Johnston v. Atlantic Coast Line R. Co.
| Decision Date | 02 March 1937 |
| Docket Number | 14441. |
| Citation | 190 S.E. 459,183 S.C. 126 |
| Parties | JOHNSTON v. ATLANTIC COAST LINE R. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; C.J Ramage, Judge.
Action by Rena Johnston, as administratrix of the estate of A. A Wells, deceased, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals.
Reversed and cause remanded for entry of judgment for defendant.
Douglas McKay, of Columbia, and Reynolds & Reynolds, of Sumter, for appellant.
Epps & Epps, of Sumter, for respondent.
This case arises under the Act of Congress fixing the liability of interstate railroads for injuries to their employees, and is determinable by its provisions (Federal Employers' Liability Act of April 22, 1908, c. 149, § 2, 35 Stat. 65, 45 U.S.C.A. § 52). The action was brought for the recovery of damages for the death of A. A. Wells, a fireman, while employed by the defendant and engaged in interstate commerce on a passenger train from Fayetteville, N. C., to Sumter, S.C. The deceased was instantly killed when the train on which he was working ran into an open switch leading into a wye track, about 1 mile and a half north of Bennettsville. The wreck occurred about 6 o'clock p. m., on the 2d day of December, 1933. The train approached this point running at the rate of about 40 miles per hour, and at the switch left the main line, swung into the wye track, and was immediately derailed, producing the fatality for which the suit is brought.
The switch had been unlocked and opened to the main line after dark by a negro, Frank Easterling, who had stolen the switch key from W. L. Biggs, a relief agent of the defendant company, at Johns, N. C.
This theft, and the tragic sequence of events which followed it, resulting in the death of the fireman, present a most unusual state of facts.
Johns, N. C., is located on the branch line of the defendant railroad running from Fayetteville to Sumter, via Bennettsville. Biggs, the relief agent, operated at Johns a combination store and gasoline service station, which was broken open and robbed one night three or four days before the defendant's train was wrecked near Bennettsville. A bunch of keys belonging to Biggs, and the switch key, were kept in the store near the cash register, and were stolen by the thief, along with some cigarettes and various kinds of tobacco. The testimony is undisputed that the store was locked prior to the robbery, and that the robber had to break into the store in order to gain entrance. The negro, Easterling, who robbed the store, freely testified at the trial as witness for the defendant. At the time he was serving a term in the state penitentiary for wrecking the train. He testified in detail as to the circumstances of the theft of the key and the use of it in opening the switch. He said that he broke into the store of Mr. Biggs and stole the key which was hanging by itself near the counter; that he did not know that it was a switch key, but on his way to Bennettsville several nights later he reached the railroad switch in question, and found that the key would fit the switch lock; that he unlocked it, opened the switch to the main line, and locked it back, and left it in that position, and then went up town and attended a picture show; that later the same night he heard about the wreck. He also said, "I tried to put the switch back like I found it, but I don't know."
The testimony shows that the switch key would open any switch lock on the line of the defendant company. The bunch of keys, including the switch key, were recovered from Easterling following his arrest.
The plaintiff made the following specifications of negligence: (1) In failing to use any switch lights or other adequate method that would give warning at night of an open switch; (2) in failing to properly protect and safeguard the switch key (3) in failing to take any precaution to protect the switch, or give warning when it knew that the key was in the hands of a felon.
The defendant pleaded that as to the acts of negligence alleged, the proximate cause of the injury was an act for which it was in no wise responsible, namely, the act of a trespasser or criminal, who, after breaking into the store of its relief agent, unlawfully and feloniously stole the switch key, along with other things, and opened the switch, which unlawful act was perpetrated a very short time before the arrival of the train on which plaintiff's intestate was fireman; and further pleaded that the plaintiff's intestate had assumed the risks, both usual and unusual, of his employment; had full knowledge of the nature and character of the construction of the switch and the switch stand, and the construction, nature, and maintenance of the switch target, and fully appreciated, acquiesced in, and assumed all risks connected therewith.
The testimony shows that the switch stand and signal target located at the point where the wreck occurred was standard equipment used by the defendant company, and stood 68 inches from the top of the target to the top of its base. The round disc of the target is 15 inches; the arrow, which is painted red, is 22 inches long, and 15 inches wide, and this target had been painted about two weeks prior to the wreck; that when the switch is open, or open to the main line, it shows the arrow which is painted red.
There was no light on the switch stand, but there was a place on the top for a light to be placed in a slot. The defendant company used no oil lights on the top of any of its switch stands on any of its branch lines, including the branch line from Fayetteville to Bennettsville, on which the wreck occurred; although some switch lights were used on its main line. At the time of the accident the train here in question was approaching a highway crossing located about 150 yards south of the displaced switch, and the whistle was blowing.
It is undisputed that the wye track, the entrance to which was gained by opening this switch, was used by only two trains in the daytime for the purpose of reversing their positions, and it was not used at all at night. The last train crew to use the wye track left it closed and locked, about 4 o'clock p. m. on December 2d, the day of the wreck. The switch was not moved again until shortly after dark on that day, when the negro who had stolen the key came along and unlocked it, throwing the wye open to the main line; and this occurred a very short period of time preceding the arrival of the train on which decedent was riding.
The trial resulted in a verdict in favor of the plaintiff.
The defendant appeals from the refusal of the trial judge to direct a verdict in its favor on the ground that there was no evidence of actionable wrong on the part of the defendant company to warrant the submission of the issues to the jury; that the only reasonable inference to be drawn from the testimony was that the wreck, and the consequent death of plaintiff's intestate, were caused by the unlawful intervening acts of a third party; and that the evidence established that the plaintiff's intestate assumed the risk of his employment.
The respondent contends that the defendant company was negligent in the first instance in failing to properly protest and safeguard the switch key. A careful review of the evidence fails to disclose any reasonable basis for this charge, or any issue thereabout which should have been submitted to the jury. The key in question was in the possession of the defendant's authorized agent. It was kept by him in the locked storehouse, whence it was stolen by a negro, who had to break into the store in order to get it.
Biggs, the relief agent, testified that it was his custom to leave this key locked up in his store, and that he had no reason to believe that the store was an unsafe place to keep the key. We see nothing in the evidence from which it can be reasonably inferred that the conduct of the defendant in this respect was negligent.
But even if this were negligence, can it be said that the defendant company ought to have foreseen and anticipated the probable result of such negligence?
In order that the failure to properly safeguard the switch key should be regarded as negligence in this case, it must appear that the defendant company should have foreseen and anticipated, not only that a robber would break into the store in which the key was located, but that he would steal the key; would know that it was a switch key, and would thereafter commit the criminal act of unlocking one of the switches on its line. Such a conclusion, it seems to us, would be far fetched in the extreme, and would not only "practically stretch foresight into omniscience," Gant v. Gant, 197 N.C. 164, 148 S.E. 34, 35, but would in effect require the anticipation of "whatsoever shall come to pass," Beach v. Patton et al., 208 N.C. 134, 179 S.E. 446, 447.
Osborne v. Coal Co., 207 N.C. 545, 546, 177 S.E. 796.
It is argued by the respondent, however, that following the theft of the key, the defendant must have known that it was dangerous to have one of its switch keys in the hands of a felon, whose only purpose in taking it would be to use it and the only way in which he could use it would be to open a switch; and, further,...
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