Cline v. Southern Ry. Co

• Decision Date: 27 August 1915
• Docket Number: (No. 9183.)
• Citation: 86 S.E. 17,101 S.C. 493
• Parties: CLINE. v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

86 S.E. 17

101 S.C. 493

CLINE.

v.SOUTHERN RY. CO.

(No. 9183.)

Supreme Court of South Carolina.

Aug. 27, 1915.

Appeal from Common Pleas Circuit Court of York County; C. M. Enrd, Special Judge.

Action by D. J. Cline against the Southern Railway Company. From a judgment of nonsuit for defendant, plaintiff appeals. Affirmed.

J. Harry Foster, of Rock Hill, for appellant.

B. L. Abney, of Columbia, and McDonald & McDonald, of Winnsboro, for respondent.

FRASER, J. This is an action for damages on account of personal injuries suffered by the plaintiff in the construction of a trestle at Langley, S. C. The old trestle had been condemned. The plaintiff, who was bridge foreman on defendant's road, was directed to take his force of hands and do the work. In order to do this work, it was necessary to remove the old bents and erect new ones in their places. After placing several bents with safety, it was found that one bent was too high. This bent was removed from its place, the foundation lowered, and while moving it back to its place it fell on the plaintiff and injured him. On the motion of the defendant, the presiding judge granted a nonsuit From this order granting a nonsuit, the plaintiff has appealed.

This appeal, therefore, raises questions as to allegations and proof only. The allegations of negligence are as follows:

"(8) That the defendant, Southern Railway Company, was negligent, careless, wanton, and reckless in the following respects: (a) In failing to provide the plaintiff a safe and secure place in which to work. (b) In failing to provide the plaintiff a sufficient crew of hands to perform the work assigned the plaintiff. (c) In failing to provide the plaintiff adequate or proper tools, implements, and appliances to properly perform the work assigned the plaintiff. (d) In providing the plaintiff with an inadequate crew of workmen, said crew being incompetent, green, and incapable of construction of trestlework."

In ruling on the nonsuit, the presiding judge, Hon. C. M. Efird, said:

"The Court: Gentlemen, I have given the testimony very careful thought, and I think this man was the foreman and intrusted by the master to do the work. It was his business to go and make an unsafe business safe; and it was his business to prepare a safe place for himself and his men to work. I don't think it makes any difference in the case whether the master was negligent in the particulars mentioned in the complaint or not I cannot escape the conclusion that he had safely placed all of the bents, that he had safely removed this one, and in attempting to put it back in place his foot slipped from under him, and when he fell down lie pulled the bent on him; and therefore the only reasonable inference that could be drawn from the facts is that he was injured by one of these unfortunate accidents that befalls human kind, and I do not think I could sustain the verdict, if the jury were to render one, against the railroad company on this evidence, and I think it would be useless to go on with the case. I do not go into any of the other questions, as to whether this is a case under the United States Employers' Liability Act [Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665)], for in this case I think it makes no difference. And I do not pass on the validity or invalidity of the release. But I am going to grant the motion for a nonsuit, and put it on the ground that there is no other reasonable inference to be drawn from the evidence on his part, caused by his foot slipping and pulling down the bent on him, and for the further reason that the coal under his foot was possibly put there, or left there, by himself or by the men who were under his control and direction."

There are 13 exceptions, but the appellant has consolidated the first 7 as follows:

(a) It is the duty of the master to provide a reasonably safe place in which to work. It must be borne in mind that the plaintiff was foreman. It was his duty to direct the work of clearing, as well as the work of...