The opinion of the Court was delivered by
Mr. Justice Carter.
This is an action by Frank D. Pinckney, as plaintiff, against the defendants, Atlantic Coast Fine Railroad Company, Camp Manufacturing Company, A. J. Johnston, and G. J. Glaus, in the Court of Common Pleas for Charleston County, for alleged personal injuries caused the plaintiff by
a collision between a train of the said Atlantic Coast Line Railroad Company and' an automobile driven by the plaintiff at a public crossing at St. Stephens, S. C., which public crossing was at the time of the collision completely blocked by a train of cars of the defendant, Camp Manufacturing Company, which stood on a siding belonging to the defendant, Atlantic Coast Line Railroad Company, the collision having occurred between 7:15 and 7:30, on the evening of December 19, 1922. The defendants, A. J. Johnston and G. J. Glaus, were engineer and fireman, respectively, on the engine of the said train of the Atlantic Coast Line Railroad Company which struck the plaintiff’s automobile. The action was for both actual and punitive damages. The case was tried before Hon. J. W. DeVore, presiding Judge, and a jury, November, 1925, resulting in a verdict for the plaintiff, as follows: $2,500.00 actual damages and $1,000.00 punitive damages against the defendant, Camp- Manufacturing Company, and $2,500.00 actual damages and $1,000.00 punitive damages against the defendant, Atlantic Coast Line Railroad Company, and nothing against the other defendants, A. J. Johnston and G. J. Glaus.
At the close of the testimony, the defendants made a motion for direction of a verdict, which was refused. After a verdict was rendered by the j ury, motion for a new trial was made by the defendants, Atlantic Coast Line Railroad Company and Camp Manufacturing Company. His Honor, Judge DeVore, issued an order refusing the motion as to actual damages, but set aside the verdict as to punitive damages. From this order all of the parties have appealed to this Court. The plaintiff has appealed from SO' much of the order as sets aside the verdict for punitive damages, and the defendants, Atlantic Coast Line Railroad Company and Camp Manufacturing Company, have appealed for refusal to set aside the verdict as to actual damages.
The allegations of the .complaint necessary for an understanding of the case are, in substance, that the Atlantic
Coast Line Railroad Company owns and operates a line of railroad passing through the Town of St. Stephens, in Berkeley County, this State, and that the defendant, Camp Manufacturing Company, is. engaged in business in this State, operating, managing, and controlling a freight and logging railroad, which connects with the railroads of its codefendant, Atlantic Coast Line Railroad Company, at the said Town of St. Stephens; that the defendants, A. J. Johnston, resident of Florence, S. C., and G. J. Glaus, resident of Charleston, S. C., were engineer and fireman, respectively, on the engine of the Atlantic Coast Line Railroad Company, hereinafter referred to; “that on the 19th day of December, 1922, at or about the hour of
7
o’clock p. m., on a dark, rainy, misty and cold night, this plaintiff was driving his Ford automobile in and upon a public highway in the State of South Carolina, in the Town of St. Stephens, in Berkeley County of said State, when at a crossing of said highway with defendant, Atlantic Coast Line Railroad Company’s, tracks his automobile was struck by a train of defendant, Atlantic Coast Line Railroad Company, his said automobile was completely demolished, and this plaintiff sustained a broken leg and broken arm, severe bruises to his entire body, a terrible shock to his entire nervous system, terrible pain and suffering, was required to remain in a hospital for about a month and subsequently to walk on crutches for about a month and incurred considerable bills for medical attendance and hospital care.”
The plaintiff asked for damages in the sum of $25,000.00, and alleged that the injuries which he suffered were caused by the negligence, recklessness, willfulness and wantonness of the defendants in the following particulars :
“(a) Defendant, Camp Manufacturing Company, with the consent, acquiescence and approval of its codefendant, Atlantic Coast Line Railroad Company, had placed and kept a train of cars on a track of said Atlantic Coast Line Railroad Company and across the public highway and cross
ing of said road, obstructing the crossing of said highway and said railroad unnecessarily and for an unreasonable length of time and without any safeguards, lights or warnings to the public of such obstruction — the said obstruction being in violation of the laws of the State and of the ordinances of the Town of St. Stephens, in which it occurred.
“(b) The train of Atlantic Coast Line Railroad Company was being run and operated by its said engineer A. J. Johnston and its said fireman G. J. Glaus at a high, excessive and dangerous rate of speed, in violation of law and of the ordinances of the Town of St. Stephens, through which it was passing.
“(c) The said train of Atlantic Coast Line Railroad Company was being operated by the said engineer and the said fireman without any proper or adequate lookout, safeguards, or warnings, and was being operated at and upon said crossing without giving any proper signals of its approach contrary to the common law, contrary to the statutes of the State, and contrary to the ordinances of the Town of St. Stephens.
“(d) The said train of defendant, Atlantic Coast Line Railroad, was allowed by its said engineer and fireman to proceed across said public crossing in the Town of St. Stephens on the said dark, rainy, misty night at the high and dangerous rate of speed without protecting the public at the said crossing by means of a flagman or otherwise.”
The defendants, Atlantic Coast Line Railroad, A. J. Johnston, and G. J. Glaus, in their answer, admitted the formal allegations of the complaint, and also admitted that the defendants, A. J. Johnston and G. J. Glaus, were the engineer and fireman on the train referred to- in the complaint, with the usual duties pertaining to said positions; that at the time and place mentioned in the complaint “the plaintiff was driving his automobile along the highway therein mentioned, and attempted to drive the same over and across a crossing of the defendant, Atlantic Coast Line
Railroad Company, and that the said automobile was struck by a train of the said defendant, Atlantic Coast Line Railroad Company, upon said crossing, and that the plaintiff then and there sustained a personal injury and his automobile was damaged.” The remainder of the material allegations of the complaint these defendants denied.
They also set up the defense of contributory negligence, alleging:
“That whatever injuries were sustained by the plaintiff or damage done to his automobile at the time and place mentioned in said complaint, were due to and caused, in whole or in part, or were contributed to as a proximate cause thereof by the negligence, carelessness, gross negligence, wantonness and willfulness of the plaintiff himself, without which said injuries and damages would not have occurred.”
The answer of the defendant, Camp Manufacturing Company, is similar to that of the other defendants, except with reference to the allegations concerning the defendants, Johnston and Glaus, admitted the formal matters alleged in the complaint, set up the defense of contributory negligence, and alleged that, “at the highway crossing where plaintiff’s automobile was struck, there is a double track constituting the main lines of Atlantic Coast Line Railroad Company, and that the logging train of this defendant was not on either of the main lines of said Atlantic Coast Line Railroad Company, but was temporarily on a side track in the opposite direction from which the plaintiff was coming, having been placed thereon by permission of said Atlantic Coast Line Railroad Company; that said logging train was plainly visible to the plaintiff, and that he could have seen the same before he entered upon the railroad track by the ordinary use of his faculties; that there is ample space between the side track and the main line in which the plaintiff could have stopped his automobile”; but that the plaintiff “negligently and carelessly entered upon the main line track of Atlantic Coast Line Railroad Company in full view of the
logging train of this defendant, and negligently and carelessly failed to stop his automobile between the track on which the train was coming and this side track, and that the said negligence and carelessness of the plaintiff combined and concurred with the alleged negligence of this defendant as a proximate cause of the accident, resulting in plaintiff’s alleged injuries, and without which it would not have occurred.” This defendant further alleged that the conduct of the plaintiff in going on the said crossing under the conditions set out above was willful, wanton, and reckless.
Exceptions oe Ateantic Coast Line Raieroau Co.
In passing upon the exceptions of the Atlantic Coast Line Railroad Company, we shall consider the same under three principal divisions, as outlined by counsel for this appellant, namely: (a) Refusal to direct verdict; (b) error in the charge; and (c) refusal to grant a new trial.
As to refusal to direct verdict:
In the motion for direction of a verdict, this appellant, Atlantic Coast Line Railroad Company, based the motion, first, upon the ground that there was no evidence of negligence, willfulness, or wantonness on the part of the railroad company constituting the proximate cause of the injury; second, that it was shown conclusively that the alleged injury was due to an independent and intervening cause, the blocking of the track by the Camp Manufacturing Company; and, third, that the injury complained of was shown to have been caused by plaintiff’s negligence and negligence so gross as to amount to willfulness, as the proximate cause thereof, in that the plaintiff did not use his senses of sight and hearing to prevent the collision.
Riding in the automobile with the plaintiff at the time he received the injuries alleged was Mr. D. B. Miller, who was killed in the collision. The action growing out of the death of Mr. Miller was tried in Richland County, resulting in a verdict for the plaintiff, administrator of the estate of the deceased, and the judgment entered thereon was affirmed
by this Court, reported in 140 S. C., 123, 138 S. E., 675. In the opinion in that case, written by the Chief Justice, the questions of law arising in the case at bar as to negligence, willfulness, intervening cause, and contributory negligence were fully discussed, and there is, therefore, no need for a further discussion of the law on those subjects here; the chief question for consideration here being whether the record discloses any testimony tending to show that the plaintiff's alleged injuries were caused as contended by the plaintiff, or that the only reasonable inference to be drawn from the testimony is that the injuries were caused in the manner contended by the defendants.
In the answer of the Atlantic Coast Line Railroad Company, ownership of the railroad tracks is admitted, and the location of the tracks is clearly shown. It also clearly appears from the evidence that the crossing in question is the' main crossing in the Town of St. Stephens, connecting the principal and frequented business places of the town where people constantly travel. The accident happened after night between 7:15 and 7:30 on the evening of December 19, 1922, and there was testimony tending to show that the place was dark; that it was either raining at the time or had been raining, and some of the witnesses described the night as a “dark, misty night”; that there was no light of any kind at the crossing; that, while there was some testimony tending to show that there was a lantern on the cab of the engine of the Camp Manufacturing Company, there was also testimony tending to show that the same was some distance away from the crossing and furnished no light at the crossing; there were no gates at the crossing, and there was no flagman or any one there for the purpose of keeping watch or giving notice of danger to those traveling over the crossing, or to give notice that the crossing was blocked by the flat cars of the Camp Manufacturing Company, placed there with the permission and under the instruction and direction of the agent of the At
lantic Coast Line Railroad Company, acting, it appears, within the scope of his agency. As was held in the
Miller case,
supra, ordinary prudence might require such a crossing as the one in question to be flagged at certain times, and persons kept there to give notice of danger, on account of the extraordinary danger of the place, and whether the surrounding circumstances required such precaution at the crossing in question here was a question for the jury, and we think his Honor, Judge DeVore, properly submitted the question to the jury. We are also of the opinion that, whether there were sufficient- lights at the crossing, and whether under the circumstances the defendants should have had the place lighted, were questions for the jury.
As stated, it is admitted that, at the crossing in question, a highway passing through the principal business section of the town of St. Stephens and over and across the railroad of the defendant Atlantic Coast Line Railroad Company, where the said railroad company has three tracks, two main line tracks (called double tracks) and a pass or side track, where people constantly travel, was blocked by flat cars of the train of the defendant Camp Manufacturing Company, placed on the side track, the three tracks being close together, and that the blocking was done by the defendant Camp Manufacturing Company with the permission and under the instructions of the defendant Atlantic Coast Line Railroad Company, but the length of time the crossing was blocked was in dispute. Whether the crossing was blocked in violation of law, whether it was blocked an unreasonable length of time under the circumstances, and whether such acts on the part of the defendants brought about the alleged injury as the proximate cause thereof, were questions for the jury, properly submitted under clear instructions by his Honor, Judge DeVore. There was also- testimony tending to show that the train of the defendant Atlantic Coast Line Railroad Company that struck and injured the plaintiff at the crossing approached
the crossing at a rapid rate of speed, without ringing the bell or sounding the whistle and without giving any notice or warning of the approach of the train. Whether this testimony was true was a question to be submitted to the jury.
There was also testimony to the effect that a row of trees on the right of way of the Atlantic Coast Line Railroad Company prevented the plaintiff from seeing the approach of the train that struck the automobile of the plaintiff; also that thé headlight on the engine of this train was dim. Furthermore, it clearly appears from the transcript of record that, in going upon this crossing, approaching it from the side plaintiff approached it, it was necessary to go up a grade, which, according to witnesses for the plaintiff, prevented the lights' on the automobile of the plaintiff from showing the flat cars on the pass track, and that he did not see the flat cars thereon until he was upon the main line. Upon discovering that the crossing was blocked by the flat cars on the pass track, and seeing that there was no way of getting across, the plaintiff undertook to back his automobile off of the crossing, but before he could do so was struck by a fast-going train of the defendant Atlantic Coast Line Railroad Company, which was running behind time and came suddenly upon the plaintiff, without any warning whatsoever, and without any.knowledge of its approach, although plaintiff used his senses of sight and hearing to ascertain if there was any train approaching before going upon the crossing. According to our view of the case, there was not only testimony tending to show negligence on the part of the defendants, but wantonness and willfulness as well, which the jury might reasonably conclude was the proximate cause of plaintiff’s injuries. His Honor, Judge DeVore, therefore, properly refused the motion of the defendant Atlantic Coast Line Railroad Company for a direction of a verdict made upon the ground that there was no evidence of negligence, will
fulness, or wantonness constituting the proximate cause of the injury.
As to the second ground upon • which the motion for direction of a verdict was made by this defendant, that it was shown that the injury was due to an independent and intervening cause, the blocking of the track by the Camp Manufacturing Company, his Honor, Judge DeVore, could not grant the motion on this ground, for the reason, as already pointed out herein, it clearly appears from the transcript of record that the crossing was blocked with consent and under the instruction and direction of the defendant Atlantic Coast Line Railroad Company.
The third ground upon which this defendant Atlantic Coast Line Railroad Company based its motion for a direction of a verdict was that under the evidence it conclusively appeared that the only reasonable inference was “that the injury was due to the plaintiff’s negligence, and negligence so gross as to amount to willfulness, as the proximate cause thereof, in that the plaintiff, who was driving the automobile, did not use his senses of sight and hearing to prevent the collision.”
Under the testimony in the case, to which we called attention in our discussion of the first ground upon which the motion for a direction of a verdict was made by this defendant,- his Llonor, the presiding Judge, properly refused the motion and submitted the issue presented to the jury.
Therefore the exceptions of the defendant Atlantic Coast Line Railroad Company, imputing error to the presiding Judge in refusing the motion for a direction of a verdict, cannot be sustained.
As to error in Judge’s charge:
This defendant Atlantic Coast Line Railroad Company imputes error to his Honor, the presiding Judge, in charging the jury, at the request of Camp
Manufacturing Company, as follows:
“Even if you find from the evidence that the defendant, Camp Manufacturing Company, was negligent or willful in obstructing the crossing, but that the defendant could not reasonably have anticipated that a collision such as occurred on this occasion would result from such obstruction, then I charge you that such obstruction was not a direct and proximate cause of the collision, although you find the same to be a remote cause, and your verdict must be in favor of this defendant.”
In charging this request, his Honor, the presiding Judge, added:
“I charge you that, and in connection with it this: before you could find a verdict against that company you must find that the obstruction was the direct and proximate cause of the injury, if that be so, the plaintiff would be entitled to recover. If you find the obstruction was a remote cause, he could not recover.”
We do not think this defendant was in any way prejudiced by his Honor thus charging the jury, and the exception is overruled. See
Miller case, supra.
As to refusal to grant new trial:
The exceptions imputing error to his Honor, falling under this division, are as follows:
“E The verdict was contrary to the manifest weight of the evidence.
“2. The verdict was contrary to the clear preponderance of the evidence, the only reasonable inference therefrom being—
“(a) Injury to plaintiff not direct and proximate result of any negligence of Railroad Company, and,
“(b) Only inference being injury through negligence of defendant, Camp Manufacturing Company.”
The questions raised by these exceptions are disposed of under our discussion of the testimony in connection with the motion for direction of verdict. The exceptions cannot be sustained, and are, therefore, overruled.
Exceptions oe Camp Manufacturing Company
As stated by counsel for Camp, Manufacturing Company, this defendant’s exceptions raise the following points:
“ (1) The Court erred in refusing to direct a verdict for Camp Manufacturing Company, on the ground that there was no evidence of any negligence or willfulness on its part; (2) the Court erred in refusing to direct a verdict for Camp Manufacturing Company, on the ground that there was no evidence of negligence or willfulness on its part which was a proximate cause of plaintiff’s injury, and that plaintiff’s injury was due to an independent, intervening cause; (3) the Court erred in refusing to direct a verdict for Camp Manufacturing Company, on the ground that the evidence conclusively shows that the plaintiff was guilty of contributory negligence; and (4) the Court erred in the admission of certain testimon};, and in refusing to grant Camp Manufacturing Company’s motion for a new trial.”
A brief reference to the testimony to which we have already adverted disposes of the first three points mentioned This defendant, according to testimony on behalf of witnesses for the plaintiff, corroborated in part by witnesses for defendants, blocked the crossing in question by placing and leaving thereon its train of cars in the nighttime, on a dark and rainy night (some of the witnesses described the occasion as “misty”), without any light at the crossing to warn the traveling public of the presence of the flat cars on the track, which could not be seen by plaintiff until after he got upon the main line, for the reasons appearing in testimony already adverted to herein, and keeping the crossing blocked for an unreasonable time and longer than permitted by law.
According to our view of the case, the questions raised by appellant, as set out by counsel under the three p'oints mentioned, were under the testimony issues f.or the jury, which the presiding Judge submitted to the jury under proper instructions.
As to the fourth question raised under the appellant’s exceptions, that the presiding Judge erred in the admission of certain testimony, the same must be decided against appellant’s contention. The error imputed to his Honor here is in permitting the plaintiff to answer this question: “Q. If you had known these flat cars were there, would you have gone on the crossing?” to which question the plaintiff answered that he would not. While applying the rule strictly, the question was not permissible, we fail to see wherein the defendant was prejudiced, and the exception is, therefore, overruled.
The exceptions imputing error to the presiding Judge in refusing to grant this defendant’s motion for a new trial is also overruled, for the reasons assigned in overruling the exceptions charging error in refusing the motion for direction of verdict.
Exceptions op Praintipe
The plaintiff imputes error to his Honor, Judge De-Vore, in setting aside the verdict as to punitive damage. Erom the order issued by his Plonor in disposing of the motions for a new trial, it appears, and it is so stated, that if the jury had rendered a verdict for actual and punitive damages against the defendants, Johnston and Glaus, his Honor would not have disturbed the verdict. By this we assume that the evidence in the case, in the opinion of his Honor, was sufficient to warrant a verdict against all of the defendants for punitive as well as actual damages, with which view we fully agree; therefore, the defendants, Johnston and Glaus, engineer and fireman, respectively, on the train of the Atlantic Coast Line Railroad Company that struck the plaintiff’s automobile, having been acquitted by the verdict of the jury, the question presented to us is, Do we find other evidence, independent of that against the defendants, Johnston and Glaus, to connect and hold the other defendants, Atlantic Coast Line Railroad Company and Camp Manufacturing Company as to punitive damages?
Having already herein, in the discussions of the other questions presented by the appeal, called attention to the additional testimony tending to show wantonness, recklessness, or willfulness on the part of these defendants, Atlantic Coast Pine Railroad Company and Camp Manufacturing Company, we do not consider it necessary to again review the same in detail, and shall simply make a brief reference to the same here.
The Camp Manufacturing Company, as it clearly appears from the record, on the night in question, placed a train of cars on the highway and street crossing in the Town of St. Stephens, thereby blocking said crossing where the plaintiff received bodily injuries, and had his automobile completely destroyed by the striking of the same by a train of the defendant, Atlantic Coast Pine Railroad Company, which train of cars of the Camp Manufacturing Company was placed on said crossing, with the consent and under the instructions of the Atlantic Coast Pine Railroad Company. The night in question, according to the witnesses for plaintiff, was a dark “misty” night, and no lights appeared or were placed at the crossing, and neither was a flagman or guard placed there for the protection of those desiring to pass over crossing, although it was a place where many people constantly traveled; that, according to some of the witnesses, the said train of the Camp Manufacturing Company remained over the crossing and kept the same blocked for a long time — just how long the witnesses differed; some said ten minutes, some fifteen, and some twenty and so on, from which testimony it might be reasonably inferred that the train remained there an unreasonable length of time under the circumstances, blocking the said crossing, especially so when there was no light and no guard or flagman placed there.
It further appears from the testimony that there was a row of trees on the right of way of the defendant, Atlantic Coast Pine Railroad Company, which, according to the testimony of some of the witnesses, obstructed the view of the
plaintiff as he approached the crossing and prevented him from seeing the approaching train; also there was a grade which the plaintiff had to go up in going on the crossing, and this grade prevented the lights on the automobile from showing the train of cars on the pass track, the cars at the crossing being what are termed flat cars, and not tall enough to be seen under the existing conditions until the plaintiff was on the main line, according to the testimony in behalf of the plaintiff, and that the plaintiff, as he testified, when he observed that the crossing was blocked, tried to back his automobile off of the track, but before he could do so was struck by the incoming train of the defendant, Atlantic Coast Line Railroad Company.
In our opinion, the jury might reasonably conclude from this testimony, which may be considered apart from the alleged willful acts of the defendants, Johnston and Glaus, that there were other acts of commission and omission on the part of the defendants, Atlantic Coast Line Railroad Company and Camp Manufacturing Company, which were willful or of such a gross or reckless nature as to amount to willfulness upon which punitive damages could be based.
Therefore, the verdict for punitive damages, as we view the case, should not have been set aside. In support of this view we call attention to the following cases:
Durst v. Southern Railway Company,
130 S. C., 165, 125 S. E., 651;
Howell v. Southern Railway Company,
114 S. C., 31, 102 S. E., 856.
It is, therefore, the judgment of this Court that the exceptions of the defendants, Atlantic Coast Line Railroad Company and Camp Manufacturing Company, be overruled, that the exceptions of the plaintiff be sustained, and that the plaintiff have leave to enter up judgment against the defendants, Atlantic Coast Line Railroad Company and Camp Manufacturing Company, for the full amount of the verdict rendered by the jury.
Mr. Chief Justice Watts and Messrs. Justices Blease and Stabler concur.