Betchman v. Seabd. Air Dine Ry

• Decision Date: 16 August 1906
• Citation: 55 S.E. 140,75 S.C. 68
• Parties: BETCHMAN . v. SEABOARD AIR DINE RY.
• Court: South Carolina Supreme Court

55 S.E. 140

75 S.C. 68

BETCHMAN .

v.SEABOARD AIR DINE RY.

Supreme Court of South Carolina.

Aug. 16, 1906.

1. Master and Servant—Injury to Servant—Defenses—Pleading.

In an action by a servant for personal injuries, defense of assumption of risk or contributory negligence must be pleaded to be available.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 858, 859.]

2. Same—Fellow Servants—Negligence.

Under Const, art. 9, § 15, providing that an employe of a railroad company shall have the same right to recover for injuries received from the negligence of employes as is allowed to persons not employes when the injury results from the negligence of a fellow servant engaged in another department of labor, a watchman at a railroad crossing is engaged in another department of labor from his fellow servants running a train across the crossing.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 479, 497.]

3. Same—Evidence.

Evidence of failure of persons in charge of a train to give notice of approach at a railroad crossing is competent to show negligence, in an action by the watchman at that crossing for injuries received.

4. Same—Contributory Negligence.

That a servant was guilty of an error in judgment in attempting to pass around a moving train, or in stepping out of his way, does not relieve the master from liability unless the conduct of the servant was the proximate cause of the injury.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 795.]

5. Same.

A railroad company is liable where a watchman at a crossing is seen by an engineer of a moving train on the crossing with a lantern in his hand, if the engineer was carelessly inadvertent as to whether he would get out of the way or not.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 801, 802.]

Appeal from Common Pleas Circuit Court of Lexington County; Gage, Judge.

Action by Walter P. Betchman, administrator of John Betchman, against the Seaboard Air Line Railway. Judgment for plaintiff. Defendant appeals. Affirmed.

Lyles & McMahan and Efird & Dreher, for appellant.

W. Boyd Evans, Lawson Dt Melton, and E. M. Thomson, for respondent.

GARY, A. J. This is an action at common law to recover damages for the alleged wrongful death of John Betchman, plaintiff's intestate. The complaint alleges: That on the 21st of December, 1903, John Betchman was in the employ of the defendant as a night watchman or flagman, in'the city of Columbia, at the intersection of Gervais and Lincoln streets, where the car line of the Electric Railway Company crosses the main line and side tracks of the defendant. That, among the duties of the plaintiff's intestate, it was incumbent on him to give warning of the approach of any trains over the main line or side track of the defendant, and in doing so it was necessary to watch for street cars, vehicles, and pedestrians approaching and passing' over said crossing, which is one of the most frequented and hazardous in the city. That while so engaged, between the hours of 8 and 9 o'clock in the evening of said day, he was killed by defendant's train of cars. That the cause of the death of said deceased was the negligence, recklessness, and wantonness of the defendant; (1) in that it was backing its train of cars at an unlawful and reckless rate of speed, in violation of an ordinance of the city; (2) without any lights to give warning of its approach; (3) without ringing the bell or blowing the whistle; (4) without maintaining a proper lookout; and (5) without using due care or caution on the occasion. The answer was a general denial. At the close of plaintiff's testimony the defendant made a motion for a nonsuit which was refused. The jury rendered a verdict in favor of the plaintiff for $1,500, and the defendant appealed.

The first and second exceptions assign error in refusing the motion for nonsuit. The first ground of the motion for nonsuit was that "the deceased being a watchman, charged specially with watching this crossing of the Seaboard Railway and the street railway, and the street, the failure to give the statutory signals, or even the violation of the speed ordinance of the city, would not be a violation of duty as to him, which would be the approximate cause of the injury to him." The second ground was that the plaintiff's intestate had notice of the approach of thetrain, and that the failure to give the signals was not, therefore, the cause of the Injury.

1. Before proceeding to consider these exceptions, it may be well to determine what issues were raised by the pleadings. The answer does not interpose either the defense of assumption of risk or contributory negligence. When a person enters into the employment of another as a servant, he assumes, in law, those risks that are ordinarily incident to the service. In an action by the servant for damages sustained through the alleged negligence of the master, the latter may show, without pleading the facts as a defense, that the injury was the direct and proximate result of an ordinary risk, as such risks are presumed to have been within the contemplation of the parties, when they entered into the contract, and testimony to that effect tends directly to refute the allegation of negligence. When, however, the defendant relies upon facts...