The opinion of the court was delivered by: Stukes, Chief Justice.
There were no eyewitnesses who testified other than members of the train crew, except the occupant of another automobile which was about a half mile behind the automobile of decedent; he testified that he saw the brake lights of the latter go on, quoting from his testimony, "just before it ran into the train." A nearby resident heard the crash and he and his wife promptly went to the scene.
This action for damages for alleged wrongful death was brought against the appellant railroad company and its engineer who was operating the locomotive. It was alleged in the complaint that the collision was caused by one or more of the following concurring acts or omissions of the defendants: (a) the engineer-defendant was operating the locomotive at an excessive rate of speed under the existing conditions; (b) the defendants failed to maintain a proper lookout for highway travelers; (c) the engineer failed to keep the locomotive under proper control under the conditions; (d) he was operating the locomotive at an excessive rate of speed over the U.S. Highway which was much used by nonresidents, unfamiliar with the grade crossing; (e) the locomotive was equipped with improper brakes or the engineer failed to properly apply them; (f) the defendants failed to provide a sufficient train crew; (g) the defendants failed to provide adequate signals and devices to warn highway travelers of the approach of the train, under the conditions; (h) the railroad company failed to keep unobstructed the area contiguous to the crossing, whereby visibility of it was impaired; and (i) the defendants failed to comply with section 58-743 of the Code of 1952 requiring bell or whistle signals at grade crossings.
The answer contained a general denial of the material allegations of the complaint and a plea of contributory negligence, recklessness and wilfulness, in specified particulars, of the driver of the automobile.
At the conclusion of the evidence the defendants moved for direction of verdict upon grounds which included contributory negligence; and upon denial of that motion, separately moved for withdrawal from the jury of certain of the specifications of negligence for lack of evidentiary support. The latter motion was granted only with respect to specification (f), which alleged an insufficient train crew, and that part of (e) alleging improper brakes.
The jury returned verdict for plaintiff for actual and punitive damages against the railroad company alone, thus acquitting the engineer-defendant of negligence, etc. On that ground, and others, the defendant railroad company moved for judgment notwithstanding the verdict. The motion was refused upon the conclusion that while the verdict discharged the company on the issues of speed and failure to give the statutory crossing signals, there remained specifications (b), (g) and (h). The court construed (b) to include the failure to keep a proper lookout through the agency of someone, in addition to the train crew, at the crossing; and (g) to charge negligence in the failure to maintain adequate warning signals and devices at the crossing; and (h) to include area without the right of way, and it was held that while the company did not have the right to remove obstructions outside of its right-of-way the existence of them required it, quoting from the order, "to take such steps as may be necessary to warn the traveling public of the existence of the obstructed crossing by reason of the very fact that the obstructions are without the right of way."
In view of this result of the verdict, it is easily seen from consideration of all of the evidence, that there was none to support the findings of recklessness, wilfulness or wantonness, which was implicit in the verdict for punitive damages. The statutory, Code Sec. 58-999, requirement of signs at the crossing was fully met; there were two cross-arm crossing signs which the photographs in evidence show were clearly visible. In addition, about four hundred feet from the crossing, as decedent approached it, there was a State Highway sign warning of the railroad crossing. The speed of the train was about forty-five miles per hour, which it is not contended was in violation of any applicable statute or regulation.
In the absence of wilfulness and wantonness in the conduct of appellant, contributory negligence was a defense to the liability of the company for any alleged negligence which the jury may have found.
The only reasonable inference from consideration of all of the evidence is that contributory negligence was a proximate cause of the collision. There were obstructions on land adjacent to the right of way, including an oak tree and smaller growth, but the right of way was clear of obstruction and when the decedent reached a point abreast of the tree, on his left, which was thirty-two feet from the center line of the highway, he was sixty-three feet from the track on which the train approached, and his view of it was then clear and unobstructed for an indefinite distance. He could not have looked for the train without seeing it, or listened without hearing the signals, in time to avert the collision, if he had been driving his car in a reasonably prudent manner and heeded the warning signs. The mute evidence of the effects of the impact shows that he did not materially, if at all, slacken his speed before crashing into the side of the locomotive. The conclusion is inescapable that he was guilty of at least simple, contributory negligence; it is the only reasonable inference of which the evidence is susceptible.
Carter v. Atlantic Coast Line Railroad Co., 194 S.C. 494, 10 S.E.2d 17, is perhaps the leading case upon the principal issue in this appeal. It involved the death of a motorist from injuries received in a collision between his automobile and a train at a grade crossing in the town of Timmonsville. The action was brought against the railroad company and the engineer upon allegations of negligence much like those in the instant case. There were obstructions to the view of plaintiff's intestate which were created by the freight depot and boxcars upon a sidetrack. The jury absolved the engineer from all delicts by finding a verdict in his favor and against the railroad company alone. It was held that judgment for the company notwithstanding the verdict should have been granted upon the conclusion that the location of the building and boxcars could have constituted negligence only when taken in connection with the operation of the train and if the train was operated without negligence or wilfulness, as was established by the verdict in that case (and this), the verdict against the company alone could not stand.
A case of even more similarity to this is Taylor v. Atlantic Coast Line Railroad Co., 217 S.C. 435, 60 S.E.2d 889, 891. There the complaint expressly charged negligence in the failure to provide automatic signal lights, or a flagman or watchman at the crossing, as respondent contends was substantially alleged in this case. There was also a tree at the crossing in the Taylor case, larger than that in this case, and, more important, it was on the railroad right of way, which constituted a considerable obstruction to the view of the approaching train. The verdict in the action, which was brought against the railroad and the engineer, was against the company alone, thus exonerating the engineer-defendant of all delicts alleged against him. Judgment upon the verdict was set aside for error in the refusal to enter judgment non obstante veredicto. We said in that case, applicable here:
"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 senses of sight and hearing as he approached the crossing, which contributed to his injury as a proximate cause. The physical facts of the crossing, fully demonstrated by the maps, measurements and photographs in evidence, leave no doubt of the soundness of the conclusion. It is inevitable under all of the facts in evidence. 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 ...