Mishoe v. Atlantic Coast Line R. Co.

Order on Petition eor Rehearing

Mr. Ci-iiee Justice StabrEr:

The suggestion that the majority opinion gave limited consideration to the question of liability in this cause is prompted no doubt by the fact that the testimony was not quoted. However, the issue of liability did receive the most careful consideration of the Justices participating in the majority opinion of the Court, in which it is stated: “We have examined, at much length and with great care, the testimony, together with the exhibits, which are most enlightening, and it is patent that there was substantial evidence tending to establish the material allegations of the complaint, particularly those which relate to the dangerous nature of the crossing and the alleged negligent obstruction of the view of Northbound travelers upon the highway; and * * * we cannot say, as a matter of law, that the only reasonable inference to be drawn from the evidence is that the death of respondent’s intestate was due to his own contributory negligence and contributory gross negligence, or to that of the party in whose charge he had placed his person.”

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There was testimony — whether true or not, this Court has no authority to pass upon — to the effect that the railroad crossing in question was located “in a sink,” that “it was dark and a little foggy,” that a long string of freight cars, situated upon a spur track, interfered with a vision of the train, that the witness, Huffner, was only 35 yards from the crossing at the instant of the fatal collision, that his hearing is good, that there was nothing whatever’ that happened that would have prevented him from hearing the statutory signals, and that he did not hear the train blow or the bell ring. It is true that he did not testify, specifically, that the signals were not given, but what more can any honest witness say nine months after such an occurrence than that he was in position to hear, that his hearing was unimpaired, that nothing happened to keep him from hearing, and that he did not hear. Such testimony was admissible under all of our decisions, ■ and tended to establish a failure to give the statutory signals, which, under the decisions, is negligence

per se,

and, presumptively, the proximate cause of injury or death. The witness, Mallison, who, like Huffner, was only 35 yards from the crossing at the time of the collision, also testified that the night was a little foggy, “and in some places it was real foggy,” that, although his eyes are good, he did not see any signs warning of the approach to the crossing, and that he heard no signals from the train. Miss Mary Mitchum testified that she lives about 100 feet from the crossing, that she was at home on the night in question, that her hearing is good, that she did not hear the whistle or the bell, and that, if the whistle had blown, she could have heard it. Was the testimony of these witnesses true or false? Under every decision of the Court with which we are familiar the testimony of these witnesses was admissible, as evidenced by failure of defendants’ learned counsel to object thereto, and sufficient to carry the cause to the jury on the issue of liability, regardless of the fact that it may have been contradicted by a thousand witnesses. If the jury believed them, as they did,

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negligence as a matter of law was established against defendants, which, as stated above, is presumed to have been proximate cause of the intestate’s death. The fact that the trial Judge may have erred in

not

submitting the issue of punitive damages to the jury certainly cannot avail defendants here. Under every crossing-collision case with which we are familiar, testimony of the nature of that referred to above has been held by this Court when properly presented to us, to be sufficient to take the case to the jury on punitive, as well as on actual damages, and the fact that the trial Judge may have erred in not submitting the issue of punitive damages to the jury — although concededly the law of the case ón that point because of no appeal from his voluntary ruling thereabout — does not warrant a holding here that such ruling was equivalent to an adjudication by him “that there was no evidence of failure to give the statutory signals, and that simple contributory negligence was a good defénse.” Wanton conduct on the part of a defendant, which is the proximate cause of injury to anothef, warrants a recovery of actual, as well as punitive damages, and defendants’ counsel recognized that simple contributory negligence was not a good defense under the testimony, as evidenced by defendants’ third request to charge. True, under the trial Court’s ruling that there could be no recovery of punitive damages, such evidence could not be considered by the jury on any issue of punitive damages, but it could be considered by them on the question of liability for actual damages.

As to the damages that could properly be awarded under the charge of the trial Judge, the Court adheres to its decision announced in the majority opinion.

The petition for rehearing is, therefore, refused.

Mr. Justice Kishburne and Mr. Acting Associate Justice J. Henry Johnson concur.