Green v. Southern R. Co.

• Decision Date: 07 October 1905
• Parties: GREEN v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

52 S.E. 45

72 S.C. 398

GREEN v. SOUTHERN RY. CO. et al.

Supreme Court of South Carolina

October 7, 1905

Appeal from Common Pleas Circuit Court of Greenville County; Gary J.

Action by T. A. J. Green against the Southern Railway Company and others. From order of nonsuit, plaintiff appeals. Affirmed.

McCullough & McSwain, for appellant. T. P. Cothran, for respondents.

WOODS J.

This is an appeal from an order of nonsuit. The action is to recover the sum of $10,000 damages on account of personal injuries received the 17th day of May, 1903. The allegations of the complaint are that at that time plaintiff was a hostler in the employ of the defendant, Southern Railway Company; that as hostler, it was his duty to shift engine No. 1,072, which pulled in train No. 40, going north, and place it upon the side track to be inspected and repaired by the defendants and, when informed by them that the engine was ready, to place it upon the main track, so that it might pull train No. 97, going south; that the engine was left standing near the turntable pit, and, after plaintiff was informed by the defendants that the engine was ready, he reversed the lever and turned on the steam, but, instead of the engine going backward, as it would have done if it had been in proper repair, it moved immediately forward, and fell into the turntable pit, a depth of several feet, and plaintiff received the injuries mentioned in the complaint. The acts of negligence charged are: First. Furnishing the plaintiff with a defective engine; second. failing properly to inspect and repair the same. At the conclusion of plaintiff's testimony, the circuit judge granted a nonsuit upon the ground "that there is no evidence tending to establish the allegations of negligence contained in the complaint."

The following is a statement of the material testimony: Plaintiff testified that, after placing the engine upon the side track so that it might be inspected and repaired, as was the custom and duty of the defendants, he left it from 50 minutes to an hour. The defendants West and Greeson were about the engine, as plaintiff supposed, for the purpose of inspecting and repairing the same, as was their duty. He did not see either of the defendants under the engine, but did see two of the "helpers," who were not expert machinists, under it. To properly inspect an engine it is necessary that the machinists should go underneath it. Between the time that he left the engine and went back to it, the defendant Greeson was on the engine, and "moved the lever backwards and forwards to disconnect the valve stem." After West and Greeson had finished their work upon the engine, Greeson told him that "No. 1,072 was ready to move." Thereupon plaintiff mounted the engine, and put the lever in reverse gear. He then reached for the bell cord, which was wrapped in some way, and after it was unwrapped, he "gave the engine steam and pulled the throttle open." Thereupon the lever fell in head gear to where he had brought it from, and the engine, instead of going backward, went forward into the pit, and he was injured. As hostler, it was not his duty to inspect the engine; but, if it had been his duty, he could have discovered the defect by reasonable inspection. The witness did not undertake, however, to say what the defect was, but, on the contrary, testified on cross-examination that he did not know what caused the reverse lever to fly from back gear to forward gear, but that it could have been caused by several things, viz., lost motion, loose springs, rough valve, weak springs, waste in the notch, or a piece of coal in the notch. It was dark when plaintiff was told the engine was ready to be pulled upon the main line, and he did not look down in the quadrant to see whether the latch of the lever went into the notch or not. "There is not an engineer on the road that does that. You cannot light a torch to see whether it is in or not." C. L. Cauble testified that he had been working for the Southern Railway Company for 21 years, and had been an engineer for 17 years. He said: "If an engine or locomotive has its lever reversed and the latch fastened in rear end of quadrant, and if steam be applied, and the reverse lever fly out of the notch and into forward end of the quadrant, I would say such engine is in a very defective condition. If the engine be just starting off, I do not think such thing possible, and I have not seen such in my experience." Edward Day, formerly a locomotive engineer of 13 years' experience, testified as follows: ""Q. If an engine, a locomotive engine, would have its reverse lever reversed and put in back gear, and if, when the steam be applied, that engine moves forward by reason of the reverse lever flying forward, would you say that engine is in defective condition? A. Yes, sir. Q. What do you say as to that? A. I think it would be badly out of order if it would fly from back to front when steam is applied. Q. Do you think it would be possible for an engine which was standing perfectly still with its reverse lever in back gear for the reverse lever to fly forward upon the application of steam? A. Not unless she is in mighty bad shape, sir. If the engine was standing perfectly still and the reverse lever was in back gear, and when steam was applied she would have to be in a bad...