Adkins v. Atlanta & C. A. L. Ry. Co

• Decision Date: 29 June 1887
• Citation: 2 S.E. 849,27 S.C. 71
• Court: South Carolina Supreme Court
• Parties: Adkins, as Adm'x, etc., v. Atlanta & C. A. L. Ry. Co.

2 S.E. 849

(27 S.C. 71)

Adkins, as Adm'x, etc.,

v.Atlanta & C. A. L. Ry. Co.

Supreme Court of South Carolina.

June 29, 1887.

I. Master and Servant—Injury to Railroad Employe—Liability of Company.

The plaintiff's intestate, whose regular employment was "braking" on freight trains, was put upon a special passenger train for a night run. The night was cold, and snow was falling, and the platforms of the cars became covered with ice. The air-brakes on the train were out of order. The brakeman knew this, and also that he was put on the "run " for that reason. He was thrown from the platform and killed while the train was running down a steep grade with reverse curves. Held, in an action against the railroad company, that there was no evidence to take the case to the jury, the change of employment being, in point of danger, favorable to the deceased, the condition of the platforms being "obvious to the senses, " and there being no evidence of negligence on the part of the conductor or engineer.

Same—Duty of Reporting Accidents—Knowledge of Accident.

Gen. St. S. C. § 1525, provides that a railroad company, when an accident occurs on its line whereby any one is injured, shall give immediate notice to the nearest physician, and report to the state commissioner, etc., under penalty of fine. Held, assuming that the negligence of the company in not complying with the statute could be availed of in a suit for damages by the personal representatives of a brake-man who was thrown from one of its trains, and left to freeze to death, that the fact that the brakeman was known to have been on the train at a certain point, and was first missed at a point many miles distant, was not sufficient to affect the company with knowledge of the fact that the brakeman had been either killed or injured by an accident between those points, especially when there was no evidence whatever that any accident had there occurred to the train, and, on the contrary, the evidence showed that the train ran as usual between the points, with nothing exceptional or peculiar to attract the attention of those charged with its management.

Appeal from circuit court, York county.

Hamilton & Bailey, for Adkins, appellant.

Duncan & Sanders, for the company, respondent.

McIver, J. This was an action brought by the plaintiff, as administratrix of Oliver Adkins, deceased, to recover damages for the injury sustained by her as the wife of the deceased, and by his father, by reason of his death, caused, as alleged, by the negligence of the defendant company. The testimony shows that the plaintiff's intestate was in the employ of defendant as brakeman on a freight train, and that on the evening of the ninth of January, 1884, he, with two others, were detailed to take out a special passenger train from Charlotte to Atlanta under the direction of a conductor by the name of Holt. This train, it seems, was some five hours behind its schedule time in reaching Charlotte, and, though supplied with air-brakes, the same were not in working order, and hence it became necessary to use the hand-brakes, to which duty the deceased and one Jarrott, with whom he had been working as fellow-brakeman on the freight train, were assigned. The night was excessively cold, with continued falls of snow, by which the platforms of the cars were covered with ice, and made very slippery. The train proceeded without accident or trouble, except that some ineffectual attempts were made to use the air-brakes, which, however, were finally abandoned at Seneca, from which point reliance was placed solely on the hand-brakes. The deceased was last seen very soon after leaving Westminster, but it did not appear that he was missed until the train reached Tacoa, where some search and inquiry was made for him in the baggage car, where he ought to have been, by his fellow-brakeman, Jarrott, who, however, thinking that he had gone forward to ride on the engine, as the train hands sometimes did, made no further search, and said nothing about his disappearance. But when the train reached Gainesville, and it had been ascertained that the deceased was not on the train, the conductor telegraphed to Tacoa to inquire about him, and also to head-quarters in Atlanta reporting his disappearance. Not being able to learn anything of him, they renewed their inquiries along the road as they returned that even-ing from Atlanta, but still were unable to hear anything of him. Nothing was heard of the deceased until a few days afterwards, —the circuit judge saying it was on the twelfth of January, while counsel for appellant contends it was on the fifteenth, —when his dead body was found lying in a ditch near the railroad track at a point near the 104-mile post. It seems that at or near this point there is a steep grade and a reverse curve in the railroad track, in passing which the deceased was thrown or fell from the train. The body, when found, was frozen stiff, as well as the clothes in which the deceased was dressed, but his hat was found at some little distance from the point where the body was found at an embankment, and his clothes and shoes were covered with "shining mica sand, " similar to that found in the embankment. The body presented no external marks of injury, except a bruise or cut over the right eye, and there was no evidence that any of his bones were broken, though it does not appear that any examination except of the most casual character was made. The hands were clutched as if grasping something, "and were muddy with shining dirt." The body was found by the section master of the railroad in charge of that part of the line, and his hands, and after being dressed in a new suit of clothes bought from a neighboring store, and paid for by the railway company, was sent to Charlotte, and thereafter being provided with a suitable coffin, forwarded to Chester for interment. At the close of the plaintiff's testimony the defendant moved for a nonsuit, which was granted upon the ground that the plaintiff had failed to adduce any evidence tending to establish the charge of negligence. From this judgment the plaintiff appeals upon the several grounds set out in the record which need not be repeated here, as the sole question for us to consider is whether the circuit judge erred in holding that there was no evidence tending to establish the charge of negligence.

The negligence imputed to the defendant by the appellant is of two kinds: First, in causing the disaster by negligent conduct of their agents; second, negligence in not ascertaining more promptly the condition of the deceased after the disaster occurred, and contributing to his relief.

We have examined the testimony carefully, and are unable to discover the slightest evidence of any negligence on the part of the railway company, or any of its employes, which could by any possibility have contributed towards causing the disaster complained of. There is no testimony tending to show that there was any want of skill or care on the part of the conductor, the engineer, or any of the other employes in the management of the train, unless it be on the part of the deceased himself, who, when rebuked by the conductor for not putting on the brake with which he was charged, just before reaching Westminster, whereby the train ran past that station before stopping, and accused of being asleep, made no denial or reply. But even this occurred before the accident happened, and could not have had any agency in causing it. The fact that the air-brakes were not in working order, and the ineffectual attempts to use them, cannot possibly be regarded as negligence contributing to the injury; for the very fact that the air-brakes were out of order was the only reason why the deceased and his fellow-brakeman, Jarrott, were put upon the train, and the undisputed testimony from the plaintiff's own...