I do not propose to discuss all of the exceptions, or all of the points raised upon this appeal. Without conceding the correctness of the disposition of others, in the opinion of Mr. Justice Blease, I *Page 53 shall address my observations to what I consider reversible errors in the trial below.
The plaintiff, in his complaint, has "jumbled" (that is to say, joined without a separate statement of each), a cause of action under the signaling statute (Sections 4903 and 4925, Vol. 3, Code 1922), with a cause of action under the common law for negligence in the operation of the train with which the automobile in question collided. Perhaps under the liberal interpretation which the Court has given to what is known as "the jumbling statute" (Section 427, Code Civ. Proc.), the plaintiff had the right to do this. At any rate, no objection thereto has been urged by the defendant, and I shall consider them as having been separately stated. Much confusion and many errors would have been avoided, I think, if the presiding Judge had done likewise.
The two causes of action are attended by distinctly differentiating circumstances, and consequently require different applications of the law. Under the statute the failure to give the signals prescribed by Section 4903 is invariably held, not only to be negligence per se, but to raise a presumption, not only that it resulted in the collision, but that it was the proximate cause thereof, and without further evidence warranted the imposition of punitive damages. The statute also provides, upon the question of contributory negligence on the part of the traveler, that it must appear to have been willful or gross, or in violation of the law. Under the common law, there is no presumption of negligence, and as in every case of negligence, the conduct of the defendant must be shown not only to have been negligent, but that it produced the result as a proximate cause; and as to contributory negligence, which concurred with the defendant's negligence, any act of the injured person, of ordinary negligence, contributing as a proximate cause to the result, will bar his recovery.
As is said in Sanders v. R. Co., 97 S .C., 423,81 S.E., 786, 788: "There are material differences between a case at common law and one under the statute. In a case at common *Page 54 law, plaintiff must prove the failure to ring the bell or blow the whistle, that the omission was negligence, and that such negligence was the proximate cause of the injury. In a case under the statute, if the plaintiff proves the failure to give the signals required, it is negligence per se, which is presumed to have caused the injury. Strother v. Railway [47 S.C. 375,25 S.E., 272], supra. In the former, the action will be defeated, if the defendant proves that the plaintiff was guilty of ordinary contributory negligence. In the latter, defendant must prove that plaintiff's contributory negligence was gross or willful, or that he was acting in violation of law, and that it contributed to the injury."
There is another marked distinction between the two causes of action: When reliance is placed by the plaintiff solely upon the common-law cause of action, the negligence of the driver of a car is not imputable to an occupant of the car, unless it be shown that the relation of the parties is such as has been denominated participants in a common enterprise, joint adventurers, a principle that will hereinafter be discussed. When reliance is placed solely upon the statutory cause of action, all questions of common enterprise, joint adventure, pass out of the case, for under the express terms of the statute, the negligence of the driver, one who has charge of the person of the one injured, bars a recovery by the latter, if the driver is shown to have been guilty of gross or willful negligence or was acting in violation of law, and that such act contributed as a proximate cause to the injury. The principle of the imputation of the negligence of the driver to the person injured is not at all involved; the statute provides an absolute bar, under the circumstances stated, to his recovery.
The distinction is clearly developed in Neely v. R. Co.,123 S.C. 449, 117 S.E., 55, 57. In that case the Court charged: "We have the common-law rule, or we might call it the general rule, which is clearly set forth in Langley v.Railroad, 113 S.C. 45, 101 S.E., 286, and in Latimer v. *Page 55 Anderson County, 95 S.C. 187, 78 S.E., 879, that the negligence of a driver of an automobile is not imputable to a passenger or invited guest or an occupant of the car unless the relation of master and servant exists between the passenger and driver, or unless they were engaged in a common enterprise. The testimony in this case can mean but one thing, and that was that plaintiff's intestate was the invited guest of the driver of the automobile, and with one exception, to be set forth below, plaintiff's intestate could not be held responsible or have imputed to her any act of negligence of the driver of the car." The Court said: "It should be noted that while his Honor charged the general rule that the negligence of the driver is not imputed to the passenger unless the passenger has the right to control the management of the machine, yet the statute made an exception in crossing cases."
In this case the defendant contended that the driver of the automobile with whom the plaintiff, Miss Neely, was riding, and who for the moment was in charge of her person, was guilty of a violation of law in not providing the automobile with good and sufficient brakes. The plaintiff contended that there was no evidence that Miss Neely knew of the defects in the brakes and could not be held responsible for a violation of the law by the driver. In reference to this contention the Court said: "We have just seen that the statute gave immunity in crossing cases, where `the person having charge of his person or property was at the time of the collision guilty of gross or willful negligence, or was acting in violation of the law.'"
In Dozier v. Charleston Company, 133 S.C. 335,131 S.E., 592, 593, the Court said: "In considering this matter, it must be recalled that this is not a crossing case, where the statutes make a change in the rule by express legislation on the matter. This distinction will be readily seen by an examination of the Neely case hereinafter cited." Langley v.Railroad, 113 S.C. 49, 101 S.E., 286. Not being a crossing *Page 56 case, the principle was applicable that the relation of common enterprise must have existed; showing that in a crossing case the common enterprise doctrine has no application where the action is brought under the statute.
In Brogdon v. R. Co., 141 S.C. 238, 139 S.E., 459,462, the following charge was approved by this Court: "The jury is charged that the negligence of the driver of an automobile is not imputable to an occupant of the car, unless the relation of master and servant exists between the passenger and the driver, or unless they are engaged in a common enterprise, or unless the driver has the custody of a person such as an infirm person or an infant. This is the common-law rule enforced in this State. This rule, however, is modified by the statute which I will read to you to the extent that if the jury should find that the person having charge of his person or property was at the time of the collision guilty of gross or willful negligence or was acting in violation of the law and that such gross or willful negligence or unlawful act contribute to the injury." (This sentence is incomplete; there should follow the words "the person injured would not be entitled to recover.") The Court adds: "The common-law rule as to the giving of signals by railroad trains at crossings has been modified by statute in this State."
The two causes of action so plainly appearing to be accompanied by such marked distinctions, incidents, essentials, and defenses, it seems imperative that they should have been separately treated and the jury not left in doubt and confusion as to which certain principles of law announced should be applied.
If this had been done, the following error would not have been committed:
His Honor charged the jury: " * * * the law says that the railway company is liable for such damages as that person may suffer, unless it is shown that in addition to a mere want of ordinary care, the person injured was at the time of the collision, guilty of gross or willful negligence, *Page 57 or acting in violation of the law, and that such gross or willful negligence contributed to his injury."
His Honor omitted a very vital portion of the statute. It provides a bar to the recovery of damages by the injured occupant, not only if he was at the time of the collision guilty of gross or willful negligence or was acting in violation of law, and that such conduct contributed to the injury, but if the person having charge of his person was guilty of similar conduct. By this interpretation of the statute his Honor confined the immunity to the conduct of the person injured. It was an exceedingly vital point in the defense, as there was abundant evidence from which the jury may have concluded that under the circumstances the driver was guilty of such negligence as would constitute a bar to the plaintiff's recovery.
The testimony of the plaintiff and of Leckie, the owner and driver of the car, his principal witness, shows beyond the shadow of a doubt that both were perfectly familiar with the crossing in question; that the afternoon was hot and dry; that the highway approaching the crossing, by reason of passing cars, was filled with dust which settled as a cloud upon the crossing; that but for the dust the view towards the east, from which direction the train approached, was clear for several hundred yards; that they knew that they were almost upon the schedule time of the train; that they did not stop their car although nothing could have been more exclamatory of danger than the known location of the crossing and the cloud of dust; that they slowed down on account of the dust from 20 to 10 miles an hour and had come within 15 feet of the track when the coming train was noticed; that their car could have been stopped in 5 feet, and at that distance from the track the train could have been seen 600 yards up the track. It is difficult to conceive of a clearer case of gross negligence upon the part of the driver of the car. The charge of his Honor withdrew from the attention of the jury the fact that under the statute the gross negligence *Page 58 of the driver would exculpate the railroad company, limiting their attention to that of the person injured.
In 33 Cyc., 1024, it is said: "Where a traveler's view at a railroad crossing is obstructed by dust, smoke, or steam from a passing train or otherwise, it is his duty to wait until his view becomes unobstructed before going upon the tracks; and it is contributory negligence for him to attempt to cross without waiting for the smoke or dust to clear away, or without stopping to listen for approaching trains, particularly where the traveler is familiar with the crossing and knows that trains are likely to pass at any moment."
In Chisolm v. R. Co., 121 S.C. 394, 114 S.E., 500, 503, the Court said:
"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. (Citing cases.)
"On reaching a railroad crossing and before attempting to go upon the track, a traveler must use his senses of sight and hearing to the best of his ability under the existing and surrounding circumstances; he must look and listen in both directions for approaching trains, if not prevented from so doing by the fault of the railroad company, and to the extent the matter is under his control must look and listen at a place and in a manner that will make the use of his senses effective. This is merely a statement in the concrete of the fundamental principle of the law of negligence that —
"`Ordinary prudence requires every person who is in the full enjoyment of his faculties of hearing and seeing, before attempting a dangerous act or operation, to exercise them for the purpose of discovering and avoiding peril.' 20 R.C.L., 113."
The principle has been affirmed in a multitude of cases from other jurisdictions, applied particularly to cases where the vision of the traveler was obscured by dust, smoke, or *Page 59 other obstructions not attributable to the negligence of the railroad company. See note 41 A.L.R., 405; note 56 A.L.R., 547, where many decisions are cited. Particular reference may be made to Oleson v. R. Co., 143 Ind., 405,42 N.E., 736, 32 L.R.A., 149; Heaney v. R. Co.,112 N.Y., 122, 19 N.E., 422; Foran v. R. Co., 147 N.Y., 718,42 N.E., 722; Beynon v. R. Co., 168 Pa., 642, 32 A., 84; 3 Elliott on R.R. (3d Ed.), § 1661.
Practically the same error occurred in the charge: "It requires the act of the traveler on the highway to be of greater degree of negligence than the negligence of the railroad company, in order to defeat the right of recovery on the part of the traveller."
The charge in full was this: "Now, with reference to the crossing; you see where the law imposes a somewhat different responsibility upon a railway company operating a train and a person attempting to cross the track at a crossing. Any act of negligence, so far as negligence on the part of the railway company, such as the failure to blow a whistle or ring a bell, makes the railway company liable for any injury suffered by the traveller, and the traveler can recover, unless, in addition to ordinary, to the mere want of ordinary care, or mere ordinary negligence, he has been grossly or willfully negligent. It requires the act of the traveler on the highway to be of greater degree of negligence than the negligence of the railway company in order to defeat the right of recovery on the part of the traveler. Now you keep that in mind when considering the liability under the statute."
Here again his Honor confined the defense of contributory negligence, to the gross or willful conduct of the person injured, when the statute makes such conduct on the part of the driver having charge of the person of the injured one, as well as that of the person injured, a complete bar to his recovery. The error was emphasized by his adding: "Now you keep this in mind when considering the liability under the statute." *Page 60
The charge is subject to another objection:
The correct interpretation of the statute is that the immunity of the person injured, from the charge of ordinary negligence, and the requirement that he be guilty of gross or willful negligence which would defeat his right of recovery, applies only to the failure of the railway company to sound the statutory signals on approaching a crossing; any act of negligence of the railway company other than a failure to observe the statutory requirement may be met in defense by proof of the ordinary negligence of the traveler constituting contributory negligence.
The error is as plainly developed in the following charge: "If you find that the plaintiff has made out his case by the greater weight of the evidence as to any of the alleged specified acts of negligence, then he has won his case; unless you find that the defendant, by some of its additional defenses, in addition to making him bring his case by the greater weight of the evidence, had proven him negligent; and you heard me tell you what those special defenses were — one, that they were engaged in a common enterprise; one, the act of negligence on the part of Leckie or Key; another, the act of negligence on the part of Leckie was also the act of negligence on the part of Key; in other words, that they were grossly negligent; that Leckie was grossly negligent and that Key was grossly negligent; and that they come within the law that their gross negligence caused the injury."
The most serious error in the conduct of the trial of this case, in the Court below, is the misapprehension disclosed in the charge of the presiding Judge, of what for brevity's sake may be referred to as the "common enterprise" doctrine, and the confusion as to its application to the cause of action based upon the signaling statute and to that based upon the common law — a confusion largely engendered by the failure to treat the two causes of action separately.
The presiding Judge appears to have labored under the misapprehension that the plaintiff cannot be charged with *Page 61 the contributory negligence of the driver of the car, to the extent required by the statute, so as to defeat his cause of action under the statute, or have imputed to him a like degree of negligence of the driver with like effect, or to be charged with the contributory negligence of the driver to the extent permitted by the common law, so as to defeat his cause of action under the common law, unless it appear that the relation of the plaintiff as an occupant of the car, to the driver was that of a common enterprise or joint adventure.
I have endeavored to show that the doctrine of imputed negligence has no place in an action based upon the statute; that the negligence, of the prescribed degree, of either the injured person or of the driver who has charge of his person, is by specific provision of the statute made a complete bar to recovery.
But where the cause of action is based, not upon the statute, but upon common-law negligence, the doctrine of imputed negligence has a prominent place in the picture and depends for its application upon the principles of the common enterprise doctrine, regardless of its degree.
So that as applicable to the plaintiff's common-law cause of action, it becomes vital to decide whether the circumstances present an instance of common enterprise.
The general rule, established by a myriad of authorities, is that a mere guest or gratuitous passenger, riding with the owner and driver of a car by invitation, who has no right to direct the movement of the car or the conduct of the driver, and who does not attempt to do so, cannot be considered as having been engaged with the driver in a common enterprise, so that the negligence of the driver may be imputed to him as contributory negligence.
But it is equally well settled that the occupant of the car may not abandon the obligation resting upon him to exercise due care under the circumstances and intrust his safety to the driver's care; he may by reason of his position in the car, by his familiarity with the crossing and its condition, and by *Page 62 the known danger of the situation, be charged with a duty of taking positive action to control the movement of the car and the conduct of the driver, in order to avert a pending calamity. If this obligation should under the circumstances be imposed upon him, it becomes a duty to take action, and the duty necessarily involves the right to control the conduct of the driver for their mutual protection. The testimony of the plaintiff plainly shows that he was familiar with the crossing and that they were practically upon the schedule time of the train; that he was sitting on the front seat by the side of the driver; that he knew that the cloud of dust over-hanging the crossing obscured his vision of an approaching train; and yet he allowed the driver to blindly proceed without stopping where the view would have been open to him. Under the authorities it was his duty to warn the driver, apparently impervious to a sense of danger, of the risk he was running; and if a duty, it was his right, to this extent, to control the movement of the car and the conduct of the driver. Unquestionably I think that the collision was due to the concurrent acts of negligence of the plaintiff and the driver, which clearly presents a case of common enterprise, a joint adventure.
In defining the liability of one riding in a vehicle for the negligence of the driver, it is said in 2 Cooley Torts, 1473: "If the driver is the plaintiff's servant or under his control, the negligence of the driver is imputable to the plaintiff. So if the two are engaged in a joint enterprise and each has an equal right to direct the movement of the vehicle."
In Crescent Co. v. Stone, 211 Ala., 516, 101 So., 49, 51, the Court said: "Charge E above is misleading in putting the emphasis on `actual' control instead of the right and duty of joint control. If the two men, both riding in the car, engaged in the joint enterprise of running it * * *, both having a joint duty to so operate it as not to negligently injure others on the road, it cannot be said there is no joint *Page 63 liability in any event, because one takes no actual control while the other is driving."
In Coleman v. Bent, 100 Conn., 527, 124 A., 224, the common right to control the operation of a car by an occupant is referred to as the correlative of the common responsibility for negligence in its operation.
His Honor charged the jury as follows: "Right there, I am going to tell you what a common enterprise is. It is a mission, an enterprise, in which two or more persons engage, having in mind a common end, a common purpose, both taking part and both exercising the right of domain, the control over the vehicle in which they are riding; the one or the other having the right to direct the course that they may pursue or the way in which they may go."
This is a misapprehension of the controlling principle of the law applicable to cases of common enterprise. It injects a false element, that the party not driving must have taken a part in the movement of the car, must have exercised the right of domain, the control of the vehicle in which they were riding.
The case of Langley v. Sou. R. Co., 113 S.C. 45,101 S.E., 286, 288, is instructive: In that case it appears that the plaintiff Mrs. Langley with her husband, two young ladies, and a nephew, Wingate, were returning from Charlotte, N.C., to their homes in Lancaster, S.C. The young man was driving the car which belonged to the Langleys, Mr. Langley sitting by his side on the front seat, Mrs. Langley and the two young ladies on the back seat. When they reached Hebron, N.C., a station on the railroad which was not far from Pineville, N.C., the first station north of the State line, it began to rain. Mrs. Langley suggested that when they reached Pineville the ladies be put on the train there. The party was nearly on the time of the train and it was necessary to speed up considerably in order to reach Pineville ahead of the train. It was fairly inferable from the testimony that the plaintiff Mrs. Langley and the other *Page 64 occupants of the automobile agreed to and acquiesced in the purpose suggested by Mrs. Langley. There was evidence tending to show that the automobile was driven accordingly at a rapid rate of speed to accomplish said purpose. In attempting to make a railroad crossing between Hebron and Pineville a collision occurred from which Mrs. Langley suffered personal injuries. The defendant had a verdict, and upon appeal exception was taken to the following charge of the presiding Judge (Judge Moore): "Where several persons are engaged in a common enterprise, where they are traveling in an automobile for pleasure, or otherwise, each would be the agent of the other in carrying out such proposition. Where one of them, by common consent of all, is engaged in driving such automobile, the person so driving would be the agent of the others engaged in such common enterprise or purpose, and each of the travelers so participating would be liable for the negligence of the driver of the automobile, if there was any such negligence." The opinion of the Court was delivered by Justice Hydrick, concurred in by Justices Fraser and Gage, Chief Justice Gary and Justice Watts dissenting. The Court held: "Clearly, therefore, the evidence was susceptible of the inference that she was responsible for the rate of speed at which the automobile was being run. It matters not whether she had the `right' to control the driver, since it is not disputed that she did in fact control him. Clearly, therefore, the evidence warranted the finding that the negligence, if any, in the rate of speed of the automobile, was imputable to her."