Reed v. Southern Ry., Carolina Division

• Decision Date: 12 September 1906
• Citation: 55 S.E. 218,75 S.C. 162
• Parties: REED v. SOUTHERN RY.--CAROLINA DIVISION.
• Court: South Carolina Supreme Court

55 S.E. 218

75 S.C. 162

REED v. SOUTHERN RY.--CAROLINA DIVISION.

Supreme Court of South Carolina

September 12, 1906

Appeal from Common Pleas Circuit Court of Dorchester County; D. E Hyrick, Special Judge.

Action by Leize W. Reed, administrator of Arthur T. Reed, against the Southern Railway--Carolina Division. Judgment for plaintiff, and defendant appeals. Affirmed.

The following are the exceptions:

First. To the charge:

"(1) Because it is respectfully submitted that his honor, the circuit judge, erred in charging the jury as follows: 'I charge you that the defendant, Southern Railway--Carolina Division, is liable for all causes of action arising out of the operation of its railroad by the Southern Railway Company, just as liable as the Southern Railway Company itself would be. It is made so by the express terms of the statute law of this state. Of course, if the Southern Railway Company would not itself be liable, the defendant company would not be. To make the defendant liable, a case of legal liability must be made out whereas, it is submitted that the defendant, Southern Railway Company--Carolina Division, being only the lessor company, is not responsible for the injury causing the death of plaintiff's intestate, Arthur T. Reed, an employé of the Southern Railway Company, the lessee of the defendant company, for the negligence of the Southern Railway Company its servants, agents, and employés.'

(2) Because it is respectfully submitted that his honor, the circuit judge, erred in refusing to charge the defendant's fourteenth request, which was as follows: 'That if the jury find from the evidence that the defendant, Southern Railway--Carolina Division, was not the employer of the plaintiff's intestate, Arthur T. Reed, but that he was employed by the Southern Railway Company, and that the officers and employés of the train upon which said Arthur T. Reed was, and of the train with which it came in collision, were officers and employés, not of the defendant company, but of the Southern Railway Company, the lessee of the defendant company, and that the trains above mentioned belonged to and were operated by the Southern Railway Company, and did not belong to and were not operated by the defendant company, Southern Railway-- Carolina Division, then the plaintiff cannot recover anything in this suit against the defendant.'

(3) Because it is respectfully submitted that his honor, the circuit judge, erred in refusing to charge the jury the fifteenth request of the defendant, as follows: 'That the act of the Legislature permitting the consolidation of certain railroad companies mentioned in the complaint, and the lessee of such consolidated companies to the Southern Railway Company, did not render the consolidated company liable for injuries to the employés of the Southern Railway Company arising out of the negligence of the Southern Railway Company or its agents and employés.' D'D'

Second. To the order granting a new trial conditionally:

"(4) Because it is respectfully submitted that his honor committed an error of law in holding that it was negligence for a railroad company to allow an engineer, even if willing to do so, to run his engine over the road for 42 hours consecutively, without rest, and in refusing to set aside the verdict absolutely, and in refusing to direct a new trial without condition on that account; whereas, it is submitted that, under the law of South Carolina, in a suit by the administratrix of the engineer for causing his death, even if it was negligence on the part of the railroad company to allow the engineer to run his engine for such a time consecutively, without rest, yet, if the engineer was willing to do so, then, under the law of South Carolina, he was himself guilty of negligence as a matter of law, and there was no cause of action proved against the defendant company, and there was no evidence to sustain the verdict.

(5) Because it is respectfully submitted that his honor committed an error of law in holding that the measure of the liability of the defendant company to the plaintiff, as administratrix of Arthur T. Reed, the engineer and employé of the defendant company, for an injury to him caused by his exhaustion from overwork, was the responsibility of the railroad company to another employé or passenger upon the train injured through such exhaustion and overwork of said engineer, and in refusing to set aside the verdict absolutely and directing a new trial without condition on that account; whereas, it is submitted that the liability to such passenger or employé would not be affected by the voluntary act of plaintiff's intestate in working until exhausted, and therefore the liability to such passenger or employé is not a measure of the liability to the plaintiff for the death of her intestate.

(6) Because it is respectfully submitted that his honor committed an error of law in holding that the verdict of the jury eliminated the question of contributory negligence on the part of plaintiff's intestate, the engineer, so far as it affected the doctrine of volenti non fit injuria, and in refusing to set aside the verdict absolutely on that account, inasmuch as the question of contributory negligence had been submitted to the jury; whereas, it is submitted that his honor should have considered the question of contributory negligence upon the motion for a new trial, whether the jury had found a verdict on the subject or not, and it was not eliminated by the verdict.

(7) Because it is respectfully submitted that his honor committed an error of law in holding that the maxim, 'volenti non fit injuria,' had been changed in its application through a true construction of section 13 of article 9 of the Constitution, and in refusing to set aside the verdict absolutely on that account; whereas, it is submitted that the section referred to has no application whatever to the voluntary act of an employé in undertaking, as in the present case, to work beyond a reasonable time.

(8) Because it is respectfully submitted that his honor committed an error of law in holding that if the negligence of a superior officer or agent, or of a person having a right to control or direct the services of the party injured, be such as to give another employé or passenger a right of action then, by the express language of section 15 of article 9 of the Constitution, the same right of action is given to the injured employé, when such employé is injured through his own voluntary act, and in refusing to set aside the verdict absolutely on that account; whereas, it is submitted that the said section has no application whatever to a case where an employé is injured through his own voluntary act in working longer than a reasonable time, and disobeying the rules of the company on that account.

(9) Because it is respectfully submitted that his honor erred, as a matter of law, in holding that the words of section 15, art. 9, of the Constitution, that 'knowledge of any employé injured of the defective or unsafe character or condition of any machinery, ways or appliances, shall be no defense to an action for injury caused thereby,' affected the act of the plaintiff's intestate in voluntarily undertaking to work beyond a reasonable time; whereas, it is submitted that said section in the words quoted herein was only intended to apply to the defense of 'knowledge of defective or unsafe character or condition of any machinery, ways or appliances,' and not to the voluntary act of an employé, an engineer, in working beyond a reasonable time."

B. L. Abney, Joseph W. Barnwell, and John A. Hiers, for appellant. Legare & Holman and Dennis & Mann, for respondent.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff through the negligence of the defendant in causing the death of her husband, of whose estate she is the administratrix. The allegations of the complaint, material to the questions involved, are substantially as follows: (1) That the Southern Railway--Carolina Division is a corporation chartered under the laws of South Carolina, having been organized under an agreement of consolidation of the rights and franchises of the Abbeville & Spartanburg Railroad Company, South Carolina & Georgia Railroad Company, South Carolina & Georgia Railroad Extension Company, and the Carolina Midland Railway Company. (2) That the Southern Railway Company is chartered under the laws of Virginia, and is now operating the Southern Railway--Carolina Division, by virtue of a lease thereof sanctioned by an act of the General Assembly of South Carolina. (3) That on the 2d of April, 1905, Arthur T. Reed was in the employment of the Southern Railway Company as an engineer, and was operating a locomotive drawing an extra freight train over the line of defendant's road, known as the South Carolina & Georgia Railroad, in the direction of Charleston; that the same came into collision headend, on the main line of said road, with another locomotive and cars of a passenger train, proceeding in the direction of Branchville; that in the collision Arthur T. Reed sustained injuries from which he died on the 6th of April, 1905. (4) That he came to his death through the negligent, wanton, and reckless acts of the defendant, in causing the two locomotives to come into collision. (5) That under the terms of the act of the General Assembly,...