Haselden v. Atl. Coast Line R. Co, 16203.

• Citation: 53 S.E.2d 60
• Decision Date: 01 April 1949
• Docket Number: No. 16203.,16203.
• Parties: HASELDEN. v. ATLANTIC COAST LINE R. CO.
• Court: United States State Supreme Court of South Carolina

53 S.E.2d 60

HASELDEN.
v.
ATLANTIC COAST LINE R. CO.

No. 16203.

Supreme Court of South Carolina.

April 1, 1949.

[53 S.E.2d 61]

Appeal from Court of Common Pleas of Darlington County; J. Woodrow Lewis, Judge.

Action by L. C. Haselden against the Atlantic Coast Line Railroad Company for personal injuries under the Federal Employers' Liability Act. From a judgment for the plaintiff, defendant appeals.

Affirmed.

Dargan, Paulling & James, of Darlington, John F. Wilmeth, of Hartsville, and Woods & Woods, of Marion, for appellant.

Mozingo & Watts, of Darlington, for respondent.

TAYLOR, Justice.

The respondent a section master of the appellant brought this action in the Court of Common Pleas for Darlington County under the Federal Employers' Liability Act, 45 U. S. C.A. § 51, to recover damages for injuries sustained by him while he and his section crew were loading rails on a gondola car at Society Hill, S. C. The appellant by way of answer after admitting certain formal allegations of the complaint in substance entered a general denial and set up by way of an affirmative defense, contributory negligence and assumption of risk.

The case came on for a trial before Honorable J. Woodrow Lewis, the presiding Judge and a jury, resulting in a verdict for the plaintiff in the sum of $45,000. Timely motions were made for a nonsuit, directed verdict and for judgment in favor of the defendant "non obstante veredicto" all of which were refused and appellant now comes before this court upon twenty-five exceptions which pose the following questions as stated by appellant:

I. Did the trial judge err in refusing any or all of appellant's motions for non suit, for a directed verdict, for judgment non obstante veredicto, and for a new trial, based upon failure of proof of actionable negligence?

II. Did the trial judge err in refusing any or all of appellant's motions for nonsuit, for a directed verdict, for judgment non obstante veredicto, and for a new trial, on the ground that respondent's negligence was the sole cause of his injury?

III. Did the trial judge err in refusing appellant's motions for a mistrial and for a new trial, based upon respondent's attempt to get before the jury highly prejudicial testimony previously excluded?

IV. Did the trial judge err in charging the jury that there is a positive duty on the part of the master to furnish the servant with reasonably safe instrumentalities wherewith and places wherein to work?

V. Did the trial judge abuse his discretion in refusing to grant a new trial on the ground that the verdict was so excessive as to show caprice, passion and prejudice on the part of the jury?

VI. Was the order of the trial judge refusing appellant's motion for judgment non obstante veredicto or for a new trial in the alternative erroneous in that he thereby adjudicated vital issues of fact as if the facts involved were undisputed; completely excluding and disregarding the preponderance of the evidence relating thereto, adduced by or on behalf of the appellant?

We will first consider whether or not the trial judge erred in refusing any or all of appellant's motions for a nonsuit, directed verdict, judgment non obstante veredicto, or a new trial, based upon an absence of evidence as to actionable negligence, and in doing so we will adhere to the well settled rule of this court that where the appeal is from the refusal to grant a nonsuit, or directed verdict we adopt the view of evidence most favorable to the verdict and give it the strongest probative force of which it will admit. Lang-ston v. Atlantic Coast Line Ry. Co. et al., 197 S.C. 469, 15 S.E.2d 758.

The testimony shows that plaintiff, approximately forty years of age is married and has a wife and children dependent upon him for support. That at the time of

[53 S.E.2d 62]

his injury he was employed as a section foreman for the appellant railway company and was responsible for maintenance and repair of a section of appellant's railway tracks in and near Society Hill, S. C. On July 9th, 1946, respondent received orders from his immediate superior, Mr. Dail, road master of the defendant company, to load ten rails which were located across a ditch from appellant's tracks, said rails to be used in repairing the tracks at various places along the line. Plaintiff's testimony was to the effect that he ordered a flat car for this purpose and was informed that none was available, whereupon he informed them that if a gondola car was sent he would not be able to load the rails from where they were located unless he had additional help, which was denied him, said rails being thirty-three feet in length and weighing eighty-five pounds to the yard. He was then told to place some skids and load from the side using some short rails as skids and rope with which to pull the rails up the skids. Respondent testified in part as follows:

"Q. Where were you? A. Inside the car.

"Q. Where were the other men? A. Three men on the ground and myself and two men in the car. We pulled the rail on this end to about six or eight inches and then tied the rope over here and go back and pull this end of the rail up until we got it within our reach. The men on the ground pushed and stayed there until the men could come around the car and get in, by taking the rope off while they were coming around and walking over and laid it on the end of the car and I turned around came back and the men pulled the rail just as I was walking up the car and the rail turned and come on me and hit my leg, and I slipped down and my leg jerked me back into it.

"Q. Now, you say that the men here were pushing until it got out of reach? A. Yes.

"Q. If you had had a flat car as you ordered, would it have been necessary for them to push it that high up? A. They could have pushed it up without getting it out of reach.

"Q. The rail would not have ever been out of reach to the men on the ground? A. No.

"Q. If you had had a flat car as you ordered and did not receive, what would have been the way that it would have been loaded? A. You could load on the skid but you would have had power to push it up with. Pulling with a small rope, we did not have power to load.

"Q. What happened after that? A. Well, I was jerked down and it caught my foot and I tried to straighten up and fell over backwards. I had to ask one of the men to untie my shoe.

"Q. Now these were being loaded, I believe you said, from across a ditch? A. Yes.

"Q. And all of this was pursuant to, and the way you loaded this car, was pursuant to instructions received by you from the road master, Mr. Dail? A. Yes.

"Q. And the rail crushed your foot, did you go to a doctor? A. Yes.

"Q. Now, Mr. Haselden, when you were talking to the road master there about loading these rails, state whether or not you asked for additional help? A. I did; I asked him to let Mr. Jones come up and help me load.

"Q. Who is Mr. Jones? A. He is the section foreman up above me at Cheraw.

"Q. Does Mr. Jones have a crew of men? A. Yes; the same as I do.

"Q. And this help was not given you? A. No; he said I could load my rails and put up the skid and go ahead and load it."

The foregoing and other testimony adduced is to the effect that plaintiff informed his immediate superior that he could not load rails on a gondola car from across the ditch, the sides of the car being approximately two and one half feet higher than the sides of a flat car. The request for additional help was rejected with respondent being instructed to get skids and load in the manner which was employed, the rope being passed around one end of the rail which was pulled higher on the skids by the men in the car, those on the ground pushing, until the rail had reached a position approximately six inches from the top

[53 S.E.2d 63]

of the car. To prevent it from sliding back down the skids the rope was made fast and the workmen proceeded to handle the other end in a like manner. After securing one end of the sixth rail respondent was proceeding to the other end to assist there when one end of the rail, which was bent, struck the car throwing it into the car and striking respondent's leg and foot.

In considering the evidence in this case we are mindful of the principle of law laid down in Shivar v. Atlantic Coast Line Railway Co., 155 S.C. 531, 152 S.E. 717, to the effect that the evidence and exceptions should be considered in the light of the Federal decisions interpreting the Federal Employers' Liability Act, 45 U. S. C.A. §§ 51-59.

In the very recent case of Wilker-son v. McCarthy & Swan as Trustees of the Denver & Rio Grande Western Ry. Co., 1949, 336 U.S. 53, 69 S. Ct. 413, 415, it is reiterated that: "It is the established rule that in passing upon whether there is sufficient evidence to submit an issue to the jury we need look only to the evidence and reasonable inferences which tend to support the case of a litigant against whom a peremptory instruction has been given"; in Lavender v. Kurn, 327 U.S. 645, 652, 653, 66 S. Ct. 740, 90 L.Ed. 916; Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 354, 63 S. Ct. 1062, 87 L.Ed. 1444, and Tiller v. Atlantic Coast Line Ry. Co., 318 U.S. 54, 68, 63 S. Ct. 444, 87 L.Ed. 610, 143 A. L.R. 967, it was held that where jury trials are required, courts must submit the issues of negligence to a jury if evidence might justify a finding either way on those issues; and Justice Douglas concurring in the same opinion states:

"The criterion governing the exercise of our discretion in granting or denying certiorari is not who loses below but whether the jury function in passing on disputed questions of fact and in drawing inferences from proven facts has been respected.

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"The Federal Employers' Liability Act was designed to put on the railroad industry some of the cost for the legs, eyes, arms, and lives which it consumed in its operations. Not. all these costs were imposed, for the Act did not make the employer an insurer. The liability which it imposed was the liability for negligence...