The undisputed evidence establishes the fact beyond the peradventure of a doubt that, as the driver of the truck crossed the Coast Line spur track, which crossed Meeting Street road, upon which he was traveling, 220 feet from the crossing of the Southern Railway and the Coast Line joint spur track, where the collision occurred, he saw the Southern coal train in the act of crossing Meeting Street road; he saw it so plainly that he could discern the white letters and figures upon the coal cars as they were passing.
This fact absolutely eliminates all charges of negligence on the part of the railroad company, based upon its failure *Page 468 to give notice by watchman, flag, gates, or lights, of the occupation of the crossing by the train.
In the case of Gibson v. R. Co., 110 S.C. 331,96 S.E., 519, 520, in an opinion by the present Chief Justice, it is said:
"* * * The evidence in the case admits of no other inference than that neither a watchman nor gates at the crossing could have prevented the plaintiff from running into the train. The sole proximate cause of plaintiff's injury was his lack of care and his failure to observe the ordinary precaution in crossing the railroad track. The plaintiff saw the train crossing and actually occupying the track. His own reckless conduct was the direct and proximate cause of his injury. He saw the train when he was at least 150 feet from it. He did not stop, although he could have done so, and made no effort to stop it. He thought by timing his movements and still running his automobile the train would pass over the crossing before he reached it. He had defective lights on his car. The only inference that can be drawn from the evidence is that not the failure to have gates or a watchman at the crossing or the high rate of speed of the train, but the careless, reckless conduct of the plaintiff, was the cause of his injury. The plaintiff can have no recovery under the facts of the case and under Barber v. Railroad Co.,34 S.C. 444, 13 S.E., 630; Cable Piano Co. v. Railroad,94 S.C. 145, 77 S.E., 868."
In the Barber case, 34 S.C. 444, 13 S.E., 630, 632, cited by the Court in the case last referred to, the Court by Justice McIver, later Chief Justice, said:
"Now, in this case while there was evidence of negligence in failing to give the statutory signals, which would have made the defendant liable if the disaster had occurred at a public highway or street or travelled place, provided it had been shown that the injury complained of resulted from such negligence, yet, as we have said, the disaster did not occur at any such place, and, if it had, how could it be said that *Page 469 the injury was the result of such negligence, in face of the admitted fact, testified to both by the party injured and by his companion, that young Barber knew that the train was not only approaching, but was near at hand, before he started from the fire? The manifest object of requiring the signals is to give notice to persons crossing or wishing to cross a railroad track, in order that they may keep out of the way of an approaching train; but if they know of the approach of the train without any signal being given, where is the necessity for such signals, and how could it be said with any propriety that the failure to give them contributed in any way to the disaster?"
In Griskell v. R. Co., 81 S.C. 193, 62 S.E., 205, 207, it was said:
"Conceding that defendant was negligent in not giving the statutory signals, this could not have been a proximate cause of the injury, since intestate heard the station blow, saw the headlight, and was racing to beat the train to the depot" — citing the Barber case.
It also appeared by uncontroverted testimony that as the truck passed over the Coast Line spur track, and the driver saw the train upon the crossing, he slowed down to about 10 or 15 miles an hour, evidently having complete control of his car for practically 200 feet; he slowed down, but did not attempt to stop, as it was unnecessary at that distance; as he approached the slowly passing train, and had come within a short distance of it, naturally difficult of exact ascertainment, he attempted to apply the foot brake, and in his own language this is what occurred:
"Q. When you saw the train on the track, what did you do? A. Applied my brakes, and they seemed to hold andthen gave way.
"Q. Then what did you do? A. I applied the emergency brake and holloed to the men to jump, the brakes would nothold; I tried to turn to the left to avoid the accident and hit the train. * * * *Page 470
"Q. Did you apply the brakes on your truck as soon as you saw the train? (Which was 220 feet away, according to his testimony that he saw it as he crossed the Coast Line spur, in connection with the plat introduced by the plaintiff showing that to be the distance.) A. Yes, sir.
"Q. What was the result of that? A. The brakes failed.
"Q. When they failed was or not the truck out of control? A. It was not out of control, but it seemed it would not stop.
"Q. Did you examine the foot brake right after the accident? A. Yes, sir.
"Q. What condition did you find it in? A. Loose. * * * Three threads was stripped from the end of the rod. * * * That pulled the brake loose.
"Q. Pulled it out of the clevis? A. Yes, sir. * * *
"Q. If your brakes had been in good condition, is there any reason why you could not have prevented the accident? A. I don't know, that is a rough road, possibly I could have stopped the truck and possibly I could not.
"Q. If the brakes had been in good condition you could have averted the accident? A. That is my idea."
A weak effort was made to have the witness say that the defect in the brake was possibly caused by the collision. Whether the defect discovered was caused by the collision or not is of no consequence, in view of the testimony of the witness that the brakes for some reason refused to work when the first application was made at the Coast Line spur; and their inefficiency was so great that he called to the passengers on the truck to jump, which of course preceded the collision.
Mr. Wait, general manager of the Port Utilities Company, a mechanical engineer who had examined the truck and had examined the tension rod before the board of inquiry held at the Navy Yard just after the collision, and had tested the brakes and the rod on the truck in the presence of the board, testified as follows as to his opinion concerning the cause of the accident: *Page 471
"Q. From your knowledge and experience and examination of the tension rod and the truck, what is your opinion as to what happened there? A. The application of the brakes stripped off the clevis from the tension rod.
"Q. What would be the effect of that on the brakes? A. The instant the foot-pedal was released the brakes on the truck would be released.
"Q. What effect would the failure of the brakes have on the power of the driver to control the car? A. This tension rod I examined applied only on the foot brake. He had nocontrol over stopping the car with the foot brake."
He testified further:
"Q. It has been suggested here that it might have been possible for the condition of the clevis and tension rod to have been produced by the lick, what do you say about that? A. I cannot conceive of any force that could be brought to bear on the foot pedal that would strip the threads off the clevis or the nut."
It seems indisputable, therefore, that the driver saw the train upon the crossing in plenty of time to stop his truck and could have done so but for the defective brakes. To hold the railroad company liable for an act not attributable to any act of negligence on its part, but to the admitted failure of the brakes of the truck, appears to me to be great injustice.
In the case of Keel v. Railway Co., 122 S.C. 17,114 S.E., 761, 762, the trial Judge directed a verdict for defendant, and plaintiff appealed. The facts are thus stated in the opinion of the Court:
"The deceased at the time of the unfortunate occurrence was riding in an automobile, traveling in Third Street and making for the crossing from the west side. The evidence adduced by the plaintiff shows that at a point ten or fifteen feet before the car reached the house track the driver saw the train coming and slammed on the brakes; that the car did not respond to the application of brakes, but the wheels skidded, and the car drifted across the passing track and ran *Page 472 into the third car from the engine as the train passed on the main line, occupying the crossing. At the point at which the brakes were applied the car was at least 37 feet from the center of the main line. That it could ordinarily have been stopped or turned aside within that distance cannot be controverted."
In sustaining the judgment for the defendant, the Court said:
"The evidence shows that the occupants of the car were fully advised of the approach of the train in ample time to have stopped the car or turned it aside; that their failure to do so was due to a defect in the brakes by which the car not be prevented from drifting along and actually running into the train. The illustration of the runaway horse given by the learned Circuit Judge is apt. The law of proximate cause requires an unbroken sequence between the prime act of negligence and the injury; and when it appears that an active cause intervened between the prime act and" the act producing "the injury, the prime act will not be deemed the proximate cause unless it appears that the intervening act was itself a result reasonably to have been expected from the prime act, in which case the connection between the prime act and the injury is maintained — the sequence is not broken. See the very clear statement upon the subject inSandel v. State, 115 S.C. 177, 104 S.E., 567, 13 A.L. R., 1268.
"It is clear that the immediate cause of the injury was the defect in the brakes which prevented the occupants of the car from availing themselves of the knowledge of the train's approach."
It is contended for the plaintiff that the stop was an emergency stop, not a "premeditated" one; that the emergency was created by the negligence of the railroad company; that the haste produced by the emergency caused the disruption in the stopping apparatus; and that, therefore, if *Page 473 there was a failure of the brakes to operate, that failure was a proximate result of the negligence of the railroad company.
The argument is ingenious, and would command attention, if the premises be admitted. As a matter of undisputed fact, there was no such emergency; the driver had 220 feet within which to slow down and stop. It does not appear that he was thrown into such a panic as to slam the foot brakes on in such a manner as to disrupt a normally appointed apparatus. He appears to have taken his time in slowing down and in applying the foot brake, and evidently continued his efforts until he saw that he could not stop the truck with it, and then applied the emergency brake too late.
There was abundant evidence in the case tending to show that the railroad company had an elaborate system of interlocking switches to provide for the occupation of the crossing by a train to the exclusion of travelers on the highway or of cars on the electric line which paralleled the highway; that there were red signal lights both north and south of the crossing which streamed upon the highway toward the south, the direction from which the truck was coming. It is true that the driver of the truck claims not to have seen these signals of danger, but he admits, as the evidence shows, that he saw the train moving slowly over the crossing, occupying it for the time being, and it is immaterial whether he saw the red lights or not.
Under the view of the facts which I take, it is not necessary to consider the issue whether the driver of the truck was guilty of negligence and the issue whether the negligence of the driver of the truck was imputable to the plaintiff. In my opinion, the evidence conclusively shows, regardless of these considerations, that the cause of the collision was the defective equipment of the truck, for which neither the driver nor the railroad company was responsible.
I think, therefore, that the motion of the defendants for a directed verdict should have been granted, and that the case should be remanded to the Circuit Court, with directions to enter judgment in favor of the defendants under Rule 27. *Page 474