Being unable to agree with the opinion of Acting Associate Justice Smith and dissenting therefrom, I adopt as my dissenting opinion the opinion prepared by Mr. Justice Cothran when this cause was first heard in the Supreme Court. His opinion will be reported and is as follows:
"This action commenced on April 6, 1929, was brought to recover damages in the sum of $25,000.00 for personal injuries alleged to have been sustained by the plaintiff as a result of a collision between a passenger train of the defendant railroad company, operated by its engineer and codefendant, William Smith, between Charleston and Greenville, and an automobile at a public highway crossing of defendant railroad company's track between Manning, S.C., and Alcolu. At the time of such collision, the plaintiff was riding on the front seat of such automobile, which was being driven by her husband. The complaint charges negligence and willfulness on the part of the defendants in the operation of such train in a number of particulars.
"The answer, after denying the allegations of the complaint, sets up the affirmative defenses of gross contributory negligence and of contributory willfulness on the part of the plaintiff, and in addition alleges that Sections 4903 and 4925 of Volume 3 of the Code of Laws of South Carolina 1922, on which plaintiff relied in her complaint, were null and void as being a regulation of interstate commerce in violation of Article 1, Section 8, Subdivision 3, of the Constitution of the United States, and as construed by the Supreme Court of South Carolina that it denied to the defendant railroad company the equal protection of the laws and deprived it of its property without due process of law, in violation of the provisions of the Constitution of the United States.
"The case was tried before Judge M.L. Bonham and a jury at the October, 1929, term of the Court of Common Pleas for Clarendon County. At such trial, the defendant *Page 138 railroad company introduced evidence showing that the train involved in the collision was a regular passenger train, running between Charleston and Greenville, and that it was regularly engaged, and on the day of the accident was actually engaged, in the transportation of interstate passengers and interstate mail. At the close of the case, the defendant moved for a directed verdict in its favor on the grounds in brief that the evidence was insufficient to establish either negligence or willfulness on the part of such defendant as the proximate cause of the alleged injury to plaintiff, that plaintiff's own gross contributory negligence was a proximate cause of her injuries, and that the signaling statute was an unlawful attempt to regulate interstate commerce and violated the `due process of law' and `the equal protection of the law' clauses of the Federal Constitution. After argument, the presiding Judge overruled the motion for a directed verdict.
"The defendant railroad company, by its requests to charge, repeated its attack on the constitutionality of the sections, and in addition asked for an interpretation of them and an application thereof to the present case. In its requests to charge, the defendant railroad further took the position that as the case involved a train engaged in interstate commerce and also involved the questions of due process of law and the equal protection of the law, that the rule declared by the Supreme Court of the United States inBaltimore Ohio R. Co. v. Goodman, 275 U.S. 66,48 S.Ct., 24, 72 L.Ed., 167, 56 A.L.R., 645, was applicable and should be given to the jury as the test of liability in this case. These requests were refused.
"The jury rendered a verdict in favor of the plaintiff for $7,500.00. A motion for a new trial, based on the same grounds as the motion for a directed verdict, was duly made and was refused. Judgment in favor of the plaintiff was thereupon entered on the verdict, and from such judgment the present appeal is prosecuted. *Page 139
"The collision occurred at a point upon the railroad where it was crossed by a highway, at right angle, between Manning and Alcolu, some five miles apart; going north from Manning the railroad crosses Black River swamp, near Manning, and then curves to the left into a perfectly straight track which extends to the crossing, which is about 1,200 yards from the curve emerging from the swamp, and about 500 yards beyond. The plaintiff and her husband, he driving and she sitting on his right upon the front seat, left Manning, in an automobile with curtains drawn, in the rain, going north on Highway No. 26; this highway also crosses the swamp on the west side of the railroad, and as it emerges from the swamp, parallels the railroad as far as Alcolu, and some sixty feet from the track; about 1,200 yards from the swamp, the highway intersects another highway, No. 4, which crosses the railroad at right angle, 60 feet from the intersection. On account of work being done on Highway No. 26 between Manning and Sumter, the party had to detour on Highway No. 4 at its intersection with No. 26. As the driver turned from No. 26 into No. 4, he slowed down his car and testified that he looked through the drawn curtains toward Manning but saw no train and heard none; he drove upon the crossing and immediately was struck by the train going from Manning north. Between this highway crossing and the river swamp, there are no obstructions between the railroad track and Highway No. 26, and any person driving on Highway No. 26 and turning into Highway No. 4 has a plain and unobstructed view of the track and of any trains thereon all the way to the curve after the track comes out of the river swamp, which is nearly a mile. These physical facts are established not only by the oral testimony in the case but also by the plat which was put in evidence.
"Mr. Ford testified that he looked as well as he could down the track and saw no train; Mrs. Ford testified that *Page 140 `the curtains were up, being a rainy misty morning I did the best I could to look for trains. It was hard to see.'
"We have this situation presented: An automobile, with the curtains drawn, is being driven in a pouring rain, along a highway parallel with a railroad and very near to it, which gave the driver notice of the railroad; the driver makes a short turn, 60 feet from the crossing, informed of the crossing by a sign post 10 feet high with cross-arms, and makes for the crossing without stopping or otherwise taking the slightest care for his safety; at any point from the turn to the crossing a coming train on a perfectly straight track could have been seen for nearly a mile; there was not an obstruction to his view at any point on the approach; it appears too plainly that if he had taken the slightest care he is obliged to have seen the train, the Court is not bound to accept his statement that he looked and did not see it or to consider it evidence, admittedly inadequate.
"The case is governed by the rule laid down in the case ofCable Piano Company v. Southern R. Co., 94 S.C. 143,77 S.E., 868, upon the authority of which the defendant's motion for a directed verdict should have been granted upon the ground of gross negligence upon the part of the driver and of the plaintiff. This case has been frequently cited with approval and has not been overruled. There is a suggestion in the case of Whitehead v. A.C.L.R. Co., 153 S.C. 339,150 S.E., 769, that it cannot be considered a `leading case' by reason of later decisions, but so far as we have discovered the criticism has gone no further.
"The most important feature in the appeal is the constitutionality of Sections 4903 and 4925, Vol. 3, Code 1922; it is attacked by the defendant upon the ground that it violates the due process and equal protection provisions of the Federal Constitution.
"It can hardly be questioned that Section 4903 is a valid exercise of the police power of the State and its constitutionality sustained. Taken in connection, however, with Section *Page 141 4925 and the decisions of this Court construing and applying them, the statutory provisions must be held to offend the clauses of the Federal Constitution invoked by the defendant.
"For convenience these sections are reproduced:
"Section 4903: `A bell of at least thirty pounds weight and a steam or air whistle shall be placed on each locomotive engine or interurban car, and such bell shall be rung or such whistle sounded by the engineer or fireman or motorman at the distance of at least five hundred yards from the place where the railroad crosses any public highway or street or traveled place, and be kept ringing or whistling until the engine or interurban car has crossed such highway or street or traveled place; and if such engine or car shall be at a standstill within less distance than one hundred rods of such crossing such bell shall be rung or such whistle sounded for at least thirty seconds before such engine or interurban cars shall be moved, and shall be kept ringing or sounding until such engine or interurban cars shall have crossed such public highway or street or traveled place: Provided, That a gong of not less than ten inches in diameter may be placed upon interurban cars in lieu of a bell as herein required and shall be sounded as herein provided.'
"Section 4925: `If a person is injured in his person or property by collision with the engines or any car or cars of a railroad corporation at a crossing, and it appears that the corporation neglected to give the signals required by this Chapter, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the Chapter, and that such neglect contributed to the injury, the corporation shall be liable for all damages caused by the collision, or to a fine recoverable by indictment, as provided in the preceding Section, unless it is shown that in addition to a mere want of ordinary care the person injured, or the person having charge of his person or property, was at the time of the collision guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross wilful negligence or unlawful act contributed to the injury.' *Page 142
"It is so firmly settled as to be axiomatic that the construction and interpretation of a state statute by the highest Court of the state are to be considered just as much a part of it as if actually expressed in the text. SupremeLodge, Knights of Pythias, v. Meyer, 265 U.S. 30,44 S. Ct., 432, 68 L.Ed., 885; Leffingwell v. Warren, 2 Black, 599, 17 L.Ed., 261; St. Louis, etc., Co. v. Kansas City,241 U.S. 419, 36 S.Ct., 647, 60 L.Ed., 1072; StandardOil Co. v. Graves, 249 U.S. 389, 39 S.Ct., 320,63 L.Ed., 662; Thornton v. Duffy, 254 U.S. 361, 41 S.Ct., 137,65 L.Ed., 304; Ward Gow v. Krinsky, 259 U.S. 503,42 S.Ct., 529, 66 L.Ed., 1033, 28 A.L.R., 1207; Bunch v.Cole, 263 U.S. 250, 44 S.Ct., 101, 68 L.Ed., 290; Missouri,ex rel. Hurwitz v. North, 271 U.S. 40,46 S.Ct., 384, 70 L.Ed., 818: Chicago, etc., R. Co. v. Risty, 276 U.S. 567,48 S.Ct., 396, 62 L.Ed., 703.
"And in the light of such construction and interpretation, the validity of such statute under the Federal Constitution must be determined. Price v. Illinois, 238 U.S. 446,35 S. Ct., 892, 59 L.Ed., 1400; Missouri, etc., R. Co. v. Nebraska,164 U.S. 403, 17 S.Ct., 130, 41 L.Ed., 489;W.W. Cargill Co. v. Minnesota, 180 U.S. 452,21 S. Ct., 423, 45 L.Ed., 619; Lindsley v. Natural, etc., Co.,220 U.S. 61, 31 S.Ct., 337, 55 L.Ed., 369, Ann. Cas., 1912-C, 160; Purity, etc., Co. v. Lynch, 226 U.S. 192, 33 S.C. 44,57 L.Ed., 184.
"The interpretation of the signaling statute given by the decisions of this Court consists of the following propositions:
"1. The failure to give the statutory signals is negligenceper se. Strother v. S.C. G.R. Co., 47 S.C. 375,25 S.E., 272; Callison v. Charleston W.C.R. Co., 160 S.C. 123,90 S.E., 260; Keel v. Seaboard A.L.R. Co., 108 S.C. 390,95 S.E., 64; Timmons v. Southern R. Co., 138 S.C. 82,136 S.E., 27. *Page 143
"2. If it appears that the signals were not given and that an injury resulted from a collision between the train and a traveler on the highway at a crossing, it will be presumed that the failure to give the signals was the proximate cause of the collision and injury, and warrants a recovery by the plaintiff without further proof. Strother v. S.C. G.R.Co., 47 S.C. 375, 25 S.E., 272; Edwards v. Southern R.Co., 63 S.C. 271, 41 S.E., 458; Bishop v. Southern R.Co., 63 S.C. 532, 41 S.E., 808; Turbyfill v. Atl. C.A.L.R. Co.,83 S.C. 325, 65 S.E., 278; Lee v. NorthwesternR. Co., 84 S.C. 125, 65 S.E., 1031; Lawson v. SouthernR. Co., 91 S.C. 201, 74 S.E., 473; Peeples v. Seaboard A.L.R. Co.,115 S.C. 115, 104 S.E., 541; Miller v. A.C.L.R. Co., 140 S.C. 123, 138 S.E., 675; McBride v. A.C.L.R. Co.,140 S.C. 260, 138 S.E., 803; Brogdon v.Northwestern R. Co., 141 S.C. 238, 139 S.E., 459;Glenn v. Southern R. Co., 145 S.C. 41, 142 S.E., 801;Whitehead v. A.C.L.R. Co., 153 S.C. 339,150 S.E., 769.
"3. Under the circumstances detailed in subdivision 2, the failure `is sufficient to warrant a reasonable inference of recklessness, willfulness, or wantonness, and therefore to carry that issue to the jury,' but it is not recklessness, willfulness, or wantonness per se. Goodwin v. A.C.L.R. Co.,82 S.C. 321, 327, 64 S.E., 242; Rowe v. Southern R. Co.,85 S.C. 25, 66 S.E., 1056; Callison v. Charleston W.C.R. Co., 106 S.C. 123, 90 S.E., 260; Keel v. SeaboardA.L.R. Co., 108 S.C. 390, 95 S.E., 64; Miller v. A.C.L.R. Co., 140 S.C. 123, 138 S.E., 675; Key v. C. W.C.R. Co., 144 S.C. 164, 142 S.E., 336.
"4. The only defense available to the railroad company, aside from a denial of liability, is that the plaintiff at the time of the accident was acting in violation of law or was acting with a `conscious disregard of consequences' amounting to willfulness, Glenn v. Southern R. Co., 145 S.C. 41,142 S.E., 801. *Page 144
"5. The doctrine of the Supreme Court of the United States in the case of B. O.R. Co. v. Goodman, 275 U.S. 66,48 S.Ct., 24, 72 L.Ed., 167, 56 A.L.R., 645, is denied in South Carolina. Key v. Car. N.W.R. Co., 150 S.C. 29,147 S.E., 625; Holladay v. A.C.L.R. Co., 150 S.C. 243,147 S.E., 927.
"6. Although holding that the failure to give the signals is only a prima facie presumption rebuttable by evidence, the Court holds that the presumption does not vanish on the introduction of opposing evidence, but throughout the entire case it is given the effect of evidence to be weighed against opposing evidence of the defendant. Baker v. WesternUnion Tel. Co., 87 S.C. 174, 69 S.E., 151; McLeodv. A.C.L.R. Co., 93 S.C. 71, 76 S.E., 19, 705;Glenn v. A.C.L.R. Co., 96 S.C. 357, 80 S.E., 898;Matthews v. A.C.L.R. Co., 98 S.C. 204, 82 S.E., 138;Ervin v. Atlantic Coast Line R. Co., 106 S.C. 354,91 S.E., 317; Perryman v. Charleston W.C.R. Co., 105 S.C. 34,89 S.E., 497; Thompson v. Atl. C.L.R. Co., 113 S.C. 261,102 S.E., 11; McBride v. A.C.L.R. Co., 140 S.C. 260,138 S.E., 803.
"The oft-repeated declaration that the failure of a railroad company to comply with the requirements of the signaling statute is negligence per se, is an unfortunate and misleading expression of the law; it is a confusion of the colloquial interpretation of negligence with the legal, and is the source of the error which appears in the McBridecase, that the failure referred to creates a presumption that it was the proximate cause of a collision. The colloquial interpretation of the term is synonymous with breach of duty; the legal is an actionable wrong. It would be more accurate to say that it is a breach of duty; it cannot be negligence in the legal sense unless the breach of duty is shown to have caused injury.
"Judge Cooley, in his work on Torts (3d Ed.), 1324, defines `negligence' `as the failure to observe for the protection *Page 145 of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.'
"In 45 C.J., 632, it is said: `In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part of defendant to protect plaintiff from the injury; (2) Failure of defendant to perform their duty; and (3) Injury to plaintiff from such failure of the defendant. When these elements are brought together they unitedly constitute actionable negligence, and the absence of any one of these elements renders the complaint bad or the evidence insufficient.'
"To say that the failure constitutes negligence per se is therefore erroneous, in that it presumes, even prima facie, the three elements of actionable negligence above referred to, which cannot be the law.
"The decisions of this Court have injected into the statute a still more objectionable feature: That evidence of the failure to comply with the statute carries a presumption that such failure was the proximate cause of the collision and injury. The writer of this opinion has expressed his views fully upon this subject in a dissenting opinion in the McBridecase, 140 S.C. 260, 138 S.E., 803, 807, and will not add anything to what is there written except to repeat a quotation from one of our own cases, which crystallizes the law upon the subject: `When evidence of negligence is only prima facie, it is subject to rebuttal, but when there is negligence per se, it is conclusive of that question. The fact that there is negligence per se, does not, however, tend to show, that such negligence is actionable. The question whether negligence is actionable, depends upon the further question, whether such negligence was the direct and proximate cause of the injury.' Whaley v. Ostendorff, 90 S.C. 281,73 S.E., 186. *Page 146
"Under the doctrine declared by the South Carolina decisions, upon the trial of a crossing case, the issue is not, as in all other tort cases, whether the failure to give signals was the proximate cause of the collision; that issue is settled by the presumption, the sole issue is whether the signals were given. If a single witness should testify that he was in a position to hear and did not hear the signals, the case must be submitted to a jury, and the presumption in the absence of opposing evidence will be sufficient to sustain a verdict against the railroad company based upon both negligence and wilfulness. The extent to which this presumption is carried appears in the case of Lawson v. R. Co., 91 S.C. 201,74 S.E., 473, 477, where the Court said: `Where an act is negligence per se, the jury must find negligence. Where it is mere evidence of negligence, the jury may not find that the defendant was negligent. The failure to sound the bell or whistle has been declared by this Court to be negligence, and if the jury had believed from the evidence that neither the bell nor the whistle was sounded, then theywere bound to find for the plaintiff.'
"In fairness to the trial Judge it should be stated that he did not charge that the presumption was conclusive; he charged the jury in line with the declaration of the Court in the McBride case: `It must be borne in mind that this presumption does not mean that the causal relationship [connection?] between the failure to give the signals and the injury is shown conclusively. The presumption merely establishes a prima facie case, which may be overcome by testimony, whether given for the plaintiff or for the defendant,' and in the same connection charged that the presumption arising from the failure to give the signals may be considered with any and all other evidence in the case.
"That this declaration is erroneous, as violative of the constitutional provisions, is demonstrated by the rulings of the Supreme Court of the United States in the case ofWestern Atlantic R. Co. v. Henderson, 279 U.S. 639, *Page 147 49 S.Ct., 445, 447, 73 L.Ed., 884, decided May 27, 1929.
"In the Henderson case the plaintiff's intestate was killed in a collision at a railroad grade crossing, between a truck he was driving and a train of the railroad company. Plaintiff recovered under a statute of Georgia which declared that on proof of the happening of such an accident, a presumption arose that it was due to the negligence of the railroad company as a proximate cause.
"Assuming that the Court, following its own decision in the case of Mobile, etc., R. Co. v. Turnipseed, 219 U.S. 35,31 S.Ct., 136, 138, 55 L.Ed., 78, 32 L.R.A. (N.S.), 226, Ann. Cas. 1912A, 463, would have sustained the Georgia statute in the Henderson case, if the statute, either by its terms or by a construction of it by the Georgia Court, had provided for simply a prima facie presumption of negligence, it seems clear that the trial Judge in the case at bar, and the Court in the McBride case, misapprehended the office of a prima facie presumption, in according to it the effect of evidence to be weighed against opposing evidence. (See quotation above.)
"In the Turnipseed case the plaintiff relied upon a Mississippi statute which provided: `Proof of injury inflicted by the running of the locomotives or cars of such [railroad] company shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury.' (Code Mis. 1906, § 1985.)
"The Supreme Court refused to sustain an attack upon the statute as arbitrary and in violation of the due process clause of the Constitution, saying: `The only legal effect of this inference is to cast upon the railroad company the duty of producing some evidence to the contrary. When that is done, the inference is at an end, and the question of negligence is one for the jury, upon all of the evidence. * * * The statute does not * * * fail in due process of law, because it creates a presumption of liability, *Page 148 since its operation is only to supply an inference of liability in the absence of other evidence contradicting such inference.'
"Differentiating the Turnipseed case, the Court in theHenderson case said: `That case is essentially different from this one. Each of the state enactments raises a presumption from the fact of injury caused by the running of locomotives or cars. The Mississippi statute created merely a temporary inference of fact that vanished upon the introduction of opposing evidence. Gulf, M. N.R. Co. v. Brown,138 Miss. 39, 66, 102 So., 855 et seq.; Columbia G. Ry. Co. v.Fondren, 145 Miss., 679, 110 So., 365. That of Georgia as construed in this case creates an inference that is given effect of evidence to be weighed against opposing testimony, and is to prevail unless such testimony is found by the jury to preponderate.'
"The Court further said:
"`Upon the mere fact of collision and resulting death, the statute is held to raise a presumption that defendant and its employees were negligent in each of the particulars alleged, and that every act or omission in plaintiff's specifications of negligence was the proximate cause of the death, and it makes defendant liable unless it showed due care in respect of every matter alleged against it. And, by authorizing the jury, in the absence of evidence, to find negligence in the operation of the engine and train, the Court necessarily permitted the presumption to be considered and weighed as evidence against the testimony of defendant's witnesses tending affirmatively to prove such operation was not negligent in any respect.
"`Appellee insists that Section 2780 is valid, and argues that the presumption, being one established by statute, hasthe effect of evidence and that it is for the jury to decide whether the company's evidence is sufficient to overcome the presumption; that "it should not as a matter of law be dissipated the instant any testimony is taken against it," *Page 149 and that the issue is to be determined on a consideration of all the evidence including the presumption.
"`Legislation declaring that proof of one fact or group of facts shall constitute prima facie evidence of an ultimate fact in issue is valid if there is a rational connection between what is proved and what is to be inferred. A primafacie presumption casts upon the person against whom it is applied the duty of going forward with his evidence on the particular point to which the presumption relates. A statutecreating a presumption that is arbitrary, or that operates todeny a fair opportunity to repeal it, violates the due processclause of the Fourteenth Amendment. Legislative fiat maynot take the place of fact in the judicial determination ofissues involving life, liberty, or property.'
"And then it reached this conclusion: `The presumption raised by Section 2780 is unreasonable and arbitrary, and violates the due process clause of the Fourteenth Amendment.Manley v. Georgia, supra; McFarland v. AmericanSugar [Refining] Co., 241 U.S. 79, 60 L.Ed., 899,36 S.Ct., 498; Bailey v. Alabama, 219 U.S. 219,55 L.Ed., 191, 31 S.Ct., 145.'
"The point under discussion is clearly elaborated in the case of Kirch v. A.C.L.R. Co. (C.C.A.),38 F.2d 963, 964. That case involved a construction of a Florida statute which was a copy of the Georgia statute construed in the Henderson case. The statute was upheld against an attack upon its constitutionality; the railroad company contending that the decision should be ruled by the Hendersoncase. The Court pointed out the distinction between the two cases thus: `There is no doubt that the Florida statute was copied from the Georgia statute; but the Florida Supreme Court has given to it a construction that is different from the construction which the Supreme Court held in theHenderson case has been given by the Supreme Court of Georgia. In the just cited case it was said that the statute as construed by the Georgia decisions "creates an inference *Page 150 that is given effect of evidence to be weighed against opposing testimony, and is to prevail unless such testimony is found by the jury to preponderate." The uniform construction of the statute by the Supreme Court of Florida is that it merely creates a presumption that disappears and comes to an end upon the submission of proof by a railroad company that its agents have exercised ordinary and reasonable care.'
"In the McBride case, this Court declared that collision and injury at a crossing is `the natural and probable consequence of the failure to give the signals.' The Supreme Court of the United States declared otherwise in the Hendersoncase, using this language: `The mere fact of collision between a railway train and a vehicle at a highway grade crossing furnishes no basis for any inference as to whether the accident was caused by negligence of the railway company or of the traveler on the highway, or of both, or without fault of any one. Reasoning does not lead fromthe occurrence back to its cause.'
"A statute, complemented by the decisions of this Court, that makes it possible to say as a matter of law what was the proximate cause of an accident can not be due process of law. Such a statute in effect declares that the presumption created thereby is not rebuttable. True, the railroad in such a suit is accorded the privilege of offering evidence, but of what possible avail is this when the jury is at liberty to render a verdict against it on the vital element of proximate cause without a vestige of testimony as to proximate cause? Manifestly, when the overcoming of the presumption as to proximate cause thus rests solely on the whim and caprice of the jury, it is but a mockery to say the defendant railroad is afforded the opportunity to rebut such presumption. Such a right of rebuttal may be given in form, but it is effectually denied in substance. The so-called right of rebuttal `keeps the promise to our ear and breaks it to our hope.' A fair *Page 151 opportunity to repel the presumption being denied, due process of law is not afforded.
"The plaintiff here has not made out such a case as should entitle her to recover either in law or in morals. Take away the incredible testimony of her and her husband that they did not hear any signals, and the arbitrary presumption applied to the finding of the jury thereon, and her case would collapse. A recovery by the plaintiff under the facts of this case solely by virtue of this presumption proves convincingly the fact that it is arbitrary and unreasonable.
"Prior to the decision in the McBride case, the Circuit Courts could direct verdicts in crossing cases and they would be sustained. But since that case and those that have followed it, no Circuit Judge can now say as a matter of law either that this arbitrary presumption has been overcome, or that the plaintiff was responsible for the accident. Under the present state of the decisions, the jury and thejury alone can say whether this presumption has been rebutted, and the jury can render a verdict on the presumptionalone without a scintilla of evidence to support it. This is exactly what was condemned in the Henderson case.
"The statute is unconstitutional for another reason: It makes an unreasonable discrimination against railroad corporations in the matter of the contributory negligence of the injured person as a defense to the action for damages; it requires the railroad corporation to show that the injured person, `in addition to a mere want of ordinary care,' was guilty of gross or willful negligence or a violation of the law; a condition applicable to no other class of tort-feasors under the sun; it has no earthly connection with the police regulation contained in Section 4903; it contributes nothing in aid of the enforcement of that section, and was evidently adopted for the purpose of making a railroad corporation an insurer of the safety of every traveler regardless of his conduct. In the case of Glenn v. Southern R. Co.,145 S.C. 41, 142 S.E., 801, 803, the Court goes even beyond *Page 152 the construction theretofore adopted in holding that the gross negligence referred to in the statute is the equivalent of intentional conduct on the part of the traveller, practically a suicide. It is there said: `The term "gross negligence" does not stand by itself in the statute, but the context characterizes the meaning and gives it the significanceof willfulness.' In other words, the railroad company is not excused if the traveler be shown to have been guilty of a mere want of ordinary care; nor if he be shown to have been guilty of gross negligence, although the statute so declares; he must be shown to have been guilty of willfulness, and intentional disregard of all care.
"The Court was in error in not applying the doctrine declared in the case of B. O.R. Co. v. Goodman, 275 U.S. 66,48 S.Ct., 24, 72 L.Ed., 167, 56 A.L.R., 645. That case declares, quoting syllabus: `One who drives upon a railroad track relying upon not having heard a train or any signal and taking no further precaution, does so at his own risk. If he can not otherwise be sure whether a train is dangerously near, the driver must stop and get out of his vehicle before attempting to cross.'
"The Court said: `It is true * * * that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once for all by the Courts.'
"This standard, which is based on the fundamental conception of the mutual rights and the mutual obligations of the respective parties as judged by the circumstances of the situation, has been rejected by this Court on the ground that it conflicts with Sections 4903 and 4925, and that they furnish the sole standard of conduct in this State; it is expressly so ruled in the cases of Key v. Car. N.W.R. Co.,150 S.C. 29, 147 S.E., 625, and Holladay v. A.C.L.R.Co., 150 S.C. 243, 147 S.E., 927, hereinbefore cited. No federal question was involved in either of those cases, but the Court recognized the principle that where a federal question *Page 153 was involved the rulings of the Federal Supreme Court must be respected and are controlling. The vital issue is whether the rule announced in the Goodman case was intended by the Supreme Court as a declaration of the rights and obligations of the respective parties touching the operation of an interstate train at grade crossings. It certainly defines with particularity the duty of the traveler approaching it, in reference to precautions which he must take; precautions intended not only for his protection but for the protection of the property of the railroad company and the employees and passengers who may be upon the train; the conduct of the traveler necessarily affects the conduct of the train employees who have the right to act upon the assumption that the traveler will respond to his obligations. Besides, it directly affects the conduct of the train employees as is demonstrated by the following extract: `When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the trainnot the train stop for him.'
"There is no question but that the train at this time was an instrumentality of interstate commerce and that the engineer was engaged in such commerce.
"The fact that a state regulation will to some extent effect interstate commerce does not necessarily invalidate such regulation. The rule is thus declared in Atlantic Coast LineR. Co. v. Georgia, 234 U.S. 280, 34 S.Ct., 829, 831,58 L.Ed., 1312: `In thus deciding, the Court applied the settled principle that, in the absence of legislation by Congress, the states are not denied the exercise of their power to secure safety in the physical operation of railroad trains within their territory, even though such trains are used in interstate commerce. * * * It was not intended that, pending Federal action, the use of such agencies, which, unless carefully guarded, was fraught with danger to the community, should go unregulated, and that the states should be *Page 154 without authority to secure needed local protection. The requirementsof a state, of course, must not be arbitrary, orpass beyond the limits of a fair judgment as to what theexigency demands. * * *"
"The Court quotes from Smith v. Alabama, 124 U.S. 465,8 S.Ct., 564, 31 L.Ed., 508, as follows: `The rules prescribed for their construction and for their management and operation, designed to protect persons and property, otherwise endangered by their use, are strictly within the limits of the local law. They are not per se regulations of commerce; it is only when they operate as such in the circumstances of their application, and conflict with the expressed or presumed will of Congress exerted on the same subject, that they can be required to give way to the supreme authority of the Constitution.' Citing cases.
"See, also, Nashville, C. St. L.R. Co. v. White,278 U.S. 456, 49 S.Ct., 189, 73 L.Ed., 452; Truax v. Corrigan,257 U.S. 312, 42 S.Ct., 124, 66 L.Ed., 254, 27 A.L.R., 375.
"From this it is fair to conclude that Section 4903, which prescribes the signals to be given by a railroad corporation as its train approaches a highway crossing, is a police regulation, within the legislative power of a state, notwithstanding its direct effect upon trains employed in interstate commerce. The vice is, not in that section, but in Section 4925 and the decisions of this Court interpreting it, in antithesis to the rule declared in the Goodman case.
"While the classification of railroads for many purposes is justified, it is invariably held that the regulation must be based upon rational grounds.
"In Gulf, C. S.F.R. Co. v. Ellis, 165 U.S. 150,17 S.Ct., 255, 41 L.Ed., 666, it was held, quoting syllabus: `The mere fact of classifications is not sufficient to relieve a statute from the reach of the equality clause of the Fourteenth Amendment, and in all cases it must appear not merely that a classification has been made, but also that it *Page 155 is based upon some reasonable ground — something which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.'
"We think that Section 4925, taken in connection, as we must do, with the interpretation of it sanctioned by this Court, above referred to, has no reasonable connection with the police regulation of Section 4903; it is divorced entirely from the regulations of that section, and appears to have been intended to make it easy for the injured party to recover damages and difficult for the railroad company to defend the suit. It cannot be successfully contended that the effect of the statute, Section 4925, was simply to change a rule of evidence. In Easterling Lumber Co. v. Pierce,235 U.S. 380, 381, 35 S.Ct., 133, 59 L.Ed., 279, it was held that a state statute which cuts off no substantive defense, but simply provides a rule of evidence controlling the burden of proof, does not deny due process of law. According to this rule it is conceded that so far as Section 4903 created aprima facie presumption that section is constitutional; but the evident purpose and manifest effect of Section 4925 is to cut off the very substantive defence under the common law rule of contributory negligence which would otherwise avail the defendant.
"For another reason the statute, as interpreted, is an interference with interstate commerce:
"Under it the traveler is not to be held guilty of contributory negligence unless the defendant company makes it appear that in addition to the mere want of ordinary care he has been guilty of gross or willful negligence or a violation of law; to make it appear that he was guilty of gross negligence, the railroad company must show that he did not exercise even slight care, for gross negligence is the absence of that degree of care; hence the traveler is excused by the exercise of slight care; in other words, that is all that he is required to do. *Page 156
"In this day of heavy automobiles and incorporated passenger buses and freight truck lines, some of them with trailers transporting 80 bales of cotton, 40,000 pounds, is the danger of damage to the interstate train by a collision with them so negligible as to require of the driver only slight care to avoid it? Are the rights of the engineer and trainmen protected by so lax a requirement? Has the passenger upon a through train, interstate commerce, no right to demand even ordinary care on the part of the traveller to avoid a collision? Within the last year, upon a western railroad, a passenger train collided with a loaded freight truck at a crossing; the engine and passenger coaches were derailed and thirty passengers killed or injured. Did the truck driver comply with the law or with the dictates of humanity by exercising slight care? That may have been the rule in the days of horse-drawn vehicles, but not now.
"By its unjust, unfair, and unreasonable discriminations against railroads in favor of travelers on the highway in every particular herein discussed, this statute denies to railroads the equal protection of the laws and by such denial takes the property of the railroads without due process of law and turns it over to plaintiffs alleging injury in crossing accidents. Unless these two protecting clauses of the Fourteenth Amendment have become `a mere rope of sand, in no manner restraining state action' (Gulf, etc., R. Co. v. Ellis,supra), they compel the conclusion that this statute transcends the power of the state, and must therefore be declared void.
"The charge upon gross negligence was clearly erroneous: `Now gross negligence is the failure to exercise slight care; the failure to exercise slight care. As distinguished from ordinary negligence, simple negligence, it is the intentional, conscious failure to do a thing that is incumbent upon one to do, or the doing of a thing intentionally that one ought not to do.' *Page 157
"`Gross negligence,' as his Honor charged, is the absence of slight care. It is a species of negligence which means inadvertence, the antipode of an intentional act.
"The judgment of this Court should be that the judgment of the Circuit Court be reversed and the case remanded for a new trial."