Johnson v. Charleston & S. Ry. Co.

• Decision Date: 16 January 1899
• Parties: JOHNSON v. CHARLESTON & S. RY. CO.
• Court: South Carolina Supreme Court

32 S.E. 2

55 S.C. 152

JOHNSON v. CHARLESTON & S. RY. CO.

Supreme Court of South Carolina

January 16, 1899

Appeal from common pleas circuit court of Charleston county; R. C Watts, Judge.

Action by Willis Johnson against the Charleston & Savannah Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed by a divided court.

W. St Julien Jervey, for appellant.

Mordecai & Gadsden, for respondent.

POPE J.

This action for damages came on for trial before his honor Judge R. C. Watts. The hearing was confined to an oral demurrer to the second affirmative defense set up in the answer, which demurrer was overruled, and from the order of Judge Watts overruling the same an appeal is now presented to this court. It will be proper, therefore, to reproduce the pleadings, to the end that our ruling may be properly understood.

Complaint (caption omitted): "The complaint of Willis Johnson against the Charleston & Savannah Railway Company, defendant herein, respectfully showeth: (1) That the defendant was, at the time hereinafter mentioned, and now is, a corporation duly created and existing under the laws of the state aforesaid. (2) That the plaintiff was, on or about the 16th day of November, in the year of our Lord one thousand eight hundred and ninety-six, in the employ of the defendant company as a fireman, and was there actively engaged at work on a train of said defendant company, running between Charleston and Savannah. (3) That while so engaged, at Ridgeland, in the county of Beaufort and state aforesaid, as fireman on train proceeding from Savannah to Charleston under charge and control of Robert Smart, engineer, it became the plaintiff's duty to stand upon a certain platform, on which wood was piled, and from said platform to load the tender with fuel, by throwing sticks of wood therein. That after supplying the tender with wood, as aforesaid, on a signal that the engine was about to move the plaintiff stepped to the edge of the said platform, and thence endeavored to step onto the engine. (4) That, by reason of the broken and unsound condition of the said platform which caused the fall of the plaintiff, and the sills on which it rested, the said platform gave way under the weight of the plaintiff, and forcibly precipitated him upon the iron structure of the engine. (5) That the broken and unsound condition of the said platform which caused the fall of the plaintiff, as aforesaid, was the result of the carelessness and negligence of the defendant in not keeping said platform in good, reasonable, and safe repair. (6) That, by reason of the fall aforesaid, the plaintiff sustained serious wounds and bruises in his arm, side, and leg, and also injuries of an internal nature, causing him severe bodily pain and suffering, so that he is not able to perform his accustomed labor. That he has already expended a considerable amount of money for medicines and medical attendance, and is advised by his physicians that his said injuries will probably disable him permanently from performing such labor as he was heretofore capable of performing, and will continue to cause him pain and require medical attention and medicine for the rest of his life. (7) That, by reason of the carelessness and negligence of the defendant, as hereinbefore set forth, the plaintiff has been damaged ten thousand dollars. Wherefore the plaintiff demands judgment against the defendant for the sum of ten thousand dollars, and for the costs and disbursements of this action. Complaint verified. W. St. Julien Jervey, Plaintiff's Attorney."

Answer: "The defendant, the Charleston & Savannah Railway Company, answering the complaint herein, says: (1) This defendant admits the allegations contained in the first paragraph of said complaint. (2) This defendant denies the allegations contained in the second, third, fourth, fifth, sixth, and seventh paragraphs of said complaint. And, by way of affirmative defense to said action, this defendant says: That the injury alleged in said complaint to have been received by the plaintiff, Willis Johnson, was caused by the contributory negligence of the said plaintiff, in not exercising due care and caution in stepping on said engine from said platform, and that but for said want of care said injury would not have happened, such contributory negligence on the part of the plaintiff being the primary cause of said injury. And, by way of affirmative defense to said action, this defendant alleges: That the said plaintiff, at the time he claims to have received the alleged injury, was a member of the Plant System Relief and Hospital Department. The said Relief and Hospital Department is an organization formed by the Charleston and Savannah Railway, Savannah, Florida and Western Railway, Alabama Midland, Brunswick and Western, Florida Southern, and other railway companies (which said railway companies comprise the Plant System), for the purpose of establishing and managing a fund for the payment of definite amounts to employés contributing to the fund who, under the regulations, are entitled thereto, when they are disabled by accident or sickness, and to their families in the event of death. The said relief fund is formed from contributions from the employés and the Plant System, income derived from investments, and appropriations by the Plant System when necessary to make up a deficit. The regulations governing said Relief and Hospital Department require that those who participate in the benefits of the relief fund must be employés in the service of one of the railroad companies comprising said Plant System. This defendant further says that participation in the benefits of said relief is based upon the application of the beneficiary, and subject to all the rules and regulations of said Relief and Hospital Department. Defendant further says that, on the second day of November, 1896, the plaintiff herein, being in the employ of the defendant company, and said company being a member of the Plant System, applied for membership in the said Plant System Relief and Hospital Department, and in said application agreed to be bound by all the regulations of the Relief and Hospital Department, and in said application further agreed that, in consideration of the contributions of the said companies comprising the Plant System to the Relief and Hospital Department, and of the guaranty by them of the payment of the benefits aforesaid, the acceptance of the benefits from the said Relief and Hospital Department for injury or death should operate as a release of all claims against said companies and each of them for damages by reason of such injury or death. Defendant further says that, when the plaintiff received the alleged injury, he thereupon became entitled to the benefits coming out of his membership in said Relief and Hospital Department, by reason of the injury alleged to have been received by him while in said service. That said plaintiff thereupon immediately applied to said department for such benefits, and received therefrom payments amounting in all to the sum of $66.50, being the amount due for 133 days at the rate of 50 cents per day, which was the rate to which the plaintiff was entitled as a member of said Relief and Hospital Department. This defendant further says that, in accordance with the regulations of said relief and hospital department, said plaintiff received free medical and surgical attendance from the surgeons of said company, and care and treatment in the said company's hospitals free of charge, and the said relief and hospital department did all on its part to be done for and in behalf of the said plaintiff, by virtue of his membership in said department. The said sum of money the said plaintiff duty accepted and receipted for, under the regulations of said Relief and Hospital Department, and in accordance therewith, and the said plaintiff, in consideration of the payment to him of the said sums of money, thereupon duly released and forever discharged said defendant company, and each and every company comprising the Plant System, from all claims and demands for damages, indemnity, or other form of compensation he then had, or might or could thereafter have, against any one of the aforesaid companies, by reason of said injury, which said receipts and releases were severally signed and sealed, and delivered to the said relief and hospital department, by the said plaintiff. Wherefore this defendant alleges that the acceptance of the said benefits from said Relief and Hospital Department for said alleged injury, and the execution of the release aforesaid, operate to release and discharge said defendant company from any and all claims for damages arising in any way out of the injury complained of by said plaintiff in his said complaint."

Oral demurrer (caption omitted): "The plaintiff demurs to the second affirmative defense set up in the answer, and moves that the same be dismissed, for the reason that it does not state facts sufficient to constitute a defense, in this: That in said defense it is alleged that the plaintiff had entered into a contract with the defendant whereby it was agreed upon certain consideration, that the defendant should be released from all claims of the plaintiff for damages by reason of accidental injury or death; that such contract is contrary to law and against public policy, and a release thereunder cannot, therefore, be pleaded as a defense to an action for damages caused by the defendant's negligence. W. St. Julien Jervey, Plaintiff's Attorney." This demurrer was overruled; and his honor said: "There is no question in my mind that a contract of that kind, whereby a railroad company attempts to relieve itself of any liability on account of negligence, is contrary to public...