Hall v. Northwestern R. Co. of South Carolina

• Decision Date: 16 November 1908
• Citation: 62 S.E. 848,81 S.C. 522
• Parties: HALL v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.
• Court: South Carolina Supreme Court

62 S.E. 848

81 S.C. 522

HALL v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.

Supreme Court of South Carolina

November 16, 1908

Appeal from Common Pleas Circuit Court of Kershaw County; Geo. E Prince, Judge.

Action by W. J. Hall against the Northwestern Railroad Company of South Carolina. From a conditional order for a new trial defendant appeals. Modified and affirmed.

Lee & Moise and Clark & Von Treskon, for appellant.

Kirkland & Smith, for respondent.

WOODS J.

The plaintiff, a freight conductor on the defendant's railroad, went between two freight cars for the purpose of coupling them, was caught between the buffers, and received personal injuries. On the allegation that his injuries were due to the negligence of the defendant railroad company a verdict of $15,000 was recovered. The circuit judge refused a motion for nonsuit, but granted a conditional order for a new trial. The defendant's counsel by their exceptions submit that the motion for nonsuit should have been granted, that there were errors in the charge to the jury, and that the conditions attached to the order for new trial were not authorized by law.

We first consider the refusal to grant a nonsuit: The grounds of the motion were that the plaintiff knew the danger of attempting to make the coupling by going between the cars, and could not recover (1) because he assumed the risk of the attempt, and (2) because he was guilty of contributory negligence in taking the risk. This is one of that class of cases where, by reason of the allegation that the danger was so obvious and imminent that no prudent servant would have undertaken to make the coupling, the defenses of contributory negligence and assumption of risk approach so closely to each other that distinction between them is almost impossible in the practical application of the law. In Bodie v. C. & W. C. Ry. Co., 61 S.C. 468, 39 S.E. 715, the general distinction is thus stated: "'Assumption of risk' rests in the law of contract, and involves an implied agreement by the employé to assume the risks ordinarily incident to his employment, or a waiver, after full knowledge of an extraordinary risk, of his right to hold the employer for a breach of duty in this regard. *** 'Contributory negligence,' on the other hand, rests in the law of torts, as applied to negligence, and, when such defense is established, the plaintiff's action is defeated, not because of any agreement express or implied, but because his own misconduct was a proximate cause of the injury." In further elaboration of the distinction, it is said in Barksdale v. C. & W. C. Ry., 66 S.C. 211, 44 S.E. 743: "Nearly every case of contributory negligence on the part of an employé involves in a general sense some assumption of risk, because in order to be guilty of contributory negligence there must be the risk of apparent danger. When a servant risks this danger in the discharge of duty imposed on him in the course of usual duty, this would be, in an exact sense, a case of assumption of risk; but if he improperly risks the danger, which becomes a proximate cause of the injury, in doing that which is not imposed on him in the course of his usual duty, it would be contributory negligence." Under the law, as thus laid down, neither the defense of assumption of risk nor contributory negligence was conclusively made out either by the evidence of the plaintiff or the evidence on both sides taken together.

The testimony tended to show these conditions: Camden and Sumter were the terminal points of the defendant, Northwestern Railroad Company. It is customary for railroads to have car inspectors at terminal points, charged with the duty of seeing that cars were in fit and safe condition for use; but the defendant failed to provide for such inspector. It was also customary to provide for the crew of a freight train three brakemen, that force being necessary besides the engineer and conductor; but the plaintiff was allowed only two brakemen on his train, though he had complained to the president of the road that two brakemen were insufficient and had been promised more men. There were no printed or written rules of the road furnished to employés; but it was the duty of the plaintiff to shift and move cars at Camden, as ordered by the Camden freight agent; the plaintiff determining for himself the manner of doing the work. On November 23, 1903, after the plaintiff's train was made up at Camden, and was about to depart on its schedule time, the freight agent directed the plaintiff to place two empty cars on the track, known as the "oil mill track." The two cars to be moved were on the same track but were not coupled together. The plaintiff, at the rear of the train, signaled the engineer to move the train and make the coupling. Seeing that the train had not been moved against the rear car with sufficient force to make the coupling automatically, plaintiff tried to use the lever provided for coupling the cars, without going between them; but the lever failed to work. He then went between the cars, and, walking with the slowly moving train, undertook to make the coupling with his hand by lifting the latch pin. The plaintiff testified he had made couplings this way hundreds of times before with safety; but on this occasion he inadvertently went in a little farther than was necessary, and his left side was caught between the buffers. The plaintiff admitted he knew there was danger in going between the cars to couple; but he testified he made the effort because the last car was on a downgrade, and he had reason to apprehend that, if he did not stop it by coupling it, the car would run down the grade and off the track. In addition for this reason for attempting to make the coupling, as the plaintiff testified, a part of his train was on the main line of the Southern Railway Company, and its passenger train being about due, and his own train unguarded for lack of a sufficient crew, the plaintiff considered it important to get his train out of the way.

There is force in the argument that the plaintiff voluntarily assumed the risk of the dangers of his employment, due to lack of inspection of the cars, because he had continued in the service of the defendant with full knowledge that the cars were not inspected. Wofford v. Clinton Cotton Mills, 72 S.C. 348, 51 S.E. 918, and cases cited. Decision of the point, however, is not necessary in the consideration of the motion for nonsuit, because there was evidence to go to the jury on other issues of negligence and assumption of risk. The evidence is very far from showing that the plaintiff's contractual relation of service contemplated that in the usual course of his service he should assume, at his own peril, the risk of coupling cars by going in between them and lifting the latch pin with his own hands. Indeed, we do not understand the defendant's counsel to contend that assumption of risk arose in that way. It is true the plaintiff says he had so made the coupling a thousand times with safety, but that such a mode of coupling was not to be expected as usual is shown by the fact that the defendant's cars were equipped with levers to be operated from the side of the car. But there was evidence that it was the duty of the plaintiff in the course of his usual service to couple cars, and that the performance of this duty was necessary to the service. The position of defendant we understand to be that, coupling cars being a duty imposed by plaintiff's usual course of service, if the negligence of the defendant be assumed in imposing the urgent duty on this occasion of making the coupling without a safe means of performing the duty, yet the plaintiff at the moment was well aware of the danger, and, in choosing to perform it, assumed the risk, and thus waived his right to have provided a safe means.

The defendant's charge of contributory negligence depends on viewing the same act of the plaintiff from a different standpoint. Stated in short, the argument is this: The plaintiff was required in the course of his service to couple cars, but by the use of a lever, and not by going between the cars and using his hands, and hence it was negligence to attempt to move the coupling in that way; and further, even if defendant's negligence, in not supplying a workable lever, made it necessary for plaintiff to go between the cars, he could nevertheless have coupled the cars in that position without being caught, if he had not negligently gone too near the buffers. In this view the defendant asked the court to find contributory negligence of the plaintiff as a necessary sequence (1) from the negligent act of going between the cars, where his services did not require him to go, and (2) from the negligent act in going so far in that he was caught. Under the evidence of the plaintiff in this case that he had made such couplings a thousand times in safety it might be doubted, as a matter of law, whether it would have been contributory negligence for the plaintiff to go between the cars to make a coupling, even where there was no emergency; but assuming that such acts would be so held under ordinary circumstances, or taking the other view, and considering the evidence such as would under the ordinary circumstances admit of no other inference than that the plaintiff had assumed the risk, and was therefore precluded from discovery, such inference would not be admissible under the other facts of the case. The plaintiff had exhausted the safest means of making the coupling by attempting to use the lever provided by defendant, which proved to be out of order. If the presence of his train on the main track of the Southern Railway was not positively dangerous to the passenger train then expected, it was an obstruction which it was his duty to...