Link v. Seaboard Air Line Ry. Co.

• Decision Date: 16 September 1930
• Docket Number: 12974.
• Parties: LINK v. SEABOARD AIR LINE RY. CO.
• Court: South Carolina Supreme Court

156 S.E. 481

159 S.C. 538

LINK v. SEABOARD AIR LINE RY. CO.

No. 12974.

Supreme Court of South Carolina

September 16, 1930

Appeal from Common Pleas Circuit Court of Abbeville County; H. F Rice, Judge.

Action by E. B. Link against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Thos F. McDow, of York, and Wm. P. Greene, of Abbeville, for appellant.

Price & Poag, of Greenville, and J. Moore Mars, of Abbeville, for respondent.

STABLER J.

This action was brought under the Federal Employers' Liability Act (45 USCA§ § 51-59) for damages for personal injuries alleged to have been received by the plaintiff while in the employment, as a brakeman, of the defendant railway company. At the time of the alleged injury both plaintiff and defendant were engaged in interstate commerce. The plaintiff alleges that on January 26, 1927 between 1 and 3 o'clock in the morning, while in the performance of his duties as brakeman, at Belt Junction, Ga., he was seriously and permanently injured in the following manner:

"That the through freight train upon which plaintiff was working was required at the point aforesaid to make some shifting operations in making up said train. That defendant ordered plaintiff to aid in switching some cars upon a side track. That there was a string of cars standing upon said side tracking containing fifteen cars or more, the end one of which was a L. & N. coal car. That when the engineer endeavored to move said cars, plaintiff observed that the brake was on said L. & N. coal car, thereby making it difficult for the engine to move said cars. It thereupon became plaintiff's duty to release said brake, and in the performance of his duty, he mounted upon the small and narrow foot-board at the end of said car and attempted to release said brake. That he inserted his brake stick at the proper place and applied the necessary force to release same, whereupon the said brake released with sudden and great power, knocking the brake stick from plaintiff's hand and he was hurled from his precarious footing upon the narrow board and fell to the ground in front of the moving cars. That a part of said train passed over him, and before said train could be stopped he had sustained terrible and lasting injuries."

The following are some of the particulars in which it is alleged the defendant was negligent:

"*** In furnishing a brake that was unsafe, dangerous and defective, thereby failing to furnish safe and suitable appliances .

"In furnishing a defective and unsafe brake, so arranged that the cogs on the brake and the cogs on the lever could and did catch at the ends thereof instead of setting solidly in the crotch, so that when plaintiff applied his brake stick, the brake suddenly loosened and released with powerful force and threw plaintiff off his balance and caused him to be thrown to the ground.

"In furnishing a defective and unsafe brake, which was covered with a cap, so that the brake, cogs, etc., were concealed and the brakeman, switchman, or other employee who set the brake to hold said car upon the siding could not see whether the brake was set solidly or not.

"In carelessly and negligently setting said brake so that it was not set safely and securely and when plaintiff applied his brake stick the brake suddenly released with great power and threw plaintiff to the ground.

"In that defendant when said cars were left upon the side track carelessly applied said brake with great and unnecessary force, more than was necessary to hold said cars upon the track, so that when plaintiff applied his brake stick in the awkward position in which he was forced to work, the brake released with great and powerful force, and caused plaintiff, standing upon said narrow platform or foot-board, to be thrown to the ground.

"In setting the brake upon said coal car with such great force instead of applying the brakes upon two or more cars scattered along said string of cars.

"In failing to inspect the brake upon said coal car after it had been left upon the side track and before plaintiff was called upon to work thereon in order to ascertain whether or not the brake had been set in such a manner as to endanger the life and limbs of other employees who might be called upon to release the same."

The defendant, answering, denied the material allegations of the complaint, and alleged that the injuries received by the plaintiff were due solely to his own negligence, and pleaded the defense of assumption of risk.

The case was tried at the April, 1929, term of the court of common pleas for Abbeville county before Judge H. F. Rice and a jury. The defendant's motions for a nonsuit and for a directed verdict were refused, and the case was submitted to the jury, who found for the plaintiff $15,000. From judgment entered on the verdict the defendant appeals.

While the exceptions are numerous, the questions raised are few, and may be thus stated: (1) Did the court commit error in refusing the defendant's motion for a directed verdict, made upon the grounds (a) that there was no evidence of actionable negligence, (b) that the negligence of the plaintiff was the sole proximate cause of his injury, and (c) that the plaintiff assumed the risk of the injuries sustained by him? (2) Did the court err in his charge to the jury?

As to subdivision (a) of the first question, the respondent contends that this is a case to which the Safety Appliance Act applies, and, as a distinct violation of that act was shown by the testimony adduced, the court was bound to submit the question to the jury.

The appellant contends that, "whether the case be one for negligence at common law, or whether the case be regarded as one founded upon negligence for a violation of the Federal Appliance Act, the burden is upon the plaintiff to show by such evidence as will satisfy the Court that the case should be submitted to the jury," and that "no facts were produced by the respondent going to show that the brake furnished by the appellant in this case was either defective, inefficient, or out of repair, and that plaintiff's own testimony shows that the proximate cause of his injuries was not from any such cause, even if there had been evidence as to such fact."

An examination of the testimony discloses that the plaintiff had been employed as a brakeman by the defendant company for a number of years, and that at the time of his injury he was working on a freight train on a run between Howells, Ga., and Abbeville, S. C., and that his injury occurred while he was engaged in switching operations at Belt Junction, Ga. He testified that, when the train reached Belt Junction, it was "headed in" for the purpose of picking up some cars at that point; that he coupled up the enginge to the cars that were next to him and "cut the air in"; and that the flagman, who was back at the crossing, coupled the cars and "cut the air in there," and gave the signal to come out; that plaintiff then threw the switch and signalled the engineer to back up but it was found that he could not do so, for the reason that the brake on the end car was not released, which hindered the movement or progress of the train; that the end car was a coal car equipped with a patented brake-- a hand brake operated by a lever--known as the W. H. Miner brake; that, when he observed the brake was on, he climbed up the side of the car, carrying with him his lantern and brake stick, and stood upon a narrow platform at the end of the car, and attempted to release the brake with his hand, but that it was jambed or set so tight that he could not do so when he pulled the lever; that he then applied his brake stick behind the catch, whereupon the brake was released so suddenly and with such force that he was knocked from the platform to the ground, where he was run over by the train and seriously and permanently injured. He further testified that there was nothing in the rule book of the company prohibiting the use of brake sticks; that all of the brakemen used them, and that their superior officers knew of that practice and made no objection, and that, in attempting to release the brake, he was simply doing his duty as a brakeman. He also testified that the brake...