Betchman v. Seaboard Air Line Ry.

• Citation: 55 S.E. 140,75 S.C. 68
• Parties: BETCHMAN v. SEABOARD AIR LINE RY.
• Decision Date: 16 August 1906
• Court: South Carolina Supreme Court

55 S.E. 140

75 S.C. 68

BETCHMAN v. SEABOARD AIR LINE RY.

Supreme Court of South Carolina

August 16, 1906

Appeal from Common Pleas Circuit Court of Lexington County; Gage Judge.

Action by Walter P. Betchman, administrator of John Betchman against the Seaboard Air Line Railway. Judgment for plaintiff. Defendant appeals. Affirmed.

Lyles & McMahan and Efird & Dreher, for appellant. W. Boyd Evans Lawson D. Melton, and E. M. Thomson, for respondent.

GARY A. J.

This is an action at common law to recover damages for the alleged wrongful death of John Betchman plaintiff's intestate. The complaint alleges: That on the 21st of December, 1903, John Betchman was in the employ of the defendant as a night watchman or flagman, in the city of Columbia, at the intersection of Gervais and Lincoln streets, where the car line of the Electric Railway Company crosses the main line and side tracks of the defendant. That, among the duties of the plaintiff's intestate, it was incumbent on him to give warning of the approach of any trains over the main line or side track of the defendant, and in doing so it was necessary to watch for street cars, vehicles, and pedestrians approaching and passing over said crossing, which is one of the most frequented and hazardous in the city. That while so engaged, between the hours of 8 and 9 o'clock in the evening of said day, he was killed by defendant's train of cars. That the cause of the death of said deceased was the negligence, recklessness, and wantonness of the defendant; (1) in that it was backing its train of cars at an unlawful and reckless rate of speed, in violation of an ordinance of the city; (2) without any lights to give warning of its approach; (3) without ringing the bell or blowing the whistle; (4) without maintaining a proper lookout; and (5) without using due care or caution on the occasion. The answer was a general denial. At the close of plaintiff's testimony the defendant made a motion for a nonsuit which was refused. The jury rendered a verdict in favor of the plaintiff for $1,500, and the defendant appealed.

The first and second exceptions assign error in refusing the motion for nonsuit. The first ground of the motion for nonsuit was that "the deceased being a watchman, charged specially with watching this crossing of the Seaboard Railway and the street railway, and the street, the failure to give the statutory signals, or even the violation of the speed ordinance of the city, would not be a violation of duty as to him, which would be the approximate cause of the injury to him." The second ground was that the plaintiff's intestate had notice of the approach of the train, and that the failure to give the signals was not, therefore, the cause of the injury.

1. Before proceeding to consider these exceptions, it may be well to determine what issues were raised by the pleadings. The answer does not interpose either the defense of assumption of risk or contributory negligence. When a person enters into the employment of another as a servant, he assumes, in law, those risks that are ordinarily incident to the service. In an action by the servant for damages sustained through the alleged negligence of the master, the latter may show, without pleading the facts as a defense, that the injury was the direct and proximate result of an ordinary risk, as such risks are presumed to have been within the contemplation of the parties, when they entered into the contract, and testimony to that effect tends directly to refute the allegation of negligence. When, however, the defendant relies upon facts occurring after the parties had entered into the agreement to show that the plaintiff had, by his conduct, assumed the risk which caused the injury, such facts must be set forth as a defense, as they are in the nature of a plea of confession and avoidance. Montgomery v. Railway, 74 S. C.__, 53 S.E. 987. The general rule in regard to contributory negligence is that it must likewise be pleaded as a defense. Under the pleadings in this case, the defendant is not entitled to the benefit of either the defense of assumption of risk or contributory negligence.

2. There was testimony tending to sustain each specific act of negligence alleged in the complaint, and ordinarily this would be a sufficient reason for refusing the motion for nonsuit. There is one instance, however, in which the court will grant a nonsuit, although there is testimony tending to prove the allegations of the complaint,...