morning and stood there 10 or 15 minutes. His own evidence shows that if he had opened the cocks while his engine stood near the depot, all steam would have disappeared long before the train moved. And doing so would have inconvenienced and endangered no one.

Leaving time of the train on this morning, in accordance with its regular schedule, was 6:50 a. m., at that time. This was the time when people went to work. There was no flagman, watchman, or other protection. The intestate had gone from his home, which was on the east side of the railroad, to McDonald’s store. His father had been over there and was returning home and met him, and the boy went on to get something which he wanted to bring home for breakfast. He was then evidently returning across this crossing.

Boyd Braddock, whose car struck him, had driven up to the crossing, had stopped for the train, and after the train passed, letting out a large amount of steam, awaited until the steam on his, the east, side of the track, had passed beyond him, and saw the other steam passing well beyond him to the west, and then started across the track. As he got on the track; the steam on the west side, either because of the house, or more likely because of the wind, moved back into his face and enveloped him, preventing him from seeing. He was blinded by the steam and, while going very slow, stopped as quickly as possible, but struck some object which turned out to be the boy, who' fell under the car and crept out between the front and hind wheels of his car, which was then on the side track of the crossing. There is no- disputé about the fact that he did not see the boy before he struck him. The accident happened on Thursday. The child was taken to the hospital in Florence, gradually grew worse, ¡and died there on the next Wednesday. The child was 10' years old. He was in good health and a bright child.

We think there was sufficient testimony to carry the case to the jury, and his Honor was in error in directing a verdict for the defendant under the cases of Miller v. A. C. L. Ry., 140 S. C., 170, 138 S. E., 675; Key v. C. & W. C. Ry., 144 S. C., 172, 142 S. E., 336; Callison v. Charleston & W. C. Ry., 106 S. C., 129, 90 S. E., 260; State v. DesChamps, 126 S.C., 420, 120 S. E., 491; Mack v. Railway, 52 S. C., 336, 29 S. E., 905, 40 L. R. A., 679, 68 Am. St. Rep., 913; Duggins v. R. C. D. (March 31, 1928) ; Cooper v. Richland County, 76 S. C., 202, 56 S. E., 958, 10 L. R. A. (N. S.), 799, 121 Am. St. Rep., 946; Sandel v. State, 115 S. C., 180, 104 S. E., 567, 13 A. L. R., 1268; Green v. Railway Co., 131 S. C., 134, 126 S. E., 441, 38 A. L. R., 1448; Howell v. Union-Buffalo Mills, 121 S. C., 137, 113 S. E., 577; Cannon v. Lockhart Mills, 101 S. C., 59, 85 S. E., 233; Rhodes v. So. Ry., 139 S. C., 146, 137 S. E., 434; Johnson v. A. C. L. Ry., 142 S. C., 155, 140 S. E., 443; Goodwin v. Columbia Mills, 80 S. C., 551, 61 S. E., 390; Bridger v. Railway Co., 27 S. C., 463, 3 S. E., 860, 13 Am. St. Rep., 653.

There must be a new trial as to actual damages, if any, and the judgment of the Circuit Court is reversed and cause remanded for a new trial.

Messrs. Justices Blease, Stabler and Carter concur.