said: "The testimony, though, satisfies me beyond doubt that the management of the car was the concurrent act of the plaintiff, her husband, and the driver.
"The car inferentially belonged to the Langleys, though the testimony is not specific on that point. The driver was nephew to the plaintiff, and he was plainly and properly heedful of the direction of the Langleys. The husband sat by *Page 65 the driver. The relationship of the three was so close that their action was in common; it cannot be separated; it concurred in time and in character; it was identical."
This case I think is authority for the position that if the person injured was a passenger in the car and participated in the negligent act of the driver of the car, regardless of whether he had authority to direct the management of the car or not, the negligence of the driver is imputed to the occupant of the car injured in consequence thereof.
I think therefore that the statement in the opinion of Mr. Justice Blease that the testimony did not warrant the inference that the plaintiff was engaged in a common enterprise with the driver of the automobile at the time of the collision, and that in submitting that question to the jury the charge was more favorable to the railroad company than it was entitled to, cannot be sustained.
The precise point is ruled in the case of Brommer v. R.Co. (C.C.A.), 179 F., 577, 582, 29 L.R.A. (N.S.), 924:
"In Little v. Hackett, 116 U.S. 371, 29 L.Ed., 652,6 S.Ct., 391, the Supreme Court held that acts of omission as well as commission might constitute contributory negligence, saying: `That one cannot recover damages for an injury to the commission of which he has directly contributed is a rule of established law and a principle of common justice. And it matters not whether that contribution consists in his participation in the direct cause of the injury, or in his omission of duties which, if performed, would have prevented it. If his fault, whether omission or commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong.'
"It follows, therefore, that Henderson was under obligations to take due care of his own safety. He was not a passenger for hire. He was engaged in the common purpose of a pleasure ride with the driver of the machine. He knew they were approaching a railroad crossing. Being free from the engrossing work of operating the machine, and occupying a *Page 66 seat beside the driver, he was in an even better situation than Brommer to look out for the safety of the machine. His own safety and the instinct of self-preservation should have led him to do so. Under the circumstances his duty was well stated in Davis v. Chicago, R.I. P.R. Co., 159 F., 18, 88 C.C.A., 496, 16 L.R.A. (N.S.), 424, where it was said: `Under the facts of this case, the relation that plaintiff sustained to his companion, Pfeutze, did not permit him to sit dumb and inert in the vehicle, taking no heed of a known danger, permitting Pfeutze to drive him into a pitfall or onto a deadly railroad track, implicitly trusting his life and limbs to the discretion of his companion without a word of warning or protest. It is now the better recognized rule of law that as to such a person situated as was the plaintiff, riding in a vehicle in mere companionship with his friend, engaged upon a mutual adventure, it is as much his duty as that of the driver to take observations of dangers, and to avoid them, if practicable, by suggestion and protest. In other words, he is required to exercise ordinary care to avoid injury.'
"Measured by this standard, and the rule is founded on sound reason and is conducive to safety, we see no escape from the conclusion that Henderson was equally culpable with Brommer. He knew they were approaching a railroad crossing. As he approached he saw the view was shut off from the track. Thus ignorant of the safety or danger of the crossing, prudence, self-preservation, and the positive demand of the law called on him to stop before attempting the passage. The machine was under control, by his own account, only moving at a two-mile rate. Under the circumstances he was called on to act, or, if he chose to keep silence and join in changing the crossing, the law will not hold him faultless of his share of bringing about the accident. The power, speed, and control of automobiles are new factors in the crossing of railroads. They tempt a reckless driver to make flying crossings. On the other hand, they afford elements *Page 67 of safety and convenience to a careful one. The law contributes to the rational enjoyment of the automobile, to the safety of its occupants, and to the welfare of the railroad traveling public, when, in these early cases, it holds the automobile drivers rigidly to the rule laid down in the Maidmentcase [(C.C.A.), 168 F., 21, 21 L.R.A. (N.S.), 794], that: `The duty of an automobile driver approaching tracks where there is restricted vision to stop, look, and listen, and to do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty.'"
In Davis v. R. Co. (C.C.A.), 159 F., 10, 19, 16 L.R.A. (N.S.), 424, the Court quotes with approval the following from Brickell v. R. Co., 120 N.Y., 290, 24 N.E., 449, 17 Am. St. Rep., 648:
"`The rule that the driver's negligence may not be imputed to the plaintiff should have no application to this case. Such rule is only applicable to cases where the relation of master and servant or principal and agent does not exist, or where the passenger is seated away from the driver by an inclosure, and is without opportunity to discover danger and to inform the driver of it. It is no less the duty of the passenger, where he has the opportunity to do so, than of the driver to learn of danger, and avoid it if practicable.'
"This is supported by persuasive authority. Whitman v.Fisher, 98 Me., 575, 577, 578, 57 A., 895; Crescent Twp. v.Anderson, 114 Pa., 643-647, 8 A., 379, 60 Am. Rep., 367;Dean v. Pennsylvania R. Co., 129 Pa., 514, 525, 18 A., 718, 6 L.R.A., 143, 15 Am. St. Rep., 733; Illinois C.R. Co. v.McLeod, 78 Miss., 334, 341, 29 So., 76, 52 L.R.A., 954, 84 Am. St. Rep., 630; Bresee v. Los Angeles Traction Co.,149 Cal., 131, 85 P., 152, 154, 5 L.R.A. (N.S.), 1059;Hoag v. New York C. H.R.R. Co., 111 N.Y., 199,18 N.E., 648; Missouri, K. T.R. Co. v. Bussey,66 Kan., 735, 745, 71 P., 261; Union P.R. Co. v. Adams, 33 Kan., 427-430, 6 P., 529; Bressler v. Chicago, R.I. P.R. Co., *Page 68 74 Kan., 256, 86 P., 472. If the law were otherwise, A. and B., having occasion to drive through the country on a matter of mutual business or pleasure, riding in a conveyance owned by A., who should drive, their course of travel leading across a railroad track, the situation of the intersection being very dangerous on account of it being `a blind crossing,' with which A., the driver, was not familiar, but B having full knowledge of such danger, he could sit in his seat and suffer A, without a word of warning or suggestion, to drive into the death trap, and if injured himself, when charged with contributory negligence, say, as A was not his servant or agent he was not responsible for A driving heedlessly onto the track. The law of common sense applied to such a situation is that the movement and control of the vehicle is as much under the direction and control of one as of the other."
In Wentworth v. Waterbury, 90 Vt., 60, 96 A., 334, 336, the Court said: "But, if this view of the transcript is not warranted, then the plaintiff is prevented from recovering because it is not possible to say that the case tends to show that the plaintiff was himself free from contributory negligence. His own testimony is that he saw the horse and wagon standing diagonally across the road when the automobile was from 8 to 12 rods away, and there is no suggestion in the case that he mentioned that fact to the driver or did anything but to sit supine and mute beside him on the front seat while the car went forward with unslackened speed. Even though we regard the two as not engaged in a common enterprise, the plaintiff was not excused from taking reasonable measures for his own protection. Landrum v.St. Louis, etc., Ry. Co. (Mo.App.), 178 S.W. 273, 276;Clarke v. Connecticut Co., 83 Conn., 219, 76 A., 523; Shultzv. Old Colony St. Ry., 193 Mass. 309, 323, 79 N.E., 873,877, 878, 8 L.R.A. (N.S.), 597, 118 Am. St. Rep., 502, 9 Ann. Cas., 402; Smith v. Main Central R. Co.,87 Me., 339, 32 A., 967; Whitman v. Fisher, 98 Me., 575, *Page 69 57 A., 895; Brickell v. New York, etc., R. Co., 120 N.Y., 290,24 N.E., 449, 17 Am. St. Rep., 648; Brommer v. PennsylvaniaR. Co., 179 F., 577, 103 C.C.A., 135, 29 L.R.A. (N.S.), 924, 19 Ann. Cas., 1225, note, subheading `Care Required of Occupant'; Cotton v. Willmar, 99 Minn., 366,109 N.W., 835, 8 L.R.A. (N.S.), 643, 116 Am. St. Rep., 422, 9 Ann. Cas., 935, 938; Colorado, etc., Co. v. Thomas,33 Colo., 517, 81 P., 801, 70 L.R.A., 681, 3 Ann. Cas., 700, and note 704."
His Honor charged the jury as follows: "I charge you that the negligence of the driver of an automobile will not be imputed to a person merely riding in a vehicle by invitation of the owner, and riding gratuitously, unless such passenger assume control or direction of the conduct of the driver."
This charge is manifestly subject to the same criticism; it fixes the criterion of actual control or direction and disregards entirely the failure of the occupant to give notice.
His Honor charged the jury as follows: "I will say this about a common enterprise. If these parties were engaged in a common enterprise, the act of one is the act of the other; the negligence of one is the negligence of the other. If they were not, it would take the gross and willful negligence on the part of Key to defeat his recovery in this case. Now, what is the duty of a passenger, one who is not engaged in a common enterprise. When riding with another he has no right to control the direction or the course of the car, but he is not permitted just to sit by and allow the driver to carry him into places of danger. If he sees danger, that peril is imminent, the law requires that he keep his eyes and his ears open and that he advise the driver of the apparent danger. That is the duty imposed upon the passenger and if the passenger fails to do that, he has failed to discharge his duty, under the circumstances, and if he fails to do that, he cannot recover." *Page 70
This charge is clearly erroneous and confusing. It makes no discrimination between the two causes of action. As applicable to the statutory cause of action, it eliminates the issue of the negligence of the driver; as to that of the plaintiff, it is correct. As applicable to the common-law cause of action, it is erroneous as requiring the contributory negligence of the plaintiff to be of the same degree as that under the statute.
In the case of Lewis v. R. Co., 263 Mass. 87,160 N.E., 663, the Court construed a statute of Massachusetts which was practically identical with our crossing statute. It was there held that the driver of a truck in which others were riding was in charge of the person of the occupant who was injured by reason of the gross negligence of the driver, and that under the express terms of the statute the negligence of the driver was a complete bar to recovery by the occupant.
That the plaintiff was equally guilty with the driver of gross negligence I do not think that there can be a doubt, and it is clear under the statute that his gross negligence contributed to the collision. It was necessary that the plaintiff, admitting that if the car had been stopped before going upon the crossing the approaching train could have been seen at least 600 yards up the track, give some excuse for not having insisted that that be done. His explanation was that the cloud of dust overhanging the crossing obscured his vision; he therefore gives the most cogent reason why the car should have been stopped and convicts himself of gross negligence. He admits that he was familiar with the location of the crossing, that there was nothing between him and the train to obstruct his vision except the cloud of dust; it was taking the wildest of chances to proceed under these circumstances, knowing too that they were practically upon the arriving schedule time of the train.
I do not think that any other reasonable inference can be drawn from the evidence than that the plaintiff and the driver were engaged in a common enterprise. Their purpose *Page 71 was an afternoon drive for pleasure in which both were directly interested. The fact that their mission was pleasure could not affect the character of the mission as a common enterprise. It appears that they drove out some miles and came across a wreck in which one was injured; they together turned around and went for a doctor; they found him and sent him out to the relief of the injured person; together they went to a drug store, where both got out and went in; they then went, evidently at the request of the plaintiff, to a cafe into which the plaintiff went to have a check cashed; they then went to the Southern depot at plaintiff's request to learn the schedule of a train to Charlotte, the driver waiting until the plaintiff secured the information which he desired; they then resumed their pleasure trip, when the collision occurred.
His Honor charged the jury: "And it (the State of South Carolina), also says, in addition to statutory requirements, that a train approaching a crossing, if the engineer in charge of that engine is put upon notice, in the exercise of his senses of seeing, and if necessary, hearing, that someone may be going upon the track, even though they are doing wrong, he must do all that is reasonable within his power to prevent an injury to that person; he must do all that he reasonably can to put them on notice of the approach of the train and the presence of imminent danger, regardless of statutory requirements."
In view of the specifications of negligence at common law, set forth in the complaint, in the failure of the defendant to properly regulate the operation of its train and to give notice to the plaintiff after it was seen or could by the exercise of ordinary care have been seen that the occupants of the car were in a position of peril and danger, the natural inference from the Judge's charge was that, if there was such failure on the part of the engineer, the plaintiff would be entitled to recover damages, regardless of the fact that he may have *Page 72 been guilty of contributory negligence in not reasonably observing the approach of the train.
It cannot be denied I think that his charge was thus applying what is known in some jurisdictions as the "last clear chance." If the plaintiff was doing wrong in going upon the track without adequate precaution, he was certainly guilty of contributory negligence and would not be entitled to recover if his contributory negligence was a proximate cause concurring with the negligence of the defendant in producing the injury.
Under the undisputed testimony in the case, neither the plaintiff nor the driver, before going upon the track and when within 15 feet of the rails, made any effort to stop the car until the plaintiff was within 50 or 60 feet, when warning signals of defendant's approach were given. There is no evidence tending to show that the engineer saw that the plaintiff was in a position of peril until he gave the signals; the collision occurred in about a second after they heard the signals and discovered the train. The specifications of negligence in the complaint clearly attempt to make the "last clear chance" doctrine the basis of recovery. This principle, while prevailing in some jurisdictions, has been consistently repudiated by this Court. Spillers v. Griffin, 109 S.C. 78,95 S.E., 133, L.R.A., 1918-D, 1193; Craig v. R. Co., 93 S.C. 49,76 S.E., 21, 24.
In the Craig case the charge to the jury attempted to impose liability under this doctrine. Justice Woods in delivering the opinion of the Court said: "It is true that the Circuit Judge in charging this request and in other portions of the charge stated the general law of contributory negligence; but that by no means cured the error of selecting a particular alleged omission of the defendant — failing to keep a lookout — and saying to the jury that if the defendant was negligent in that particular, and that was the proximate or main cause of the injury, the plaintiff could recover, although they should find to be negligent a particular act of the plaintiff — *Page 73 being drunk and helpless on the track. Even if the defendant was negligent in not keeping a proper lookout, the plaintiff could not recover if his being on the railroad track in a drunk and helpless condition was a proximate cause of his injury, and was due to his own negligence. The error of charging to the contrary was manifestly highly prejudicial."
See, also, authorities cited in the dissenting opinions in the cases of Sharpe v. R. Co., 125 S.C. 478, 119 S.E., 245, and Edwards v. R. Co., 148 S.C. 266, 146 S.E., 97.
In the case of Spillers v. Griffin, 109 S.C. 78,95 S.E., 133, 134, L.R.A., 1918-D, 1193, the Court said: "His Honor charged that, even though the plaintiff was negligent, yet if the defendant's servant saw the plaintiff in time to avoid the collision, the plaintiff might still recover. That is the doctrine of `the last clear chance,' and is not the law in this State."
I do not think that the charge is sustained by any declaration of the Court in the case of Chisolm v. R. Co., 121 S.C. 394,114 S.E., 500, 503, as asserted in the opinion of Mr. Justice Blease.
In the first place, it is distinctly held in that case that the collision did not occur at such a crossing as required the sounding of the statutory signals; the case at bar involves a cause of action under the statute and one at common law; so that nothing said in the Chisolm case could have any application to the cause of action in the case at bar under the statute. If it has any application at all, it must be limited to the cause of action under the common law.
In the second place, the verdict in the Chisolm case was a general verdict, and the Court held that as there was an allegation that the delict, the failure to give reasonable and adequate warning, was wanton and willful, it would be assumed that, if necessary to sustain the verdict, the jury found the defendant guilty of willfulness in so failing to discharge its duty. In the case at bar the verdict was specifically limited to "actual damages"; it is fair, by parity of *Page 74 reasoning, to assume that the jury did not find that the delict, at common law, was willful on the part of the defendant. There was nothing in the allegations of the complaint or in the evidence which tended to show that the failure to give reasonable warning was willful; as a matter of fact, the allegation is that after the engineer saw, or by the exercise of ordinary care should have seen, the predicament of the plaintiff he should have given the warning — an allegation not of willfulness but of ordinary negligence.
In the third place, the issue in the Chisolm case was whether the Judge should have directed a verdict in favor of the defendant upon one or the other of two grounds: (1) That the sole proximate cause of the injury was the negligence of the intestate; (2) that the willful or wanton misconduct of the intestate, combining and concurring with the willful default of the defendant, contributed to the injury as a proximate cause. The Court held, considering the evidence bearing upon the first ground: "If because of the failure to give such notice the intestate went upon the track and was injured, however derelict he might have been in failing to exercise due care himself, it cannot be held that his own default was the sole proximate cause of the injury." And in considering the second ground, that it was an issue for the jury whether the intestate was guilty of such gross or willful negligence as would constitute contributory negligence against the assumed willful act of the defendant.
In the case at bar, under this exception no such issues were involved; the issue was whether the Judge erred in signaling out an alleged delict of the defendant and charging practically, without reference to the contributory negligence of the plaintiff, that if its delict in that respect was established the plaintiff was entitled to damages.
In reference to the constitutional objections raised by the appellant, it is held in the leading opinion that they cannot be considered for the reason that they were not raised and passed upon by the Circuit Court, in the first instance; cases *Page 75 decided by this Court are cited in support of this declaration; with them I am entirely in accord; but I think that there is a marked distinction between an attack upon a statute upon the ground of its unconstitutionality, and an attack upon a ruling of the trial Judge upon the ground that it is erroneous for the reason that its effect is to render the statute unconstitutional. I think that this distinction will appear upon a consideration of the exceptions which attempt to raise the constitutional objections.
In the fourth exception the error assigned is that the statute is violative of the Federal Constitution, in that it imposes upon railway corporations, alone, the burden of showing gross or willful negligence on the part of the person injured, in order to establish the defense of contributory negligence: whereas, every other tort-feasor may successfully defend by showing ordinary negligence on the part of the person injured. This assignment I think is a direct attack upon the constitutionality of the crossing statute and cannot be raised for the first time in this Court.
In the fifth exception the error assigned is of the same nature and for the same reason cannot be considered.
In the seventh exception the error assigned is not an attack upon the constitutionality of the statute, but upon the charge of the presiding Judge, in declaring, in line with certain decisions of this Court, that the failure to comply with the statute is negligence per se, and raises the presumption that it caused the collision. The attack is not upon the statute, but upon a judicial construction of it; the attack may be sustained by showing that it is erroneous for any reason, and particularly for the reason that such a construction would render the statute in conflict with the Federal Constitution. In fact, I do not see how the defendant, if it desired to do so, could raise this objection until after the charge has been made, by an exception urged for the first time in this Court, and upon necessarily the first occasion possible. *Page 76
In the tenth exception the error assigned is, similarly, not an attack upon the constitutionality of the statute, but upon the charge of the presiding Judge, in declaring in line with the case of McBride v. R. Co., 140 S.C. 260,138 S.E., 803, 807, that the failure of a railroad company to comply with the signaling statute is not only negligence per se, but will be presumed to have been the proximate cause of the collision. For the same reason I think it is entirely permissible to sustain the assignment of error by urging in this Court the unconstitutional effect of such a construction.
It may be that the defendant in this case would fail in its effort to have the question of the constitutionality of the statute reviewed by the Supreme Court of the United States, for the reason that it had not been raised upon the trial in the State Court, and had not been passed upon by this Court (though that is not at all certain under the ruling in Rothschildv. Knight, 184 U.S. 334, 22 S.Ct., 391, 393,46 L.Ed., 573: "A motion is made to dismiss the writ of error upon the ground that no Federal question was raised in the Superior Court. Federal questions were raised, however, on writ of error to the Supreme Court, and that, we think, was a sufficient claim"); the fact however, that it may not be reviewable by the Supreme Court of the United States should not pretermit this Court from passing upon the exception to the Judge's charge, upon any ground that might be suggested, including the effect of the construction which would render the statute unconstitutional, regardless of whether the statute as it stands is or is not constitutional.
I insist therefore upon a decision, not that the statute is unconstitutional, but that the charge was erroneous in placing upon it a construction which would make it so.
It may be assumed, in the absence of an attack in the trial Court upon the constitutionality of the statute, that that issue is not open upon this appeal, and that so far as this appeal is concerned, the statute is constitutional; but that assumption does not preclude this Court from considering *Page 77 the assigned error of the trial Judge in interpolating into the statute, provisions which it does not contain, giving to it an interpretation which offends the constitutional guaranties of due process and equal protection.
The oft-repeated declaration that the failure of a railroad company to comply with the requirements of the signaling statute is negligence per se, is an unfortunate and misleading expression of the law; it is a confusion of the colloquial interpretation of negligence with the legal, and is the source of the error which appears in the McBride case, that the failure referred to creates a presumption that it was the proximate cause of a collision. The colloquial interpretation of the term is synonymous with breach of duty; the legal is an actionable wrong. It would be more accurate to say that it is a breach of duty; it cannot be negligence in the legal sense unless the breach of duty is shown to have caused injury.
Judge Cooley, in his work on Torts (3d Ed., 1324), defines "negligence" "as the failure to observe for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury."
In 45 C.J., 632, it is said: "In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of defendant to protect plaintiff from the injury; (2) failure of defendant to perform their duty; and (3) injury to plaintiff from such failure of the defendant. When these elements are brought together they unitedly constitute actionable negligence, and the absence of any one of these elements renders the complaint bad or the evidence insufficient."
To say that the failure constitutes negligence per se is therefore erroneous, in that it presumes, even prima facie, the three elements of actionable negligence above referred to, which cannot be the law. If the statute had contained such a declaration, it plainly would have been an infraction of the Constitution; why this Court cannot say that its interpolation *Page 78 by the trial Judge does not have the same effect, I do not apprehend.
The charge of the trial Judge has injected into the statute a still more objectionable feature, which for the reasons above stated is similarly open to review by this Court, although not raised in the Court below: That the failure to comply with the signaling statute will be presumed to have been the proximate cause of the collision.
I cannot possibly add anything to my dissenting opinion in the McBride case, where I vainly endeavored to demonstrate the fallacy of holding the existence of such a presumption. I may simply repeat a quotation from one of our own cases, which crystallizes the law upon the subject: "When evidence of negligence is only prima facie, it is subject to rebuttal but when there is negligence per se, it is conclusive of that question. The fact that there is negligence per se does not, however, tend to show that such negligence is actionable. The question whether negligence is actionable depends upon the further question whether such negligence was the direct and proximate cause of the injury." Whaleyv. Ostendorff, 90 S.C. 281, 73 S.E., 186, 187.
The question whether the injection into the statute of such a presumption violated a constitutional guaranty did not arise in the McBride case, and of course was not considered.
Under the charge of the trial Judge the issue was not, as in all other tort actions, whether the failure to give signals was the proximate cause of the accident, since that is fixed, but whether signals were given, and if only one witness gives testimony merely that he did not hear any signals, the case must be submitted to the jury and this will be sufficient to sustain a verdict against the railroad company for both negligence and willfulness.
In Lawson v. R. Co., 91 S.C. 201, 74 S.E., 473, 477, the Court said: "Where an act is negligence per se the jury must find negligence. Where it is a mere evidence of negligence, *Page 79 the jury may not find that the defendant was negligent. The failure to sound the bell or whistle has been declared by this Court to be negligence, and if the jury had believed from the evidence that neither the bell nor the whistle was sounded, then they were bound to find for the plaintiff."
The last case was expressly reaffirmed in the very recent one of Miller v. R. Co., 140 S.C. 123, 138 S.E., 675.
The ruling of the trial Judge (not the statute), precludes in this State the application of the standard of conduct governing railroad and traveler in crossing accidents prescribed by the United States Supreme Court in B. O.R.Co. v. Goodman, 275 U.S. 66, 48 S.Ct., 24,72 L.Ed., 167, 56 A.L.R., 645, quoting syllabus: "One who drives upon a railroad track relying upon not have heard a train or any signal and taking no further precaution, does so at his own risk. If he can not otherwise be sure whether a train is dangerously near, the driver must stop and get out of his vehicle before attempting to cross." The Court said: "It is true * * * that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the Courts."
This standard, which is based on the fundamental conception of the mutual rights and the mutual obligations of the respective parties as judged by the circumstances of the situation, has been rejected by this Court on the ground that it conflicts with Sections 4903 and 4925, and that they furnish the sole standard of conduct in this State. Key v. R.Co., 150 S.C. 29, 147 S.E., 625; Holladay v. R. Co., 150 S.C. 243,147 S.E., 927.
From the decisions cited above, these conclusions follow: An automobile driver, without stopping, looking, or listening, drives his car on to a grade crossing and collides with a train. He, or the person riding with him, is injured. The case comes on for trial. Plaintiff proves the fact of the collision *Page 80 and the injury. The evidence is overwhelming that the signals were given as required by Section 4903. Plaintiff, although cooped up in a closed car, swears that he did not hear the signals. Then the challenged statute comes into play. Immediately, without proving more, due to the interpretation put on it by the Court, if the jury believes, based on plaintiff's wholly negative statement, that the signals were not properly given, there is created as a matter of law a presumption that the railroad's negligence was the proximate cause of plaintiff's injury, and that such injury was willfully and wantonly inflicted. The plaintiff is not a railroad employee — that is immaterial. There is absolutely no proof of causal connection between the failure to give signals and the collision — that is immaterial. The evidence may show that the failure to give the signals could not have caused the accident — that is immaterial. If the jury believes signals were not properly given that is the end of it. The presumption does the rest.
But this is not all: The plaintiff says he heard no signal; the jury on this says that no signal was given, and upon this the charge of the trial Judge is that the failure to give the signal is presumed to have been the proximate cause of the collision. In fairness to the trial Judge it should be stated that he did not charge that the presumption was conclusive; he said, "* * * Such presumption would be rebuttable by evidence and the jury should consider any and all evidence that may be in the case in determining the question of proximate cause"; in line with the declaration of the Court in the McBride case: "It must be borne in mind that this presumption does not mean that the causal relationship [connection?] between the failure to give the signals and the injury is shown conclusively. The presumption merely establishes a prima facie case, which may be overcome by testimony, whether given for the plaintiff or for the defendant."
Both statements I respectfully submit are erroneous, as may be clearly demonstrated by the rulings of the Supreme *Page 81 Court of the United States in the case of Western AtlanticR. Co. v. Henderson, 279 U.S. 639, 49 S.Ct., 445, 447,73 L.Ed., 884, decided May 27, 1929. Parenthetically I may say that in view of the fact that I am not discussing the constitutionality of the statute, but am discussing the assigned error in the Judge's charge, I am not to be understood as contending that the decision in the Henderson case is binding upon this Court upon the present appeal; but I do insist that it is most persuasive in support of the proposition that the construction of the statute by the trial Judge was erroneous, for the reason that its effect would be to render the statute, taken in connection with his interpretation, unconstitutional.
In the Henderson case the plaintiff's intestate was killed in a collision at a railroad grade crossing, between a truck he was driving and a train of the railroad company. Plaintiff recovered under a statute of Georgia which declared that, on proof of the happening of such an accident, a presumption arose that it was due to the negligence of the railroad company as a proximate cause.
Assuming that the Court, following its own decision in the case of Mobile, etc., R. Co. v. Turnipseed, 219 U.S. 35,31 S.Ct., 136, 137, 55 L.Ed., 78, 32 L.R.A. (N.S.), 226, Ann. Cas., 1912-A, 463, would have sustained the Georgia statute in the Henderson case, if the statute, either by its terms or by a construction of it by the Georgia Court, had provided for simply a prima facie presumption of negligence, it seems clear that the trial Judge in the case at bar, and the Court in the McBride case, misapprehended the office of a prima facie presumption, in according to it the effect of evidence to be weighed against opposing evidence. (See quotations above.)
In the Turnipseed case the plaintiff relied upon a Mississippi statute which provided: "Proof of injury inflicted by the running of the locomotives or cars of such [railroad] company shall be prima facie evidence of the want of reasonable *Page 82 skill and care on the part of the servants of the company in reference to such injury." The Supreme Court refused to sustain an attack upon the statute as arbitrary and in violation of the due process clause of the Constitution, saying: "The only legal effect of this inference is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done the inference is at an end, and the question of negligence is one for the jury, upon all of the evidence. * * * The statute does not * * * fail in due process of law, because it creates a presumption of liability, since its operation is only to supply an inference of liability in the absence of other evidence contradicting such inference."
Differentiating the Turnipseed case the Court in theHenderson case said: "That case is essentially different from this one. Each of the State enactments raises a presumption from the fact of injury caused by the running of locomotives or cars. The Mississippi statute created merely a temporary inference of fact that vanished upon the introduction of opposing evidence. Gulf, M. N.R. Co. v. Brown,138 Miss., 39, 66, 102 So., 855 et seq.; Columbus G. Ry. Co. v.Fondren, 145 Miss., 679, 110 So., 365. That of Georgia as construed in this case creates an inference that is given effect of evidence to be weighed against opposing testimony, and is to prevail unless such testimony is found by the jury to preponderate." The Court further said:
"Upon the mere fact of collision and resulting death, the statute is held to raise a presumption that defendant and its employees were negligent in each of the particulars alleged, and that every act or omission in plaintiff's specifications of negligence was the proximate cause of the death, and it makes defendant liable unless it showed due care in respect of every matter alleged against it. And, by authorizing the jury, in the absence of evidence, to find negligence in the operation of the engine and train, the Court necessarily permitted the presumption to be considered and weighed as evidence *Page 83 against the testimony of defendant's witnesses tending affirmatively to prove such operation was not negligent in any respect.
"Appellee insists that Section 2780 is valid, and argues that the presumption, being one established by statute, has the effect of evidence, and that it is for the jury to decide whether the company's evidence is sufficient to overcome the presumption; that `it should not as a matter of law be dissipated the instant any testimony is taken against it.' and that the issue is to be determined on a consideration of all the evidence including the presumption.
"Legislation declaring that proof of one fact or group of facts shall constitute prima facie evidence of an ultimate fact in issue is valid if there is a rational connection between what is proved and what is to be inferred. A prima facie presumption casts upon the person against whom it is applied the duty of going forward with his evidence on the particular point to which the presumption relates. A statute creating a presumption that is arbitrary, or that operates to deny a fair opportunity to repel it, violates the due process clause of the Fourteenth Amendment. Legislative fiat may not take the place of fact in the judicial determination of issues involving life, liberty, or property."
And then it reached this conclusion: "The presumption raised by Section 2780 is unreasonable and arbitrary, and violates the due process clause of the Fourteenth Amendment.Manley v. Georgia [279 U.S. 1, 49 S.Ct., 215,73 L.Ed., 575], supra; McFarland v. American Sugar Co.,241 U.S. 79, 60 L.Ed., 899, 36 S.Ct., 498; Bailey v. Alabama,219 U.S. 219, 55 L.Ed., 191, 31 S.Ct., 145."
The point under discussion is clearly elaborated in the case of Kirch v. A.C.L.R. Co. (C.C.A.), 38 F.2d 963, 964. That case involved a construction of a Florida statute which was a copy of the Georgia statute construed in theHenderson case. The statute was upheld against an attack upon its constitutionality, the railroad company contending *Page 84 that the decision should be ruled by the Henderson case. The Court pointed out the distinction between the two cases thus: "There is no doubt that the Florida statute was copied from the Georgia statute; but the Florida Supreme Court has given to it a construction that is different from the construction which the Supreme Court held in the Hendersoncase has been given by the Supreme Court of Georgia. In the just-cited case it was said that the statute as construed by the Georgia decisions `creates an inference that is given effect of evidence to be weighed against opposing testimony, and is to prevail unless such testimony is found by the jury to preponderate.' The uniform construction of the statute by the Supreme Court of Florida is that it merely creates a presumption that disappears and comes to an end upon the submission of proof by a railroad company that its agents have exercised ordinary and reasonable care."
In the McBride case, this Court declared that collision and injury at a crossing is "the natural and probable consequence of the failure to give the signals." The Supreme Court of the United States declared otherwise in the Henderson case, using this language: "The mere fact of collision between a railway train and a vehicle at a highway grade crossing furnishes no basis for any inference as to whether the accident was caused by negligence of the railway company, or of the traveler on the highway, or of both, or without fault of any one. Reasoning does not lead from the occurrence back to its cause."
For these reasons I feel satisfied that the judgment of the Circuit Court was wrong and should be reversed. *Page 85