Cato v. Atlanta & C. Air Line Ry. Co, No. 12858.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtBLEASE
Citation152 S.E. 522
PartiesCATO. v. ATLANTA & C. AIR LINE RY. CO. et al.
Docket NumberNo. 12858.
Decision Date15 March 1930

152 S.E. 522

CATO.
v.
ATLANTA & C. AIR LINE RY.
CO. et al.

No. 12858.

Supreme Court of South Carolina.

March 15, 1930.


Appeal from Common Pleas Circuit Court of Spartanburg County; P. D. Barron, Special Judge.

Action by Mrs. Verna Cato, administratrix of the estate of O. C. Cato, deceased, against the Atlanta & Charlotte Air Line Railway Company and another. Judgment for plaintiff, and defendants appeal.

Reversed and remanded for a new trial.

De Pass & Wrightson, of Spartanburg, and Frank G. Tompkins, of Columbia, for appellants.

Evans & Galbraith and Nicholls, Wyche & Byrnes, all of Spartanburg, for respondent.

BLEASE, J.

This action arose on account of the death of O. C. Cato, the respondent's intestate, who was killed on November 6, 1926, as the respondent alleged, by the negligence of the appellants, railroad companies.

The complaint, as originally brought, contained only one cause of action, and recovery of damage was sought under the laws of this state. To that complaint, the appellants, in their answer, alleged that at the time of the injuries sustained by Cato, which resulted in his death, he and the appellants were engaged in interstate commerce, and the appellants claimed the benefit of the provisions of the Act of Congress known as Federal Employers' Liability Act (45 USCA §§ 51-59). By leave of the court, and with the consent of the appellants, the respondent served an amended complaint setting up a second cause of action under the Federal Employers' Liability Act.

The intestate was in the employ of the appellants as a car repairer in the Hayne Yards near Spartanburg. On the day intestate was injured and killed, the general foreman, Watson, ordered Davis, the working partner of Cato, to get the latter, go by the blacksmith shop, get a carry arm, and to repair a certain baggage car then on track No. 10 in the yards. It was necessary for Cato, in repairing the car, to go underneath the same for the purpose of placing a bolt, or some other appliance, while the other men working with him lifted the drawhead on the end of the car. While so engaged, a locomotive, or shifting engine, of the appellants entered the track where the baggage car was standing, and this locomotive coupled to and pushed a cut of 52 cars, to which the baggage car was attached, it being the end car, over Cato and caused his death a few hours later. At the time of the accident, there was no signal indicating that workmen were under the car.

[152 S.E. 523]

Neither deceased nor Davis posted a blue flag at either end of the cut of cars.

The allegations of negligence charged against the appellants by the respondent were the same in both causes of action. She averred that the death of the intestate was due to the negligence, willfulness, and wantonness of the appellants in these particulars: In causing the locomotive to collide with the car under which Cato was working without notice and shoving the car over his body; in failing to provide him a safe place in which to work, although the extra hazards and dangers to which he was exposed were known; in failing to place upon its locomotive a proper lookout or to ascertain that the car under which the deceased was working was in proper condition to be moved, or that workmen were present and engaged in repairing the same; in failing to station a guard or lookout at the ends of the car, or to protect him in any way by flags or signals from the dangers which appellants knew to exist, although it was their duty; that, effective March 1, 1926, the appellants entered into an agreement with the Brotherhood of Railway Carmen of America, which, according to its terms, was effective at the time of the death of respondent's intestate and at the commencement of this action, and that intestate was a member of said association at the time of his injury and death, and that the appellants' failure to furnish the protection contained in said agreement known as paragraphs 157 and 158 (set forth later) thereby caused his death.

The appellants, after pleading a general denial, defended the action on these grounds: At the time of his death, Cato was careless, negligent, willful, and wanton, because, contrary to the rules and regulations of appellants, he went into track No. 10 to repair a damaged baggage car without placing blue flags or any other signals to indicate to other workmen his presence, and although he knew, or ought to have known, that the switch engine was likely to come into this track at any time and shift the cars thereon, and although he knew he should not have attempted to do any work without first protecting himself, and that his negligence and willfulness combined and concurred with any negligence or willfulness on the part of the defendants as a proximate cause of his injury; that his injury and death were due to one of the risks assumed by him in taking employment as a car repairer, in attempting to repair a car without protecting himself by placing blue flags at each end of the cut of cars where he was working, although he knew that the same would have protected him, and although he knew that a switch engine was likely to come into said track at any time; and that his injury and death were due to the risks which he assumed incident to his employment and to his acting as he did at the time of his death; and that the risks so assumed were not due to appellants' violation of any statute enacted for the safety of their employees.

The cause was tried in the court of common pleas for Spartanburg county before Hon. P.

D. Barron, special judge, and a jury, and resulted in a verdict for the respondent on the first cause of action.

At the close of the evidence for the respondent, the appellants moved for a nonsuit as to both causes of action. The grounds of the motion as to the second cause of action, which was brought under the Federal Employers' Liability Act, were that there was no proof that the injury to, and the death of, the intestate resulted from any willfulness or negligence of the appellants in any of the particulars mentioned in the statute; that the entire evidence showed that the injuries and death of the intestate were due solely to his own acts of willfulness and carelessness; and that the injury and death resulted from risks assumed by the intestate. The same grounds were set up in the motion as to the first cause of action with the addition of another ground, to wit, that the evidence showed, as a matter of law, that Cato was guilty of such contributory negligence as to bar recovery. The motions were refused.

At the close of all the evidence, the appellants moved for directed verdicts in their favor as to both causes of action on the same grounds before stated, and these motions were likewise refused. The presiding judge, however, took the view that there was no evidence showing that Cato, at the time of his injuries and death, was "engaged in work on a car engaged in interstate commerce, " and, with the consent of the respondent, granted a nonsuit as to the second cause of action; thereby he submitted to the jury the issues raised by the complaint and answer as to the first cause of action only.

In their appeal to this court, the appellants present nineteen exceptions, by which they complain of the refusal to admit certain evidence offered by them, the failure to grant their motions for a nonsuit and a directed verdict, the refusal to grant certain of their requests to charge and certain instructions given in the charge. We shall not undertake to treat these exceptions separately, but we will cover all of them generally.

We take up first what we conceive to be the most important question raised by the appellants, that which relates to the refusal of the court to allow them to offer certain evidence. For a full understanding of this question, it is necessary to refer again to the pleadings in the cause. In both causes of action, the respondent alleged that the agreement, effective March 1, 1926, between the appellants with the Brotherhood of Railway Carmen of America, of which Cato was a member and which agreement applied to him, was of force at the time of Cato's injuries and

[152 S.E. 524]

death, and that the same contained the following provisions:

"157. Protection for Repairmen: Switches or repair tracks will be kept locked with special locks and men working on such tracks shall be notified before any switching is done. A competent person shall be regularly assigned to perform this duty and held responsible for seeing it is performed properly. (Emphasis added.)

"158. Trains or cars while being inspected or worked on by train-yard men will be protected by a blue flag by day and blue...

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2 practice notes
  • Cato v. Atlanta & C. A. L. Ry. Co, No. 13240.
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1931
    ...a judgment in favor of the respondent was reversed, and a new trial ordered. Cato v. A. & C. Air Line Ry. Co. et al., 155 S. C. 304, 152 S. E. 522, 527. In the second trial before Hon. T. S. Sease, presiding judge, and a jury, in the court of common pleas for Spartanburg county, the res......
  • Bolt v. Life & Cas. Ins. Co. Of Tenn., No. 12880.
    • United States
    • United States State Supreme Court of South Carolina
    • April 3, 1930
    ...the insured owned an automobile, or that in his work he was required to drive or ride in one. In the recent case of Cato v. Railroad Co., 152 S. E. 522, we cited with approval several holdings from former decisions of this court as to ambiguous contracts. The authorities are clear, as will ......
2 cases
  • Cato v. Atlanta & C. A. L. Ry. Co, No. 13240.
    • United States
    • United States State Supreme Court of South Carolina
    • September 10, 1931
    ...a judgment in favor of the respondent was reversed, and a new trial ordered. Cato v. A. & C. Air Line Ry. Co. et al., 155 S. C. 304, 152 S. E. 522, 527. In the second trial before Hon. T. S. Sease, presiding judge, and a jury, in the court of common pleas for Spartanburg county, the res......
  • Bolt v. Life & Cas. Ins. Co. Of Tenn., No. 12880.
    • United States
    • United States State Supreme Court of South Carolina
    • April 3, 1930
    ...the insured owned an automobile, or that in his work he was required to drive or ride in one. In the recent case of Cato v. Railroad Co., 152 S. E. 522, we cited with approval several holdings from former decisions of this court as to ambiguous contracts. The authorities are clear, as will ......

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