Barksdale v. Charleston & W. C. Ry. Co

• Decision Date: 28 April 1903
• Citation: 66 S.C. 204,44 S.E. 743
• Court: South Carolina Supreme Court
• Parties: BARKSDALE. v. CHARLESTON & W. C. RY. CO.

44 S.E. 743

66 S.C. 204

BARKSDALE.

v.CHARLESTON & W. C. RY. CO.

Supreme Court of South Carolina.

April 28, 1903.

INJURY TO RAILROAD CONDUCTOR—INSPECTION OF CARS—KNOWLEDGE OF DEFECTS.

1. It is not the duty of a railroad conductor to examine the cars turned over to him before taking them out on a train, where a car inspector is employed at the station by the railroad company.

¶ 1. See Master and Servant, vol. 34, Cent. Dig.§ 714.

2. Const. art. 9, § 15, providing that knowledge of defects in machinery shall be no defense in an action for injuries caused thereby, except as to conductors in charge of unsafe cars voluntarily operated by them, a conductor is not barred of his right to recover for injuries arising from defective cars, unless he would have regarded them as dangerous or unsafe if he had exercised ordinary prudence.

3. It is the duty of a freight conductor, after starting with a car and discovering defects in it, to exercise his best judgment as to whether he should carry it in his train or not.

Gary, A. J., and Jones, J., dissenting in part.

Appeal from Common Pleas Circuit Court of Laurens County; Watts, Judge.

Action by Walter E. Barksdale against the Charleston & Western Carolina Railway Company. Prom a judgment for plaintiff, defendant appeals. Affirmed.

S. J. Simpson and Simpson & Cooper, for appellant.

N. B. Dial, for respondent.

WOODS, J. The plaintiff in this action claims damages against the defendant, alleging that the defendant delivered to him, as one of its freight conductors, for transportation from Augusta, Ga., to Greenwood, S. C, a car old, worn out, and with flat wheels, and negligently loaded by defendant with lumber in an insecure and unsafe manner, with only two standards on each side, and with improper appliances and equipments; that, by reason of the defective cars and appliances and improper loading, the lumber became loose and disarranged, and was about to derail the train to which the car was attached, and cause a wreck; that, the train being without a bell cord or signal, or means by which he could stop it, plaintiff undertook to arrange the lumber so as to prevent disaster, and to save the lives of the railroad's employés and its property, and while so engaged the lumber was thrown against him, by reason of which he suffered great bodily injury. There were other allegations, not essential to the decision of the case as now presented. The defendant denied negligence on its part, charging the plaintiff's injury was caused by his own neg ligence, and further alleged that, if the injury was caused by any negligence of defendant, plaintiff contributed to it, and so could not recover. At the close of plaintiff's case, defendant moved for a nonsuit, "First, on the ground that it appears clearly from the testimony that whatever defects there were in the car in this loading were well known to the plaintiff; second, that the facts which have appeared here from the testimony of plaintiff, to my mind, show beyond a question that the plaintiff, even if the defendant was guilty of negligence, was himself guilty of contributory negligence, and therefore he cannot recover; third, that he had such knowledge of these defects."

The plaintiff had testified, in substance, that he did not examine the car before he left Augusta, it not being his duty to do so, because at that point the company had car inspectors; that he knew nothing of defects until after leaving Augusta, but carried the car several stations after he discovered them, thinking the trouble not serious enough to warrant him in dropping the car. The plaintiff further said it would have been a great deal safer if he had stopped trying to arrange the lumber when he saw it would not strike a car on the siding which the train was then passing, and that, if he had not continued in this, he thought the accident would not have occurred. It is on this testimony, as we understand, the motion for a nonsuit was based. If the defendant did not usually require its freight conductors at Augusta to examine the cars, but imposed that duty on another officer, then it is manifest the plaintiff could not be charged with negligence for failing to examine and ascertain the defects before taking the car, and the nonsuit could not be granted on that ground.

Nor do we think the motion should have been granted on the ground that plaintiff failed to cut out and leave it at a siding after he discovered the defects. The Constitution provides (article 9, § 15): "Knowledge of any employee 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, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them." It will be observed that in the first line of this section the terms used are "defective or unsafe, " while, in the exception made as to conductors and engineers, they are "dangerous or unsafe." A conductor, therefore, is not precluded from recovering for an injury arising from voluntarily operating a defective car, unless it is so defective as to be dangerous or unsafe. This exception in the Constitution, we think, did not in any way change the limitation before existing upon the right of recovery of conductors and engineers for injuries arising from defects in engines and cars known to them. It wasnot the law before the adoption of the Constitution, and it was not made the law by the clause above quoted, that an engineer or conductor carries forward his train at his peril, on the discovery after he has started on his trip of any defect in his engine or cars which could possibly produce injury. Even slight defects under unforeseen conditions may produce disaster, but they could not for that reason be judicially declared sufficient to make the car or engine unsafe or dangerous. To defeat the claim of a conductor or engineer for injury in cases of this character, the knowledge must be of defects which the conductor or engineer believed to be dangerous or unsafe, or which he ought to have regarded dangerous or unsafe, in the exercise of ordinary prudence and reason. Any other view would not only be straining the meaning of words, but would be unreasonable, and result in an intolerable hardship both to the public and those charged with the conduct of railroads, for it would require an engineer or conductor, upon discovery of any slight defect of machinery, to stop his train or proceed at his peril. 1 Shearman & Redfield on Negligence, §§ 211, 214; Lasure v. Mfg. Co., 18 S. C. 280; Snow v. R. Co., 8 Allen, 441, 85 Am. Dec. 720; Parker v. R. Co., 48 S. C. 384, 26 S. E. 609; Bussey v. R. Co., 52 S. C. 443, 30 S. E. 477; Bodie v. R. Co., 61 S. C. 478, 39 S. E. 715. The true rule is well stated in Hurst v. R. Co., 163 Mo. 309, 63 S. W. 695, 85 Am. St. Rep. 539: "When an employe has full knowledge of the risks of his situation, and accepts them, he assumes such risks as are incident to their discharge, and, if subsequently injured by such risks, he will not be entitled to recover damages for injuries sustained in consequence thereof, against his master, unless 'it was not so dangerous as to threaten immediate injury, or if he might have reasonably supposed that he could safely work about it by the use of care and caution.' " It was therefore a question for the jury to determine whether the defects in the car which the plaintiff says he discovered after he started on his trip were such that he regarded the car dangerous or unsafe, or such that he ought to have so regarded it in the exercise of ordinary prudence and judgment. If the defects were of this character, and the plaintiff was in charge of the car, and could have dropped it before the accident, he could not recover. The presiding judge could not determine this inquiry, and the motion for nonsuit was properly refused.

It is unnecessary to discuss any duty of the plaintiff as conductor to look out for and discover the alleged defects in the car after it left Augusta, for the plaintiff testified he actually did discover them before the accident occurred.

It follows, from the views expressed in considering the motion for nonsuit, that the exceptions to the charge covered by the second and fifth grounds of appeal, and the third ground of appeal down to and including subdivision "b, " must be overruled.

The presiding judge instructed the jury; "If it was the duty of the conductor to make up his train in the city of Augusta, and see that everything was in good order and that the cars were properly loaded, and if plaintiff in this case was the conductor, and it was his duty, in the city of Augusta, to see that everything was in good shape (in good order) when he left there; if he had knowledge of the fact that the cars were unsafe and unsuitable and dangerous—if he had knowledge of that fact, and moved those cars, then he assumed the duties incident to his office, being conductor, and he cannot recover. But if the duty was imposed upon the railroad authorities, and such authorities loaded that car and turned it over to him, and it was not his duty to investigate as to whether everything was safe and suitable and in good order (the train which was turned over to him in the city of Augusta loaded by the officials there), then the conductor had a right to assume that safe and suitable appliances had been furnished, that the car turned over to him was properly loaded, and that the machinery to run it was safe, and that the appliances were safe and suitable." This was all appellant could ask as to the plaintiff's duty before leaving Augusta, but it does not cover his duty after the discovery of defects on the journey. The portion of the charge quoted would, I think, convey the impression to the Jury that the plaintiff might continue to assume the car was not dangerous even after he had discovered on his journey the alleged defects, and it negatives the idea that he owed any...