Bramlett v. Southern R. Co.
| Decision Date | 31 July 1914 |
| Docket Number | 8912. |
| Citation | 82 S.E. 501,98 S.C. 319 |
| Parties | BRAMLETT v. SOUTHERN RY. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Greenville County; H. F Rice, Judge.
Action by A. B. Bramlett against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Cothran Dean & Cothran, of Greenville, for appellant.
J. J McSwain and M. F. Ansel, both of Greenville, for respondent.
This is an action for personal injury. The plaintiff claimed that he was a switchman in the employ of the defendant; that he went to the switch on a switch engine, and after the engine and cars passed over the switch he threw the switch; that the engine stopped very near the switch; that the rules permitted the engine to move only after he (plaintiff) had given the signal; that he could signal either the fireman or the engineer; that he was on the fireman's side and looked up, but did not see the fireman, and gave no signal; that the train crew were in a hurry, and he started across the track to signal the engineer; that when he was on the track he saw the engine coming back rapidly and very close to him; that in order to save himself from being run over by the engine, he jumped at a footboard on the front of the tender (the engine was running backwards), and missed his footing on account of the defective condition of the footboard. The plaintiff was thrown under the engine and seriously injured.
The defendant set up that the plaintiff himself gave the signal to come back, and then went on the track in front of the moving engine, that it was a very dangerous place; denied the defective condition of the board; pleaded assumption of risk and contributory negligence.
The plaintiff was engaged in making up an interstate train, and the defendant claimed that the plaintiff's rights, if any, are under the federal statute.
The trial resulted in a verdict and judgment for the plaintiff, and the defendant appealed upon twelve exceptions. The appellant, however, condenses his exceptions into four propositions, which are as follows:
I. "The specific acts of negligence charged in the complaint are not breaches of any federal statute enacted for the safety of employés."
The point here is that the federal statute forbids the use of defective "running boards," and the board complained of is a "footboard," and a footboard is not within the provision of the federal statute. In the complaint the board in question is called a "footboard." In the answer of appellant the board is called in the third paragraph the "running board." In the fourth paragraph it is called the "footboard." In the cross-examination of the plaintiff, he was three times asked by appellant about the "running board." In the trial of the cause the appellant used the terms "footboard" and "running board" interchangeably. If there was a difference, it ought to have appeared in the evidence, and there was no evidence of a distinction between the two. The appellant requested his honor, Judge Rice, to charge the jury that the plaintiff had not brought himself within the protection of the federal statute. This his honor declined to do, and properly so. To illustrate: A man is charged with killing a partridge out of season. The Judge who tried the case could no more charge that the bird in question was a partridge than he could charge that the defendant had killed it. So here, his honor could not charge that the board upon which the plaintiff attempted to stand was not a running board, particularly when the words had been used interchangeably by the appellant, and there was no...
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