Respondent was seriously and permanently injured when his automobile which he was driving was in collision with the front end of a Diesel locomotive of a passenger train at about sunset on February 3, 1945, in the North Charleston area where the paved Liberty Hill road crosses at grade the main line, double track, of appellant railroad. The action against appellant and the engineer and conductor of the train was upon complaint which contained appropriate allegations for the recovery of actual and punitive damages upon specifications of negligence which included excessive speed, failure to give the statutory crossing signals or other warning, failure to keep a proper lookout and to provide automatic signal light, flagman or watchman at the crossing, and the maintenance of obstructions to the view of highway travelers. The answer denied negligence, etc., and set up the affirmative defense of contributory negligence, recklessness and wilfulness. At the conclusion of the evidence upon trial the conductor was eliminated as a defendant by consent.
Motions of appellant for nonsuit, directed verdict, new trial and judgment non obstante veredicto were refused. The verdict was for $20,000.00 actual damages against appellant alone from which it may be fairly inferred that the jury found only simple negligence and exonerated the engineer-defendant of all alleged delicts. Thus the appeal must be considered in the light of the facts that the engineer ran the train at reasonable speed, kept a proper lookout and gave the highway crossing signals pursuant to statute, Code, secs. 8355, 8377, and these conclusions are supported by the evidence which has been carefully reviewed.
The able and conscientious trial judge was of opinion that the issue of the alleged negligence of appellant was for the jury with respect to its failure to provide crossing lights,
Since the verdict for the engineer, respondent's case is principally pitched upon the presence on the railroad right-of-way of a large liveoak tree to his right as he approached the crossing which partially obstructed his view, had he looked, of the train approaching also from his right. Maps in evidence, the accuracy of which is undisputed, show that the thirty-inch trunk of the tree was 79 feet from the center of the highway and 59 feet from the near rail of the second track. Its limb-spread was 50 feet in diameter and the outer edge of the limbs, toward the railroad, was 21 feet from the near rail of the first track. Thus when respondent reached a point 21 feet from the first rail of the near track, the tree had no effect upon his view of the approaching
He was returning to his nearby home from bird-hunting and was alone in the car save for his dog and kill. As he approached the tracks he passed unheeded, 448 feet away, a highway department warning sign of the railroad crossing and at it was the usual, large cross-arm signal which was maintained by appellant in accord with statute. Code sec. 8356. He inferentially admitted in his testimony that he saw neither of the warning signs and said that he did
"Q. You didn't know you were coming to a railroad crossing? A. No, sir.
"Q. Why did you look to the left and right? A. I saw the man ahead check up.
"Q. You knew then that you were coming to a railroad crossing? A. Yes, sir.
"Q. And if you had seen anything there, you could have stopped? A. Yes, sir."
The evidence tends to show that the train crew were likewise negligent in the matter of keeping a lookout. The fireman was not in his seat whence he could have seen, if vigilant, the approach of respondent's automobile which was on his side of the locomotive. Instead there sat in his place a temporary member of the crew described as "electrical supervisor" of the railroad who testified that he was keeping a lookout but saw respondent only an instant before the impact and saw nothing of the automobile's approach. Similarly, in view of the presence on the railroad right-of-way of the large liveoak with low-hanging branches and the other circumstances of the crossing, including the heavy highway traffic over it, the jury may have been warranted in finding that appellant should have maintained special warning devices or stationed a flagman at the crossing; and it is apparent that some such consideration occasioned the verdict for actual damages, simple negligence, against appellant; but in our judgment there was no room for reasonable inference other than that respondent was also guilty of negligence in his total failure to make prudent use of his sense of sight and hearing as he approached the crossing, which contributed to
It is elementary that a railroad company and a highway traveler have correlative duties which require both to exercise at least average care and prudence in such cases and when the evidence is susceptible of only one reasonable inference with respect to a controlling issue, it becomes a matter of law for decision without reference to the jury. Bishop v. Atlantic Coast Line R. Co., 213 S.C. 125, 48 S.E.2d 620, and Arnold v. Charleston & Western Carolina R. Co., 213 S.E. 413, 49 S.E.2d 725 (both opinions), and the numerous earlier, apposite decisions there cited.
Reversed and remanded for entry of judgment for appellant.
FISHBURNE and OXNER, JJ., concur.
BAKER, C.J., and TAYLOR, J., concur in result.