On
Petition for Rehearing. January 2, 1929.
Appeal
from Common Pleas Circuit Court of Charleston County; M. L
Bonham, Judge.
Action
by Wallie L. Edwards against the Atlantic Coast Line Railroad
Company and another. Judgment for plaintiff, and defendant
appeals. Affirmed.
The
complaint, answer, motion for new trial, order of circuit
court, and exceptions, directed to be reported, were as
follows:
The
cause of action alleged and the specifications of negligence
are set out in the third, fourth, fifth, sixth, and seventh
paragraphs of the complaint, which are as follows:
"Third
That, on or about the 3d day of February, 1925, the plaintiff above named, Wallie L. Edwards, was in
the employ of the Seaboard Air Line Railway Company, a
railway doing business in the county of Charleston and
state of South Carolina, as a yard conductor and as such
in the course of his duty and employment, was in charge of
a train of 24 empty cars which were being backed in the
direction of the city of Charleston, with an engine pushing
said train.
"Fourth:
That, as said train approached what is known as the
'Etiwan Lead Track,' an industrial spur railroad
track leading to the Etiwan Fertilizer Works, and as said
train was approaching the point where the tracks of the
Seaboard Air Line Railway Company cross said Etiwan Lead
Track, he signaled to the engineer in charge of said train
of 24 empty cars to slow down, which said engineer did,
bringing the speed of said train down to about 4 miles an
hour; that plaintiff then looked down said Etiwan lead
track to the west and saw that the road was clear. He then
gave the engineer in charge of his train a signal to
proceed, which said engineer immediately did; that a few
minutes later, plaintiff looked again and saw a light
switch engine owned, operated, and maintained by said
defendant, Atlantic Coast Line Railroad Company, its agents
and servants, and under the immediate charge, control, and
direction of said defendant, Oliver C. Sanford, as
conductor, approaching on said Etiwan lead track in an
easterly direction; that it was then improssible for
plaintiff to stop his train, but said light switch engine
could have been stopped; that some employees of said
defendant Atlantic Coast Line Railroad Company, riding on
the switch engine, shouted to the engineer to stop the
light engine, but the engineer and fireman on said light
switch engine were looking to the west and apparently did
not see the train on which plaintiff was riding at all and
said engine was allowed to proceed; that when the train on
which plaintiff was riding and the light switch engine
reached the crossing, they collided and the rear car of
said train, on which rear car plaintiff was riding, buckled
up and plaintiff was violently thrown
forward and in order to save himself from falling between
the cars and being crushed, he caught hold of the grabiron
on top of the rear car and his right leg and knee were
thrown with great force against said car and plaintiff
received a terrible and fearful shock, jolt, and jar.
"Fifth:
That said jolt, jar, and shock was so violent as to cause
plaintiff shortly thereafter to develop paralysis and his
whole right side and speech to become affected to such an
extent that plaintiff is and always will be incapacitated
from performing his duties as a railroad man and
permanently injured.
"Sixth:
That the injuries to plaintiff, as aforesaid, were caused
by the joint and concurrent
negligence, carelessness, recklessness, and wantonness of
the said defendant corporation, its agents and servants,
and the said Oliver C. Sanford, in the following
particulars, to wit:
"(a)
In not keeping a reasonable and proper lookout so as to
have prevented said switch engine coming into collision
with the car on which said plaintiff was riding.
"(b)
In not keeping such a lookout and having said switch
engine under such control as to become aware of the
danger and immediately have stopped said engine.
"(c)
In not taking such care and precautions as would have
prevented said collision.
"(d)
In not stopping said switch engine as soon as it
appeared that a collision was imminent.
"Seventh:
That by reason of the said joint and concurrent acts of
negligence, carelessness, recklessness, and wantonness
of said defendant corporation, its agents and servants,
and the said Oliver C. Sanford, plaintiff was so
injured as to be a helpless cripple, to be paralyzed on
his right side, to have his speech affected, to be
incapacitated from earning a livelihood and otherwise
hurt and injured to his damage $50,000."
The
defendants answered separately, but the allegations of each
answer are essentially the same. After admitting the formal allegations of the complaint in the first two
paragraphs, and on information and belief the allegations of
paragraph 3, the defendants admitted so much of the
allegations of the fourth paragraph as stated that, at the
time and place therein mentioned, the plaintiff was in the
service and employment of the Seaboard Air Line Railway
Company, and that, at the time and place mentioned, the
plaintiff was in immediate and direct charge and control of a
train and engine of the said Seaboard Air Line Railway
Company, which was in collision with a switching engine of
the defendant Railroad Company, of which the defendant Oliver
C. Sanford was conductor, and denied the remaining
allegations of said paragraph.
The
answers further set up in the seventh and eighth paragraphs,
as an affirmative defense, contributory negligence, in the
following language:
"Seventh:
Further answering said complaint and for a further defense to
said action, this defendant says that whatever injuries were
sustained by the plaintiff at the time and place mentioned in
the complaint were due to and caused by the negligence,
carelessness, recklessness, wilfulness, and wantonness of the
plaintiff himself, combining and concurring with the alleged
negligence, carelessness, recklessness, and wantonness of
this defendant, and constituting the proximate cause of said
injuries, without which the same would not have happened, in
that--
"(a)
The plaintiff negligently, carelessly, recklessly, wantonly,
and wilfully caused or allowed the engine and train of cars
upon which he was riding, as a conductor of the Seaboard Air
Line Railway, to back into and run on and against a switch
engine of this defendant, without keeping a proper lookout to
prevent said happening;
"(b)
In that the said engine and train of cars upon which the
plaintiff was riding, as conductor, as aforesaid, was not, as
provided and required by the statute in such case made, and
provided, stopped at the crossing mentioned in the complaint, but ran upon said crossing, thus causing the
collision aforesaid;
"(c)
In that the plaintiff, being the conductor of the said
Seaboard Air Line Railway train upon which he was riding,
failed to take any care or use any precaution whatever to
prevent collision with the defendant's engine at the time
and place mentioned in the complaint.
"Eighth:
Further answering said complaint and for a further defense to
said action, this defendant alleges, on information and
belief, that the plaintiff has received from the Seaboard Air
Line Railway, a joint tort-feasor with this defendant,
complete settlement for his alleged injuries sustained by
reason of the matters and things alleged in the complaint,
and that he has executed and delivered to the said Seaboard
Air Line Railway Company a full discharge and release and
acquittance of all claims arising from or out of the matters
and things as alleged in the said complaint, and that said
release and acquittance constitutes a bar to this
action."
On
these pleadings the case came on to be tried before Judge M.
L. Bonham and a jury at the April term of the court of common
pleas for Charleston county.
The
motion for new trial here follows:
"First:
That the verdict was contrary to the manifest weight of the
evidence.
"Second:
That the verdict was without evidence to support it.
"Third:
That the only reasonable inference from all of the testimony
in the case was that the injury to the plaintiff was due to
and caused by his own negligence as a proximate cause
thereof, in that--
"(a)
The plaintiff, contrary to the provision of the statute in
such case made and provided, failed to stop his train on
approaching the crossing in question; and
" (b) the plaintiff failed to exercise ordinary care
in approaching the crossing so as to have his train in
control and avoid striking defendant's engine; and
"(c)
The plaintiff failed to keep a proper lookout so as to
prevent his train from striking anything that might be on the
track in front of him; in all and each of which acts on the
part of the plaintiff, his own negligence constituted the
proximate cause of the
injury, without which the same would not have occurred.
"Fourth:
Because the plaintiff had, before the commencement of this
action, executed and delivered to the Seaboard Air Line
Railway Company a release of said company of and from all
liability to him by reason of the injuries sustained at the
time and place mentioned in the complaint, and that such
Seaboard Air Line Railway Company was a joint tort-feasor
with this defendant, the Atlantic Coast Line Railroad
Company, and its release from said liability should also
operate as a release and discharge of this defendant from all
liability also.
"Fifth:
Because the verdict was excessive."
The
court refused the motion for a new trial, except as to the
ground that the verdict was excessive, and ordered a new
trial unless the plaintiff would...
