The plaintiff, Mrs. Irene Elizabeth Stabler, as Administratrix of the estate of Tillman Stabler, deceased, commenced this action against the defendants, Southern Railway Company. Earle Utsey, and R.T. Hilton, in the Court of Common Pleas for Richland County, December 17, 1928, for the benefit of herself and infant daughter, widow and daughter, respectively, of the deceased, for damages suffered on account of the death of the said deceased, alleged to have been caused by the defendants in a collision with a train of the defendant Southern Railway Company, at a railroad crossing in the Town of Fort Motte, S.C. on or about the 25th of September, 1928; said Earle Utsey and R.T. Hilton being in charge of said train as conductor and engineer, respectively, at the time of the collision. After issues were joined, on motion of the defendants, *Page 195 the case was transferred from Richland County to the Court of Common Pleas for Calhoun County, and the case came on for trial before his Honor, Judge William H. Grimball, and a jury, resulting in a mistrial. At the November, 1929, term of said Court, the case was tried before his Honor, Judge C.C. Featherstone, and a jury. At the close of the testimony in behalf of the plaintiff, motion for nonsuit was made by the defendants, which motion being refused the defendants offered testimony, and at the close of all of the testimony the defendants moved for direction of a verdict. This motion was also refused by the Court, and the case was submitted to the jury, resulting in a verdict for the plaintiff in the sum of $2,500.00 actual damages. A motion on the part of the defendants for a new trial being refused, from the entry of judgment on the verdict the defendants have appealed to this appealed to this Court.
The exceptions raise only three questions, which, adopting the language of counsel for appellants, may be stated as follows:
(1) Is there any testimony in the case tending to show any negligence or gross negligence on the part of the defendants which contributed to the fatal injuries of plaintiff's intestate as a proximate cause?
(2) At the time of the collision, was there gross or willful negligence or violation of law on the part of plaintiff's intestate, contributing to his fatal injuries as a proximate cause?
(3) Did the Court commit error in refusing to charge defendant's ninth request?
The first and second questions we shall consider together.
The accident occurred in the Town of Fort Motte, S.C. at a point where the highway crosses the railroad track of the defendant Southern Railway Company, about 530 feet from the depot, on the western side in the direction of St. Matthews, S.C. The train in question which struck the plaintiff's intestate was a work train engaged in hauling *Page 196 dirt, and approached from the direction of Columbia going in the direction of St. Matthews.
The train was of considerable length, consisting of twenty one cars, the engine, the caboose, and an extra tender or water tank. The engine was facing toward Columbia, and was pushing the cars, caboose, and tender in the direction of St. Matthews; that is, the train was running backward. The conductor, the defendant, Earle Utsey, was riding in the cab; the defendant, R.T. Hilton, the engineer, was at his usual place on the engine; and the fireman, it appears, was in his accustomed place. The brakeman was riding on the front tender. The plaintiff's intestate was operating a Chevrolet truck, and the collision which resulted in his death occurred as he attempted to drive over the said railroad at this crossing. It appears from the testimony that the highway on which the plaintiff's intestate was traveling is not over 30 yards from the railroad track and runs almost parallel with the railroad track, from a point near the depot to a point near the crossing where the accident occurred, at which point the highway makes a slight curve to a point within a few feet of the intersection of the railroad track with the highway. The plaintiff's intestate drove off in the truck from a point near the depot down the highway a short time before the train approached from his rear. The train did not stop at the depot, or at any point in the town, but proceeded in the same direction the plaintiff's intestate was going, and when he (plaintiff's intestate) turned in the direction of the railroad track, and drove upon the railroad track for the purpose of crossing the same, the train struck him, causing serious injuries, resulting in his death a short time afterwards.
From the record in the case it appears that the appellants concede that the plaintiff's intestate was injured in a collision with the train of the defendant Southern Railway Company at the crossing in question, and that he died from the injuries thus received, but they contend that there was no testimony *Page 197 adduced at the trial which shows or tends to show any negligence or gross negligence on the part of the defendants "which contributed to the fatal injuries of plaintiff's intestate as a proximate cause." We are unable to agree with appellants' contention. Under the well-recognized rule governing appeals on questions involved herein, this Court does not undertake to pass upon the force and effect of the testimony adduced at the trial, except for the purpose of determining whether or not there is any evidence in support of an issue raised by the pleadings. In the case at bar, in our opinion, there was testimony which made a question for the jury on the issues raised. In response to the allegations, the plaintiff offered testimony to the effect that the defendants failed to give the statutory signals or other warnings of the approach of the said train to the crossing in question, and to the effect that the train was running backward at a dangerous rate of speed through the town, a populous community. The testimony offered by the defendants on these issues was in sharp conflict with that on the part of the plaintiff, and, in passing upon the defendant's motion for a nonsuit and also the motion for direction of a verdict, it was incumbent upon the trial Judge to consider the testimony most favorably for the plaintiff. As to the rule applicable in the failure to give the signals, warning, and notice required by the statutory law of this State where a person is injured by a collision with the train, engine, car, or cars of a railroad company at a crossing, attention is called to the recent case of McBridev. A.C.L., 140 S.C. 260, 138 S.E., 803, in which case Mr. Justice Stabler, speaking for the Court, discusses the question at length and gives a very clear statement of the rule to be applied in such cases. If, in the case at bar, the testimony on the part of the plaintiff, as to the statutory signals not being given, is to be believed, and that was a question for the jury, the presumption arises that the failure to give the signals was the proximate cause of the injuries to the plaintiff's intestate. It is true that such presumption is *Page 198 only Prima facie and may be overcome, but, whether or not such presumption is overcome, by reason of other facts appearing in the case is ordinarily a question for the jury, and, in our opinion, the testimony in the case at bar made it incumbent upon the trial Judge to submit the issues to the jury. In this connection the appellants contend that, even though it be admitted that the signals were not given as required by the statutory law, and that such noncompliance with the crossing statute was sufficient to give rise to the presumption that the negligence of the defendants was the proximate cause of the intestate's injuries, the evidence in the case overcomes such presumption; that at the time of the collision the plaintiff's intestate was guilty of gross or willful negligence or violation of law which contributed to his said injuries as a proximate cause thereof. A careful study of the testimony convinces us that this contention cannot be sustained. There was testimony introduced at the trial from which the jury could reasonably infer that the first warning the plaintiff's intestate had of the approach of the train was from the shoutings of the brakeman on the emergency tank attached to the train with which he collided, causing his fatal injuries. There was testimony to the effect that the intestate met an automobile, driven by a Mr. Morris, just before he turned the curve of the highway leading to the crossing, and that this attracted his attention; also that the railroad track beyond the crossing, on the St. Matthews' side, is in a deep cut, and that a train approaching the crossing from that direction could not be seen by a traveler going over the crossing until upon or very near the railroad track, thus making it necessary to keep a close watch in that direction. Furthermore, it appears that, in undertaking to go over the crossing in question, on account of the surrounding conditions at the crossing it is necessary, as a matter of safety, to look and watch in several directions. There is some evidence that the whistle on the engine was sounded some distance before the train reached the depot on approaching the town, and appellants *Page 199 contend that this was notice to the plaintiff's intestate of the incoming train and that he therefore should have been on the lookout for it. It appears that when the whistle was sounded, if it was sounded, the plaintiff's intestate was on the truck ready to move off and the motor of the truck was running. It is very probable that the intestate did not hear the whistle of the train. But whether he heard it or had notice of the train's approach was under the testimony a question of fact for the jury. Appellants call attention to the testimony relative to statement of the intestate to the effect that the brakes to the truck would not work. It might be that the brakes did not work because the intestate was too much confused and excited to properly operate the same. Under moments of excitement and danger a person cannot be expected to act with deliberation and with the same degree of preciseness that he would be expected to manifest when no danger or excitement exists. According to the testimony of the brakeman on the train, there was evidently much excitement at the time of the collision. The owner of the truck testified that the brakes to the truck were in good condition, and whether the brakes were in bad condition and whether such bad condition caused the fatal injuries to the plaintiff's intestate were purely jury questions.
I am forced to the conclusion, after careful consideration, that there was testimony introduced at the trial which tended to establish negligence on the part of the defendants which contributed to the fatal injuries of the plaintiff's intestate as a proximate cause thereof, and that the testimony relied on by appellants as establishing gross or willful negligence or violation of law on the part of plaintiff's intestate, and as contributing to his fatal injuries as a proximate cause, simply raised questions of fact for the jury.
The third question involved in the appeal is raised by the exception which imputes error to the trial Judge in refusing to charge the following request of the defendants: "An engineer or trainman in charge of a train approaching a crossing *Page 200 has a perfect right to assume that a traveler upon the highway in the apparent possession of his faculties approaching the crossing will heed the warnings of the train and will exercise that care which the law requires of him, and the engineer or trainman has a right to rely upon that assumption and pass on over the crossing, and if the traveler disregards the requirements of the law and fails to exercise slight care for his own safety in looking and listening for approaching trains when driving upon a crossing, he is guilty of gross negligence, and if injury results to him, as a proximate cause of such gross negligence, and without which such injury would not have resulted, then the railway company is not liable for such injury."
In my opinion his Honor, the trial Judge, properly refused to charge the request. See Keel v. S.A.L.R. R., 108 S.C. 390,95 S.E., 64; Callison v. C. W.C. Ry., 106 S.C. 123,90 S.E., 260; Priester v. Ry., 151 S.C. 433,149 S.E., 226; Irby v. Ry., 92 S.C. 490, 75 S.E., 793.
In this connection I desire to state, after a careful reading of the entire charge, it is my opinion that his Honor, the trial Judge, submitted the issues to the jury in clear and explicit language, with a full statement of the law applicable, fairly and impartially presented.
I think the exceptions should be overruled, and therefore concur in the opinion of Judge Townsend, affirming the judgment of the Court below.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE BONHAM concur.