September 28, 1914. The opinion of the Court was delivered by This was an action for actual and punitive damages for alleged personal injuries to the plaintiff, caused by alleged negligent, reckless, wilful and wanton acts of the defendant at a public crossing, just outside the corporate limits of the town of Denmark, in the county of Bamberg, where the public highway crosses the defendant's line of railroad. *Page 293 The plaintiff alleges in her complaint that on December 26, 1912, she was in a buggy drawn by a mule and driven by her brother going from her home in Bamberg county to the town of Denmark; that it was necessary to cross defendant's railroad track at a public crossing, just outside the corporate limits of the town of Denmark, at which point the public highway passed over three railroad tracks belonging to the defendant in a deep cut; that when they reached the cut they looked and listened and did not hear or see any train and then started to drive across the track; that when they got into the cut and had about reached the first track they discovered the rear end of a freight train which was then standing still, but immediately started backing up towards the crossing, without giving any warning or statutory signals, very suddenly, speedily and with great force and noise, all of which, together with the close proximity of the train, caused the mule to become frightened and run up the railroad track, and the plaintiff was jolted and thrown against the buggy, causing her to receive bodily injuries, and become badly frightened and her nervous system permanently impaired.
The specific acts of negligence alleged were: A failure to give the signals required by the statute law; a failure to have a brakeman on the rear of the train; a failure to have a flagman near the rear of the train, and moving the train on the crossing without warning when plaintiff was attempting to cross in open and plain view of defendant's employees. The cause was tried before his Honor, Judge Gage, and a jury, at the November term of the Court, 1913, for Bamberg county, and resulted in a verdict for the plaintiff for one thousand dollars actual damages and seven hundred and fifty dollars punitive damages. After entry of judgment, defendant appeals.
The defendant's first exception is: I. Because his Honor erred in charging the jury as follows: "Now, the first question for you to decide is whose act brought about the *Page 294 trouble. The railroad contends, and I shall take that up first, because it lies just at the threshold of the case, the railroad contends that whatever happened, happened by reason of what the lady and her brother did. The railroad charges that the driver of the buggy was careless — was the careless one — and if that is so, if his act brought on the injury, he is liable and not the railroad company. I charge you this, that in order to defeat her right of action, in order to deprive her of the right to sue, the driver of the buggy must have been guilty of gross negligence, and gross negligence means what the words imply. I say that because that is the statute law. If this thing occurred at a public crossing — that is, where a dirt highway crosses a railroad highway — in order to defeat the man in the buggy of his right he must have been guilty of gross negligence about what he did. Gross negligence means something more than ordinary negligence. It means negligence in large degree. If you find out that the driver of the buggy was guilty of negligence in large degree, and that was the thing which brought about the event, you find a verdict for the defendant. If you conclude that the driver of the buggy was not guilty of negligence, or at least guilty of gross negligence, then you go one step further and inquire whether or not the railroad was negligent."
The error being:
(a) His Honor was here submitting the issue of causation raised by defendant's denial, to wit, was the trouble caused by defendant or by plaintiff, or her brother, the driver of the buggy? And it was error to instruct the jury that defendant was liable if the trouble was caused by the simple negligence of plaintiff or her brother, driving the mule, when the correct rule is that defendant was not liable if the trouble was caused by the simple negligence, or even blameless act, of plaintiff, her brother, or any one else.
(b) If his Honor was here submitting the issue of contributory negligence, the charge was erroneous, because it *Page 295 required defendant to prove a greater degree of contributory negligence than mere ordinary negligence, when there was no collision, and section 3230, Civil Code of 1912, volume I, did not apply.
(c) If his Honor was here submitting the issue of contributory negligence, it was error, because he required such contributory negligence to be the entire cause, when such negligence bars recovery, when it is one of the direct and proximate causes.
This exception is based on the presumption that section 3230, Civil Code of 1912, vol. I, is not applicable to the facts of this case. We do not think that it is necessary in order to invoke the benefit of this section of the statute, that the person should be actually struck by the train and collide with it. If a person is injured by failure to give the signals required by law which has been held to be negligence, per se, and the failure to do so is the primary moving and controlling cause, or the direct and proximate cause, of the injury, then the railroad would be liable. If the plaintiff was attempting to cross the railroad at a public crossing, and the failure of the defendant to give the signals as required by law caused the animal to become frightened and to run away and inflict bodily injury on the plaintiff, and the prime moving and controlling cause of the animal's fright, which resulted in the runaway and injury to the plaintiff, was the failure to give the required signals, then it would not matter whether she was injured by being actually struck by the train or injured at the crossing, because the cause of her injury would be the failure of defendant to comply with the law as to the crossing in giving required signals, and while the person was not actually injured at the crossing, yet the prime inception cause started at the crossing and continued from there until completed somewhere else.
If the animal became frightened at the crossing and ran from there until plaintiff was injured, then it can be said *Page 296 that the controlling cause of her injury was at the crossing. She would not have been injured unless the mule ran away. The mule would not have run away unless he became frightened at the crossing, and the cause of his fright can be inferred from the movement of the cars without giving the required signals. Here the inception of the trouble whereby plaintiff was injured commenced at the crossing and continued without any independent intervening cause until her injury actually occurred. We are not disposed to refine and hairsplit so as to nullify these wise provisions of the statute intended to safeguard the travelling public where a highway crosses a railroad, and to hold that the person must be actually injured at the crossing or be in collision with the train. It is sufficient if the negligence of the railroad at the crossing by its failure to comply with the law inaugurated and created a condition which resulted in injury to a person, as the direct and proximate cause of the injury. The evidence in this case shows that the mule was on the track and made a sudden jump and ran down the track; that the car came within a few feet of the mule. If the mule had not acted as it did there is every reason to believe that the plaintiff in all probability would have been killed. The jury found that the defendant was guilty of wilful negligence at the time of the occurrence, and even if there had been evidence of contributory negligence on the part of the brother of the plaintiff, the charge of his Honor could not have affected the verdict, or been prejudicial to the defendant, as contributory negligence is no defense to a wilful tort, and the jury by their findings have established willfulness. There was evidence that the defendant failed to give the signals required by law when approaching a public crossing and moved its train when standing still without giving the signals required by law and did not have a proper lookout as the circumstances of the case required. All these questions were for the jury. *Page 297
Evidence of failure to give the signals required by statute at public crossings near the accident is competent to support allegation of reckless negligence, and shows an utter disregard of the requirements of law as to manner of running trains. Mack v. Railroad Co.,52 S.C. 329, 29 S.E. 905, 40 L.R.A. 679.
If a person be on a public crossing across a railroad track in a town where a gate is kept which is up, and the train approaches without giving statutory signals and he in order to avoid a collision drives down the track, or from fright from letting down the gate the horse, runs down the track and is overtaken and injured away from the crossing the railroad is liable as if the accident happened on the crossing. Bishop v. Ry., 63 S.C. 532,41 S.E. 808.
This exception is overruled.
The second exception is overruled. The defendant did not set up in its answer the defense of contributory negligence, and the plaintiff did not allege in her complaint that she was without negligence, and there was an allegation in the complaint charging defendant with wantonness and willfulness, and contributory negligence is no defense to wilful and wanton tort; and the jury found there was wantonness and wilfulness and awarded exemplary damages, and defendant cannot complain that his Honor's charge was prejudicial to it.
Exception three is not well taken and is overruled.
Exception four is overruled. The plaintiff had the right to show entire situation immediately preceding the injury, how the injury occurred, and what was the situation after she was thrown out, or got out, of the buggy, and the fright shown and worry she suffered in connection with her bodily injury, her testimony was competent to show the entire situation, and we do not think his Honor committed any prejudicial error in not excluding the evidence. *Page 298
The fifth exception, which complains of error on the part of the Judge on the question of damages, is not well founded. Take the charge as a whole, it will be seen that the jury could not conclude that the plaintiff could recover for mental anguish in the absence of bodily injury, but they were plainly informed that it must be based upon, and taken in connection with, bodily injury and suffering in her body. If her mental anguish and worry was brought about by her physical injury and her nervous system torn up and upset or wrecked by her physical injury, then the jury could take that into consideration in estimating her damages, and we see no error on the part of his Honor in his charge to the jury, taking it as a whole.
Judgment affirmed.