Keels v. Atlantic Coast Line R. Co.

• Decision Date: 21 April 1913
• Citation: 78 S.E. 168,94 S.C. 462
• Parties: KEELS v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

78 S.E. 168

94 S.C. 462

KEELS v. ATLANTIC COAST LINE R. CO. et al.

Supreme Court of South Carolina

April 21, 1913

On Rehearing, May 14, 1913.

Appeal from Common Pleas Circuit Court of Barnwell County; R. E Cokes, Judge.

Action by A. M. Keels against the Atlantic Coast Line Railroad Company and others. From a judgment for plaintiff, defendant named appeals. Affirmed.

P. A Willcox, of Florence, S. G. Mayfield, of Denmark, S. C Harley & Best of Barnwell, and L. W. McLemore, of Sumter, for appellant. R. C. Holman, Bates & Simms, and J. O. Patterson, all of Barnwell, L. K. Sturkie, of Orangeburg, and Best & Cunningham, of Columbia, for respondent.

FRASER J.

This is an action for personal injuries. The plaintiff was a section master. The complaint alleges that the plaintiff was returning from his work on defendant's track, and in the discharge of his duties had to pass through a long, deep cut and curve, and, when the plaintiff and his colaborers had passed through the said cut and curve for a distance of several hundred yards, the plaintiff discovered the approach of an extra freight train, running at a rapid, careless, negligent, and reckless rate of speed, and thereupon the plaintiff ordered one of the section hands to immediately apply the brakes in order to stop the car, so that they could alight in safety, and remove the said car from the track, in order to save the property of the defendant company and other persons from bodily harm. But the brakes on said lever car failed to work and stop the car, and that thereupon the plaintiff realizing that said brakes would not work and that said car could not be stopped, and further perceiving that he was confronted with immediate peril and danger from a rapidly approaching freight engine and train, and in order to save himself from great bodily harm, attempted to get off of said lever car, and as a result thereof he was struck and run over by the same and injured.

The negligence alleged was: (a) Passing through the cut and curve without giving any signals of any sort. (b) Refusing to slacken the speed of the train after they saw the peril of the plaintiff. (c) Furnishing the plaintiff with a defective car, in that the brake was defective. (d) In failing to furnish a safe place to work, in that the brake was defective. The complaint alleged negligence, carelessness, recklessness, and willfulness, and joined the engineer and roadmaster as codefendants with the railroad company. The defendants put in a general denial, and pleaded contributory negligence, in that: (a) Plaintiff failed to inspect his lever car. (b) Plaintiff failed to keep a proper lookout for his own protection. (c) Plaintiff was himself running at an excessive rate of speed. The defendants moved for a direction of a verdict in favor of defendants on the grounds: (1) That there was no evidence of negligence on the part of the defendants. (2) That there was no evidence of willfulness. (3) That the evidence showed contributory negligence. (4) That plaintiff's own negligence was the proximate cause of his own injury. The motion was refused, and the jury rendered a verdict for the plaintiff. From the judgment entered upon this verdict the defendant appealed.

There are 17 exceptions in the case, and we will adopt appellant's grouping, but the first 3, being entirely omitted from the argument, are deemed abandoned.

The fourth exception is as follows: "His honor erred, it is respectfully submitted, in overruling appellant's motion for direction of verdict made at the close of all the evidence; whereas, he should have granted the motion, and directed the verdict for the reasons and upon the grounds urged in support thereof, as follows: (First) Because there is no evidence of negligence proximately causing or contributing to the plaintiff's accident or injury. (Second) Because there is no evidence of willfulness or its equivalent proximately causing or contributing to plaintiff's accident and injury. (Third) Because plaintiff's accident and injury were contributed to by his own negligence as the proximate cause thereof. (Fourth) Because plaintiff's accident and injury were due to his own negligence as the proximate cause thereof." This exception cannot be sustained.

There was evidence: That about the time in the afternoon when the accident occurred sectionmasters and their helpers might be expected to be on the track returning from their labors. That the hand cars used by them moved much slower than the trains, and the train might overtake them. That there was a blow post near the curve. That the extra train was running very fast. That no signals were given by the train crew of their approach. That, if the engineer had seen the lever car after it (the train) came round the curve, there was still time to stop before injury was done. That no effort was made to slacken the speed of the train. That those on the lever car were in a position of great danger, and that their danger was easily apparent to the engineer. There was evidence that neither the engineer nor the conductor saw anything of the lever car or its occupants until they saw the section hands by the side of the road as they were passing them. There was evidence that the cut and curve was a dangerous place. If the jury believed that the respondent was on his way, in the discharge of his duties, to put up the lever car, and that the extra train ran upon him suddenly without any warning, and that a warning ought to have been given and would have been given by a reasonably prudent man, that the respondent with his car and laborers was in such a position that those in charge of the extra train must have seen him if they were looking ahead at all, then the jury could have inferred that there was such an utter disregard of the safety of themselves and others as would warrant a finding, not only of negligence, but of willfulness.

Appellants coupled exception 17 with exception 4. Seventeen is also overruled.

The appellant groups exceptions 10, 11, 12, 15, and 16. These will have to be considered separately.

Exception 16: "His honor erred, it is respectfully submitted, in refusing to charge appellant's sixteenth request as follows: 'I charge you that it was the duty of this plaintiff to become conversant with and obey the rules and special instructions of the defendant Atlantic Coast Line Railroad Company, and if you find from the testimony that he failed to do so, or in not carrying out the rules of the company he was injured, your verdict should be for the defendants.' The error being that the request contained a sound proposition of law applicable to the case and his honor's refusal so to charge was prejudicial to appellant." This exception cannot be sustained for two reasons. The duty is to obey reasonable rules (see Bussey v. Railway, 78 S.C. 358, 58 S.E. 1015), and the failure to obey the rule must be the proximate cause of the injury. The request as made is not the law. The charge would have been misleading here. The duty to send a flagman before the car could have had nothing to do in law or in fact with an injury that came from behind. This exception is overruled.

Exception 15: "His honor erred, it is respectfully submitted, in refusing to charge appellant's fifteenth request, as follows: 'I charge you rule 707, as follows "Employés of every grade are warned to see for themselves, before using them, that the machinery or tools which they are expected to use are in proper condition for the service required; and if not to put them in proper condition, or to see that they are so put, before using them. The company does not wish, nor expect, its employés to incur any risks whatever from which, by exercise of their own judgment and by personal care, they can protect themselves, but enjoins them to take time in all cases to do their duty in safety, whether they may, at the time, be acting under orders...