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

• Decision Date: 06 September 1901
• Citation: 39 S.E. 715,61 S.C. 468
• Parties: BODIE v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

39 S.E. 715

61 S.C. 468

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

Supreme Court of South Carolina

September 6, 1901

Appeal from common pleas circuit court of Greenwood county; Benet Judge.

Action by Josiah W. Bodie against the Charleston & Western Carolina Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.

S. J Simpson and Sheppard & Grier, for appellant.

Caldwell & Park and Graydon & Giles, for appellee.

JONES J.

This appeal comes from a verdict and judgment in favor of plaintiff in an action for damages for personal injuries alleged to have been sustained through defendant's negligence in failing to furnish an adequate force of laborers to do the work required of plaintiff, as section track foreman, in the hauling and piling of steel rails, after application for additional help by the plaintiff, and promise by defendant to supply the same. The sixth paragraph of the complaint alleged: "(6) That on the 15th day of February, 1900, while the plaintiff, in compliance with the orders of the defendant, was trying, with the assistance of his three hands, to carry one of the said steel rails up an embankment for the purpose of loading it on his car, and hauling and piling it, as aforesaid, one of his said hands was entirely overcome and exhausted by the great weight of the said steel rail, on account of the failure of the defendant to furnish a sufficient force to carry the same, and fell to the ground, thereby causing the whole weight of one end of the said steel rail to be thrown on the plaintiff, by which his right leg was knocked out of place his back injured, and a great strain put upon his whole body, causing a lesion of his kidneys and other internal organs." Besides the general denial, the defendant interposed as special defenses contributory negligence and assumption of risk after knowledge. The numerous exceptions of appellant will be considered under the subject heads following:

1. Amendment to Answer. On motion of the defendant (appellant), over the objection of plaintiff (respondent), the circuit court permitted defendant to amend the answer by inserting the following: "(8) That the said plaintiff went about the work in which he was engaged when he alleges to have been injured with full knowledge of the manner in which said work was to be done, and of all the facts and circumstances connected therewith; that he directed the said work, and assumed all risks incident thereto." Plaintiff's counsel objected to this amendment under section 15, art. 9, Const., which provides: "Knowledge by any employee injured of the defective or unsafe character or condition of any machinery, ways or appliances of any machinery, 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." The circuit court, in allowing the amendment, said that the first portion would be objectionable, but the additional clause, "and the plaintiff assumed all the risks," etc., is sufficient to permit its allowance. Upon this appellant predicates the third exception, which assigns error (1) in holding that such amendment was permitted for the purpose of alleging assumption of risk only, and not for the purpose of setting up the defense that the defendant had knowledge of the alleged shortness of hands, and that such knowledge was a bar to his recovery; and (2) in holding that the allegations of negligence here come within the word "appliances," as used in section 15, art. 9, Const. This exception cannot be sustained for several reasons. Appellant, having been granted what was asked for, cannot complain, whether the remarks accompanying were correct or not. Since the defense of assumption of risk must necessarily be based upon the employé's knowledge, either actual or constructive, we are unable to see wherein appellant has been prejudiced, whatever may be the correct view as to the meaning of the term "appliances," as used in the section of the constitution referred to. But, as we will show hereafter, the term "appliances," in section 15, art. 9, of the constitution, includes a force of hands sufficient to operate the machinery, etc., and, if there was error in the ruling of the circuit court, it was in allowing the amendment at all.

2. The Admissibility of Certain Testimony. The first and second exceptions assign error in allowing the plaintiff, Bodie, to testify as to damages to his eyesight, when there was no allegation in the complaint asking damage for such injury. The complaint alleged that plaintiff's "right leg was knocked out of place, his back injured, and a great strain put upon his whole body, causing a lesion of his kidneys and other internal organs." The circuit court admitted the testimony as to impairment of eyesight in so far as it tended to show a result or effect of the internal injuries alleged. This was not error, as shown by the recent case of Youngblood v. Railroad Co., 60 S.C. 14, 38 S.E. 232.

3. Refusal of Nonsuit. The fourth, fifth, and sixth exceptions allege error (1) in that there was no evidence that the failure to furnish a sufficient force of hands was the proximate cause of the injury; (2) in that the evidence showed that the proximate cause of the injury was the accidental fall of a fellow servant: (3) in that the evidence showed that plaintiff, with knowledge, assumed the risk of the injury alleged. These grounds were all satisfactorily disposed of by the circuit court in refusing the motion, in accordance with the well-settled rule in this state that nonsuit should not be granted when there is any evidence tending to establish the allegations of the complaint.

4. Negligence. The eighth exception complains of the charge to the jury in reference to the matter of negligence. The jury was charged: "Negligence simply means want of due care. That is a very short definition. If you weigh each word, you will find that that contains the whole doctrine,--want of due care; not simply want of care, but want of due care. From its very nature, negligence may consist in the doing something which should not have been done. Negligence may also consist in leaving undone that which ought to have been done. It may therefore, be a fault of omission as well as a fault of commission. [It is impossible for the court to furnish a jury with a hard and fast measure of care, the presence of which, or the exercise of which, would drive away the idea of negligence, the absence of which would mean the presence of negligence. There is no such hard and fast rule which can be applied by a jury like a foot rule or a bushel measure; but there is a general principle which underlies the doctrine of negligence, and shows sufficiently clearly the measure of care proper in each particular case, and it is this: The greater the probability of danger in the particular circumstances, the greater is the required degree of care, because the measure of care naturally varies in the different circumstances. For example, a man cutting wood with an ax must exercise a proper amount of precaution to guard against other people that may be near him; but a man who is blasting rock with dynamite, since there is much greater danger in handling that explosive than in holding an ax, is required to exercise a much greater degree of care. Due care in handling an ax in cutting wood would not be a sufficient measure of care in handling dynamite and blasting rock. But this shows you that the jury in each particular case has to establish from the testimony in the case exactly the measure of care which should have been exercised under the circumstances, and it is just that amount of care which would or should have been exercised by a man of ordinary intelligence and prudence. Your common sense and intelligence will guide you, in deciding by the testimony] in the case what amount of care should have been exercised by the railway company in the circumstances detailed in the testimony, and also will show you what amount of care should have been exercised by Bodie, the plaintiff, under the circumstances detailed, when you are considering the subject of contributory negligence; and I repeat it is just that degree of care which a man of ordinary intelligence, common sense, and prudence should have exercised under the same or similar circumstances; not absolute care, not the utmost care to guard against a possible danger, but only reasonable care, due care, that amount of precaution proper to guard against the probable danger." The exception is to that portion of the charge above which is within the brackets, and the specific errors assigned are: (1) That the jury were instructed that in some cases a higher degree of care than due care is necessary to exempt from liability; and (2) the charge left to the jury the legal question, what degree of care was necessary in this case? We do not think the charge is amenable to either objection. The learned circuit judge, by his language and illustration, merely meant to show the jury that "negligence" is a relative term when applied to different cases or sets of circumstances, and that the care or caution required in one case may be greater or less than the care or caution required in another; but the jury were plainly instructed that in any particular case or set of circumstances the law enjoined the duty of observing the care due under such circumstances, and the court did not instruct the jury that in any case the law required a higher degree of care than due care. The jury were further instructed that the measure of the care due in any particular case was "that amount of care which would or should have been exercised by a man of ordinary intelligence and prudence," or "that degree of care which a man of ordinary...