Gillis v. Atlantic Coast Line R. Co.

• Decision Date: 02 November 1934
• Docket Number: 13927.
• Citation: 179 S.E. 62,175 S.C. 223
• Parties: GILLIS v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

179 S.E. 62

175 S.C. 223

GILLIS v. ATLANTIC COAST LINE R. CO.

No. 13927.

Supreme Court of South Carolina

November 2, 1934

Appeal from Common Pleas Circuit Court of Florence County; G. B Greene, Judge.

Action by F. P. Gillis against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

A. F Woods, of Marion, and Baker & Baker, of Florence, for respondent.

C. T GRAYDON, Acting Associate Justice.

This is an action on the part of F. P. Gillis, plaintiff, against Atlantic Coast Line Railroad Company, defendant, under the provisions of the Federal Employers' Liability Act (45 USCA §§ 51-59) for personal injuries alleged to have been sustained while in the discharge of his duties as a trainman. The case was tried before Hon. G. B. Greene, circuit judge, and a jury on November 13, 1933, and resulted in a verdict in favor of the plaintiff for the sum of $25,000. From this verdict and the judgment entered thereon, the defendant, Atlantic Coast Line Railroad Company, has appealed.

The testimony discloses that the plaintiff, Gillis, was the head brakeman upon a train of the defendant known as No. 212 running extra from Savannah, Ga., to Florence, S.C. As the train approached the Florence yard, orders were given that the train should finally come to rest on what is designated as track No. 16. The train was going north on the main line, and to reach track No. 16 it was necessary to pass a switch and enter track No. 18, designated as a ladder track. Track No. 18 separated into two tracks, one being known as No. 17 and the other as No. 16. The switch to track No. 18, as well as the switch to tracks No. 16 and No. 17, were both on the left side of the engine as it was proceeding; in other words, both switches were on the fireman's side. It was the duty of the plaintiff to see that the switches were properly lined up or set so that the train would finally come to rest on track No. 16, and pursuant to this duty the plaintiff went forward to the engine on the left-hand or fireman's side and then crossed over to the right-hand or engineman's side. Plaintiff claimed that this was necessary in order that he might signal the engineer as to the proper movement of the train. After crossing the switch leading into track No. 18, plaintiff observed that the switch at track No. 17 was set so that the train would come to rest on track No. 17 and not track No. 16 as the orders required. This much of the testimony is admitted by all parties.

It was necessary to change the switch to head the train into track No. 16, and plaintiff testified that he gave the proper signal for the engineer to stop the train so that said switch might be thrown and that he felt the brakes apply on the engine, indicating that the signal had been observed and was being obeyed. He alighted from the engine on the right front thereof and started across to the left-hand side of the track, where the switch was located controlling the entrance to the track which the train had been ordered into. In some fashion he fell and the engine passed over his right foot, mashing it very severely, and also crushing the great toe on his left foot. It was necessary that a large portion of his right foot be taken off as a result of the injury. The plaintiff further testified that the engine passed about one-half of its length beyond the controlling switch and into track No. 17, indicating that the engine was not under proper control approaching the switch within the yard limits.

There is no exception as to the amount of the verdict.

The defendant appeals upon five exceptions.

The first exception alleges error on the part of the trial judge in refusing to direct a verdict for the defendant on the ground that the injury to the plaintiff was solely the result of his own negligence in failing to take such ""precautions as a person of ordinary prudence and care would, under the circumstances have taken for his safety while engaged on and about a moving locomotive and train and yard tracks."

The second exception complains that the trial judge should have directed a verdict for the reason that from all of the testimony the sole proximate cause of the plaintiff's injury was his stumbling and falling in front of a moving locomotive and that there was no evidence of negligence on the part of the defendant.

The third exception complains that the trial judge should have granted a directed verdict on the ground that the plaintiff, with full knowledge of all of the facts, attempted to cross a railroad track in front of the moving locomotive when the same was in plain view and the speed could have been determined by him while attempting to cross the track.

The fourth exception complains that the trial judge erred in refusing to direct a verdict on the ground that the plaintiff should have been on the left side of the train instead of the right side in a place of safety, and that by his failure to be on the left side, he selected an unsafe method of performing his duties which resulted in his injury.

The fifth exception complains of error on the part of the trial judge in refusing defendant's motion for a directed verdict on the ground that the plaintiff had assumed the risk incident to his employment and that his injury was the result of such assumed risk.

It will be seen from the above that although there are five exceptions, there are only three questions in the case and these will be discussed in their order.

Under the Federal Employers' Liability Act, 45 USCA § 53, contributory negligence does not bar a recovery by the plaintiff, but the damages are diminished by the jury in proportion to the amount of negligence attributable to such employee. Therefore, under this act, the question of contributory negligence is peculiarly within the province of the jury.

Several rules were introduced in evidence by the plaintiff, particularly rules Nos. 979, 980, and 999, which refer to the duty of the engineer or engineman in the movement of trains. Rule No. 979 is as follows: "They must obey signals promptly and if in doubt stop the train. If, in switching, the train or yard man giving signals is lost to view, stop the train until he returns."

Rule No. 980 is as follows: "They will keep a constant lookout on the track, and stop their trains cautiously, and use special care in coupling and shifting cars to avoid damaging equipment, injuring trainmen or annoying passengers."

Rule No. 999 is as follows: "They will render necessary assistance in switching and making up train. While switching, Enginemen and Firemen must remain on engines. They will exercise great care while couplings are being made and give close attention to signals. Engines must be under control when approaching switches which are to be thrown."

Rule No. 1004 is as follows: "They will assist in keeping a lookout on the track, and, if they see any obstruction or signals, must instantly give the Enginemen notice. They will be especially observant in rounding curves, approaching highway, running over or through streets in towns and cities, and call attention to any dangerous conditions."

This last rule applies particularly to the fireman who is upon the left-hand side of the engine and is charged particularly with the duty of observing on said left-hand side in giving proper and timely notice to the engineman.

It will be seen from the above that the entire case revolves in some of its aspects around the question as to whether or not Gillis, the plaintiff in this case, gave the proper signal to the engineer to stop the train. If he did, under the rules of the company itself, as well as the rule of common prudence it would have been the duty of the engineer to have immediately stopped the train. This the engineer failed to do, and although he states in...