December 6, 1928. The opinion of the Court was delivered by This action by Wallie L. Edwards, as plaintiff, against the defendants Atlantic Coast Line Railroad Company and Oliver C. Sanford was commenced in the Court of Common Pleas for Charleston County for recovery of damages for personal injuries alleged to have been sustained on February 3, 1925, at a place known as the "Etiwan Lead Track" at Etiwan Lane, alleged to have been caused by a collision of a train of cars of the Seaboard Air Line Railway Company, of which the plaintiff was the conductor, and an engine of the Atlantic Coast Line Railroad Company, of which the defendant, Oliver C. Sanford, was the conductor.
The allegations of the complaint necessary for an understanding of the case are as follows:
"Third. That, on or about the 3d day of February, 1925, the plaintiff above named, Wallie L. Edwards, was in the employ of the Seaboard Air Line Railway Company, a railway doing business in the County of Charleston and State of South Carolina, as a yard conductor and as such, in the course of his duty and employment, was in charge of a train of 24 empty cars which were being backed in the direction of the City of Charleston, with an engine pushing said train.
"Fourth. That, as said train approached what is known as the `Etiwan Lead Track,' an industrial spur railroad track leading to the Etiwan Fertilizer Works, and as said train was approaching the point where the tracks of the Seaboard Air Line Railway Company cross said Etiwan *Page 286 Lead Track, he signaled to the engineer in charge of said train of 24 empty cars to slow down, which said engineer did, bringing the speed of said train down to about 4 miles and hour; that plaintiff then looked down said Etiwan Lead Track to the west and saw that the road was clear. He then gave the engineer in charge of his train a signal to proceed, which said engineer immediately did; that a few minutes later, plaintiff looked again and saw a light switch engine owned, operated, and maintained by said defendant, Atlantic Coast Line Railroad Company, its agents and servants, and under the immediate charge, control, and direction of said defendant, Oliver C. Sanford, as conductor, approaching on said Etiwan Lead Track in an easterly direction; that it was then impossible for plaintiff to stop his train, but said light switch engine could have been stopped; that some employees of said defendant, Atlantic Coast Line Railroad Company, riding on the switch engine, shouted to the engineer to stop the light engine, but the engineer and fireman on said light switch engine were looking to the west and apparently did not see the train on which plaintiff was riding at all and said engine was allowed to proceed; that when the train on which plaintiff was riding and the light switch engine reached the crossing, they collided and the rear car of said train, on which rear car plaintiff was riding, buckled up and plaintiff was violently thrown forward and in order to save himself from falling between the cars and being crushed, he caught hold of the grabiron on top of the rear car and his right leg and knee were thrown with great force against said car and plaintiff received a terrible and fearful shock, jolt and jar.
"Fifth. That said jolt, jar and shock was so violent as to cause plaintiff shortly thereafter to develop paralysis and his whole right side and speech to become affected to such an extent that plaintiff is and always will be incapacitated from performing his duties as a railroad man and permanently injured. *Page 287
"Sixth. That the injuries to plaintiff, as aforesaid, were caused by the joint and concurrent negligence, carelessness, recklessness, and wantonness of the said defendant corporation, its agents and servants, and the said Oliver C. Sanford, in the following particulars, to wit:
"(a) In not keeping a reasonable and proper lookout so as to have prevented said switch engine coming into collision with the car on which said plaintiff was riding.
"(b) In not keeping such a lookout and having said switch engine under such control as to become aware of the danger and immediately have stopped said engine.
"(c) In not taking such care and precautions as would have prevented said collision.
"(d) In not stopping said switch engine as soon as it appeared that a collision was imminent.
"Seventh. That by reason of the said joint and concurrent acts of negligence, carelessness, recklessness, and wantonness of said defendant corporation, its agents and servants, and the said Oliver C. Sanford, plaintiff was so injured as to be a helpless cripple, to be paralyzed on his right side, to have his speech affected, to be incapacitated from earning a livelihood and otherwise hurt and injured to his damage $50,000."
Each of the defendants by answer admitted the formal allegations of the complaint, and also admitted that at the time in question the plaintiff was in the employ of the Seaboard Air Line Railway Company, in the City of Charleston, as yard conductor, and as such, in the course of his duty and employment, was in charge of said train of the Seaboard Air Line Railway Company referred to in the complaint, which was being backed in the direction of the City of Charleston by means of an engine pushing said train. The remaining allegations of the complaint were denied; denied negligence, recklessness, willfulness, and wantonness on their part, and set up the plea of contributory negligence and contributory recklessness on the part of the plaintiff, in that *Page 288 he kept no proper lookout to prevent the cars on which he was riding as conductor from backing into and upon defendant's engine, in that the train on which the plaintiff was riding as conductor did not come to a stop at the crossing, but ran upon the crossing, and thereby caused the collision. They also set up the plea that the plaintiff had received from the Seaboard Air Line Railway Company, a joint tort-feasor with the defendants, complete settlement for his alleged injuries sustained by reason of the matters alleged in the complaint, and that the plaintiff had executed and delivered to the Seaboard Air Line Railway Company a full discharge and release of all claims arising out of said matters alleged in the complaint, and that said "release and acquittance constitutes a bar to this action."
The case was tried before his Honor, Judge M.L. Bonham, and a jury, at the April, 1926, term of the Court of Common Pleas for Charleston County. At the conclusion of the testimony on behalf of the plaintiff, the defendants made a motion for nonsuit, on the grounds which will hereinafter referred to, which motion was refused. Upon conclusion of all of the testimony, the defendants moved for direction of a verdict. This motion was also refused, and the case was submitted to the jury, resulting in a verdict for the plaintiff against the defendants in the sum of $50,000.00. On motion for a new trial, the presiding Judge granted a new trialnisi; that is, granted a new trial unless plaintiff remitted on the record $10,000.00 of the amount. The plaintiff remitted on the record the amount required, and judgment was entered against the defendants for the balance, $40,000.00. From the judgment entered the defendants have appealed to this Court, pursuant to notice duly served.
The exceptions are nine in number, but, adopting the grouping of appellants' counsel, may be considered under three propositions, there being but three questions involved, and the same will be taken up in the order presented by counsel. *Page 289
Under the first proposition, it is contended by appellants "that no other reasonable inference can be drawn from the testimony except that the plaintiff's own negligence per se in the violation of Section 4902 of the Civil Code of South Carolina (1922), Volume 3, and his negligence in failing to keep a proper lookout and in not stopping his train and in running his train into the engine of the defendants was a proximate cause of the collision and his injuries and that a nonsuit should have been granted and a verdict directed for the defendants on this ground."
If the only reasonable inference to be drawn from the testimony is that the plaintiff was negligence in the particulars named by appellants and that such negligence was the proximate cause of the plaintiff's injuries, then, of course, the plaintiff under the law would not be entitled to recover, and in that event a verdict should have been directed. But if there was a conflict in the testimony as to these facts, or as to any of the facts involved, or if appellants' version of the testimony was not the only reasonable inference to be drawn therefrom, and if more than one reasonable inference might be drawn therefrom, then the questions presented were questions for the jury. As we view the testimony, his Honor, the presiding Judge, properly refused motions for nonsuit and directed verdict.
A review of the testimony disclosed by the transcript shows that more than one reasonable inference may be drawn from the testimony as to whose act of negligence and what act of negligence was the proximate cause of the plaintiff's injuries. While there was testimony to the effect that the train of the Seaboard Air Line Railway Company (hereafter referred to as Seaboard), on which the plaintiff was riding, did not come to a complete stop before going upon the crossing in question in strict compliance with Section 4902, Civil Code (1922), vol. 3, there was some testimony offered without objection from which it might reasonably be inferred that the Seaboard train did stop before going *Page 290 upon this crossing. In the course of plaintiff's testimony he stated:
"Q. You did not stop at the crossing? A. I stopped at the stop board, we don't stop right at the crossing, you stop a little piece before you get to the crossing, the stop board is about four car lengths from the crossing."
Again, in his testimony plaintiff stated:
"Q. If you had stopped four lengths from the crossing it would not have happened? A. When I got to the stop board and stopped and blew, I considered the crossing mine, then when I proceeded about a car length further I spied the Coast Line engine backing down by a building blowing no whistle and the engineer and fireman looking in the other direction."
In his complaint the plaintiff alleged that the train on which he was riding was, under his orders, brought down to a speed of about 4 miles an hour on approaching the point where the tracks of the Seaboard cross the said Etiwan Lead Track, and in the course of his testimony, in addition to the testimony above quoted, stated that on arriving at the stop board (a distance of about four car lengths from the crossing) he brought his train down to about "4 miles an hour;" "there was nothing in sight and transferred my signal to the engineer to back up," he stated. Several times in the course of plaintiff's testimony he stated that the train on which he was riding did not make a complete stop but slowed down to about 4 miles an hour, and we are rather af the opinion that when the plaintiff spoke of his train stopping, he meant that it slowed down to about 4 miles an hour; that is, practically stopped. But whether the plaintiff meant this or meant that he actually came to a full and complete stop was a question for the jury.
Assuming, however, that the Seaboard train did not come to a full and complete stop before going upon the crossing, as required by the Section of the Code referred to, and that the plaintiff was therefore guilty of negligence per se, it does *Page 291 not follow that plaintiff's action would be defeated, unless such failure was the proximate cause of the plaintiff's injuries or contributed thereto as a proximate cause, combining and concurring with the negligence of the defendants; and whether or not such was the case was, under our view of the testimony in the case, a question for the jury. There was testimony tending to show that in spite of plaintiff's failure to stop the train the collision and consequent injury would not have happened but for the negligence of the defendants. There was ample evidence from which the jury might conclude that the Coast Line engine was being operated carelessly, negligently, recklessly, and willfully immediately before and at the time of the collision, from which it might reasonably be inferred to have caused plaintiff's injuries. The plaintiff testified, in substance, on this point that on the day of the collision he was called out to work on a train down town; that he had 24 empty cars backing to the city, and when he came to the crossing, getting up to the stop board, he brought his train down to about 4 miles an hour; that there was nothing in sight, and he "transferred" his signal to the engineer to back up; that by the time he started to go back he looked and saw an engine with three men on the back; that he noticed the engineer and fireman were not looking; that his (plaintiff's) switchman was blowing the back-up whistle, and that he, plaintiff, ordered the switchman to put on air, that is, put on the air brakes, testifying, further, on this point as follows:
"Q. Is that a loud whistle? A. Yes, sir, you can hear it for miles.
"Q. With that whistle blowing did or did not the engineer or fireman of the light engine look? A. No, sir. I tried to stop again, I told them to stop blowing the whistle and put on the air; that stopped the whistle when they did that. I was sitting on the side of the car, the switchman was using the air hose, I got up and got on top of the cars on the head car; that put me about middle way of the car; the engine was *Page 292 proceeding, had used up the air blowing the whistle and I turned my back, the switch engine was proceeding and I knew there was going to be a collision and when it hit it tilted the car up and caused me to lose my grip and the jar threw me back and I fell between the following car and I caught the hand grab and I was hit by the hand brake * * *"
The plaintiff stated that there was a building located near the crossing that prevented him from seeing very far up the track of the Coast Line, and in answer to the question to tell the jury how the Coast Line engine could have been stopped and the collision prevented the plaintiff stated:
"On a switch engine they have a sloping tank and a foot board, you have all seen them on engines, two men can stand on them, on each side of the drawhead is an angle cock which you can couple up to box cars and it has a lever on it and a man can stop an engine as quick as the engineer by touching this cock, the man on the other side can reach it.
"Q. That engine was 124? A. Yes, sir.
"Q. Were there any men riding on the back? A. Three.
"Q. That engine you say could have been stopped? A. Yes, sir.
"Q. It would have brought the train to a stop? A. Yes, the same as the engineer applies his brakes, only it stops quicker, it has more severe power than the brakes, I think it would, I am not sure, but I know it will stop right now, I am not so much up on air, but I know it will stop."
The plaintiff testified further that he did not see anything on the crossing until his train got in about two car lengths, and then it was that he saw the Coast Line switch engine coming down the "lead" and plaintiff then told his man to put on air. On cross-examination plaintiff was asked this question, "if you had stopped at the crossing the collision would not have occurred?" To which question the plaintiff answered, "If I had stopped still it could have happened the same way." The plaintiff testified that he was not able to stop his train after seeing the Coast Line engine in time to prevent *Page 293 the collision, for the reason that he was too close to the crossing, being about a car and one-half lengths from the crossing when he first saw the Coast Line engine, and having a train of twenty-four cars, the same could not be stopped in that short a distance, but testified that the crew on the Coast Line engine could have stopped that engine, that the Coast Line engine was a switch engine and equipped so that it could be stopped "right now," as he expressed it. The plaintiff testified, further, that the crew on the Coast Line engine blew no whistle and rang no bell, paid no attention to the sounding of the whistle on the train of the Seaboard, made no effort to stop the Coast Line engine, and did nothing to prevent the collision; that he, the plaintiff, did all he could to prevent the collision. Plaintiff also testified that he slowed up his train on reaching the stop board in compliance with the rule of the railroad company, and, upon ascertaining that the way was clear, sounded the whistle and went forward as required by the railroad rules, to which testimony no objection was interposed.
Mr. Mall, the engineer on the Seaboard train, in his testimony corroborated the plaintiff, and further testified that the Coast Line engine came out from behind a building, "never blew a whistle or rang a bell, and we did not have time to stop and the collision occurred." In answer to the question, "What did you do?" said, "Started the whistle and opened the air valve, that is all I could have done." "Q. What did the crew of the Coast Line engine do to stop? A. Nothing, jumped off and ran down the track."
Under the testimony, it is clear that the presiding Judge properly overruled the motions for nonsuit and direction of a verdict made on the grounds stated under the first question.
Under the second question the appellants contend: "That no other reasonable inference can be drawn fom the testimony than that the Seaboard Air Line Railway Company and the Atlantic Coast Line Railroad Company and Sanford were, if the latter two were negligent, *Page 294 joint tort-feasors and jointly responsible to the plaintiff, and that his release to the Seaboard Air Line Railroad Company operated as a matter of law to release the defendants."
Appellants correctly contend that it is a well-established rule that the release of one joint tort-feasor releases the other joint tort-feasor from liability, but we do not agree with the contention "that no other reasonable inference can be drawn from the testimony than that the Seaboard Air Line Railway Company and the Atlantic Coast Line Railway Company and Sanford were, if the latter two were negligent, joint tort-feasors and jointly responsible to the plaintiff."
In presenting this proposition to the Court, counsel for appellants make the concession that the validity of their contention depends upon the negligence of the Seaboard, its agents and servants other than the plaintiff, but contends that the proof clearly establishes negligence on the part of the Seaboard, its agents and servants. It is their contention that the Seaboard was negligent as a matter of law in the following particulars:
"(1) In erecting a signboard 4 car lengths or 150 feet from the crossing or intersection in question when the statute required a stop before going upon the crossing to see that the way was clear and the testimony conclusively shows that the signboard was negligently, willfully and illegally placed at a location which would admit of no view up the Coast Line tracks at that point.
"(2) In providing by its rules for a stop only at the signboard so erected in violation of the statute instead of at the crossing or a point near thereto from which a view of the Coast Line tracks could be obtained.
"(3) In failing by some agent other than the plaintiff to bring the train to a stop before going on the crossing as required by the statutes, although by plaintiff's own testimony and that of his witness Mall there was time and distance *Page 295 enough to bring the slowly moving train to a full and complete stop after the engine of the Atlantic Coast Line Railway Company was seen.
"(4) In violating through its engineer the provisions of Section 4902 requiring a full and complete stop of the train before going on the crossing."
In our opinion these issues, under the testimony, were questions for the jury and that his Honor, the presiding Judge, properly submitted them to the jury under clear instruction.
As to the release to which appellants call attention, executed by the plaintiff and his wife, in consideration of the sum of $600, releasing the Seaboard from all claims and causes of action growing out of the collision, it is our opinion that the same does not furnish conclusive proof of the Seaboard being a joint tort-feasor, but was a matter to be considered by the jury in connection with the other testimony in the case in determining whether or not the Seaboard was a joint tort-feasor. On this point the plaintiff testified that he did not think the Seaboard liable or in any way responsible for his injuries, and it appears that the plaintiff thought that the amount of money paid to him by the Seaboard was paid to him because he was in the employment of that company. While a settlement with one or more joint tort-feasors will serve as a discharge as to the others, the rule has no application unless the one settlement is made with is guilty of the wrongful act. A settlement with one who has not committed the wrongful act charged could in no way relieve the actual wrongdoer from liability, and whether or not the Seaboard was jointly guilty with the defendants of the wrongful acts charged was, under the testimony, purely a question for the jury. Appellants make no contention that the jury did not receive proper instruction as to their duty on this issue, and a reading of the charge convinces us that the presiding Judge gave no ground for complaint as to the instruction given. His Honor concluded *Page 296 his charge on this issue by charging in the exact language requested by the appellants; namely: "The jury is further instructed that if they find from the evidence that the plaintiff executed a complete release and discharge of the Seaboard Air Line Railway Company from all liability by reason of his injuries, and that the said Seaboard Air Line Railway Company and the said Atlantic Coast Line Railroad Company were jointly responsible for the injuries received by the plaintiff, then such release of the Seaboard Air Line Railway Company would also operate in law as a release of the Atlantic Coast Line Railroad Company, and that the plaintiff could not recover and that the verdict must be for defendants."
It is our opinion that his Honor, the presiding Judge, committed no error in overruling the motions for nonsuit and directed verdict based on the grounds stated under this division, and the exceptions charging error in this respect are overruled.
Under the third point or division, appellants contend that the presiding Judge "committed reversible error in not holding that the verdict of $50,000 was excessive and showed caprice and prejudice was against the manifest weight of the evidence and in not granting a new trial absolute."
According to the testimony, at the time the plaintiff was injured he was 44 years old and was earning a salary of about $200 per month; that up to the time of the injuries received he was in good health and had been in good health all of his life; that following the collision he was confined in a hospital for some time and has not been able to do any work since receiving the injuries, is now almost completely paralyzed, his speech is affected, and is totally and permanently unable to earn a living for himself and family, consisting of a wife and several children. Such was the testimony of the plaintiff and several other witnesses, including physicians. The defendants offered no testimony to controvert *Page 297 that offered on the part of the plaintiff as to the extent of his injuries. From the testimony the plaintiff appears to be in a most deplorable condition, and this was the opinion of the Judge who tried the case, as disclosed by the order he issued in passing upon the motion for a new trial. What credence should be given this testimony as to plaintiff's injuries and all of the testimony in the case was a matter for the jury. His Honor, the presiding Judge, who heard all of the testimony, on the motion for a new trial, in his discretion reduced the verdict from $50,000 to $40,000 but his Honor refused to set the verdict aside and grant a new trial absolute as asked for by appellants, and according to our view his Honor is amply sustained in his position by the facts of the case. Therefore the exceptions imputing error to the presiding Judge in overruling the motion for a new trial absolute cannot be sustained.
All of the exceptions are overruled, and it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE WATTS concurs.
MESSRS. JUSTICES BLEASE and STABLER concur in result.
MR. JUSTICE COTHRAN dissents.