Carson v. Southern Ry. Co.

• Decision Date: 26 December 1903
• Citation: 46 S.E. 525,68 S.C. 55
• Parties: CARSON v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

46 S.E. 525

68 S.C. 55

CARSON v. SOUTHERN RY. CO. et al.

Supreme Court of South Carolina

December 26, 1903

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

Action by J. L. Carson against the Southern Railway Company, J. C Arwood, and J. D. Miller. From a judgment for plaintiff defendant Southern Railway Company appeals. Affirmed.

T. P Cothran, for appellant. McCullough & McSwain, for respondent.

POPE C.J.

This action was commenced in the court of common pleas for Greenville county, in this state, to recover damages on account of personal injuries received by the plaintiff at Converse, S. C., August 16th, in the year 1902, to wit, the plaintiff's arm was crushed between two cars (while in the service of the defendant) which he was attempting to couple, and was amputated. The defendant demurred to the complaint because it failed to state facts sufficient to constitute a cause of action. This was overruled. The defendant objected to testimony, which objection was overruled. The defendant moved for a nonsuit at the close of plaintiff's testimony in chief. This motion was overruled. The defendant objected to the charge of the circuit judge. The defendant moved for a new trial, which motion was denied. The defendant then moved in arrest of judgment, and this motion was refused. The defendant then, and lastly, made a motion for the circuit judge to direct a judgment in its favor on the verdict. This was denied. The verdict was in favor of the plaintiff for $6,500. After entry of judgment, the defendant appealed, alleging error in all the matters or steps in the trial above enumerated. To understand these exceptions, it may be stated that the defendant has numbered its exceptions from 1 to 48, inclusive, and we will treat these exceptions in the same way. Inasmuch as the first eight exceptions complain of the order of the circuit judge overruling the demurrer, it will be proper to reproduce the complaint, which is as follows:

"(1) That the defendant Southern Railway Company is a railway corporation chartered under the laws of the state of Virginia, and as such is, and was at the times hereinafter mentioned, doing business in the counties of Spartanburg, Greenville, and other counties of the state of South Carolina, as a common carrier of passengers, and also of freight; running its railroad track and trains, both passenger and freight, in and through the said counties of Spartanburg, Greenville, and other counties in the said state.

(2) That the defendants J. C. Arwood and J. D. Miller are now, and were at the dates hereafter mentioned, citizens and residents of Greenville county, state of South Carolina.

(3) That the plaintiff is a resident of the county and state aforesaid, is thirty-five years of age, and has a wife and four children dependent upon his daily labor for support; his eldest child being twelve years of age.

(4) That since December 8, 1901, plaintiff was in the employ of the defendant Southern Railway Company, and was on that day assigned the duties of flagman, and on the 15th day of August, 1902, was assigned by defendant to duty on a freight train belonging to the defendant Southern Railway Company, in charge of its agents and employés, known as second section of No. 43, and running between Spencer, North Carolina, and Greenville, South Carolina, and plaintiff was assigned the duty of flagman on said freight train.

(5) That plaintiff entered upon and performed the duties of such position, and on the 16th day of August, 1902, was ordered by the conductor in charge of said freight train, and whose orders he was required to obey, to do the work of a brakeman on the said freight train; the regular brakeman on the said train having been assigned other duties.

(6) That while the said freight car was at the station known as Converse, in Spartanburg county, state aforesaid, the right arm of plaintiff was crushed by a collision of two freight boxes, whereby plaintiff suffered great and excruciating pain and mental anguish, and, as a result, lost entirely the said right arm, which had to be amputated, and that said collision and injury which plaintiff sustained by reason thereof were due to the joint and concurrent negligence, carelessness, and fault of the defendants, and to their joint and concurrent recklessness, carelessness, willfulness, and wanton disregard of the plaintiff's rights and safety, in the following manner, to wit: That between Charlotte, North Carolina, and Greenville, South Carolina, at the said station of Converse, said freight train of the said defendant Southern Railway Company stopped for the purpose of shifting to the side track of the said defendant Southern Railway Company, which side track was upon a steep grade, and near the main line of defendant company, five freight cars or boxes. That there were at that time standing upon the side track three other freight cars or boxes, and, in order to prevent the said cars or boxes from rolling down the said deep grade, it was necessary to couple the said three cars or boxes to be shifted and left upon the said side track, and this plaintiff was directed by the defendants to make the said coupling. That the defendant J. C. Arwood was conductor, and the defendant J. D. Miller was engineer, upon the said freight train. That the said freight boxes or cars were provided with what is commonly known as automatic couplers, and, when said couplers are in good condition, it is unnecessary for one, in order to make the said coupling, to go between the said cars; but the said couplers worked with a pin and iron crank, the handle of which iron crank projects to the side of the said boxes or cars, and the said pin by which the said cars are coupled is manipulated by using the said crank. That after having effectually made one coupling between the said cars, as directed by the defendants, plaintiff approached to make the other coupling, as directed by the defendants; and before doing so he warned the defendants to hold said car steady until he (the plaintiff) was ready to make such coupling, and until plaintiff should so signify. That, when plaintiff reached the said car, then to be coupled, he ascertained that the coupling pin was out of, and lying upon, the drawhead of the coupler, and thereby ascertained that the said coupler was out of order, in that when the said coupler is in proper condition there is what is known as a cotter pin running through the said coupling pin at the lower end, thereby preventing it from being drawn entirely out of the said drawhead, and the defendants knew, or ought to have known, that the said coupling pin was out of order; and this fact made it necessary for the plaintiff to go between the said cars for the purpose of adjusting the said pin with his hand, and to carry out the order of the defendants, since he could not, while it was in that position, adjust it with the iron crank above described; and this plaintiff went between the said cars for the purpose of adjusting the said pin in order to make the said coupling, and as he was directed by the said defendants, when he heard the cars of said train in motion and knocking together before he had effected the said coupling, or had sufficient time to do so, and, in order to save himself from being crushed between the said cars, the plaintiff

attempted to get out from between the said cars on which he was engaged in the work of coupling, and, as he did so, his right arm was caught between the dead blocks of the said freight cars, between which he was standing, and was horribly mangled. That, at the time plaintiff heard the cars in motion, he had only time to go between the cars, and had placed his left hand upon the iron crank, and his right hand upon the pin, for the purpose of placing it in the proper position, and had not had time to place the pin in proper position, or to couple the said cars. That the defendants, by their joint and concurrent negligence, and by their joint and concurrent carelessness, recklessness, wantonness, negligence, and willfulness, backed the said engine, to which was attached the said freight cars, without any signal or warning from this plaintiff, and without giving this plaintiff time to effect the coupling of the said cars, and without giving this plaintiff any notice or warning whatsoever that the said engine and cars were to be moved.

(7) That, in consequence of the said injury, it was necessary to amputate plaintiff's right arm just below the elbow, and in consequence of the said injury and amputation plaintiff has suffered great mental anguish and pain, and has been deprived of the use of his strong right arm for the support of himself and family, all to his damage $15,000."

The exceptions are as follows, as relating to the demurrer:

"(1) The error of the presiding judge in overruling the demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.

(2) Error of the presiding judge in not sustaining the first ground of demurrer to the complaint, which was as follows 'The complaint does not show negligence on the part of the defendants, or either of them.'

(3) Error of the presiding judge in not sustaining the second ground of demurrer to the complaint, which was as follows: 'The complaint shows contributory negligence on the part of plaintiff.'

(4) Error of the presiding judge in not sustaining the third ground of demurrer to the complaint, which was as follows: 'So far as the allegation of negligence in regard to the absence of the cotter pin (defective machinery appliances) is concerned, the complaint does not show that the injury complained of resulted therefrom as a proximate cause thereof.'

(5) Error of the presiding judge in not sustaining the fourth

...