Johnson v. Atl. Coast Line Ry. Co, (No. 10606.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: WATTS
• Citation: 107 S.E. 31
• Docket Number: (No. 10606.)
• Decision Date: 13 April 1921
• Parties: JOHNSON v. ATLANTIC COAST LINE RY. CO.

107 S.E. 31

JOHNSON
v.
ATLANTIC COAST LINE RY. CO.

(No. 10606.)

Supreme Court of South Carolina.

April 13, 1921.

Cothran, J., dissenting in part.

Appeal from Richland County Court; M, S. Whaley, Judge.

[107 S.E. 32]

Action by Calvin Johnson against the Atlantic Coast Line Railway Company. From judgment on a directed verdict for defendant, plaintiff appeals. Reversed.

Plaintiff was injured while cutting a rail in repairing a track used by interstate and other trains.

The reasons given by the trial judge for directing a verdict, mentioned in the dissenting opinion, were as follows:

The Court: Well, gentlemen, I think I had better bring this to an end. The more I hear from both sides, the more convinced I am. As I said, the only thing that was worrying me was the assumption of risk, which was not passed on by the Supreme Court in this majority opinion at all because it did not apply to the case at all as it went up.

Now, either there was no defect in this tool at all—if you want to take all of the defendant's testimony, of course, either there was no defect of it at all and that would come in on the issue of negligence and would go to the jury on that or if it was, or if there were a defect in it which would make it dangerous, as the Supreme Court has well said, that danger would not be latent, as I understand the word "latent, " that danger to be latent would be hidden, that would not be hidden because it came from that mushroom effect, as the witnesses have said, the mashing down of the top of that cold-chisel and the projections that come on the side and are sometimes knocked off.

So then, there was either no danger at all, or there was a danger which was a danger that would have been as much apparent to the man using the tool as the master himself. And that certainly carries me, as I understand it, from the negligence proposition over to the assumption of risk, which under the federal Employers' Liability Act is a complete defense.

It is significant that he was told to carry that tool back. That is his own testimony from his own side, not his own personally but from his own side. It is significant that he himself testified that that tool had very jagged edges. And he placed his whole case upon the fact that it did have jagged edges and was therefore dangerous and a piece flew off and hit him.

Now, there was a discussion between him and the man who was helping him at that job.

And I cannot for one moment think that with all the facts that are before me here that what Judge Frazier said in his dissenting opinion would be the majority opinion of the Supreme Court, if not the majority opinion, that all of the facts as presented in this case before, that the two things are inseparable.

If it was dangerous it was apparent right there, and if he used it for an hour, if he had it in his own possession for an hour and he had had some experience along this line or if he used it for two hours, as the other witnesses testified to, and I give him the benefit of his testimony, of the truth of his testimony on this, if he had only used it long enough to go around one side and hardly around the other with that heavy hammering on that cold chisel with that mushroom effect that he said was there, which I take to be true in deciding this case now, what he said about it was true why, then, it was a danger that was as apparent to him as to the master, and even though the master may have let him negligently get it, after he kept on using it it was in his possession and if it became more "mushroomed" while he was using it right there, he was in a better position to report it rather than to go on, but he didn't, he went on, and by going on he assumed the risk, and I do not see how he can now complain. He is not at all a fool. As said in Martin v. Royster Case, and I believe that would apply here, he is not one of meager understanding. I think he could have reasonably appreciated the risk according to his own testimony as to the conditions of that tool.

Mr. Jackson: Excuse me, please, has your honor finished?

The Court: Yes, sir.

Mr. Jackson: Well, does the court mean to rule now that according to the testimony here that this defect was so plain, open, and obvious that this man observed the danger and appreciated the danger?

The Court: Yes, sir.

Mr. Jackson: Yes, sir.

The Court: And if he didn't he ought to have, as he is not one of meager understanding. I think what was said in the Royster case in that regard applies here.

Now, gentlemen, I may be ruling right, or 1 may be ruling wrong; but attorneys must not be making remarks in court. I try to do my best.

Mr. McKay: Your honor will direct...