Green v. Atlanta & C. A. L. R. Co.

• Decision Date: 07 July 1928
• Docket Number: 12481.
• Citation: 148 S.E. 633,151 S.C. 1
• Parties: GREEN v. ATLANTA & C. A. L. RY. CO. et al.
• Court: South Carolina Supreme Court

148 S.E. 633

151 S.C. 1

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

No. 12481.

Supreme Court of South Carolina

July 7, 1928

Remanded on Mandate June 10, 1929.

Appeal from Common Pleas Circuit Court of Spartanburg County; W. H Townsend, Judge.

Action by R. F. Green against the Atlanta & Charlotte Air Line Railway Company and another. Judgment for plaintiff, and defendants appeal. Case remanded to the court of common pleas, with directions to enter judgment for defendants in accordance with the mandate of the Supreme Court of the United States (49 S.Ct. 350) reversing a judgment of affirmance.

Frank G. Tompkins, of Columbia, and De Pass & Wrightson, of Spartanburg, for appellants.

Lyles Daniel & Drummond and I. C. Blackwood, all of Spartanburg for respondent.

STABLER J.

The plaintiff was a night yard conductor in the freight yards at Hayne, near the city of Spartanburg. On the night of February 27, 1922, while he was engaged in the performance of his duties as such yard conductor, he was shot by a gang of robbers, and was painfully and dangerously wounded. For damages for the injuries thus received, he brings this action, based upon certain alleged negligent acts of the defendants.

The complaint sets out that, prior to and on February 27, 1922 the plaintiff was employed by the defendant Southern Railway Company as a yard conductor, and was placed at work in its yards at Hayne on the line of the defendant Atlanta & Charlotte Air Line Railway Company, his duties being, in the course of his employment, to break up incoming freight trains left there and to make them up into outgoing freight trains for various points; that the defendants furnished him an unsafe place to work, in that "the vast accumulation of loaded freight cars in the Hayne yards and the storage of large quantities of freight in the transfer shed at Hayne operated as a great temptation to the evil-disposed, and induced thieves, robbers and desperadoes to frequent and resort to the said Hayne yards for the purposes of looting, thieving, robbing, car-breaking and the perpetration of all manner of kindred misdemeanors and felonies, and who were, as a rule, prepared and inclined to prevent detection and make sure escape at the cost of human life"; that "some time prior to February 27, 1922, the plaintiff complained to his superiors that, by reason of the increasing numbers of outlaws, thieves, and desperadoes that were beginning to accustom themselves to rendezvous in the yards for the purposes of pillage, thievery, car-breaking and robbery, it was becoming unsafe for the employees at work in the yards during the nighttime, and was advised that such unsafety was known, but would be remedied"; that the defendants kept an inadequate number of men on duty in the yards for the purpose of policing the same, "and by reason of the inadequacy, the outlaws frequenting the Hayne yards were encouraged and increased in number; that the plaintiff relied upon the assurance given when he complained that the matter would be corrected"; that about 11:30 on the night of February 27, 1922, while plaintiff was engaged in making up a freight train for Spencer, N. C., and beyond, he unintentionally surprised a gang of desperadoes, evidently engaged in car breaking, who, upon his approach, opened fire upon him with pistols inflicting painful and serious gunshot wounds, from which he suffered serious operations, incurred heavy expenses, and sustained injuries of a permanent nature, etc.

By the thirteenth paragraph of his complaint, the plaintiff sets out the particular negligent acts of the defendants alleged to be the proximate cause of his injuries and sufferings:

"That the plaintiff's aforesaid injuries and sufferings were directly and proximately due to the negligence of the defendants in failing to provide the plaintiff with a safe place in which to do the work he was required to do in that:

"a. They knowingly caused and permitted the Hayne yards to become a resort for thieves and robbers, prepared and inclined to prevent detection and secure escape, by murder, if need be, the existence of such condition being directly due to the accumulation of vast numbers of loaded freight cars and vast quantities of valuable freight in said yards, and, by inaction, permitting it to be discovered by the evil disposed that valuable property easy to be stolen and carried away was constantly and continuously being placed and kept throughout the great length of the Hayne yards in the nighttime in a situation that it could not be adequately guarded by a force of only three men.

"b. In failing to make reasonable provisions for even the protection of the property situated and kept in the yards, so as to discourage the would-be thieves and robbers, thereby emboldening them and increasing their number and activities, the failure to adequately protect the property resulting in directly hazarding the life and limb of every yard employee.

"c. In failing, after knowledge of unsafe conditions, to provide a proper police protection for the property and employees in the yards, their neglect in protecting the property directly operating as an invitation to the evil disposed.

"d. In not providing a sufficient force of officers and agents to police the yards, protect the property and employees, and rid the situation of its characteristics, which may be phrased as an attractive nuisance to thieves, robbers and desperadoes.

"e. In not increasing the force of officers and agents, after knowledge of its inadequacy to protect employees, and property in the Hayne yards, and after admitting such inadequacy and promising remedy, the Hayne yards being located outside of any municipally policed area.

"f. In not adequately providing for the lighting of said yards in the nighttime, the yards being very long and the numerous tracks for storage, etc., being practically parallel throughout the length of the yards, and being nearly always completely occupied by loaded freight cars, and there being only one line of lights in the yards, the said lights being arranged in a straight line and serving only to illuminate immediately beneath them and only the tops of the freight cars on either side, and serving only to deepen the shadow in which the outlaws might lurk and successfully conceal themselves, instead of serving to illuminate the yards, said line of lights being so placed as to cast shadows on either side and about the edges of the yards, thereby making it easy for outlaws both to approach and to leave the yards in the shadow, whereas the lights should have been so arranged as to surround the yards with a zone of illumination, and instead of being arranged in one continuous line, they should have been 'zig-zagged' or 'staggered,' so as to light all parts of the yards, and should have been sufficient in number for that purpose."

The defendants pleaded: (1) A general denial; (2) assumption of risk by the plaintiff; (3) contributory negligence on the part of the plaintiff; (4) the benefit of the Federal Employers' Liability Act to the exclusion of all state laws, either common or statutory.

The case was tried in March, 1927, before Judge Townsend and a jury. On the trial, it was agreed that, when the plaintiff was shot and wounded, he and the defendants were engaged in interstate commerce, and the action was tried under the Federal Employers' Liability Act (45 USCA § § 51-59).

At the conclusion of the testimony, the defendants made a motion for a directed verdict, which was overruled. The jury found for the plaintiff in the sum of $20,000. The defendants appeal to this court.

There are a number of exceptions, but the appellants state the questions raised by them to be only three. These we will discuss in order.

I. The first question is: "Was there sufficient evidence of negligence to require a refusal to direct the verdict and the submission of the case to the jury?"

This case has been before this court twice before. The first appeal was from an order overruling a demurrer to the complaint (131 S.C. 124, 126 S.E. 441, 38 A. L. R. 1448); the second, from an order overruling a motion to strike out parts of the complaint and to make certain allegations of same more definite and certain (135 S.C. 147, 132 S.E. 172).

On the first appeal, this court held that the lower court had properly overruled the demurrer, and that the complaint stated a cause of action. In considering the grounds of the demurrer, the court said:

"Ordinarily it may be conceded that the danger of injury to a servant from the illegal or criminal acts of independent third persons is not a danger of which the master in the discharge of his duty to provide a safe place to work, etc., has such knowledge, or the opportunity to acquire knowledge, as would impose liability for such an injury. ***

"But where it appears that the master has actual knowledge of conditions within his control which conduce to expose a servant in the performance of the master's work to danger from the lawless acts of third persons, and that the intervention of such illegal acts of third persons is a consequence reasonably to be expected from the maintenance of such conditions, a different case is presented. In the case at bar it is alleged that the conditions rendering the servant's place of work unsafe were 'knowingly' maintained; that defendants had actual notice of the danger from the intervention of the lawless acts of third persons; and that the unsafety of the place of work from that source was recognized by the defendants as a condition calling for remedial action. Proof of that state of facts would, we think, clearly warrant the inference that the lawless act of the third persons which resulted in injury to the servant was a...