Stephens v. CSX Transportation, Inc.

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Willie Homer Stephens, Guardian ad Litem for Lillian
C., a minor, Petitioner,

v.

CSX Transportation, Inc. and South Carolina Department
of Transportation, Respondents.

Appellate Case No. 2013-000133

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Hampton County

Carmen T. Mullen, Circuit Court Judge

Opinion No. 27587

Heard March 17, 2015 – Filed November 4, 2015

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

John Paul Detrick, John E. Parker, Grahame Ellison
Holmes, Matthew Vernon Creech, all of Peters
Murdaugh, Parker, Eltzroth & Detrick, P.A., of Hampton;
and Carl H. Jacobson, of Uricchio, Howe, Krell,
Jacobson, Toporek, Theos & Keith, P.A., of Charleston,
all for Petitioner.
 Ronald K. Wray, II, and Thomas Edward
Vanderbloemen, both of Gallivan, White & Boyd, P.A.,
of Greenville; Jonathan P. Harmon, of McGuire Woods,
L.L.P., of Richmond, VA; James W. Purcell of Fulcher
Hagler, L.L.P., of Augusta, GA; Andrew F. Lindemann,
of Davidson & Lindemann, P.A., of Columbia, and
Peden B. McLeod, Sr., of McLeod, Fraser & Cone,
L.L.C., of Walterboro, all for Respondents.

JUSTICE BEATTY: This negligence action arose out of a collision
involving a train and an automobile at a railroad crossing. Willie Homer Stephens
("Petitioner"), as Guardian ad Litem for his minor granddaughter who suffered a
traumatic brain injury while a passenger in her mother's vehicle, filed suit against
CSX Transportation, Inc. ("CSX") and the South Carolina Department of
Transportation ("SCDOT"). Following a jury verdict in favor of the defendants,
Petitioner appealed to the Court of Appeals. The Court of Appeals affirmed,
finding the trial judge did not err in admitting certain evidence, charging the jury,
and in denying Petitioner's motions for a directed verdict and judgment
notwithstanding the verdict ("JNOV"). Stephens v. CSX Transp., Inc., 400 S.C.
503, 735 S.E.2d 505 (Ct. App. 2012). This Court granted Petitioner's request for a
writ of certiorari to review the decision of the Court of Appeals. We affirm in part,
reverse in part, and remand for a new trial.

I. Factual / Procedural History

CSX maintains a railroad track in Hampton County, which passes through
the town of Yemassee. At issue in this case is the passive-grade crossing at Hill
Road near state Highway 68. The crossing has no active traffic-control devices
such as lights or gates. Vehicle traffic is controlled by a stop sign, a stop line, and
a cross-buck that is similar to a "Yield" sign as it is an X-shaped sign with the
words "Railroad Crossing" in black lettering.

On the afternoon of February 3, 2004, as Tonia Colvin drove down Hill
Road towards Highway 68, a CSX train approached the crossing from her right.
Colvin's boyfriend sat in the front passenger seat and her twelve-year-old daughter
Lillian sat in the back seat on the right side. When Colvin reached the railroad
crossing, she stopped at the stop sign and then pulled forward to the stop line.
SCDOT had placed the stop sign at a distance of thirty-six feet and the stop line at
a distance of 9.75 feet from the near rail of the railroad track. Colvin testified that
she did not hear or see the train before she drove onto the track. She stated that she
heard the train's horn when she drove onto the track. Colvin claimed she
accelerated to get out of the way, but she could not cross the track before the train
struck her vehicle.

Colvin, her boyfriend, and Lillian all sustained injuries in the accident. An
emergency responder testified she smelled alcohol at the accident scene. While
Colvin was being treated for her injuries at the emergency room, doctors ordered a
test of Colvin's blood and urine to determine whether Colvin had alcohol and/or
drugs in her system. Medical records revealed that Colvin had opiates in her
system and had a blood alcohol content of .018%. Although Colvin denied being
impaired at the time of accident, she admitted she consumed two wine coolers the
morning of the accident and had taken Darvocet, a muscle relaxer, and cough syrup
with codeine.

Lillian's injuries were the most severe as she suffered a traumatic brain
injury that required her to be placed in a medically induced coma for
approximately one month. After she awoke from the coma, Lillian received
extensive physical, occupational, and speech therapy. However, at the time of
trial, Lillian still suffered intellectual, behavioral, and physical impairments.

Petitioner instituted an action for negligence against CSX and SCDOT on
behalf of Lillian. With respect to CSX, Petitioner primarily alleged that CSX was
negligent in failing to sound the train's horn far enough in advance of the railroad
crossing and failing to remove trees and other vegetation that obstructed Colvin's
view of the railroad track. As to SCDOT, Petitioner alleged that SCDOT was
negligent because it failed to properly inspect the railroad crossing and installed
the stop sign and the stop line at improper locations.

At trial, Petitioner presented evidence that CSX, in 2000, started a program
to improve sight distances for vehicles approaching its passive-grade crossings in
South Carolina by removing vegetation at crossings. Several months before the
accident, CSX's clear-cutting crew attempted to cut down a line of trees adjacent to
the Hill Road crossing, but they were prevented from cutting the trees until a
dispute with the purported landowner, Thomas Jackson, was resolved. At the time
of the accident, the crossing had been partially cleared. Contrary to Colvin's
testimony, other witnesses testified that the view was unobstructed for about 2,000
feet from the stop line at the crossing. Jackson also testified that he was unaware
of any accidents at the crossing in forty years and he never had a problem with
trees blocking his view down the railroad tracks.

Petitioner offered Dr. Kenneth Heathington as an expert who testified
regarding the safety issues at the Hill Road crossing. While Dr. Heathington
acknowledged that there were no reports of prior accidents at the crossing, he
opined that CSX did not provide adequate sight distance for a motorist. Dr.
Heathington further testified that the stop sign and stop line were placed at an
improper distance. Ultimately, Dr. Heathington concluded that the accident would
not have occurred had the defendants complied with the established standards of
care. In contrast, SCDOT offered evidence that the crossing had been inspected on
November 7, 2002, there was no obstruction at the time of the inspection, and the
crossing met with the standards for the placement of stop signs and stop lines.

Petitioner also offered evidence that South Carolina law requires that a
train's horn be sounded continuously from a distance of at least 1,500 feet from the
road until the engine has crossed it.1 CSX's counsel admitted in his opening
statement that the train's engineer did not begin sounding the train's horn at the
proper time. The engineer testified that he "believed" he blew the horn on time;
however, the train's event recorder revealed that he did not blow the horn until the
engine was 1,161 feet from the crossing.

After CSX and SCDOT presented their evidence, Petitioner moved for a
directed verdict as to both defendants. With respect to CSX, Petitioner argued that
he was entitled to a directed verdict because there was no issue that CSX was
"negligent [in] failing to cut the crossing" and "blow the horn as required by law."
Petitioner conceded that there were "issues about proximate cause."

Following the denial of his motion, Petitioner presented rebuttal evidence,
which included a stipulation with CSX that the data from the train's event recorder
was accurate. Petitioner then rested his case without renewing his motion for a
directed verdict.

After charging the jury, the judge submitted to the jury a verdict form that
contained special interrogatories. The first question on the form asked the jury to
determine whether CSX or SCDOT was negligent. The jury answered "NO" as to

1
S.C. Code Ann. § 58-15-910 (1977) (mandating that a bell and whistle be
installed on locomotives and sounded at least 1,500 feet from railroad crossing).
both defendants and, as a result, did not answer any of the remaining questions on
the verdict form regarding proximate cause or damages.

Petitioner filed a timely post-trial motion in which he moved for JNOV,
pursuant to Rule 50(b) of South Carolina Rules of Civil Procedure,2 on the grounds
the trial judge erred in failing to direct a verdict in favor of Petitioner against CSX
on the issue of negligence given CSX admittedly failed to: (1) sound the train's
horn in accordance with section 58-15-910 of the South Carolina Code; and (2)
clear the subject railroad crossing in accordance with its own rules and regulations.
Alternatively, Petitioner moved for a new trial on the grounds the trial judge erred
in: (1) declining to admit certain evidence; (2) failing to charge the jury with
Petitioner's proposed instructions; and (3) charging intervening or superseding
cause and inapplicable South Carolina Code provisions. After the judge denied
these motions, Petitioner appealed to the Court of Appeals.

In a divided opinion, the Court of Appeals affirmed.3 Stephens v. CSX
Transp., Inc., 400 S.C. 503, 735 S.E.2d 505 (Ct. App. 2012). The court
unanimously affirmed the trial judge's denial of Petitioner's motions for directed
verdict and JNOV on the ground the issue was not preserved for appellate review.
Id. at 515-20, 735 S.E.2d at 512-14. The court found that Petitioner's failure to
renew his directed verdict motion after he presented evidence in reply waived his
right to move for JNOV. Id. at 520, 735 S.E.2d at 514.

2
Rule 50(b) provides in pertinent part:

Whenever a motion for a directed verdict made at the close of all the
evidence is denied or for any reason is not granted, the court is
deemed to have submitted the action to the jury subject to a later
determination of the legal questions raised by the motion. A party
who has moved for a directed verdict may move to have the verdict
and any judgment entered thereon set aside and to have judgment
entered in accordance with his motion for a directed verdict; or if a
verdict was not returned, such party may move for judgment in
accordance with his motion for a directed verdict.

Rule 50(b), SCRCP (emphasis added).
3
In his appeal to this Court, Petitioner does not challenge the evidentiary rulings
by the trial judge or the Court of Appeals' decision on this issue. Accordingly, we
have not addressed this portion of the Court of Appeals' opinion.
 The court, however, issued a divided opinion with respect to Petitioner's
challenges to the trial judge's rulings involving the jury charge. Id. at 520-25, 735
S.E.2d at 514-17. Initially, because the jury determined that neither CSX nor
SCDOT breached its duty of reasonable care, the majority found it unnecessary to
address any ruling on the jury charge "unless it relates to breach of CSX's and
DOT's duty of reasonable care." Id. at 520, 735 S.E.2d at 514. The majority
rejected each of Petitioner's arguments regarding the jury charge. Id. at 520-25,
735 S.E.2d at 514-17.

First, the majority found no error in the judge's refusal to give Petitioner's
requested jury instructions regarding a railroad company's: (1) liability for injuries
occurring at crossings; and (2) duty to exercise added care when approaching and
crossing an intersection where vegetation obstructs a motorist's view of an
oncoming train. Id. at 521, 735 S.E.2d at 515. The majority concluded that the
judge's charge adequately covered the substance of the proposed instructions and
correctly conveyed to the jury that a motorist and a railroad must exercise due care
at a railroad crossing. Id. at 522-23, 735 S.E.2d at 515-16.

Second, the majority held that the trial judge did not err in charging: (1)
section 56-5-1010 of the South Carolina Code, which requires railroad companies
to install and maintain cross-buck signs at crossings; (2) section 58-17-1390, which
requires railroad companies to install and maintain signs reading "Railroad
Crossing" at crossings; (3) section 56-5-1020, which prohibits unauthorized signals
or other devices at crossings; and (4) section 58-15-1625, which authorizes
SCDOT to close railroad crossings to public traffic when SCDOT finds the
increased public safety of closing the crossing outweighs the inconvenience caused
to motorists who will have to take another route. Id. at 523-24, 735 S.E.2d at 516.
In so ruling, the majority found the charges contained accurate statements of the
law and there was evidence to support the trial judge's decision to give each of
them. Id. at 524, 735 S.E.2d at 516.

Finally, the majority rejected Petitioner's contention that the trial judge erred
in charging the jury on section 15-78-60(5) of the South Carolina Code, which
immunizes governmental entities from liability for injuries caused by the "exercise
of discretion or judgment by the governmental entity or employee or the
performance or failure to perform any act or service which is in the discretion or
judgment of the governmental entity or employee." Id. at 524, 735 S.E.2d at 516
(quoting S.C. Code Ann. § 15-78-60(5) (2005)). The majority agreed with
Petitioner that SCDOT did not present sufficient evidence to prove its discretionary
act immunity claim. Id. at 525, 735 S.E.2d at 517. However, it concluded that
Petitioner's argument was not preserved because Petitioner raised a different
ground on appeal than at trial. Id. Specifically, the Court of Appeals found
Petitioner failed to argue at trial that SCDOT was not entitled to the immunity
defense on the basis SCDOT did not follow an acceptable professional standard in
its placement of the stop sign or stop line. Id.

The dissent disagreed with the majority's decision regarding the alleged
erroneous jury charges. Id. at 526-27, 735 S.E.2d at 517-18. While the dissent
agreed with the majority that SCDOT failed to present sufficient evidence to entitle
it to a charge on discretionary immunity, the dissent found Petitioner was
prejudiced because the charge could have confused the jury. Id. at 526, 735 S.E.2d
at 517. The dissent further found the judge erred in charging the jury on section
56-5-2930, which makes it unlawful for a person to drive a motor vehicle under the
influence of alcohol or drugs, but declining to charge section 56-5-2950(G)(1),
which provides that a person with a blood alcohol level of .05% or less is
conclusively presumed not to be under the influence. Id. The dissent also found
the trial judge erred in charging CSX's proposed charge, which stated that "It's
Always Train Time at the Crossing." Id. The dissent believed this instruction
could have suggested to the jury that the defendants had lesser duties of care than a
motorist. Id. at 526, 735 S.E.2d at 518. Ultimately, the dissent would have
reversed and remanded for a new trial. Id. at 527, 735 S.E.2d at 518.

Following the denial of his petition for rehearing and the rejection of a
suggestion for rehearing en banc, this Court granted Petitioner's request for a writ
of certiorari.

II. Discussion

A. Motions for Directed Verdict and JNOV

Petitioner contends the Court of Appeals erred in affirming the trial judge's
denial of his motions for a partial directed verdict and JNOV. In support of this
contention, Petitioner posits that the decision of the Court of Appeals: (1) is
contrary to the provisions of Rule 50, SCRCP and is based on case law that does
not apply to the procedural posture of the instant case, i.e., where a plaintiff
presents rebuttal evidence; (2) constitutes an unconstitutional rule change to
existing Rule 50; and (3) is incorrect in light of CSX's admission that it breached
its duty to timely sound the train's horn in accordance with section 58-15-910 of
the South Carolina Code.
 We find the Court of Appeals correctly ruled that Petitioner was precluded
from requesting JNOV because he failed to renew his motion for a directed verdict
after offering evidence in rebuttal. The text of Rule 50(b) clearly requires renewal
of a directed verdict motion as it states the motion should be made after "all" the
evidence, which necessarily includes that presented in rebuttal. See Rule 50(b),
SCRCP (stating, in part, "[w]henever a motion for a directed verdict made at the
close of all the evidence is denied or for any reason is not granted, the court is
deemed to have submitted the action to the jury subject to a later determination of
the legal questions raised by the motion" (emphasis added)).

This interpretation is consistent with decisions in our state that require strict
compliance with the rule. See, e.g., RFT Mgmt. Co. v. Tinsely & Adams, L.L.P.,
399 S.C. 322, 331, 732 S.E.2d 166, 170 (2012) (" 'When a party fails to renew a
motion for a directed verdict at the close of all evidence, he waives his right to
move for JNOV' " (quoting Wright v. Craft, 372 S.C. 1, 20, 640 S.E.2d 486, 496
(Ct. App. 2006))); Henderson v. St. Francis Cmty. Hosp., 295 S.C. 441, 369 S.E.2d
652 (Ct. App. 1988) (holding that Rule 50(b) is strictly applied), overruled on
other grounds by 303 S.C. 177, 399 S.E.2d 767 (1990); cf. State v. Bailey, 368 S.C.
39, 43 n.4, 626 S.E.2d 898, 900 n.4 (Ct. App. 2006) (stating, "[i]f a defendant
presents evidence after the denial of his directed verdict motion at the close of the
State's case, he must make another directed verdict motion at the close of all
evidence in order to appeal the sufficiency to the evidence").4

Moreover, additional support for this interpretation may be gleaned from
decisions in other state and federal jurisdictions that have adopted a rule of
procedure similar in text to our state's Rule 50.5 See, e.g., Klavens v. Siegel, 260
A.2d 637 (Md. 1970) (ruling that movant, by offering evidence in rebuttal,
withdrew the motion for a directed verdict by the presentation of the evidence);
Spulak v. Tower Ins. Co., 559 N.W.2d 197, 201 (Neb. 1997) (holding that "[a]

4
Petitioner contends the cited cases, particularly Henderson, are limited to a
factual scenario where the defendant fails to renew a motion for a directed verdict
after presentation of the defense case. We disagree with Petitioner's interpretation
of these cases as we discern no reason, and Petitioner does not offer any, why the
same rule would not be equally applicable to a plaintiff who presents evidence in
rebuttal.
5
See 25 S.C. Jur. Rules of Civil Procedure § 50.2 (2015) ("State Rule 50
substantially conforms to the pre-1991 Federal Rule.").
plaintiff who moves for a directed verdict at the close of the defendant's evidence
and, upon the overruling of such motion, proceeds to introduce rebuttal evidence
waives any error in the ruling on the motion" when the motion for a directed
verdict is not renewed at the close of all the evidence). See Generally E. H.
Schopler, Annotation, Practice and Procedure With Respect to Motions for
Judgment Notwithstanding or in Default of Verdict under Federal Civil Procedure
Rule 50(b) or Like State Provisions, 69 A.L.R.2d 449 (1960 & Supp. 2015)
(collecting state and federal cases addressing proper procedure for procuring a
ruling on a motion for JNOV). Accordingly, we affirm the Court of Appeals'
interpretation of Rule 50(b) and conclude that it did not constitute a rule change.

Further, despite CSX's admission concerning the untimely sounding of the
train's horn and stipulation regarding the accuracy of the data from the train's event
recorder, Petitioner waived any argument that he was entitled to a partial directed
verdict as to CSX's breach of its duty of reasonable care. Not only did Petitioner
fail to renew his motion for a directed verdict at the close of all the evidence, but
he also approved a special verdict form that asked the jury to consider all elements
of his negligence claim, including whether CSX and SCDOT breached their
respective duties of care. See Solley v. Navy Fed. Credit Union, Inc., 397 S.C. 192,
214, 723 S.E.2d 597, 608 (Ct. App. 2012) ("When an appellant acquiesces to the
trial court's ruling, that issue cannot be raised on appeal."); see also Lord v. D & J
Enters., Inc., 407 S.C. 544, 558, 757 S.E.2d 695, 702 (2014) ("To prevail on a
negligence claim, a plaintiff must establish duty, breach, causation, and
damages.").

B. Jury Charges

Petitioner next argues that the Court of Appeals erred in affirming the trial
judge's: (1) refusal to charge Petitioner's two requested instructions regarding
CSX's duty of care, (2) decision to charge discretionary immunity as to SCDOT,
and (3) decision to charge three statutes pertaining to signage at railroad crossings.
Additionally, Petitioner asserts the Court of Appeals erred in declining to address
his challenges regarding the trial judge's decision to charge: (1) inapplicable
statutes, (2) an intervening or superseding cause, (3) CSX's proposed request that
"it is always train time at a railroad crossing," and (4) the criminal statute of
driving under the influence.

"An appellate court will not reverse the trial court's decision regarding jury
instructions unless the trial court committed an abuse of discretion." Cole v. Raut,
378 S.C. 398, 404, 663 S.E.2d 30, 33 (2008). "An abuse of discretion occurs when
the trial court's ruling is based on an error of law or is not supported by the
evidence." Id.

"A trial court must charge the current and correct law." In re Estate of
Pallister, 363 S.C. 437, 451, 611 S.E.2d 250, 258 (2005). "Ordinarily, a trial judge
has a duty to give a requested instruction that correctly states the law applicable to
the issues and evidence." Ross v. Paddy, 340 S.C. 428, 437, 532 S.E.2d 612, 617
(Ct. App. 2000). However, jury instructions should be confined to the issues made
by the pleadings and supported by the evidence. Baker v. Weaver, 279 S.C. 479,
482, 309 S.E.2d 770, 771 (Ct. App. 1983). "A trial court's refusal to give a
properly requested charge is reversible error only when the requesting party can
demonstrate prejudice from the refusal." Pittman v. Stevens, 364 S.C. 337, 340,
613 S.E.2d 378, 380 (2005).

When an appellate court reviews an alleged error in a jury charge, it "must
consider the court's jury charge as a whole in light of the evidence and issues
presented at trial." Keaton ex rel. Foster v. Greenville Hosp. Sys., 334 S.C. 488,
497, 514 S.E.2d 570, 575 (1999) (citations omitted). "If, as a whole, the charges
are reasonably free from error, isolated portions which might be misleading do not
constitute reversible error." Id. "This holistic approach to jury instructions is
linked to the principle of appellate procedure that '[a]n error not shown to be
prejudicial does not constitute grounds for reversal.' " Ardis v. Sessions, 383 S.C.
528, 532, 682 S.E.2d 249, 250 (2009) (quoting Brown v. Pearson, 326 S.C. 409,
417, 483 S.E.2d 477, 481 (Ct. App. 1997)).

1. Issues Addressed by the Court of Appeals

a. Trial Judge's Refusal to Charge Proposed Jury Instructions

We find Petitioner cannot demonstrate that the trial judge erred in refusing
to charge his Nos. 2 and 3 proposed instructions.6 Although the judge's charge did

6
Petitioner's proposed instruction No. 2 states:

A railroad corporation has a duty to maintain its right-of-ways
and highway railroad grade crossings in a reasonable safe condition.
If a railroad corporation negligently allows vegetation to grow on its
right-of-way adjacent to the crossing to such an extent that it obscures
or obstructs the vision of the driver of a motor vehicle using the
roadway, it is liable to anyone who is injured in a collision, if the
not include the particular verbiage requested by Petitioner, the charge adequately
covered the substance of Petitioner's proposed instructions.

In terms of proposed instruction No. 2, the trial judge fully explained the
elements of negligence. The judge also expressly instructed the jury that "a
railroad corporation has a duty to maintain a reasonably safe grade crossing,"
which accurately addressed the railroad's duty and was a correct statement of the
law. As to proposed instruction No. 3, the judge charged the jury that a railroad
corporation must use "reasonable and ordinary caution to prevent accidents at such
crossing, and this degree of care may be affected by obstructions which prevent the
track from being seen as a train approaches."

Further, we reject Petitioner's assertion that the trial judge's refusal to give
his proposed instructions effectively placed the duty of care only on the motorist.
Contrary to Petitioner's claim, the judge instructed the jury that a motorist and a
railroad corporation have a mutual duty to exercise reasonable care at a railroad
crossing. Specifically, the judge charged that "there is a mutual duty on [the]
traveler and [the] railroad to exercise due care" and that "[b]oth the traveler and the
company are charged with the same degree of care: the one to avoid being injured;
and the other to avoid inflicting injury." Consequently, we agree with the Court of
Appeals that the trial judge did not err in refusing to charge Petitioner's requested
instructions.

Nevertheless, even assuming error, we discern no prejudice to Petitioner as
each party's respective duty of care was accurately conveyed to the jury. See
Chisolm v. Seaboard Air Line Ry., 121 S.C. 394, 401, 114 S.E. 500, 503 (1922)
("A railroad company and a traveler on a highway crossing are charged with a
mutual duty of keeping a lookout for danger, and the degree of vigilance required
of both is in proportion to the known risk; the greater the danger, the greater the
care required of both.").

obstructing vegetation contributed as a proximate cause to the
collision.

Petitioner's proposed instruction No. 3 states:

When vegetation at a railroad crossing is such that it obstructs a
motorist's view of an oncoming train, the railroad has a duty to
exercise added care in the operation of timing of its train as the train
approaches and crosses the crossing.
 b. Discretionary Immunity

Petitioner asserts the Court of Appeals erred in affirming the trial judge's
charge on section 15-78-60(5) of the South Carolina Code, which immunizes
governmental entities from liability for injuries caused by "the exercise of
discretion or judgment by the governmental entity or employee or the performance
or failure to perform any act or service which is in the discretion or judgment of
the governmental entity or employee."7 Petitioner contends the ruling was
inconsistent because the Court of Appeals unanimously found that SCDOT failed
to present sufficient evidence to entitle it to a jury charge on discretionary
immunity, yet still concluded there was no reversible error since Petitioner
changed his argument on appeal to include SCDOT's failure to follow professional
standards in the placement of the signs at the Hill Road crossing. Petitioner
concedes that the phrase "professional standards" was not specifically used in
objecting to the discretionary immunity charge; however, he maintains the
objection was sufficient to preserve the issue for appellate review.

We agree with Petitioner that his objection was sufficient to preserve the
issue for appellate review as Petitioner clearly challenged the judge's instruction on
discretionary immunity at the charge conference and cited section 15-78-60(5) in
his post-trial motion. See Buist v. Buist, 410 S.C. 569, 574-75, 766 S.E.2d 381,
383-84 (2014) ("While a party is not required to use the exact name of a legal
doctrine in order to preserve the issue, the party nonetheless must be sufficiently
clear in framing his objection so as to draw the court's attention to the precise
nature of the alleged error." (citations omitted)).

Although we disagree with the Court of Appeals' error preservation analysis,
we agree with its ultimate conclusion to affirm the trial judge. However, we reach
this decision on a different basis than the Court of Appeals. Unlike the Court of
Appeals, we find SCDOT did in fact present evidence that entitled it to a charge on
discretionary immunity.

"To establish discretionary immunity, the governmental entity must prove
that the governmental employees, faced with alternatives, actually weighed
competing considerations and made a conscious choice." Pike v. S.C. Dep't of
Transp., 343 S.C. 224, 230, 540 S.E.2d 87, 90 (2000). "Furthermore, the
governmental entity must show that in weighing the competing considerations and

7
S.C. Code Ann. § 15-78-60(5) (2005).
alternatives, it utilized accepted professional standards appropriate to resolve the
issue before them." Id. (citation omitted).

SCDOT pled the affirmative defense of discretionary immunity in its
Answer and offered evidence at trial to support this defense. Specifically, SCDOT
witnesses Richard Jenkins, Joel Smith, and Richard Reynolds identified the factors
that were considered in the placement of the stop sign and stop line. These
witnesses also testified how the positioning of the stop sign was affected by the
presence of an access road, driveway, culvert, and fiber optic lines. Additionally,
these witnesses opined that the placement of the stop sign and stop line was proper
and in substantial compliance with the guidelines provided by the Manual of
Uniform System of Traffic-Control Devices ("MUTCD").

Finally, we note that Petitioner has not raised any challenge to the other
discretionary immunity provisions charged by the trial judge, which included
sections 15-78-60(13) and 15-78-60(15).8 Thus, even assuming error, we cannot
definitively determine that Petitioner was prejudiced because the jury may have
based its decision on one of these unchallenged provisions and not section 15-78-
60(5). Cf. Anderson v. Short, 323 S.C. 522, 476 S.C. 475 (1996) (stating that
where a trial judge's decision is based on more than one ground, the appellate court
will affirm unless the appellant appeals all grounds because the unappealed ground
will become the law of the case).

c. Statutes Involving Signage and SCDOT's Authority to Close
Railroad Crossings

Petitioner argues that the Court of Appeals erred in affirming the trial judge's
decision to charge statutes related to the placement of signs at railroad crossings9

8
S.C. Code Ann. § 15-78-60(13) (2005) (immunizing governmental entities for
liability of a loss resulting from regulatory inspection powers or functions); id. §
15-78-60(15) (immunizing governmental entities for liability of a loss resulting
from the absence or malfunction of warning devices unless it is not corrected
within reasonable time after actual or constructive notice).
9
See S.C. Code Ann. § 56-5-1010 (2006) (requiring railroad companies operating
in South Carolina to place and maintain cross-buck signs at crossing of highway
and railroad); id. § 56-5-1020 (prohibiting placement of unauthorized signs,
signals, or traffic-control devices in view of any highway); id. § 58-17-1390 (1977)
(requiring railroad corporation to maintain signs at crossings with public roads).
and the authority of SCDOT to close unsafe railroad crossings.10 Petitioner claims
these statutes should not have been charged as they were inapplicable and created
confusion for the jury.

We agree with the Court of Appeals that the challenged jury instructions
correctly stated the law and were applicable to the issues and evidence presented at
trial. Sections 56-5-1010 and 58-17-1390 regarding a railroad company's duties to
install certain signs at crossings were relevant because Petitioner alleged that CSX
was negligent "[i]n maintaining an unreasonably hazardous and unsafe crossing"
and "[i]n failing to maintain adequate warning devices at the crossing."

Section 56-5-1020, which prohibits unauthorized signs, signals, or other
devices at crossings, was relevant because Dr. Heathington opined that the Hill
Road crossing could have been made safer with the installation of active traffic-
control devices. Thus, section 56-5-1020, informed the jury that CSX could not
legally install active traffic-control devices without SCDOT's authorization.
Finally, section 58-15-1625, which authorizes the SCDOT to close unsafe railroad
crossings, was relevant to inform the jury that CSX could not of its own accord
close the Hill Road crossing.

2. Issues Not Addressed by the Court of Appeals

We conclude the Court of Appeals erred in restricting its analysis only to
those jury charge issues related to the breach of CSX's and SCDOT's duty of
reasonable care. As will be discussed, we find that portions of the judge's charge
were erroneous and may have tainted the jury's consideration of the initial question
on the special verdict form regarding negligence, particularly where CSX admitted
that the train engineer failed to timely sound the train's horn in accordance with
section 58-15-910 of the South Carolina Code.11

10
See S.C. Code Ann. § 58-15-1625 (Supp. 2005) (authorizing SCDOT to
eliminate unsafe railroad crossings).
11
Throughout the appellate proceedings, CSX has argued that there was
conflicting evidence as to whether it breached its duty of reasonable care. As a
result, CSX maintains that there is evidence to support the jury's determination that
it was not negligent. We believe this argument is disingenuous given the
admission of CSX's counsel during opening statements that the train's engineer
failed to timely sound the train's horn in accordance with section 58-15-910 and the
 a. Statutes Concerning a Driver's Duty to Stop

Petitioner contends the trial judge erred in charging sections 56-5-233012 and
56-5-274013 concerning a driver's duties at stop signs on intersecting highways
because these statutes are inapplicable and conflict with the judge's instruction on
section 56-5-2715,14 which specifically addresses a driver's duty to stop at a
railroad crossing that SCDOT has deemed particularly dangerous.

We agree with Petitioner that the trial judge erred in charging sections 56-5-
2330 and 56-5-2740. Without dispute, these statutes were irrelevant as neither
governs a driver's duty to stop at a railroad crossing. The statutes also conflict with

stipulation regarding the accuracy of the data from the train's event recorder.
Although CSX did not concede that it breached its duty of reasonable care, the
admission of counsel and the stipulation clearly equate to a finding of negligence
per se, i.e., breach of duty. See Fairchild v. S.C. Dep't of Transp., 398 S.C. 90, 727
S.E.2d 407 (2012) (recognizing that the violation of an applicable statute
constitutes negligence per se). However, as acknowledged by Petitioner, there
remained questions of fact as to proximate cause and damages.
12
See S.C. Code Ann. § 56-5-2330(b) (2006) (providing requirements for
motorists when they approach a stop sign and stating in part that "every driver of a
vehicle approaching a stop sign shall stop at a clearly marked stop line but, if
none, then at the point nearest the intersecting roadway where the driver has a view
of approaching traffic on the intersecting roadway before entering it" (emphasis
added)).
13
Id. § 56-5-2740 (providing requirements for motorists when they approach a
stop sign at a crosswalk and stating, in part, that "[e]very driver of a vehicle
approaching a stop sign shall stop before entering the crosswalk on the near side of
the intersection or, in the event there is no crosswalk, shall stop at a clearly marked
stop line but, if none, then at the point nearest the intersecting highway where the
driver has a view of approaching traffic on the intersecting highway before
entering the intersection").
14
Id. § 56-5-2715 (authorizing SCDOT to designate "particularly dangerous"
railroad crossings and erect stop signs thereat and stating that "[w]hen such signs
are erected, the driver of any vehicle shall stop within fifty feet, but not less than
fifteen feet, from the nearest rail of the railroad and shall proceed only upon
exercising due care" (emphasis added)).
the directive of section 56-5-2715 that a driver "shall stop within fifty feet, but not
less than fifteen feet, from the nearest rail of the railroad." Had Colvin complied
with the general provisions of sections 56-5-2330 and 56-5-2740 and stopped at
the stop line, which was located 9.75 feet from the near rail of railroad track, she
would have violated the fifteen-foot limit mandated by section 56-5-2715. Given
this conflict, we believe the jury could have been confused as to which statutory
provisions governed Colvin's duty to stop at the railroad crossing. If the jury
applied sections 56-5-2330 and 56-5-2740, it may have deemed Colvin negligent
for violating section 56-5-2715. See Fairchild v. S.C. Dep't of Transp., 398 S.C.
90, 727 S.E.2d 407 (2012) (recognizing that the violation of an applicable statute
constitutes negligence per se).

In turn, the jury may have concluded that Colvin's negligence superseded
any admitted or proven negligence of CSX or SCDOT. See Gause v. Smithers, 403
S.C. 140, 150, 742 S.E.2d 644, 649 (2013) ("To exculpate a negligent defendant,
the intervening cause must be one which breaks the sequence or causal connection
between the defendant's negligence and the injury alleged." (citation omitted));
Matthews v. Porter, 239 S.C. 620, 628, 124 S.E. 321, 325 (1962) ("In order to
relieve the defendant of responsibility for the event, the intervening cause must be
a superseding cause. It is a superseding cause if it so entirely supersedes the
operation of the defendant's negligence that it alone, without his negligence
contributing thereto in the slightest degree, produces the injury." (citation
omitted)). Consequently, we find that Petitioner was prejudiced by the judge's
error.

b. Intervening or Superseding Cause

Next, Petitioner asserts the trial judge erred in charging the law of
intervening or superseding cause because any allegation of negligence against
Colvin was "foreseeable as a matter of law, and therefore, could not serve as an
intervening, superseding cause." Petitioner claims it was foreseeable that a
motorist might not stop at the stop line at the Hill Road crossing as that stop line
was improperly placed at a location that was too close to the railroad track.

We find Petitioner's argument to be without merit as evidence was presented
that any negligence on the part of Colvin was not limited to the issue of the stop
line. Rather, there was evidence that even though Colvin stopped at the line, she
failed to yield, failed to exercise due care, and admitted to consuming alcohol and
prescription medication prior to driving her vehicle. Any of these actions on the
part of Colvin, none of which was reasonably foreseeable, could have served as the
intervening cause of the accident. See Bishop v. Dep't of Mental Health, 331 S.C.
79, 89, 502 S.E.2d 78, 83 (1998) ("The test by which the negligent conduct of the
original wrongdoer is to be insulated as a matter of law by the independent
negligent conduct of another is whether the intervening act and the injury resulting
therefrom are of such character that the author of the primary negligence should
have reasonably foreseen and anticipated them in the light of attendant
circumstances."); Small v. Pioneer Mach., Inc., 329 S.C. 448, 467, 494 S.E.2d 835,
844 (Ct. App. 1997) ("For an intervening force to be a superseding cause that
relieves an actor from liability, the intervening cause must be a cause that could not
have been reasonably foreseen or anticipated."). Accordingly, we find the charge
was proper and supported by the evidence presented at trial.

c. "It is Always Train Time at a Railroad Crossing"

Petitioner argues the trial judge erred in charging the jury that "it is always
train time at a railroad crossing"15 because the charge misstates the respective
duties of a motorist and the railroad company at crossings. Petitioner maintains
that the charge, coupled with the judge's refusal to charge his proposed instruction
No. 9,16 improperly placed a higher duty of care upon motorists at railroad
crossings.

Although the text of this segment of the judge's charge may be found in a
series of cases decided in 1936 and 1940,17 a careful review of these decisions

15
This portion of the charge states:

I further charge you it is the law of this state it has been well said that
it is always train time at a railroad crossing. The law regards a
railroad crossing as a place of danger. The very presence of such a
crossing is notice to the person approaching or attempting to cross it
of the danger of colliding with a passing engine or train.
16
Petitioner's proposed instruction No. 9 provides:

A driver of a motor vehicle is under no absolute duty to stop,
look, and listen before going on the track at a railroad crossing, unless
the exercise of ordinary care and prudence under all surrounding facts
and circumstances requires the adoption of such a course.
17
See, e.g., Bingham v. Powell, 195 S.C. 238, 245, 11 S.E.2d 275, 278 (1940)
("We are not unmindful of the principles long established by this Court that it is
reveals that the quoted language constitutes dicta and conflicts with case law that
correctly assigns a mutual duty to a motorist and a railroad company at railroad
crossings. See Chisolm v. Seaboard Air Line Ry., 121 S.C. 394, 401, 114 S.E. 500,
503 (1922) ("A railroad company and a traveler on a highway crossing are charged
with a mutual duty of keeping a lookout for danger, and the degree of vigilance
required of both is in proportion to the known risk; the greater the danger, the
greater the care required of both."). Due to the erroneous charge, the jury may
have improperly assigned a higher duty of care to Colvin or shifted the duty of care
entirely to Colvin. Accordingly, we find that Petitioner was prejudiced by this
error.

d. Impaired Driving

Finally, Petitioner asserts the trial judge erred in charging the jury section
56-5-2930,18 the criminal statute involving the charge of driving under the
influence ("DUI"), but refusing to charge section 56-5-2950(b)(1)19 to show that
Colvin was presumptively not impaired by alcohol as her blood alcohol content
was .018%. Additionally, Petitioner claims the prejudice from the refusal to

'always train time at a railroad crossing' and that one approaching must make use
of his senses, to the best of his ability under the circumstances, to ascertain the
presence or approach of a train and do so in time and place, so far as is reasonably
within his control, to be effective[.]"); Breeden v. Rockingham R.R. Co., 193 S.C.
220, 224, 8 S.E.2d 366, 368 (1940) ("It is the duty of a traveler, upon the approach
to a railroad crossing of which he is aware, to use due care to observe the approach
of trains at said crossing for, as stated in Robison v. Atlantic Coast Line R. Co., 179
S.C. 493, [501], 184 S.E. 96, 100 [1936], 'it is always train time at a railroad
crossing.' ").
18
S.C. Code Ann. § 56-5-2930 (2006) (outlining offense of operating a vehicle
while under the influence of alcohol or drugs or a combination of both). We note
that this statute has since been amended. Therefore, we cite to the version of the
statute in effect at the time of the accident.
19
Id. § 56-5-2950(b)(1) (providing that in a criminal prosecution for violation of
section 56-5-2930 an alcohol concentration of .05 or less is conclusively presumed
that the person was not under the influence of alcohol). We note that section 56-5-
2950(b)(1) is now codified as section 56-5-2950(G)(1). S.C. Code Ann. § 56-5-
2950(G) (Supp. 2014).
charge section 56-5-2950(b)(1) was exacerbated by the judge's decision to charge
section 15-78-60(20),20 which led the jury to infer that SCDOT could not be liable
for its omissions because of criminal activities committed by Colvin.

Like the dissent in the Court of Appeals' opinion, we are most troubled by
this issue. Given the evidence, it was necessary to provide the jury with some type
of instruction regarding impaired driving as the emergency responder testified the
accident scene smelled of alcohol, Colvin admitted that she consumed alcohol and
took prescription medication the morning of the accident, and Colvin's blood test
after the accident revealed the presence of opiates. However, because Petitioner
presented evidence that Colvin's blood alcohol content was .018%, we find
Petitioner was entitled to have the jury instructed on the statutory presumption
provided in section 56-5-2950(b)(1). In the absence of this instruction, it is
arguable the jury found Colvin was impaired while driving and that this criminal
act negated any negligence on the part of CSX and SCDOT. Accordingly, we find
Petitioner was prejudiced by the judge's refusal to charge his proposed instruction.

III. Conclusion

Based on the foregoing, we affirm the rulings of the Court of Appeals
regarding the denial of Petitioner's JNOV motion and the jury charge issues that it
addressed. However, we find the Court of Appeals erred in restricting its analysis
only to those jury charge issues related to the breach of CSX's and SCDOT's duty
of reasonable care. Because portions of the judge's charge were erroneous and
prejudiced Petitioner, we reverse and remand for a new trial.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TOAL, C.J., and HEARN, J., concur. KITTREDGE, J., dissenting in a
separate opinion in which PLEICONES, J., concurs.

20
Id. § 15-78-60(20) (2005) ("The governmental entity is not liable for a loss
resulting from an act or omission of a person other than an employee including but
not limited to the criminal actions of third persons.").
JUSTICE KITTREDGE: I respectfully dissent. I would affirm the court of
appeals in result. I begin by commending Justice Beatty on his well-written and
thorough opinion. I further take no issue with the finding of error concerning the
challenged jury instructions related to Tonia Colvin. However, given the verdict
form and the jury's determinations that CSX Transportation and the South Carolina
Department of Transportation were not negligent in the first instance, I would find
the erroneous jury instructions did not prejudice Petitioner.

The Court finds no reversible error in the jury's findings of no negligence against
CSX and SCDOT, while finding a new trial is warranted due to jury instructions
related to Colvin. The Court even speculates that "the jury may have concluded
that Colvin's negligence superseded any admitted or proven negligence of CSX or
SCDOT." The jury's findings of no negligence against CSX and SCDOT preclude
such speculation. Absent a reversible error in a jury's findings, I believe the law
requires a court to give effect to the jury's determinations.

On a final note, this appeal presents the frequent tension between the practical
realities of jury deliberations and established legal principles. The established
principle at issue here is seen in the jury's threshold findings of no negligence
against CSX and SCDOT. As a practical matter, is it possible that the jury ignored
the trial court's instructions and allowed its possible view of Colvin's alleged
responsibility for the accident to influence the verdict of no negligence against
CSX and SCDOT? The answer is, of course, yes. Yet there are compelling policy
reasons to resist such speculation and for honoring the agreed-upon verdict form.
In sum, because the jury determined that CSX and SCDOT were not negligent, the
unrelated erroneous jury instructions should not serve as a basis for granting a new
trial.

PLEICONES, J., concurs.