Cato v. Atlanta & C.A.L. Ry. Co.

• Decision Date: 10 September 1931
• Docket Number: 13240.
• Parties: CATO v. ATLANTA & C. A. L. RY. CO. et al.
• Court: South Carolina Supreme Court

162 S.E. 239

164 S.C. 123

CATO v. ATLANTA & C. A. L. RY. CO. et al.

No. 13240.

Supreme Court of South Carolina

September 10, 1931

Appeal from Common Pleas Circuit Court of Spartanburg County; T. S Sease, 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. From judgment for plaintiff defendants appeal.

Affirmed.

A. E. Hill and H. E. DePass, both of Spartanburg, and Frank G. Tompkins, of Columbia, for appellants.

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

BLEASE C.J.

In the first trial of this cause, 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 respondent again recovered judgment, and this appeal is therefrom.

The statement of facts on the part of the respondent seems to us to be so full and fair, and the argument in her behalf on the legal questions involved cover so clearly the issues to be determined, that we have drawn extensively from these in the preparation of this opinion.

In connection with this opinion, in order for it to be fully understood, we refer to the former opinion, where this court, on a matter of evidence, reversed the lower court and unanimously held that the respondent was entitled to have her case submitted to the jury. The conclusions announced in that case became and are "the law of the case," and we are still satisfied with the holdings there made.

The action was brought by Mrs. Verna Cato, as administratrix of the estate of her deceased husband, O. C. Cato, to recover damages for the benefit of herself and three minor children against the Southern Railway Company, et al., for the wrongful death of her husband.

The complaint alleges two causes of action; the first under the state law, and the second under the federal statute. Both causes of actions were submitted to the jury under proper instructions by the court. The Supreme Court, in the first appeal, reversed a judgment for the respondent and sent the case back for a new trial upon the ground that the presiding judge erred in construing the terms of paragraph 157 of a certain agreement entered into between the Southern Railway Company, and others, and the Brotherhood of Railway Carmen of America. Before the second trial, respondent secured an order allowing her to amend her complaint by striking out paragraph 157 of the said agreement, and the cause proceeded to trial on the complaint, thus amended.

O. C. Cato was employed by the appellants as a car repairer, under the supervision and control of R. W. Watson, general foreman of appellants' yards at Hayne Junction, and on December 6, 1926, was ordered by appellants to proceed to track No. 10 and repair the drawhead of a baggage car which had two days before been placed on that track. Cato was informed that the drawhead of the car must be repaired so it could be taken to the car repair shop of the Southern Railway Company, about one and a half miles from Hayne Junction, in Spartanburg county, for general repairs.

It was necessary for Cato to go underneath the baggage car to perform his duties and, while there engaged in repairing the car, a switch engine backed into a cut of cars coupled to the baggage car, underneath which Cato was working, causing the wheels of the baggage car to pass over his body, horribly mutilating him, subsequently causing his death. Appellants failed to protect Cato and the other men working upon the said baggage car with a blue flag, as required by the agreement entered into between the Southern Railway Company, and others, and the Brotherhood of Railway Carmen of America, and others, effective March 1, 1926, which superseded all other rules and agreements up to that date, copy of which agreement was delivered to Cato by the railway company, and under the guidance of which he performed his duties as a car repairer for the appellants, and upon which he relied for protection while repairing the baggage car upon the said track. The agreement upon which the action is based provides, among other things:

"55. Employees Required to Work Under Locomotives and Cars.--No employee will be required to work under a locomotive or car without being protected by proper signals. Where the nature of the work to be done requires it, locomotives or cars will be placed over a pit, if available."

"158. Trains or cars, while being inspected or worked on by train-yard men, will be protected by a blue flag by day and a blue light by night, which will not be removed except by men who place them."

"163. Carmen Sent Out on Road to Perform Work.--When necessary to repair cars on the road or away from the shops, carmen will be sent out to perform such work. Two carmen, or one carman and an experienced apprentice, or one carman and an experienced helper, will be sent to perform such work as putting in couplers, draft rod, draft timbers, arch bars, truss rods, and wheels and work of similar character."

"175. Miscellaneous.--Except as provided for under the special rules of each craft, the general rules shall govern in all cases."

"This agreement supersedes and cancels all previous agreements and understandings and constitutes the sole agreement between the company and the employees affected.

"These rules and rates of pay agreed upon become effective as of March 1, 1926, and shall remain in effect until June 30, 1927, and thereafter until thirty (30) days written notice shall be given by either party to the other of a desire to change: Provided, however, that the said thirty (30) days notice herein referred to may be given by either party on or after May 31, 1927."

The appellants' appeal to this court contains twenty-three exceptions, but they appear to present only four questions which we shall consider.

Did the presiding judge err in refusing motions for a nonsuit and directed verdict? Exceptions 2, 3, 11, 12, and 13.

The record shows that appellants did not move for a nonsuit or a directed verdict as to the first cause of action upon the ground that there was no evidence to show that the deceased, at the times of his injuries and death, was engaged in intrastate work, but asked the court to grant a nonsuit and direct a verdict as to the first cause of action upon the ground that "it appears from all the evidence in this case that the action is controlled by the Employers' Liability Act of Congress." The motions were not made upon the absence of evidence, but the court was asked to grant a nonsuit and direct a verdict upon all the proof submitted. A motion for a nonsuit or a directed verdict can only be granted by the court upon the entire absence of evidence. It can never be granted by the court upon an "appearance from all the evidence." The trial judge has no power to weigh the evidence. Constitution, art. 5, § 26. Therefore, it is doubtful if a proper motion for a directed verdict or nonsuit has been made in this case.

Conceding the motion to have been properly made, however, an inspection of the printed case in the first appeal and of this appeal will disclose that the evidence, in substance, is practically the same in each. It is only necessary to cite the decision of this court in this case on the first appeal, where the court unanimously decided that the evidence was entirely sufficient to require a submission to the jury for determination of the first cause of action. We there said, "If there was any evidence at all to show that the deceased, Cato, was engaged in interstate commerce at the time he received his injuries, that resulted in his death, it was certainly scant;" and that "The true information as to whether the action should have been brought under the Federal Employers' Liability Act or under the laws of South Carolina should be within the knowledge of the appellants, and they should disclose the information fully and freely if they have it."

Notwithstanding the duty imposed by this court to disclose what kind of commerce the baggage car was used in, and notwithstanding admission of appellants on the second trial that a record of all cars was kept by the appellants, the appellants failed to sufficiently disclose what kind of commerce, if any, the baggage car was used in. The record, however, in this appeal shows to our entire satisfaction that the baggage car upon which Cato was working at the time of his injuries and death had been withdrawn from whatever service it had been in for the purpose of sending it to Hayne shop, in Spartanburg county, S. C., for general repairs. The car was picked up in Columbia, S. C., as a "dead soldier," without even a waybill, and hauled by a freight train in charge of Conductor Humphries from Columbia, S. C., to the Hayne yards, at Hayne, S. C., where it arrived about 8 p. m. on December 4th. The train with which the baggage car came to Hayne yards was placed on one of the yard tracks and later broken up to be made into trains to be sent to other points, and at the time of the injuries and death of Cato the baggage car was not connected with any of the cars, engine, or crew that it came from Columbia with, and had no relation whatsoever to the freight train from Columbia.

It appears from the record that all trains that come into Hayne yards are broken up and made into other trains that go to different points. That the western end of track No. 10 is used for storage track for "bad order" cars destined to Hayne shops; that the day Cato was killed the baggage car was attached to a cut of cars, but those cars had no relation...