April 23, 1931. The opinion of the Court was delivered by This is an appeal from a judgment for damages under Lord Campbell's Act, Code of Civil Procedure, §§ 367, 368 and the Railroad Crossing Act, Civil Code, §§ 4903, 4925, growing out of a collision at a grade crossing.
The exceptions raise the questions: (1) Was there evidence of a failure on the part of defendant railway company to give the statutory signals? (2) Did the intestate contribute to his death by gross carelessness and willfulness on his part? (3) Did the Circuit Judge err in refusing to charge the defendant's ninth request?
As to the first question: T.R. Arant, a witness for plaintiff, testified that train was running backwards at a rate of 25 or 30 miles an hour toward the crossing without giving the statutory signals by either sounding the bell or whistle within 530 feet of the crossing. This evidence required the submission of the first question to the jury. McBride v. Ry., 140 S .C., 260, 138 S.E., 803; Brogdonv. R.R. Co., 141 S.C. 238, 139 S.E., 459; Glenn v.Ry. Co., 145 S.C. 41, 142 S.E., 801; Whitehead v. A.C.L. Ry. Co., 153 S.C. 339, 150 S.E., 769.
As to the second question: The appellant contends that, under the authority of Cable Piano Co. v. So.Ry. Co., 94 S.C. 143, 77 S.E., 868, and Chisolm v.Ry. Co., 121 S.C. 394, 114 S.E., 500, the Court should *Page 193 have held, as a matter of law that the intestate was guilty of such gross or willful negligence as to bar a recovery.
While the Legislature has commanded a traveler on a highway to bring his vehicle to a full and complete stop (35 Stats. at Large, 1316) before entering or crossing any express highway in the state highway system (Townsend v.State Highway Department, 156 S.C. 545, 153 S.E., 572), it has never seen fit to command that travelers either stop, look, or listen before entering upon or crossing a railroad track. The duty so to do is not absolute; whether a failure so to do is reckless gross negligence or willful misconduct depends upon the then surrounding circumstances and the state of the traveler's mind.
The decision in the Cable case has been modified by the fourth and fifth paragraphs (pages 402, 403, of 121 S.C. 114 S.E., 500, 503), of the decision in the Chisolm case.
As held in the Chisolm case: "It is ordinarily a question for the jury * * * to say whether the attempt of the traveler to cross without looking and listening effectively was excusable or culpable; that is, whether or not it amounted to negligence or willful misconduct." See, also, Whiteheadv. A.C.L.R. R. Co., 153 S.C. 339, 150 S.E., 769.
Testing this case by the Chisolm case, we find evidence that neither the bell nor whistle on the engine was sounded while the engine was between the station and the crossing, that the attention of the intestate was probably distracted by the noise of his own automobile engine and that of a passing truck, and that the situation required the deceased to look in three other directions during the brief time the train, running at 25 or 30 miles an hour, was approaching the crossing, so that it was too late for the intestate to avoid getting on the track when, his attention being aroused by the shouts of the man on the tender, he saw the train almost upon him. The intestate's failure to look in the direction of the approaching train may under the evidence have been due to inadvertence. That question was for the jury. As said in the *Page 194 Chisolm case, 121 S.C. 394, 114 S.E., 500, 504, "The facts do not warrant the Court in pronouncing the intestate's omission such a conscious or reckless disregard of his duty to look in the circumstances surrounding him as would charge him with contributory willfulness."
For these reasons, the first seven exceptions are overruled. The defendant's ninth request to charge was properly refused as upon the facts, under the authority of Richardson v. N.W.R.R. Co., 124 S.C. 314,117 S.E., 510; Priester v. So. Ry. Co., 151 S.C. 433, 437,149 S.E., 226.
For this reason, the eighth exception is overruled.
The judgment of this Court is that the judgment below be affirmed.
Let the defendant's ninth request to charge be included in the report of the case.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE CARTER concur.
MR. JUSTICE BONHAM concurs in result.
MR. JUSTICE COTHRAN dissents.
MR. JUSTICE STABLER disqualified.