March 31, 1928. The opinion of the Court was delivered by This action was brought in the Court of Common Pleas for Aiken County to recover actual and punitive damages *Page 167 for the alleged negligent and reckless killing of Eugene Boyd by the defendant. The trial was before Hon. John S. Wilson, Circuit Judge, and a jury. There was a directed verdict for the defendant as to punitive damages. The jury found in favor of the defendant as to actual damages. The plaintiff has appealed to this Court. The defendant asks that the verdict and the judgment below be sustained on the ground that the presiding Judge should have also directed a verdict for the defendant as to actual damages.
In disposing of the question as to the alleged error in refusing to submit the issue of willfulness, we may, at the same time, consider the defendant's appeal.
To measure the evidence properly, we must first see what acts of negligence and willfulness were charged against the defendant. These were stated in the complaint to be: The failure to give proper signals or warning of the train's approach; the rapid and dangerous rate of speed at which the train was running; failure to keep a reasonable lookout; failure to have train under proper control, so as to be able to stop the same; and failure to have proper headlight on the locomotive, the one in use not casting light far enough ahead to enable the proper seeing of a person on the track.
Bearing upon the acts of negligence set out, and connected therewith, were allegations in the complaint that the place of the accident had been used by the public as a footpath, walkway, and traveled place, openly and notoriously, for more than 20 years, and that the intestate was in a helpless condition on the railroad's right of way at the time the accident occurred.
The defendant, after setting up a general denial, alleged that the deceased was a trespasser, and that his death was occasioned by his contributory negligence and willfulness, in that he placed himself in a position of danger on defendant's right of way, while in an intoxicated condition, and failed to use due care, or even slight care, for his own safety. *Page 168
It is necessary, because of opposing views, to review the testimony, to some extent, for the purpose of seeing if there was any evidence to sustain the allegations of the complaint.
There was some testimony, and so much seems to be admitted in the opinion of Mr. Justice Cothran, showing that the deceased was a licensee, and that his dead body, badly mangled, was found in the footpath, near the ends of the cross-ties, in a place that the public had used uninterruptedly and continuously for at least 20 years; that deceased was struck and killed by some part of a train while sitting on the end of a cross-tie, or standing upon or quite near to the railroad track; that the railroad track was perfectly straight for a great distance; that persons upon an engine, approaching the place where the deceased was killed, by the use of ordinary care, could have seen for a considerable distance an object on the track as large as a man; and that, shortly after the deceased had left Ellenton for his home at Bush Station, walking along the railroad track in an intoxicated condition, a train of the defendant passed through Ellenton, traveling also in the direction of Bush.
The record discloses some testimony that no signals were given for at least three crossings between Ellenton and the place where the body of the deceased was found. It is true, as stated by Mr. Justice Cothran, that nearly all of the plaintiff's witnesses, in their testimony, limited the signal referred to by them as the one of sounding the whistle. But one witness, Angus Williams, testified positively:
"I didn't hear it blow at all as it was going out of Ellenton in the direction of Mr. Boyd. I did not hear any signals at all after it left Ellenton."
If the witness had in mind, as he may have had, both the blowing of the whistle and the ringing of the bell, warning signals usually given by a locomotive engine, when he used "any signals," then he meant to say, and did say, that the bell was not rung. This view seems strengthened by *Page 169 the fact that, before using the language referred to, the witness had first testified that he did not hear the whistleblow. In any event, if there was doubt as to the meaning of the language of the witness, and more than one inference could have been drawn from his statement, and if either of such inferences were favorable to the plaintiff, the jury was the proper authority to pass upon what that inference was. And, even if it should be conceded that a bell of some kind did ring, it was for the jury to determine if the defendant, under all the circumstances, should have also sounded the whistle, since a whistle is generally more likely to give warning than a bell.
One witness testified that the train was making about 25 miles per hour; another stated it was running "pretty lively"; and the engineer and fireman testified that the speed was from 20 to 25 miles per hour. The engineer swore that he could stop his train at the rate he was running within 25 feet. Whatever the speed, 25 miles per hour, more or less, it was for the jury to say if it was excessive, and if the train was under proper control at the time, under the circumstances; 50 miles an hour may not be an excessive rate of speed at a given time, under certain circumstances, while 10 miles an hour might be excessive at another time, under other circumstances. So the questions of negligenceas to the rate of speed and as to having the train undercontrol were for the jury.
The engineer swore that the engine was equipped with a standard electric headlight, and was burning brightly, and that, going through the cut where the accident happened, he could distinguish a man standing up for 450 feet. Witnesses for the plaintiff, even if their testimony may be "unsatisfactory" to many people, swore that the headlight was dim; and one of plaintiff's witnesses testified that he had ascertained by experience that with the use of a proper headlight he "could see a man anywhere in that cut, which was a distance of one-third of a mile (1,760 feet)." If the headlight was not *Page 170 bright, but was only dim, it was for the jury to say if thedim light was sufficient, or if it was negligence to carry alight of that kind.
We find in the record all of the testimony referred to by Mr. Justice Cothran to show that the deceased was under the influence of whisky a short while prior to his death. But there was evidence that he was not helplessly drunk at that time, and that he could walk, and was walking along or on the railroad track just before the train came along. But, even if the deceased was down on the track, helplessly drunk, and if those in charge of the operation of the train saw him in that condition, and appreciated his plight, or they could have seen him and appreciated his condition, by the exercise of reasonable diligence, and had the ability to stop the train without injuring the deceased, it was their duty, under the law, to so do. These questions,on the matter of contributory negligence, were all for thejury.
The very positive testimony of the engineer and fireman that they did not see the deceased on the track was testimony for the jury to consider. They had the right to accept it in the face of any contrary evidence, direct or circumstantial. But the testimony of these witnesses should not have been accepted by the Court as conclusive of the issues involvedas a matter of law. In his concurring opinion in Wilson v.Southern Ry. Co., 93 S.C. 17; 75 S.E., 1014, Mr. Justice Woods said:
"But contributory negligence is not a defense against willfulness or wantonness. The duty of a locomotive engineer and a fireman to keep a vigilant lookout ahead, for the sake of passengers as well as those who may be helpless on the track, is urgent, and the failure to keep a lookout may be evidence of recklessness or wantonness. In this case, the night of the fatality was bright and the locomotive had a powerful electric headlight. There was evidence fromwhich it might be inferred that Wilson was lying on the *Page 171 track asleep or drunk or that he was crossing the track onhis way home and that the place was one where personswere to be expected crossing the track. The evidence alsotended to show that those in charge of the engine did notsee Wilson at all, for the train did not slow up or stop.From all this the jury might infer that no lookout was keptand that this was a reckless disregard of the lives of thosewho might be on the track even as trespassers. Sentell v.So. Ry., 70 S.C. 183 [49 S.E., 215]. The evidence warrants, also, a rejection of such on inference, but whether the inference should be accepted or rejected is a question for the jury." (Italics added.)
Two cases are rarely exactly alike. There was much similarity, however, in the facts from the plaintiff's viewpoint in the case at bar and the facts favorable to the plaintiff in the case of Woodward v. Southern Ry., 90 S.C. 262;73 S.E., 79. The main difference, as pointed out by Mr. Justice Cothran, in the facts of the Woodward case and this case was that in the former there was some testimony that there was no headlight on the engine; while here the testimony most favorable to the plaintiff was that the headlight was dim and insufficient. A dim light, of course, may be much better than no light at all; still, it may be negligence under some circumstances for a locomotive engine to be operated with only a dim headlight. Certainly, this Court cannot say that a dim headlight is sufficient to comply at all times with the law. To do so might lead to the erroneous conclusion that it would be all right for a locomotive to be operated at night with a tallow candle. We prefer for juries to say whether dim lights or tallow candles are sufficient. In the Woodward case Mr. Chief Justice Jones, speaking for the Court, used this language:
"We think the Court was clearly in error in basing the nonsuit on the ground that the evidence showed conclusively that deceased caused his own death by being drunk and asleep on the track. *Page 172
"It was much debated in argument whether the testimony showed that the deceased was a trespasser or a licensee. Let us waive that question and for the purpose of this appeal assume that deceased was a trespasser. The rule of law generally applicable in such case is that the railroad company owes to a trespasser on its track the duty of so operating its trains as not to injure him wantonly or by such gross negligence as indicates a reckless disregard of human life. Smalley v. Railroad Co., 57 S.C. 243;35 S.E., 489; Haltiwanger v. Railroad Co., 64 S.C. 8;41 S.E., 810.
"We think the testimony was sufficient to carry the case to the jury on the question of recklessness. The speed of the train on a dark night running without headlight and without regarding the statutory signals, through a thickly settled community, with the knowledge that many people were accustomed day or night to use the track as a walkway, would seem to warrant submission to the jury to determine whether the conduct of defendant's employees was merely inadvertent, or was in reckless disregard of human life. McKeown v. Railroad Co., 68 S.C. 488;47 S.E., 713. The failure to give the statutory signals is competent testimony on the question of recklessness. Goodwin v.Railroad Co., 82 S.C. 327; 64 S.E., 242; Rowe v. Railroad,85 S.C. 25; 66 S.E., 1056."
Without going into them, we point to the following cases, which support in the main the principles announced in theWilson and Woodward cases: Tyler v. Atlantic Coast LineR.R. Co., 104 S.C. 107; 88 S.E., 541; Sanders v. So.Ry. Co., 90 S.C. 331; 73 S.E., 356; Goodwin v. AtlanticCoast Line R.R. Co., 82 S.C. 321; 64 S.E., 242; Richardsonv. Atlantic Coast Line R.R. Co., 111 S.C. 359;98 S.E., 132; McKeown v. South Carolina Georgia ExtensionR.R. Co., 68 S.C. 483; 47 S.E., 713; Jones v.Charleston Western Carolina Ry. Co., 65 S.C. 410;43 S.E., 884; and Mason v. Southern Ry. Co., 58 S.C. 70; *Page 173 38 S.E., 440; 53 L.R.A., 913; 79 Am. St. Rep., 826.
The case of Sharpe v. Southern Ry. Co., 125 S.C. 478;119 S.E., 245, referred to by Mr. Justice Cothran, in our opinion, is not authority for the view he takes, but it is in line with our conclusion. There the trial Judge (Hon. Ernest Moore) only submitted the question of negligence to the jury, declining to submit the issue of willfulness. The verdict for the plaintiff for actual damages was approved by this Court. The plaintiff was evidently satisfied with the amount of the verdict, and did not appeal as to the matter of punitive damages. So this Court did not pass upon that issue. The dissenting opinion of Mr. Justice Marion, which was concurred in by Mr. Justice Cothran, "is very interesting and forcible," as are all the opinions of that able jurist. But, unfortunately for the position of Mr. Justice Cothran in this case, the positions of Mr. Justice Marion were not sustained in the Sharpe case by a majority of the Court; and consequently they cannot be accepted by us, at this time, as authority.
Of course, this Court has great respect for any ruling made by Hon. E.C. Dennis, Circuit Judge, just as we regard highly the rulings of the distinguished Circuit Judge who heard this case, Hon. John S. Wilson. It is not proper, however, for us to be guided by any action Judge Dennis may have taken in the first trial of the case at bar in refusing to submit to the jury the issue of punitive damages, since the evidence in the trial before him has not been furnished the Court, and we are unable to say if the evidence in that trial was the same as that on the last trial.
We wish it expressly understood that we do not intend by anything already said, or which may hereafter be said, to indicate our view as to what the result of the trial in the lower Court should have been, or should be hereafter — to the contrary we do not express, and have no view, as to the result. We have not intended to make any argument in favor of the plaintiff, nor to *Page 174 refute any argument made for the defendant. We have felt forced to call attention to testimony, which may havebeen considered favorable to the plaintiff's cause of action, because of the very strong statement that all the evidence was favorable to the defenses of the defendant. We simply believe that both the issues of negligence and willfulness should have been submitted to the jury. In our opinion, the Circuit Judge ruled correctly in allowing the jury to pass upon the question of negligence; and that he committed error in not submitting the question of willfulness.
The position that all the appellant can now ask is a trial on the issue of willfulness — and that she cannot be granted a new trial generally — does not seem tenable to the Court. When the only issue before the jury was the negligence of the defendant, and when any willfulness on its part could not be considered, the willful contributory negligence of the deceased, or his ordinary contributory negligence, if established, was a complete defense to the defendant. If the jury could have decided that the defendant was willful, even the ordinary contributory negligence of the deceased, though completely shown, was not a defense. The case of Massey v. Hines, Director General ofRailroads, 117 S.C. 1; 108 S.E., 181, is not in point. There the verdicts, separated, were for both actual and punitive damages. The defendant, representative of the United States Government, was not liable, under the law, for punitive damages, and the Court reversed the judgment for such damages, letting the verdict for actual damages stand. The Federal Government is not involved in the case at bar. The defendant is liable under the law, in a proper case, for punitive damages.
The second exception of the appellant imputes error to the trial Judge because he charged that the plaintiff could not recover if the evidence showed that it was just as probable that the deceased was killed by some train other than the train referred to in the complaint of the *Page 175 plaintiff. It is urged that the defendant was liable whether the deceased was killed by one of its trains or the train of its lessee, Atlantic Coast Line Railroad Company, and that the plaintiff, in her proof, was not confined to any one particular train. We think this exception is without merit, for the reason that the complaint of the plaintiff charged negligence on the part of the defendant's servants in the running of a certain train, referred to in the complaint. The plaintiff is bound by her complaint, and the Circuit Judge was correct in the instructions he gave. See Geddings v.A.C.L.R. R. Co., 91 S.C. 477; 75 S.E., 284.
We do not think it necessary to review the other exceptions of the appellant.
The judgment of this Court is that the judgment below be, and the same is hereby, reversed, and the cause remanded for a new trial.
MR. CHIEF JUSTICE WATTS and MR. JUSTICE STABLER concur.
MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concurs in result.