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

• Decision Date: 08 October 1907
• Citation: 58 S.E. 1015,78 S.C. 352
• Parties: BUSSEY v. CHARLESTON & W. C. RY. CO.
• Court: South Carolina Supreme Court

58 S.E. 1015

78 S.C. 352

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

Supreme Court of South Carolina

October 8, 1907

Appeal from Common Pleas Circuit Court, of Edgefield County; R Withers Memminger, Judge.

Action by Elizabeth J. Bussey, administratrix of John C. Bussey deceased, against the Charleston & Western Carolina Railway. Judgment for plaintiff. Defendant appeals. Affirmed.

S. J Simpson and Sheppard Bros., for appellant.

J. Wm Thurmond and James H. Tillman, for respondent.

POPE C.J.

This action was brought in July, 1905, by the plaintiff, Elizabeth Bussey, as administratrix of John C. Bussey, deceased, against the defendant railway company, to recover damages for the alleged wrongful death of the intestate herein. The deceased was in the employment of the defendant railway as a section master, having under his control a section of road reaching from the neighborhood of Woodlawn, a station just on the south side of the Savannah river, to Lulaville, a station in Georgia. On the 25th of February, 1905, deceased, together with his men, were on the road working towards Augusta. They stopped at Woodlawn, where, according to the testimony introduced by the plaintiff, they had dinner, and, Mr. Bussey having learned from the agent at this place that the track was clear, they continued their work up the road. After leaving Woodlawn some distance, they were proceeding around a curve in the road, their hand car moving upgrade at the rate of 20 miles an hour, when they were run into by an extra freight train, and Bussey was killed. The plaintiff alleged negligence on the part of the defendant in not notifying the deceased of the approach of the extra train; in failing to blow the whistle at Snead's Crossing, a public crossing three-fourths of a mile from the scene of the accident; in coming around the curve at a high rate of speed without having the train under control; failure to blow at the curve, as was customary; and, finally, failure of the engineer to apply the brakes and stop the train before striking the car of deceased. The defendant denies that it was negligent in any of the above particulars, and alleges that it was not its duty to give deceased notice of the extra train, and that his injury was caused by his own negligence in not sending a flagman ahead, as he, according to the rules under which he was employed, was bound to do. The case came on for hearing at the October, 1906, term of court for Edgefield county. Judge Memminger having refused defendant's motion for a nonsuit, the case went to the jury and resulted in a verdict of $15,000 for the plaintiff. Thereupon defendant made a motion for a new trial, and, it also having been refused, it now appeals to this court, alleging error in a number of particulars.

In disposing of the exceptions, the first question naturally arising is whether or not the rule requiring section masters to send ahead flagmen had been abrogated. The plaintiff introduced evidence in reply tending to show an accustomed disregard of the rule. Whether this evidence was admissible depends upon the fact whether the disregard was brought home to the defendant company. Certainly secret and occasional violations of the rule by employés are not admissible to prove its abrogation. 20 Am. & Eng. Ency. 107, and authorities; Binion v. Railway, 118 Ga. 282, 45 S.E. 276. It must be shown that the failure to observe such regulation is sufficiently well known to the master to raise the presumption that by acquiescence in its violation the rule had been annulled. In this, as in all other cases, knowledge of the representative is knowledge of the master, and therefore if knowledge is brought home to such representative, and such acquiescence on his part is shown, the rule cannot relieve the master. Railway Co. v. Collarn, 73 Ind. 261, 38 Am. Rep. 134; Baulec v. Railway, 59 N.Y. 356, 17 Am. Rep. 325; 20 A. & E. Ency. 108. The evidence here objected to tended to show an accustomed disregard of the rule by all section masters, and that even Stillwell himself, who was the road master, and whose duty it was to furnish rules and supervise the work of his division, regularly traveled without sending flagmen ahead. We think the only reasonable inference from the testimony is that Stillwell had notice of the violation of the rule. His duties, being those of the master, made him the representative of the master. Therefore his knowledge was the master's knowledge. The purpose of the evidence was to show that the rule was constantly violated by both the servants and the representative of the master; that it was so universally disregarded that the only reasonable inference was that the master had notice of and acquiesced in the violation. This being so, even granting that the rule was promulgated by Kenley, the result would not be effected. The question here is: Was the violation of the rule brought to the knowledge of the master, and did he acquiesce in it? Its determination was for the jury. It is quite true that rules are necessary for the conduct of the complex business of railroads and should be given effect. No organization composed of many departments can be successfully managed where there is an absence of system and regulation. Where such rules are established and promulgated in some reasonable way, and employés have knowledge of them, they are binding, and the duty devolves upon employés to obey them. Many rules are, however, adopted which, when they are attempted to be put into practice, prove impracticable, and without being expressly revoked they are allowed to be constantly violated. Such abrogated rules cannot in a true sense be regarded as rules, and employés are not guilty of negligence in violating them. They are not a scale by which servants' acts are to be measured as to whether or not they are negligent. Care and diligence are not governed by them. Pa. Co. v. Roney, 89 Ind. 453, 46 Am. Rep. 173; 1 Labatt on Master and Servant, pp. 315, 511. We are of the opinion therefore that the evidence was properly admitted, and that the court was correct in leaving it to the jury to decide whether the rule had been abrogated.

Under this view, if the jury found that the rule was not abrogated then the question as to the reasonableness of the rule becomes important. Was it proper to submit this question to the jury? There seems to be much conflict of authority on this subject. In volume 1, at page 508, of his work on Master and Servant, Labatt says: "Whether reasonableness of a rule is a question for the court or the jury is one as to which there is much conflict of authority. One theory is that the question is always for the court; the reason for this view being that it would otherwise be impossible to secure a uniformity of view or to insure the rule pronounced unreasonable by another jury in a subsequent case. Another view is that the question is primarily one for the jury. Some courts have enunciated an intermediate doctrine which seems to be more in harmony with general principles, viz., that reasonableness of a rule is a mixed question of law and fact, except in plain cases." The rule is thus laid down in 20 A. & E. Ency. 104: "Rules adopted by employers engaged in a complex and dangerous business are presumably selected as the best for avoiding injuries to their employés, and unless clearly shown to be unreasonable and insufficient the master should not be charged with negligence in adopting them. *** Whether or not a rule adopted by the master for the conduct and government of his employés is reasonable is a question of law for the court." In Elliott on Railroads, § 202, we find: "The reasonableness of such regulations and the manner of their enforcement in a given case has been held by some of the courts to be a question of fact for the jury. But it would seem that this must be a question of law for the courts to decide, if any fixed or permanent regulations are to be established, and the better authority holds it to be such, since one jury in a given case might pronounce the rule reasonable, while another jury in another case might decide the rule to be unreasonable. *** There are many cases in which the reasonableness of the rule depends, in the particular instance, upon disputed facts and circumstances, and where this is true it may perhaps be called a mixed question of law and fact; but, when the facts are undisputed, we think it clear both upon principle and according to the weight of authority that the question is one of law for the court." Again, Thompson, in his work on Trials, says, at section 1057: "Whether a certain rule of a railway corporation is reasonable, and therefore valid, is a question of law for the court; the general rule being that the reasonableness of the by-laws, rules, and regulations of corporations, whether private or municipal, is to be decided as a question of law. And it is improper to submit the question of the reasonableness of such a by-law, ordinance, or regulation to the jury for decision." The practice in our state seems to be in accord with these authorities. Broom v. Tel. Co., 71 S.C. 506, 51 S.E. 259; State v. Earle, 66 S.C. 202, 44 S.E. 781; Gideon v. Enoree Mfg. Co., 44 S.C. 442, 22 S.E. 598. Therefore the plaintiff must show that there was an issue of fact raised to entitle the submission of the question to the jury. In her endeavor to do this, she contends that the defendant after putting the rule in evidence produced witnesses to prove the necessity, which is practically identical with the reasonableness of the rule; that reply was made by the plaintiff, and thus an issue of fact was clearly raised. This point is not well taken. We are unable to see where the disputed fact or facts come in. The evidence introduced by the defendant was merely the expert...