May 15, 1928. The opinion of the Court was delivered by I regret that I find myself in disagreement with the opinion of Mr. Justice Cothran that the judgment in this *Page 492 case should be reversed; to the contrary, for the reasons which follow, I think the judgment should be affirmed.
This is an action for damages for personal injuries alleged to have been received by the plaintiff on December 20, 1924. On the afternoon of that date, the automobile in which the plaintiff was riding on his way to the City of Columbia broke down near a point known as the Seaboard crossing on the road leading from Hyatt Park into the city. He secured help, and was engaged several hours in repairing the automobile, which was parked close to the street car track. After the work was finished, finding it necessary to get a bucket of water for the radiator of the car, he started to a nearby branch or spring, and in crossing, or attempting to cross, the street railway track, was struck by a street car, and seriously injured. He alleged that the injuries thus received resulted from the negligent and willful acts of the defendant street railway company, in the following particulars:
"(a) In failing to ring any gong or to give any warning whatsoever to the plaintiff that a street car was approaching, in time for him to avoid it.
"(b) In running the said street car at such a high, reckless, and unlawful rate of speed as to endanger the life, limb, and property of the plaintiff and users of the said public road at the point in question.
"(c) In failing to keep a proper lookout, when by so doing plaintiff could have been seen, and the street car could have been stopped, and signals given, in time to have avoided the accident.
"(d) In violating its own rules and failing to bring the street car down to a slow rate of speed and to stop at the point in question, in accordance with signs maintained thereat.
"(e) In that, knowing that the said track was on a down grade at the place in question, and that the street car line *Page 493 was very close to the road in question and crossing the traveled way in question, the defendant, Columbia Railway, Gas Electric Company, failed to take extra precautions by running the street car slowly, keeping an extra lookout to prevent the possibility of injuring the plaintiff or others at the point in question.
"(f) In that, knowing that the plaintiff and others were working on the car in question, closely adjacent to the track here in question, the defendant, Columbia Railway, Gas Electric Company, its agents and servants, failed and refused to bring the street car under control and to keep an extra lookout in order to prevent an accident at that point."
The answer set up contributory negligence, and pleaded that the plaintiff was a trespasser upon the street car tracks at the time of the injury. During the trial of the case, the plaintiff withdrew his claim for punitive damages, and the Court instructed the jury that, if they found for the plaintiff, they should find actual damages only. The defendants' motion for a directed verdict, based upon several grounds, was overruled by the Court. The jury found for the plaintiff in the sum of $20,000.00. From judgment entered on the verdict, the defendants appeal.
Of appellants' assignments of error, Mr. Justice Cothran considers only two: (1) The refusal of the defendants' motion for a directed verdict on the ground that the plaintiff's contributory negligence was the proximate cause of his injuries; and (2) error in admitting, over objection, defendants' Rule 280 applicable to the operation of street cars.
As to the first proposition, which is discussed as "a major reliance of the defendants for reversal," the learned Justice asserts:
"No other reasonable inference can be drawn from the evidence than that the plaintiff was guilty of such contributory negligence as to bar his recovery of damages." *Page 494
And in support of this assertion, he directs attention, in the following language, to certain testimony of several of plaintiff's witnesses:
"Harry Anderson, the plaintiff's first witness, testified that he was standing on the front platform, by the side of the motorman; that there was absolutely nothing to keep the plaintiff from seeing the street car at least 300 or 400 feet before it got to him.
"Mrs. Johnson testified that she was sitting near the front of the car looking out of the front window; that it looked to her as if just as the plaintiff stepped on the track the car hit him.
"C.H. Leitner, Jr., testified that the plaintiff started to cross the track diagonally, facing slightly up the hill, in the direction from which the car was coming; that all that the plaintiff would have had to do to see the car coming was to glance up; that the track was straight for more than a block; that he saw the car coming, and tried to pull his father back.
"Dr. Williams testified that he was driving a block away, going into Columbia, looking in the same direction that the plaintiff should have looked, and could plainly see the car after it had stopped."
It is not a correct test of a fact sought to be proved, to consider only certain portions of the testimony pertinent to such fact or issue and to disregard other portions equally as pertinent, but in effect contradictory. An examination of the record in this case discloses that there was a mass of conflicting testimony on the question of contributory negligence as well as on other material questions.
For instance, turning to the testimony of the witnesses named in the opinion of Mr. Justice Cothran, we find that the witness, Anderson, on cross-examination, did testify that there was nothing to keep the plaintiff from seeing the *Page 495 street car, and that he could have seen it 300 or 400 feet before it reached him. There was, however, testimony of other witnesses tending to show that it was growing dark, that there were no lights on the street car, and that the view of the approaching car from the point where the plaintiff was injured was "camouflaged" by the contour of the land, trees, buildings, and billboards and the color of the street car, all of which might interfere with or prevent the plaintiff's seeing the car upon its approach. Anderson did not testify that he stood where the plaintiff was injured and looked in the direction from which the street car approached to test the truth or accuracy of his statement that the plaintiff could have seen the car. His testimony showed that he was standing on the front platform with the motorman, looking in the direction of the place where the plaintiff was injured. Hence, when all the testimony in the case is properly considered, his statement is seen to be nothing more than an expression of opinion, and whether such opinion was of any factual value was a question for the jury. In addition, he testified that the car was some 40 or 50 feet away when the plaintiff picked up the bucket and started across the track; that witness's hearing was good, and, if the gong was sounded he did not hear it.
Mrs. Johnson testified that at the time of the accident she was "middle ways of the car on the right-hand side"; that the car was going down hill at a very fast rate of speed; that "all of us ladies talked about how fast it was going — we all hold our breath going down that hill"; and that she did not hear any gong or bell ring. It does not appear from her testimony that she knew anything about the plaintiff's position or how the accident occurred, except that for a moment she saw his face, and it looked to her as if the man had stepped out on the track. She was certain, however, as to the street car's rapid rate of speed.
It is true that C.H. Leitner, Jr., testified, on cross-examination, that all the plaintiff had to do was to glance up, and *Page 496 he could have seen the street car coming, but immediately afterwards, apparently on a better understanding of the question, he changed or materially modified his statement. I quote in full his testimony on that point:
"Q. Then he (the plaintiff) was a little more facing the direction of the street car than if he had gone straight across? A. His body was, but his face was not — well in that position, he was turned that way (indicating) — all he would have had to do would be to glance up, and he could have seen the street car coming? A. Yes, sir.
"Q. Practically straight for more than a block up there — that's correct, isn't it? A. It is straight for some distance. I don't know how far.
"Q. If he had looked, he could have seen the street car coming? A. He would have had to look, sir.
"Q. He would have had to raise his head and look, and he could have seen the street car coming? A. You mean if he could have just glanced that way — he could have seen it?
"Q. Yes, sir. A. No, sir.
"Q. What was there to obstruct his view? A. It was camouflaged.
"Q. You mean the street car — camouflaged like the battleships were? A. No, sir; I don't mean that, but the billboards were painted up, and the street car was painted up, and it was just before dark and no lights, and the whole thing was camouflaged."
This witness also testified that he first saw the street car when it was about four to six feet away, and after the mechanic "hollered"; and that, just beyond where the accident occurred, there was a "stop" sign, but that after the accident it was moved away, and a "run slow" sign was put in its place.
Dr. C.F. Williams testified that, as he was going to Columbia on the afternoon in question, he saw an "accumulation" of several automobiles and a street car standing *Page 497 where the accident occurred, and that the "confusion" suggested to his mind that there had been an accident, and he stopped, thinking he might be able to help in an emergency, Dr. Williams did not see the accident, and it is apparent that what attracted his attention was the "accumulation" at that point. He did not testify that from the plaintiff's point of view he could have seen a street car at that time approaching down the track at the distance of a block.
As to the plaintiff himself, the opinion says:
"He was familiar with the situation; had been working within six feet of the car track for nearly five hours; had seen car after car pass up and down; as he himself testified there had been `quite a few' passing. From where he was at the front of the automobile, he had a perfectly clear view of the track, up the hill, for 600 feet, and all that he had to do to discover whether a car was approaching would have been to turn his head and use his eyes. He does not claim to have done so; and, even if he had so claimed, his statement could not be accepted as evidence, in view of the absolute physical fact that, if he had looked, he would have seen."
The plaintiff testified, among other things, that they worked on the car until "about sundown — about dark"; that he picked up a bucket to cross the track; and that it would take about two steps to get to the curb and about two more steps to get up on the rail; that "I know I looked upthat track": and that there were trees and buildings and signboards along there which would obstruct the view of the street car, and it would have to make some extra noise to attract one's attention. It is a significant fact also that the plaintiff's son, who was standing close by the track, and almost in reach of his father, did not, according to his testimony, see or hear the street car until it was practically upon the plaintiff. The plaintiff also testified that a number of street cars passed along there during the afternoon, and that one of them had stopped; that, generally speaking, they *Page 498 took notice of him, and came by there carefully, and that his attention was attracted to some of them by the ringing of the gong. I think it is perfectly clear from his testimony, if believed, that the plaintiff did look up the car track, and that, at the time and place, his view of the car was interfered with or obstructed for the reasons stated by him and his son in their testimony.
The appellants' motion for a directed verdict was urged also on the additional ground that there was no evidence of actionable negligence on the part of the defendants. We have necessarily referred to evidence bearing upon this question in our discussion of the question of contributory negligence. There was testimony tending to show that, although the time was between sundown and dark, and although the view at the time and place of the accident was "camouflaged" by the color of the car, the contour of the land, trees, buildings, and billboards, the car approached without lights the place where the plaintiff was struck; that it was running at a fast and reckless rate of speed, and the motorman was unable to stop it even by the use of the emergency brakes within about 60 feet of the point where the brakes were applied; and that no warning of the car's approach was given, although the motorman could have seen the plaintiff 75 or 100 feet before reaching him. This and other testimony tended to show that the street railway company was negligent; there was also positive evidence tending to show the contrary.
In the opinion it is stated:
"The fact conceded by the plaintiff's witnesses that the car was brought to a standstill within eight feet from where the plaintiff lay is significant both as to the normal speed of the car and of the prompt effort of the motorman to stop after the plaintiff's peril had been disclosed."
The motorman testified that he was running from "12 to 15" miles an hour; that the first intimation he had that the plaintiff was going on the track was when he saw him walking *Page 499 from behind the automobile, and that at that time he was about 15 or 20 feet from him; that he then put on the emergency brakes — which locked the wheels; that the car was about 30 feet long, and that, after he applied the brakes, he went a distance of 15 or 20 feet, plus the length of the car, and an additional 8 or 10 feet before he stopped. I quote some of his testimony:
"Q. Well, you must have been right at him when you saw him? A. I was right close to him.
"Q. When you put that brake on, you must have been right where you struck him? A. No, sir.
"Q. Well, didn't you tell Mr. Herbert just now that the back end of your car stopped 8 or 10 feet after passing where the man was struck? A. Yes, sir.
"Q. So the car ran its own length and 8 or 10 feet after you struck him? A. Yes, sir.
"Q. Well, you say you only dragged your wheels that distance, so you only put those brakes on just as you struck him, didn't you? A. No, sir; before I struck him.
"Q. Well, if you put them on before you struck him, you dragged your wheels 20 feet before you got to him — why didn't you stop the car in that distance? A. Possibly the heavy load I had on caused that.
"Q. And you drug them the whole length of the car, and 10 feet after that? A. Yes, sir.
"Q. And you say that car is how long? A. Well, I didn't say how long.
"Q. Well, tell us how long it is? A. Well, possibly 30 feet.
"Q. Possibly 30 feet? A. Possibly — it might not be that long.
"Q. Well, if it is 30 feet, and your car ran 10 and 20, is 60 feet, after you locked the wheels — is that about right? A. Yes, sir."
He also testified that "possibly running 15 miles an hour on the level it (the street car) wouldn't run (after the brakes *Page 500 were locked) over 15 feet — something like that." I think that the foregoing testimony of defendants' witness is very significant as showing the rapid rate of speed, testified to by other witnesses, at which the car was being driven at the time of the accident, and that the brakes were not applied, if then, until the car was practically upon the plaintiff.
In passing upon a motion for a directed verdict for a defendant, the trial Judge is bound by the well-established rule of law that the evidence, together with all inferences which the jury can justifiedly draw therefrom, must be considered most favorably to the plaintiff in determining whether the motion shall be granted, and that, where more than one inference can be drawn from the testimony, the case must be submitted to the jury.
In Templeton v. Railway Co., 117 S.C. 44;108 S.E., 363, the Court said (quoting syllabus):
"On motion to direct verdict for defendant only the facts fairly inferable from plaintiff's evidence without regard to conflict raised by defendant's evidence, is [are] to be considered."
In Ashe v. Railway Co., 104 S.C. 414; 89 S.E., 482, we find (quoting syllabus):
"On defendant's motions for a nonsuit and for a directed verdict, where plaintiff has made two different statements that which is most favorable to him must be considered."
In Lower Main Street Bank v. Caledonian Insurance Co.,135 S.C. 155; 133 S.E., 553, the Court thus states the rule:
"The well-established rule in this State is that if there is any testimony whatever to go to the jury on an issue involved in a cause, or even if more than one inference can be drawn from the testimony, then it is the duty of the Judge to submit the cause to the jury. This is true, even if witnesses for the plaintiff contradict each other, or if a witness himself in his testimony makes conflicting statements. The credibility of witnesses is entirely for the jury. On a motion *Page 501 for a directed verdict, the evidence in the cause must be considered most favorably to the plaintiff. Anderson v.Hampton Branchville Railroad Lumber Co. [134 S.C. 185],132 S.E., 47. Crews v. Sweet, 125 S.C. 306;118 S.E., 613; 29 A.L.R., 43. Richardson v. N.W. RailroadCo., 124 S.C. 326; 117 S.E., 510. State v. Parris, 89 S.C. 143;71 S.E., 808."
In the Crews case, supra, we find:
"When a motion is made by a defendant for a directed verdict, evidence in the cause must be considered most favorably to plaintiff in determining whether a directed verdict should be granted."
See, also, Kell v. Fertilizer Co., 123 S.C. 199;116 S.E., 97.
In the case of Williams v. Railway Co., 103 S.C. 321;88 S.E., 131, the Court said:
"There was testimony tending to prove negligence on the part of the defendant, and likewise that the deceased was guilty of contributory negligence, from which testimony the jury might reasonably have drawn more than one inference as to the proximate cause of the injury. These issues were therefore properly submitted to the jury."
So under the conflicting evidence adduced in the present case, the trial Court could not say, as a matter of law, whether plaintiff's injuries were due to actionable negligence on the part of the defendants, nor whether the plaintiff was guilty of such contributory negligence as would bar his recovery: those questions were for the jury.
The defendants also moved for a directed verdict on the ground that the testimony showed that the plaintiff was a trespasser on the street car tracks, and that the company owed him no duty except not to injure him willfully, and make the refusal of the Court to grant the motion on this ground the basis of an assignment of error. There was positive testimony tending to show that the place where the plaintiff attempted to cross the car track was a traveled *Page 502 way or path, which had been used by the public for more than 20 years with the acquiescence of the street car company — and there was testimony equally as positive to the contrary. The issue made was one of fact, which it was not the prerogative of the Court to decide.
The appellants impute error to the trial Judge in refusing their request to exclude the issue of willfulness from the jury after the respondent had withdrawn his demand for punitive damages.
In Huggins v. Railway Co., 96 S.C. 267; 79 S.E., 406, the Court declares:
"We see no reason why a plaintiff should not be allowed to prove that a tort was recklessly, willfully, wantonly or maliciously inflicted merely for the purpose of defeating the defense of contributory negligence."
In Comer v. Railway Co., 105 S.C. 480; 90 S.E., 188, it is said:
"Where the demand for a verdict based on willfulness is withdrawn, willfulness is still in the case to defeat contributory negligence."
The appellants insist, however, that no evidence was adduced in the case from which willfulness might be reasonably inferred. Without again reviewing the testimony, it is enough to say that there was some evidence tending to show willfulness and recklessness on the part of the appellants in the manner of the operation of the street car at the time and place of the accident. There was no error as complained of.
Mr. Justice Cothran, in his consideration of the appellants' fifth exception, concludes that the trial Judge committed reversible error in admitting in evidence, over defendants' objection. Rule 280 of the defendant street railway company. This rule is as follows:
"Motormen must exercise great care when passing a vehicle along side of the track. They must ring the gong vigorously to attract the attention of the person driving as a *Page 503 warning not to pull in ahead of car, and run cautiously until the vehicle is passed in safety."
The defendants' objection was based upon the ground that the rule was inapplicable under the facts shown. A further discussion of the testimony is unnecessary. Even if it should be conceded that the rule was not strictly applicable, and that the Court erred in its admission, under the facts and circumstances of the case hereinbefore pointed out and discussed at some length it has not been made to appear that such error was prejudicial to the appellants.
On the whole, the case was tried in accord with the principles of law applicable. The issues made by the controversy were mainly issues of fact, which were properly submitted to the jury as determinable by them alone under the evidence; and to set aside the verdict and direct judgment for the defendants would be, in my opinion, a usurpation by this Court of the jury's prerogatives.
This opinion, written as a dissent from the opinion of Mr. Justice Cothran, being concurred in by the other justices, becomes the judgment of the Court, which is that all exceptions be overruled, and the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and CARTER concur.