Hooper v. Columbia & G. R. Co.

Decision Date14 November 1884
Citation21 S.C. 541
PartiesHOOPER v. COLUMBIA AND GREENVILLE R. R. COMPANY.
CourtSouth Carolina Supreme Court

1. The rule laid down in Snow v. Housatonic Railroad Company , 8 Allen , 444, as to the duties of a railroad company towards its employé s, approved.

2. Quere : Where a railroad company requires a brakeman to ride upon the top of its train, and at the same time maintains a bridge with a top too low for such employé to pass through in safety without stooping, is this a danger incident to the employment of a brakeman, and is there a full performance of the duty imposed upon the company in regard to the safety of their employé s?

3. But an employé may waive the right to exact of his employer such appliances as the law requires, and, as a general rule, the acceptance or retention of service without complaint, after full knowledge of a permanent patent defect amounts to a waiver of such defect.

4. Therefore, where a brakeman on top of a train, in full daylight, was struck on the back of the head and killed by the top of a bridge through which he had passed daily for three months, and always stooped to avoid injury, the railroad company are not liable in damages to his administrator for negligence in permitting this bridge to remain as it was, and in failing to have danger-signal cords and no special negligence in this case being shown, a non-suit was properly ordered.

5. This case distinguished from Lasure v. Graniteville Manufacturing Company , 18 S.C. 276.

6. The proof by plaintiff not authorizing a reasonable inference of negligence on the part of the railroad company, the non-suit was proper.

Before KERSHAW, J., Oconee, November, 1883.

The opinion gives a full statement of the case.

Messrs. S. P. Dendy and M. F. Ansel , for appellant.

Mr. John C. Haskell , contra.

OPINION

MR JUSTICE MCGOWAN.

This was an action by J. J. Hooper, as administrator of his son, Nelson T. Hooper, against the Columbia and Greenville Railroad Company for damages on account of the death of sad intestate, while in the service of said company as brakeman, which as alleged was caused by their wrongful act, default, and negligence in keeping up, at Felton's Crossing, on their road, a bridge which was defective in being too low, and by the over-head arches of which he was killed, while in the discharge of his duty. The action was brought by the administrator for the benefit of himself as the father and the other distributees of the intestate, under the act of the legislature on that subject. The defendant corporation answered, admitting the death, but insisting that there was no defect in the bridge at Felton's Crossing; and that if so, such " defects were well known to the said Nelson T. Hooper, both before and up to the time of his death, and that he continued in such service for a number of months before his death for valuable consideration paid by defendants, knowing the said bridge, and if there was any danger attached to the passage of said bridge by the trains of the defendants, the said Nelson T. Hooper assumed all the risks and perils incident thereto; and these defendants deny that they are responsible for the injuries arising from any defect in said bridge, which was known to said Hooper and unknown to these defendants," & c.

The case came on for trial before Judge Kershaw. It was admitted that plaintiff's intestate was struck by the over-head timbers of the bridge at Felton's Crossing, on the defendants' road, and that the injuries received produced his death. It appeared from the evidence that the intestate, Nelson T. Hooper, was a brakeman on a freight train on the defendants' road, and had been for about three months, which was his first experience on a railroad; that on the morning of November 7, 1881, in a storm of wind and rain, the train, running at maximum speed, passed under the bridge at Felton's Crossing, and soon after the conductor heard that Hooper was hurt, and stopped the train. He was found dead, his face bloody; he lay across the car, and head on arms, feet towards the side of the car on right, face turned towards the front, hands in his overcoat pockets; he was found mid-way of the car, just over the door. There was a considerable cut on the back of the head just at the edge of the hair; it was a considerable gash.

It further appeared that it was the duty of a brakeman to be on the top of the cars. Top-brakes were not used until Colonel Dodamead was superintendent (about 1870 or 1871); before that the brakeman was on the inside of the car. The bridge at Felton's was built originally in 1857, and renewed since the war. The bridge was sixteen feet from top of rail, and the height of a South Carolina railroad car (kind in use that day) is a little over eleven feet-stated by Mr. Magee, who measured one, to be eleven feet and three and one-fourth inches- leaving between the top of the cars and the timbers about four feet and eight and three-fourths inches; " a moderate stoop would pass a man under the bridge, a sitting posture would do so, but one could not stand without being knocked off." At that time there were no danger-cords to give warning of approach to the bridge; a negro man once before had been killed at the same place. He was not a train hand; got on the cars, stood up, and was killed. It also appeared that the intestate was reared in the neighborhood, and lived with his father, the family furnishing him with clothes; that he was only about a month over twenty-one years of age, and when not engaged on the road worked for his father; that after going on the road, he had not assisted his father much in money matters, but had let him have some. He spent most of his wages for clothing, was an obedient, industrious, sober boy, getting a dollar a day as brakeman.

The company offered no evidence, but upon the close of plaintiff's, moved for a non-suit, which the judge granted, among other things saying: " The evidence for the plaintiff showed this bridge had been in the position it then was for thirty years without any change in point of height or construction from its original place and location. I cannot see under the evidence any proof that defendants have been guilty of negligence in the building of this bridge, or in maintaining it as originally constructed by the builders of the road. On the other hand, the evidence appears to point clearly to the negligence of the deceased as at least contributory, both from his certain knowledge of the bridge from passing beneath it daily, and every time being required, in order to avoid danger, to incline his body, and from the fact that his face, from the location of the injury, was directed to the rear. Upon the familiar principles of law, that one who enters the service of another takes upon himself the ordinary risks incident to the employment, and that one who has contributed to the cause of the danger of which he complains cannot recover against another who also contributed to the same causes, either or both, and I cannot, from the evidence on the part of the plaintiff, avoid the conclusion that the non-suit should be granted.... As to the fifth and sixth grounds of the motion for non-suit, they are refused. I am not prepared to be the pioneer in this state in announcing as a principle of law that a parent has no beneficial interest in the life of a child after the majority of such child, or to say that in this particular case there was such a failure of proof of beneficial interest as to take the case for this reason from the jury," & c.

From this order of non-suit, the plaintiff appealed upon the following grounds:

1. " Because where there is any proof to sustain the allegation of the complaint, the question must go to the jury.

2. " The question of negligence was a mixed question of law and fact, and should have been submitted to the jury.

3. " The question of negligence should have been submitted to the jury, because it was proved that the company had notice, and knew, or ought to have known, that their bridge at Felton's Crossing was too low, and dangerous to its servants and employé s.

4. " The proof showing that said bridge was too low, the defendant company was liable for injuries to its employé s occasioned by improper and dangerous structures if the employé was in the discharge of his duty.

5. " Under...

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