Covington v. Atlantic Coast Line R. Co.

• Decision Date: 09 April 1930
• Docket Number: 12888.
• Citation: 155 S.E. 438,158 S.C. 194
• Parties: COVINGTON v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

155 S.E. 438

158 S.C. 194

COVINGTON v. ATLANTIC COAST LINE R. CO.

No. 12888.

Supreme Court of South Carolina

April 9, 1930

Appeal from Common Pleas Circuit Court of Florence County; C. C Featherstone and J. K. Henry, Judges.

Action by D. D. Covington against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

The following is a copy of the order overruling the demurrer:

Order.

The defendant has demurred on four grounds to plaintiff's complaint purporting to state a cause of action under the Federal Employers' Liability Act (45 USCA § § 51-59) for personal injuries, resulting from a collision between a motor car, negligently operated by an employee of the defendant engaged in the installation of an electric signal system, and a three-wheel velocipede, operated by plaintiff over defendant's railroad track, and furnished him by the defendant for the purpose of conveying him to and from his work as a telegraph operator in one of its signal towers.

The substance of the demurrer is to the effect (1) that the complaint shows upon its face that the operator of the motor car was not representing the defendant, but was representing and acting for himself for his own convenience; (2) that plaintiff was likewise acting for his own convenience in the use of defendant's tracks, and, therefore, assumed the risk of failure of the operator of the motor car to maintain a lookout; (3) that plaintiff when authorized to use a velocipede on the tracks of defendant, in going to and from his work, assumed the risk of injury through negligence of the operators of motor cars or trains in failing to maintain a sufficient lookout; and (4) that the complaint fails to set forth facts from which the inference may properly be drawn that a lookout was not kept, or that the motor car was driven at a high and dangerous rate of speed and not under control mere conclusions being alleged without facts to support them.

Under the liberal construction which must be given the complaint section 420, Code of Civil Procedure 1922, it is self-evident that the allegations of paragraphs 4 and 5 sufficiently allege that the operator of the motor car was representing the defendant and was actually in the discharge of his duties at the time of the collision. It is also apparent from the allegations of paragraph 3 of the complaint that plaintiff was lawfully on defendant's railroad track, returning from his work by means of transportation furnished him for that purpose by the defendant, and that in legal effect he was still engaged in the discharge of the duties of his employment. Shanks v. D., L. & W. R. R. Co., 239 U.S. 556, 36 S.Ct. 188, 60 L.Ed. 436, L. R. A. 1916C, 797; N.C. R. R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591, Ann. Cas. 1914C, 159; Erie R. R. v. Winfield, 244 U.S. 170, 61 L.Ed. 1057; Sanders v. Railway, 97 S.C. 50, 81 S.E. 283; Note, 10 A. L. R. 1239.

It, therefore, necessarily follows that the first and second grounds of the demurrer cannot be sustained.

As to the third ground of demurrer, while it is without doubt true that assumption of the risk by plaintiff would bar a recovery, yet the employee only assumes the risk ordinarily incident to his employment, and he does not assume extraordinary or abnormal risks, or those due to the negligence of the master or his servants, unless they are known to the employee, or are so obvious that a person of ordinary prudence would be presumed to know them. Chicago, R.I. & P. R. R. Co. v. Ward, 252 U.S. 18, 40 S.Ct. 275, 64 L.Ed. 430.

Upon consideration of the specifications of negligence set forth in Paragraph 6 of the complaint, the Court obviously is not in position to say as a matter of law, as would be necessary should this ground of demurrer be sustained, that a collision resulting from a reckless, negligent and careless operation of a motor car by one of defendant's servants, without a proper lookout, at a high and dangerous rate of speed, and not under control, at a time when it was known that plaintiff would be on the tracks returning from his work, was a normal method of operation, the risk of which plaintiff assumed.

The fourth ground of the demurrer was not seriously pressed, and does not seem to be insisted upon, but, in any event, demurrer is not the appropriate remedy to reach the alleged defect to which this ground of demurrer is directed. If such defect exists, a motion to require the complaint to be made more definite and certain would be the proper remedy. Pierson v. Green, 69 S.C. 559, 48 S.E. 624.

It is, therefore, ordered, That the demurrer be, and hereby is, overruled.

F. L. Willcox, of Florence, for appellant.

L. M. Gasque, of Marion, D. Gordon Baker, of Florence, and Albert F. Woods, of Marion, for respondent.

STABLER J.

This is an action, brought under the Federal Employers' Liability Act (45 USCA § § 51-59), for damages for injuries alleged to have been received by the plaintiff through the negligent acts of the defendant, its servants and agents.

We adopt, in part, the plaintiff's concise statement of the case, which we think is sufficient for an understanding of the issues involved:

The defendant, Atlantic Coast Line Railroad Company, operates an interstate railroad from Florence, S. C., to Richmond, Va., which crosses Pee Dee river at the boundary line between Marion and Florence Counties. The bridge across the river is approached on the Florence side through a wide swamp by a trestle, approximately two and one-quarter miles long, intersected at one place near the entry into the swamp by a short fill. Just at the entry upon the trestle on the Florence side, the railroad company maintained a telegraph tower referred to as WN Tower, and on the Marion side, a short distance from the end of the river bridge, another telegraph tower is maintained at a small station known as Pee Dee. Defendant's railroad is a double-track road, except on the trestle through the swamp and the river bridge, where it is single track. Along the trestle work through the river swamp, at intervals, platforms are maintained by the railroad company for the purpose of removing from the track velocipedes, hand cars, and motorcars at the approach of trains and to permit small cars or vehicles to pass each other. There is also what is called a gauntlet on the trestle, which means that on one side of the track there are two rails instead of one, this being for the purpose of permitting a light car to be lifted sufficiently on one side for another motorcar or velocipede in passing to run under it.

Plaintiff, an employee of the defendant, was a telegraph operator in WN Tower on the Florence side of the river, but resided in the town of Marion. In order to get to and from his work at WN Tower, he was provided by the railroad company with a three-wheel velocipede for traveling back and forth between Pee Dee and WN Tower on the railroad track over the river bridge and the trestle on the Florence side of the river. Two wheels of this vehicle fitted on one rail and one wheel on the other; it was operated by the hands and feet of the operator and was capable of a speed of about eight miles an hour. Plaintiff's hours of work were from 11 at night to 7 in the morning.

The complaint, inter alia, alleges:

"That at the time of the collision hereinafter related, the defendant was installing an electric signal system along its line of railroad tracks in the vicinity of Pee Dee, S. C., and the crew of men engaged in this work used as a means of transportation railroad motorcars which were driven on the tracks of defendant.

"That on the morning of April 11, 1925, at about 7:20 o'clock, while plaintiff was returning from the said tower where he had been working, to Pee Dee, S. C., the railroad velocipede on which he was riding was run into by a railroad motorcar, traveling in the opposite direction to plaintiff, driven by J. H. Anderson, alias 'Shorty' Anderson, one of the employees, an agent and servant of defendant, engaged in the installing of the new signal service hereinabove referred to, causing plaintiff to be thrown violently and with great force from the velocipede he was riding to the ground, a distance of several feet, as the collision occurred at a trestle over an underpass in the Pee Dee swamp, approximately three hundred and fifty feet west of the bridge over the main stream of Pee Dee river.

"That at the time of the collision the motorcar was being driven in a reckless, negligent, and careless manner, without keeping a proper lookout for other cars or velocipedes that were on the tracks, and at a high and dangerous rate of speed, and not under control, and at a time when it was known plaintiff would be on the tracks with the velocipede returning from the tower to Pee Dee, S. C."

The defendant, answering, alleged that plaintiff's injuries were caused by his own negligence and that he assumed the risk of whatever injury he suffered. A demurrer was also interposed to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, in that: (1) It appears from the allegations of the complaint that both the plaintiff and the driver of the motorcar at the time of the accident were representing and acting for themselves and for their own convenience and not for the defendant; and that (2) under the allegations of the complaint the plaintiff must be held to have assumed the risk of the injuries sustained.

The demurrer was heard by his Honor, Judge Featherstone, who on February 11, 1928, passed an order overruling same; from this order the defendant gave notice of intention to appeal. The case was tried at the February 1929, term, of the court of common pleas for Florence county,...