Jester v. Southern Ry. Co.

• Decision Date: 07 April 1944
• Docket Number: 15636.
• Parties: JESTER v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

29 S.E.2d 768

204 S.C. 395

JESTER v. SOUTHERN RY. CO.

No. 15636.

Supreme Court of South Carolina

April 7, 1944

Frank G. Tompkins, of Columbia, and P. A. Bonham, of Greenville for appellant.

Price & Poag, of Greenville, for respondent.

BAKER Chief Justice.

This action was brought under the Federal Employers' Liability Act, as amended, 45 U.S.C.A. § 51 et seq., for the benefit of the widow and two minor children of the deceased. The cause of action was based upon the alleged negligence of the appellant, its officers, agents or employees.

Respondent's intestate was employed by the appellant as a fireman, and on July 28, 1942, was engaged in that capacity on a freight train of the appellant, with one, C. H. Black, as engineer in charge of the engine. While on this trip, an argument arose between the fireman and engineer, resulting in the death of C. V. Jester, the fireman, caused by pistol shots fired into his body by C. H. Black, the engineer.

The particulars in which it was charged that the appellant and its employee, Engineer Black, were negligent were that said Black was a turbulent and violent person in his conduct towards other employees and that he habitually carried a pistol about his person in the performance of his duties, of which facts the appellant's superior officers had knowledge and notice and it was alleged that the appellant was negligent in retaining Black in its employment. As to C H. Black it was alleged that he threatened and abused the deceased in giving orders about the use by the deceased of the water injector of said engine; and, in attempting to enforce his orders as to the injector, negligently shot the deceased twice, while both the engineer and fireman were engaged in the work assigned to them and while Black was in the actual scope of his agency as engineer; and it was further alleged that Black, while acting within the scope of his agency and employment, shot the deceased in enforcing his orders and instructions as engineer, while the fireman was using the coal scoop in the performance of his duties.

While as appears from the above specifications of negligence, the cause of action was based upon two grounds of negligence, no proof was offered to sustain the allegation that the appellant retained the engineer in its employment with notice and knowledge by its superior officers that the engineer was a turbulent and violent person, in his conduct toward other employees and that he habitually carried a pistol about his person in the performance of his duties; and the respondent abandoned this allegation of negligence and relied entirely upon the allegation that the engineer negligently shot the fireman, while both were acting within the scope of and in performance of their duties.

The answer of the appellant set up a general denial, and pleaded contributory negligence and assumption of risk. However, it is conceded that the Federal Employers' Liability Act is applicable.

At the close of the testimony for respondent, the appellant announced that it had no testimony to offer and moved the Court for a directed verdict upon several grounds, the substance of which was that the testimony failed to show that in shooting the fireman, the engineer was acting within the scope of his agency and in furtherance of the appellant's business, but on the contrary the testimony did show that the act of the engineer was done for purely personal reasons; and that a verdict for the respondent could be predicated only upon conjecture.

This motion was overruled, and a jury returned a verdict in favor of respondent. The appellant then moved for a new trial, which motion was likewise refused, and this appeal followed.

The sole issue in this appeal is whether or not the testimony adduced upon the trial of the case was sufficient to require the submission to the jury of the question if the engineer, C. H. Black, in the shooting of C. V. Jester, the fireman, was acting within the scope of his agency and in furtherance of the appellant's business. In undertaking to decide this issue, it is necessary that we briefly set forth the testimony, and apply the law as established by the Federal decisions which is binding upon this Court in a case brought under the Federal Employers' Liability Act.

Charles W. Ambrose, an employee of the appellant, testified that he was supply man at the roundhouse of appellant at Greenville, S.C., and in preparing the engine on which Black and Jester were the engineer and fireman, respectively, to go on the run, he placed a machinest hammer on the right-hand side of the watertank, the engineer's side, and that this hammer was there when the engine left the roundhouse; that it was usual or customary to place such a hammer on the watertank or engine when it was going out on a trip, but it could be put on either side of the watertank. G. H. Short, the conductor on the train, testified that between Greenville, the starting point of the train, and the place of the shooting, about halfway between Wellford, S.C., and Lyman, S.C., it was necessary for the engine to do considerable shifting of cars in the placing of empty cars and the picking up of loaded cars at various points; that he rode in the engine out of Greer, S.C., to a siding near there, and noticed the hammer on the corner of the tank on the engineer's side; that at Wellford, while the train was stopped and he was in the telegraph office, he heard the engineer and fireman "fussing" with each other, at which time they were on the engine, but both got off the engine on to the ground on the opposite or farther side of the engine from the telegraph office (the record does not disclose if this was the engineer's or fireman's side of the engine); that he went out where they were and inquired as to the trouble between them, and the engineer said he had told the fireman to keep his hands off the water injector, and he wouldn't do it; that the injector puts cold water in the boiler, which is necessary to the operation of the engine, and there is one both on the engineer's and fireman's side, so that either may conveniently operate it; that the injector is operated by the pulling down of a lever; that it is usually a matter of mutual understanding as to which would operate the injector, but that the engineer being in charge of the engine, had the authority to elect if it should be used solely by himself; that it was necessary that this injector be operated every fifteen or thirty minutes; that he told them to get back on the engine and get their work done, and after arguing again as to which would first get back on the engine, the fireman finally preceded the engineer, and considerable shifting of cars was done in and around Wellford and the train proceeded to a pass track where the shooting took place; that this was about one and one-half hours after the trouble between the engineer and the fireman at Wellford; that the train was backed up the main line to said passing track, and upon reaching the switch to the pass track the train was stopped to open the said switch; that as the train was backing in on the pass track, the engine and cars came to a stop without any signal so to do, which attracted his attention to the engine; that he saw the engineer get off the seat box, and heard him and the fireman quarreling; that he was then about one hundred and sixty feet away; that he started walking back towards the engine and when he had walked the length of one car, forty feet, he heard a shot fired, and the fireman exclaim, "Oh, Lord, Dick," and then a second shot was fired; that "Dick" was the engineer; that following the second shot, "I saw the bulk of something come out of the engine to the ground; I don't know whether it fell out or jumped out; and I kept going up that way and when I got in a couple of car lengths of the engine the engineer got up off the ground and came back meeting me, or apparently from the ground; and I said, 'You have played the devil now,' and he said, 'He was after me with a hammer;"' that the engineer said they came out of the engine together; that Jester was in a dying condition when he reached him, and there was no hammer on the ground where he was lying; that another train was coming, so he instructed the engineer to back the train and get in the clear; that upon getting on the engine he looked for the hammer and it was on the same corner of the tank where he had seen it earlier at Greer; that he called the engineer's attention to the hammer on the corner of the tank, and the engineer said: "How come that there, when he struck at me, I throwed my arm up and it fell over there;" that the fireman's cap and glove, and the coal scoop were on the deck of the engine (the floor of the engine), about the center.

The widow of Jester (also the respondent herein in her representative capacity) testified as to her dependency and that of their children upon the earnings of the deceased, and the amount thereof, etc., and exhibited in Court the overalls and overall jumper worn by Jester at the time he was shot and killed, which bore evidence of a bullet hole over the right hip, and one on the left side just about the middle of the pocket of the overall jumper.

The testimony showed that the engineer, Black, weighed about 250 pounds and that the fireman, Jester, weighed between 135 and 140 pounds, and both appeared to have normal health, but we attach no particular importance to the difference in the weight of the two men.

It was on the foregoing testimony that appellant's motion for a directed verdict was overruled, and the case submitted to the jury.

The Federal Employers' Liability Act, as amended August 11, 1939, 45 U.S.C.A. § 51, is in part as follows:

"Every common carrier by railroad while engaging in commerce

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