I respectfully dissent from the conclusions announced in the opinion of Mr. Justice Blease, for the reasons which follow:
The circumstances attending the death of the deceased, Eugene Boyd, taken largely from the argument of counsel for the appellant, were these:
"On the night of February 2, 1924, Mr. Eugene Boyd was at the store of Mr. M.F. Bush in Ellenton. He wasdrunk, and was sitting beside the stove drowsing, until Mr. Bush closed up his store around 10 o'clock."
Mr. Bush, a witness for the plaintiff, testified:
"I saw him the night before he was killed, in my store in Ellenton at 10 o'clock. He was pretty full of whiskey. * * * He came in about 9:30, and it was cold, and he went to sleep and kept me up, and slept until close around *Page 176 10 o'clock. I suggested or told him that he better not go home that night, but to stay with Mr. Dixon who worked for me and lived in the yard, but he said the old woman was expecting him, and he went down the street towards the railroad. * * * My store is near the depot, and Boyd was there two or more times that night. He was pretty drunk the last time, and went to sleep by the fire. It was a cold night. I tried to keep him from going home."
Mr. Buckingham, also a witness for the plaintiff, testified:
"I saw him the afternoon before he was killed. I think he was drunk."
Dr. Brinkley, also a witness for the plaintiff, testified:
"I saw Boyd that afternoon. He was pretty full. * * * He had the reputation of drinking heavily."
James Cohen, also a witness for the plaintiff, testified:
"Mr. Boyd was pretty full of whiskey that night. * * * Mr. Boyd and I walked together pretty well, locking arms. He was not walking good, but as they walk when they are full. * * * I went with Boyd as far as Cassell's Mill, and told him to go the dirt road and not to go on the railroad."
This was the condition of the deceased when he started home down the railroad track, about 10 o'clock at night, in cold February weather, according to the testimony of the witnesses for the plaintiff and the admission of his own counsel. His condition was such that the witness, Bush, advised him to spend the night at Ellenton, and the witness, Cohen, who walked arm in arm with him, supporting him, advised that he leave the railroad and use the dirt road parallel.
The evidence for the plaintiff tends to show that the deceased reached the track from Bush's store and proceeded down towards his home near Bush Station, some three miles toward Augusta, walking in a path along the left side *Page 177 of the railroad; that within a short time a freight train passed Ellenton without stopping, and entered a cut about a mile from Ellenton station; that it was running "pretty lively"; that the headlight was "kind of dim"; that the whistle was not blown for the crossing between the station of Ellenton and the cut; that the train did not stop until it reached Augusta.
At about 8:30 or 9 o'clock on Sunday morning February 3, 1924, Boyd's dead body was found near the ends of the cross-ties, some four to six feet away, in the cut just beyond the one-mile post from Ellenton. His back was broken in two places, his neck was broken, and there were bruises on the left side of his head; his body was stiff and cold, indicating that he had died some time during the night or the early morning. Near the point where the body was found there were small tracks between the cross-ties, with the toes pointing out from the railroad; they "appeared to have been made by Boyd while sitting on the end of a cross-tie."
The main question in the appeal is whether the presiding Judge committed error in withdrawing from the jury a consideration of the questions of willfulness and punitive damages.
Assuming that there was evidence for the plaintiff tending to show that the public had been using the footpath along the ends of the cross-ties of the railroad continuously, uninterruptedly, and without objection from the railroad company for at least 20 years, that the deceased was struck and killed by some part of a train while sitting on the end of a cross-tie of the railroad track, with his feet resting in or near the traveled footpath, that the railroad track was perfectly straight for a great distance, that persons upon the engine approaching the place where the deceased was sitting could, by the exercise of ordinary care, have seen an object on the track as large as a man for the distance *Page 178 between the station and the point where the deceased was sitting, that there were four public crossings between those points, and that no signals, statutory or otherwise, were given; that no effort was made to slacken the speed of the train; that the headlight was dim.
Upon practically these identical facts, the Circuit Judge (Hon. Ernest Moore) withdrew the questions of willfulness and punitive damages from the jury, in the case ofSharpe v. Railroad Co., 125 S.C. 478; 119 S.E., 245, to which ruling there was no exception by the plaintiff; and, the case at bar having been tried first before his Honor, Judge Dennis, and later before his Honor, Judge Wilson, both Circuit Judges made the same ruling that there was not sufficient evidence of willfulness to warrant a submission of the matter of punitive damages to the jury.
The evidence of the defendant's negligence in the operation of the train is exceedingly unsatisfactory; much more so of its willfulness.
There is absolutely no credible testimony as to the failure to give signals, even if it be held that Boyd was entitled to the protection of the statute. The nearest crossing toward Ellenton from where the body was found is about a half a mile, according to plaintiff's witness. The witness, Wheeler, who lived some distance from this crossing, testified that he was in his house when the 10 p. m. train passed, and did not hear the whistle blow. The night was cold, and he was in his house, and was paying no particular attention to the train. Nowhere does he testify that he did not hear the bell ringing. A Negro, Angus Williams, testified that the train passed him near Ellenton, and he did not hear the whistle blow. His testimony further shows that he had passed Boyd before then, walking in the opposite direction down the track, and that he and Boyd were a mile apart when the train passed. Nowhere does he say that the bell was not ringing. The only other *Page 179 signal witness was a Negro named Cohen, who was at his home about half a mile on the opposite side of Ellenton from Boyd when the train passed, and who says he did not hear the train blow as it left Ellenton. Nowhere does he testify that the bell was not ringing. On the contrary, the positive evidence shows that the bell was cut on before reaching Ellenton, and continued to ring until it entered the cut. This constitutes all of the evidence as to the failure to give the signals, and it will be noted that not one of the witnesses testified that the bell was not ringing, which would be a sufficient compliance with the statute.
There is an entire lack of testimony tending to show any failure of the engineer or fireman on the train in question to keep a lookout. On the contrary, the positive evidence of both of these witnesses is to the effect that they were keeping a lookout ahead, and saw nothing on the track. The physical facts corroborate this testimony. The engine was inspected at the end of its run, and no evidence was found of having struck any one. In addition to that, there were six or seven other trains that passed during the night, any one of which, if Boyd was struck by a train, may have hit him. Above all that, the undisputed testimony shows that at the point in question the track is slightly down grade, and it is not necessary for the engine to be working steam or for the fireman to shovel coal. There was a trestle just below the west end of the cut that was under repairs, and that had been "bulletined," so that the engineer was naturally looking out for that.
The only testimony at all as to the speed of the train is on the part of the Negro, Williams, who said the train "slowed down" for Ellenton and "picked up pretty lively" after leaving there. There is not the slightest evidence that the train was running faster than usual, or that the speed was excessive. On the contrary, the positive testimony of both the engineer and the fireman is to the effect that there was a trestle under repair at the west end of the *Page 180 cut where the body was found, and that the orders were not to exceed 10 miles per hour in crossing it, and that, as a consequence, the speed before entering the cut was not more than 20 miles per hour, which was under schedule.
The only other testimony relied upon to show willfulness is that of the same two Negroes, Williams and Cohen, with reference to the headlight on the engine. Williams testified that it had "a kind of dim headlight" when it passed him at Ellenton, an expression that really means little, if anything. He then proceeds to nullify the effect of this testimony by stating that, when the light looked dim, he was standing at the crossing at the east end of the cut, and "I first saw the light of the train coming from towards Robins. This was before it blew for Ellenton, and the signal post was about a mile away. When I saw it, the light looked dim." Thus it appears that his observation with reference to the headlight was made from a point more than two miles distant. Cohen testified that the headlight looked dim from his house, some distance away, but admitted that he did not see the train until it got opposite his house, thus affording only a side view. "I can't hardly get at how the light looked whether white, red, or how," he said. Both witnesses merely used a relative term to describe the condition of the headlight. On the contrary, the record shows positive evidence of the fact that the engine was equipped with a standard electric headlight, which was burning brightly at the time.
The only cases cited by appellant in which a headlight is referred to are those of McKeown v. Railroad, 68 S.C. 488;47 S.E., 713; and Woodward v. Railway, 90 S.C. 262;73 S.E., 79. In those cases the evidence was that the train was running without any headlight at all, which is quite a different proposition from running with a headlight characterized as "dim."
But, assuming that there was sufficient evidence of willfulness on the part of the railroad company to warrant a *Page 181 submission of that issue to the jury, the evidence is overwhelming that the deceased was himself guilty of such gross contributory negligence as amounted to recklessness, which would bar a recovery, even if willfulness or recklessness by the railroad company be made to appear. Spillersv. Griffin, 109 S.C. 78; 95 S.E., 133; L.R.A., 1918-D, 1193.
The deceased is shown by the plaintiff's own witnesses to have been a hard drinker; as is often the case, a hard worker during the week and a hard drinker after work hours on Saturday evenings. He appeared at Bush's store about 8:30 or 9 o'clock that Saturday night, drunk. He sat by the stove, and went to sleep. At 10 o'clock the storekeeper, who had been "kept up" by the drunk man, wanted to close his store, and waked up the deceased. He saw his condition, and advised him not to attempt to go home, but to spend the night with an employee of his. He declined, staggered out of the store to the nearby railroad track, and started homeward. He met a friend, who, arm in arm, helped the staggering drunken man a part of the way home, and advised him to leave the railroad and use the paralleled highway. This he also declined. The next heard from him was his dead body lying near the track with every evidence, as the appellant's argument concedes, of having been struck by a train as he was sitting asleep on the end of a cross-tie. If these facts do not present a case of gross, inexcusable negligence, amounting to recklessness, it is difficult to conceive of facts that would. See the very interesting and forcible opinion of Mr. Justice Marion, dissenting in the case of Sharpe v. Railroad Co., 125 S.C. 478;119 S.E., 245, where the ordinary negligence of the person injured was considered.
There are two phases of the law that have attracted my attention in the investigation of this case, which are interesting and deserve attention: *Page 182
(1) It is held in a number of cases, cited in a note to 21 L.R.A. (N.S.), 427, that willfulness cannot be imputed to a railroad company against a licensee upon its tracks until he shall have been discovered in a position of peril. I do not think that our cases sustain that proposition. If the railroad company owes a duty to keep a lookout for licensees, it may be charged with recklessness or willfulness in not performing that duty, even before the party in peril may have been discovered.
(2) It has also been held by a number of cases that, where the jury has rendered a verdict in favor of the railroad company upon the issue of negligence, the charge of willfulness having been eliminated by the presiding Judge, the elimination is harmless error. Olson v. Moorhead,142 Minn., 267; 171 N.W., 923. McNeil v. Munson,8 Ala. App., 610; 62 So., 459 (which, however, was reversed in 184 Ala., 420; 63 So., 992). McColman v. R. Co.,150 N.C. 707; 64 S.E., 781. Erwin v. R. Co., 200 Ala., 557;76 So., 915.
I do not think that position can be sustained. The elimination of the cause of action based upon willfulness permits the defendant to resist the attack of the plaintiff upon the ground of ordinary contributory negligence; a defense which would not be available, if the tort was willfully committed.
The most that could possibly be decided in favor of the appellant is that the verdict in favor of the railroad company for actual damages, based upon ordinary negligence, should stand, and that the new trial should be had only upon the issue of punitive damages, based upon the allegation of willfulness.
In the case of Massey v. Hines, 117 S.C. 1;108 S.E., 181, the plaintiff had a verdict of $12,000.00, punitive and $8,000.00, actual damages. The defendant, Director General of Railroads, appealed from that part of the verdict which awarded punitive damages; he did not appeal from *Page 183 the other part of the verdict. The Court set aside the verdict carrying punitive damages upon the ground that such damages could not be recovered from an agency of the government, and directed that the verdict for actual damages be allowed to stand.
I think that his Honor, Judge Wilson, was entirely right in his direction of the element of willfulness, and that, as no valid objection to the verdict upon the cause of action based upon negligence has been shown, the judgment should be affirmed.