Bodie v. Charleston & W. C. R. Co.

• Decision Date: 20 April 1903
• Parties: BODIE v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

44 S.E. 943

66 S.C. 302

BODIE v. CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina

April 20, 1903

Appeal from Circuit Court, Greenwood County; McCullough, Special Judge.

Action by Josiah W. Bodie against the Charleston & Western Carolina Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Defendant appeals on the following exceptions:

"(1) The defendant excepts to and appeals from the order or judgment of Judge Gary setting aside the verdict rendered on the trial before him and granting a new trial, on the ground that the circuit judge did not have the power to grant such new trial for inadequacy of the amount of the verdict rendered, and it was error of law for him to do so.

(2) The defendant excepts to the rulings of Honorable Joseph A. McCullough, Presiding Judge, in relation to the introduction of testimony, and alleges error in such rulings as follows: (a) In allowing the plaintiff, Bodie, to testify against the objection of the defendant, as to what was the usual and customary way of handling and loading rails, and that the manner in which he was handling rails when he was injured was the usual and customary manner; the testimony being as follows: 'Q. What is the usual and ordinary way? Mr. Grier: We object to that, also, as incompetent. (Objection overruled.) A. Just like I was handling them.' The error being that the circuit judge by his ruling allowed testimony as to the usual and customary method of handling rails, upon the question of plaintiff's ordinary care in handling such rails when he was injured. (b) In allowing the witness Bodie to testify that the method he adopted for handling these rails was usual and customary on the C. & W. C. Railroad, as follows: 'Q. What has been the method adopted on the C. & W. C. Railway? Mr. Grier: We object to that as incompetent. (Objection overruled.) Q. What has been the custom adopted there? A. The customary way of loading rails was to load it the way I spoke of just a few minutes ago--both ends at a time. We usually, in loading loaded in no other way.' The error being in allowing testimony as to the custom of other agents and employés of this defendant in handling rails, upon the question of ordinary care of the plaintiff in handling rails when he was injured. (c) In allowing the witness W. D. Melton to testify what was the customary way of loading rails on a push car of the Central of Georgia Railroad and other roads, the testimony being as follows: 'Q. What road did you work on? A. I worked for the Central of Georgia. Q. Did you work for

the C. & W. C.? A. Well, that was part of that road at that time. Q. What is the usual and customary way of loading rails on a push car? (We object to that on the ground of incompetency. Objection overruled.) Q. What is the usual and customary way of loading rails on a push car? A. Pick it up and carry it and load it on the car. Q. One end at a time, or altogether? A. I never have picked up one end at a time. I just picked up the whole rail and carried it and loaded it on the car. Q. What is the usual and customary way? Was it ever done any other way? A. Always saw it that way.' The error being in allowing testimony as to the custom on other railroads or on this road in handling rails, upon the question of ordinary care of the plaintiff in handling rails when he was injured. (d) In allowing the witness P. W. Ellenberg to testify as to the usual and customary manner of handling rails, in answer to the following questions, to wit: 'Q. What is the usual and customary manner of handling rail? Do you know how it is done? What is the customary way?' The error being in allowing testimony as to the custom on other roads or on this road in handling rails upon the question of ordinary care of the plaintiff in handling rails when he was injured. (e) In allowing the witness J. B. Ogilvie, on cross-examination, to testify that a larger force of hands would have been safer in this case, because such force would be able to catch and hold up a falling rail if one hand should slip. The error being that there was no such negligence alleged in the complaint, and such testimony was therefore incompetent.

(3) The presiding judge, Hon. Joseph A. McCullough, erred in not requiring the jury to visit the place of the injury after having ruled, in defendant's favor, and against the objection of plaintiff, that they should do so, and in allowing the jury to determine this question for themselves. The error being: (a) Having decided that it was necessary to a just decision of the cause for the jury to visit such place, it was error of law for the circuit judge to subsequently allow the jury to determine the question whether they would so view the place, or not, for themselves. (b) Because the record shows that it was necessary to a just decision of this cause for the jury to view the place of injury, and, the circuit judge having so held, it was error of law for him to allow the jury to have any voice in determining this question.

(4) The presiding judge, Hon. J. A. McCullough, erred in charging the jury as follows: 'If you conclude that defendant did not require the plaintiff to do this extra work, but the plaintiff did so freely, voluntarily, of his own motion, without being required by the defendant so to do why, then, of course, under the complaint, the plaintiff would not be entitled to recover, because he bases his action upon that theory. If, however, you conclude that the defendant did require the plaintiff to do this extra work then there immediately followed a duty and obligation which the law imposes upon the defendant railway company, and that is that the defendant railway company would furnish to the plaintiff suitable, safe and appropriate appliances for the purpose of doing that work.' The error being that his honor assumed as a fact in the case that the work in which the plaintiff was engaged when injured was extra work, when it was one of the issuable facts in the case whether such work was extra, or was a part of and a mere incident to the general work of keeping up roadbed, which had been committed to the plaintiff; thus charging upon the facts, in violation of the provision of the Constitution which prohibits such a charge.

(5) The presiding judge, Hon. J. A. McCullough, erred in charging the jury as follows: 'That it was the duty of the defendant to adopt and use such machinery, apparatus, appliances, tools, and means as were suitable and proper for the prosecution of the business which it required the plaintiff to do, with a reasonable degree of safety to life and security against injury, and it was the duty of the defendant, and not the plaintiff, to exercise due care and diligence to ascertain whether the appliances furnished were safe and suitable.' The error being: (a) That while in some cases the employé may assume that machinery given him to work with is safe and suitable, and he is not bound to inquire whether it is so or not, such principle does not apply to this case, where the alleged negligence was in failing to furnish a sufficient force of hands, and the inefficiency, if it existed, was patent, and particularly where the plaintiff himself was in control of the instrumentalities given him for his work, and in some measure stood in the position of master with reference thereto. (b) In all cases it is the duty of an employé to exercise due care in and about the work committed to him, and it was error of law for the judge to instruct the jury that it was not the duty of the plaintiff to exercise due care and diligence to ascertain whether the appliances furnished were safe and suitable. (c) The doctrine stated was not applicable to this case, and was error of law, for the further reason that the uncontradicted testimony of the plaintiff showed that he had full knowledge some time before his injury of the alleged insufficiency of the force committed to him.

(6) The presiding judge, Hon. J. A. McCullough, erred in charging the jury, on the request of plaintiff, as follows: ' That if the jury find that the plaintiff was injured by an accident resulting from the concurrent negligence of a fellow servant

and of the defendant, the defendant is liable as though it were the sole offender.' The error being: (a) The charge leaves entirely out of account the question of proximate cause, and instructs the jury, in effect, that plaintiff can recover for an accident resulting from any previous negligent act of the defendant, remote or proximate, if it concurred with a negligent act of a fellow-servant. (b) The instruction was more erroneous and hurtful to the defendant because the presiding judge elsewhere in his charge instructed the jury that an accident and a negligent act are entirely different, and to be distinguished one from the other. (c) The effect of the charge was to instruct the jury that the defendant would be liable for an accident. (d) It decides all questions against the defendant, and practically instructs the jury to render a verdict in favor of plaintiff, inasmuch as one of the defenses of the railway company was that the cause of the injury was the accidental falling of a fellow-servant.

(7) The presiding judge, Hon. J. A. McCullough, erred in refusing to charge the defendant's third request, as presented, as follows: 'The jury cannot find for the plaintiff unless the preponderance of the evidence shows that the defendants were guilty of negligence as charged in the complaint, and that such negligence was the proximate cause of the injury; and, in order to warrant a finding that the negligence complained of was the proximate cause of the injury alleged, it must appear that the injury was a natural and probable consequence of the alleged negligence, and that it could have been and ought to

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