Careful consideration of the evidence adduced at the trial of this case has convinced me that the court did not err in refusing to direct a verdict for the appellants or set that aside which was found by the jury. I think more facts should be stated than are contained in the opinion of Mr. Justice Taylor and in the dissenting opinion of the Chief Justice.
The testimony of the trainmen themselves, from which the following statements are taken and inferences drawn, necessitated in my opinion submission to the jury of the issue of liability for actual and punitive damages and the photographs introduced in evidence by appellants are of assistance. This was the conclusion of the trial judge who had the advantage of observation of the *Page 448 witnesses on the stand. The trestle was in a track in a portion of appellants' yard but it was almost immediately adjacent to a street of the City of Greenville which was necessary to be crossed to get to a freight station, and the attached boardwalk was used generally by the public as a convenient walkway. There were a tool house and trees (in summer foliage) when the accident occurred which obstructed the view and the trestle was filled by the time of the trial and it no longer exists. The narrow boardwalk was a part of the trestle and on the left-hand side of the track as respondent attempted to cross, and on the high side of the trestle.
The so-called cut of cars, consisting of 20 boxcars of the average length of about 40 feet, was moving of its own momentum, without locomotive attached, without any mechanical signaling device, with brakes of dubious efficiency (handbrakes which were in fact not used in any attempt to prevent the accident) and with makeshift lights at the front end — a fusee stuck in the drawhead of the lead car, another in the hands of a trainman on top of this car, but not at the forward end of it, and electric lanterns carried by the two trainmen atop the car. (Respondent testified that he saw nothing of the lights, even when he turned toward the approaching cars upon hearing the vocal warning.) The employees admitted in evidence that these lights (feeble, compared with the ordinary headlight of a train) were not even intended to illuminate the way ahead, and in lieu of signals they contended that the noise of the rolling cars, particularly as they rounded the nearby curve, sufficed. A switchman's testimony thereabout is quoted:
"Q. And that was the only way that train had to signal anybody to get out of the way, was the flanges on the rail? A. No, sir, there were two men up there.
"Q. But no whistle? A. No, sir, but they had a mouth."
A locomotive stood on an adjoining spur, with crew aboard, waiting to enter the track behind the cars and push *Page 449 them when the force of gravity gave out, but its bell was not rung or its whistle sounded in warning to respondent or any other member of the public about to use, or using, the accustomed walkway along the trestle to the street. These usual signals were apparently not even given for the street crossing; instead, one of the crew dismounted and went ahead to "flag" the crossing with a fusee. Like precaution, if taken at the intervening trestle, would doubtless have prevented injury to respondent.
The trainmen were congregated at rest when respondent passed along on his way to cross the trestle and no train or engine was in motion thereabout; he saw their idle engine and they saw him and one commented to the others upon his fine size and well-fitting uniform and observed that he would make a good plowhand. In a very few minutes they released the handbrakes of the cars (which, significantly, had held them at the hilltop, uncoupled to a locomotive) and permitted them to roll down the decline in the direction that they had just seen respondent walk along the track.
The curve in the track made vision of either by the other first impossible and, of course, the lack of a headlight or effective substitute on this dark night continued to obscure the view of the train crew which was also obstructed by the tool house and trees which have been mentioned. Their testimony was that they first saw respondent about 50 yards ahead of the front end of the lead car when he was about halfway the trestle and they shouted and orally whistled a warning to him, but did nothing else. At that point the downgrade had ended and a rise had begun so that the loose, unbraked cars were moving upgrade at a speed of only from five to eight miles, possibly 10, per hour and it is inferable that they may have been stopped in time by prompt application of the handbrakes. The two crewmen who saw respondent in his peril testified that after the shouted warning he stopped and turned, apparently first seeing his danger, and then ran toward the end of the trestle, *Page 450 away from the cars, between the rails, in a zigzag manner. However, in so limited a width he could not have "zigged" or "zagged" to much extent. Then they saw him fall and still did nothing until they felt the wheels of their car run over him when one of them, quoting his testimony, "ran back to the second car and started after a brake and it was too late and I ran to the head car and got down and flagged the crossing". The same witness testified that he ran back to the second car in search of brakes because he could not remember whether he had a brake on the lead car but his further evidence indicates that he knew that the brake on that car was "tied". The cars ran two car-lengths after the crewmen saw respondent fall, then ran over him and, after that, for three more car-lengths, and finally stopped, still without benefit of brakes. On further cross examination the witness said that the cars would have been stopped at the speed they were traveling in four car-lengths had the available brakes been applied quickly, which would have been probably within 10 feet from the place of the accident, and, inferably, would have resulted in additional vital time for respondent to have gotten up from his fall and escaped.
Another of the trainmen testified that it was necessary almost nightly to tell some member of the public to get off the track at this point, that people used it as a walkway every night. Moreover this witness, who was also atop the lead car, said that he and the other crewman there first saw respondent when the cars were almost 50 yards from the trestle and respondent about halfway across. These figures, accepting the testimony that had the handbrakes been used the cars could have been stopped in about four car-lengths, indicate that injury would have been prevented by prompt and competent use of the brakes whether respondent was able to recover from his fall or not.
It seems to me that the testimony of the trainmen convicts them of utter disregard for the safety of respondent and of failure to exercise the slightest care to avoid the injury which they saw, or should have seen, was imminent. *Page 451 Furthermore, the jury may have reasonably concluded that the shifting practice of appellants amounted to recklessness, wantonness and willfullness in releasing 20 boxcars at the crest of a grade without accessible and efficient braking, without a headlight, without signals and with no warning ahead, over a thoroughfare which was in constant use by the public and adjacent to a street in a thickly populated section of a city. The locomotive's idle signaling devices should have been put to use.
The practice of "kicking" cars in shifting operations over a village street was condemned by this Court in Bain v.Northwestern Railroad Co., 120 S.C. 370, 113 S.E. 277, opinion by Mr. Justice Cothran. There is no practical difference between "kicking" cars and turning them loose at the top of an incline for in both cases they are "wild", nor between, so far as pedestrians are concerned, a small town street and a publicly and generally used path, and this case is the more flagrant because of the existence of the time of the accident of the open trestle of considerable length, high on the walkway side, less so on the other. The practice is known as "making a flying switch". By their strong language in Johnson v. Seaboard Air Line Ry. Co., 163 N.C. 431,79 S.E. 690, 696, Ann. Cas. 1915-B, 598, the North Carolina court left no doubt of their disapproval. From it I quote:
"* * * This court has recently declared, in Vadenv. North Carolina Railroad Co., 150 N.C. 700,64 S.E. 762, that: "Making flying switches" on the railway tracks and sidings running across and along the streets of populous towns is per se gross negligence, and has been so declared by all courts in this country and by text-writers generally. It is stated in one of the best known textbooks that the use of a running switch in a highway in the midst of a populous town or village is, of itself, "an act of gross and criminal negligence on the part of the company"' — citing Sherman Redf. Neg. (3rd Ed.) § 466; Wilson v.Atlantic Coast Line Railroad Co., 142 N.C. 333, *Page 452 55 S.E. 257; Allen v. Atlantic Coast Line Railroad Co., 145 N.C. 214,58 S.E. 1081; * * * Farris v. Southern RailwayCo., 151 N.C. 483, 66 S.E. 457, 40 L.R.A., N.S. 1115; Kentucky Central Railway Co. Railroad v. Smith,93 Ky. 449, 20 S.W. 392, 18 L.R.A. 63, 66, to which is appended a most valuable note upon this subject. In this respect, the Vaden Case and this one cannot possibly be distinguished. So we see that defendant was `grossly' in fault at the very inception of this lamentable occurrence. It started wrong in the beginning and continued wrong throughout. It had set a death trap for the passer-by, and the plaintiff unwarily, but without fault, was caught in it, and came very near losing his young life. Will the railroads never stop doing, in this respect, what the courts have so emphatically condemned as contrary to law and humanity? If plaintiff had been killed, upon the facts found by this jury, the person to blame for his death would have been guilty of manslaughter for his palpable negligence with full knowledge of its dangerous tendency."
The wisdom of the rule is seen in the facts of this case. The yard switchman, who was atop the middle of the lead car, said that if the engine had been coupled to the cars they, rolling upgrade, could have been stopped almost immediately.
The cited case of Pryor v. Atlanta-Charlotte Airline Ry.Co., 179 S.C. 423, 184 S.E. 137, is a stronger precedent, I think, for respondent than for appellants, certainly with respect to actual damages, which the jury awarded in this case. There the running down of the pedestrian was by a locomotive of a fast train in broad daylight while here the accident occurred late at night, in addition to the many other differences in the facts of the cases. There is no contention in this appeal as there that respondent was a trespasser.Pryor's case was remanded for trial of the issue of negligence.Smalley v. Southern Railway Co., 57 S.C. 243,35 S.E. 489, turned upon the conceded fact that the plaintiff's intestate was a trespasser and is therefore inapplicable here. *Page 453 Pinson v. Southern Railway, 85 S.C. 355, 67 S.E. 464, is closer in facts but decedent was walking the track facing the train, meeting it, and the crew of the attached locomotive sounded the whistle repeatedly and rang the bell before starting the train. The facts of the case impel the inference that the erratic conduct of the deceased which contributed to the accident resulted from intoxication. In Robinson v.Atlantic C.L.R. Co., 179 S.C. 493, 184 S.E. 96, deliberate attempt was made by bicyclists to hurry over a grade crossing ahead of a known approaching train. I do not consider it a presently applicable authority. A case of considerable similarity to this is Jones v. Charleston W.C. Ry.Co., 61 S.C. 556, 39 S.E. 758, which involved the death of a pedestrian on a walkway along a railroad track in the city of Anderson. I consider the case in hand stronger for the plaintiff for reasons apparent upon comparison of the facts of the cases. Our leading case upon the subject is, perhaps,Sanders v. Southern Ry., 90 S.C. 331, 73 S.E. 356, which involved a Charleston accident; the last relating to injury to a pedestrian-licensee appears to be Hayes v. AtlanticC.L.R. Co., 196 S.C. 386, 13 S.E.2d 921.
Appellants pitch their argument anent contributory negligence upon the premise that the verdict of the jury for actual damages alone has absolved appellants of the charge of recklessness, willfulness and wantonness — is equivalent to an express factual finding that they were innocent of such — so that it is now established that they were guilty only of simple negligence; and to liability therefor any negligence of respondent, which contributed proximately to his injury, was a defense to liability. But whatever may be said for the position, it is not available to appellants for they made no point of it in the lower court although they moved for judgment non obstante verdicto on other grounds. The authority of Gleaton v. SouthernRy. Co., 208 S.C. 507, 38 S.E.2d 710, is conclusive. There in pressing appeal from order refusing motion for judgment non obstante verdicto the appellant argued that *Page 454 the verdict against the railroad company alone was inconsistent with liability, for the codefendant engineer was thereby acquitted of the alleged acts of negligence (for which he was responsible). The appeal failed as here it must because the point had not been made in the trial court and there was no adverse ruling from which to appeal.
Moreover, if appellants' premise be sound and the verdict established that they were guilty of only simple negligence and if the point were available to them, I should be unable to say upon the evidence, as does the Chief Justice, that respondent was contributorily negligent. On the contrary, I think with the trial judge that it was a factual issue for determination by verdict. Respondent's effort to run forward from the train of cars when he suddenly discovered them bearing down upon him from behind in the darkness may have been as much as the jury expected of a reasonably prudent man in the circumstances (some of appellants' witnesses gave as their opinion that it was the natural thing to do) and his tripping on the trestle a pure mishap — an "unavoidable" accident. It is said that he was negligent, as a matter of law, in going upon the trestle without looking back but it appears from the evidence that such action would have been futile (and therefore the omission did not proximately contribute to the injury) for by appellants' witnesses it was shown that, because of the curve and obstructions, he was not in the line of vision of the train crew on the lookout until they were about 50 yards from him or the trestle and he halfway across it. By the same token he could not see the cars and lights, even looking backward (and he also had to look ahead and at the same time watch his footsteps), until he was halfway across. Looking for the approach of these loose cars before he entered upon the trestle would, therefore, have been in vain. In view of all of the evidence, which will not be recounted further, I am unable to conclude that respondent was contributorily negligent as a matter of law, especially in the light of the rule which requires that in determining the *Page 455 sufficiency of the evidence to support the verdict, the testimony and all reasonable inferences must be taken most strongly against the movant. Covington v. Atlantic C.L.R.Co., 158 S.C. 194, 155 S.E. 438, certiorari denied AtlanticCoast Line R. Co. v. Covington, 282 U.S. 858,51 S.Ct. 33, 75 L.Ed. 759.
I therefore concur with Mr. Justice Taylor in affirmance of the judgment of the Circuit Court.
FISHBURNE and OXNER, J.J., concur.