Lyon v. Charleston & W.C. Ry.

• Decision Date: 10 July 1907
• Citation: 58 S.E. 12,77 S.C. 328
• Parties: LYON v. CHARLESTON & W. C. RY.
• Court: South Carolina Supreme Court

58 S.E. 12

77 S.C. 328

LYON v. CHARLESTON & W. C. RY.

Supreme Court of South Carolina

July 10, 1907

Appeal from Common Pleas Circuit Court of Greenwood County.

Action by A. B. Lyon against the Charleston & Western Carolina Railway. Judgment for plaintiff, and defendant appeals. Reversed.

See 56 S.E. 18.

Gary A. J., dissenting.

S. J Simpson and McGhee & Richardson, for appellant.

Grier & Park, for respondent.

WOODS J.

The vital question in this case is whether the circuit judge erred in refusing a motion for a nonsuit and for new trial.

The plaintiff, a flagman on defendant's freight train, while attempting to uncouple a moving car, fell on the track and had his leg crushed. He brought this action for damages and recovered judgment, alleging the accident was due to the defendant's negligence. Without taking up the exceptions in detail, we consider whether there is evidence to support any one of the several charges of negligence as a proximate cause of the injury. The case depends principally on the testimony of the plaintiff, who gave this account of the accident on his direct examination: "What did you do? We went and unloaded all of the freight that was for Hampton and the conductor got out of the car and signed the engineer ahead, and the train rolled off at the rate of about three or four miles an hour. He ordered Stephen New, the brakeman, and myself, to cut the flat car loose, and let the rear of the train trail behind and roll clear of the siding, put the flat car in the side track, and come back to the main line and get the train and go on to Brunson to meet 41, a passenger train. Stephen New went and caught hold of the lever on the cattle car to cut it loose from the flat. The lever was hard to work, and it seemed like it was impossible for him to cut the car, and I knew I could not, and I crossed over to the corner of the flat car and pulled the lever, and a jerk from the car threw me under the rolling train behind. There was no air on the train. What happened when you fell under there? The front trucks of the cattle car rolled over me, broke my leg, fractured my hip and ankle, broke my collar bone, and bruised my shoulder, and cut a gash in my head." On cross-examination he says: "Just state again how it happened; where were you and what were you undertaking to do, to carry out the conductor's orders. Just tell what you were doing. Stephen New, when we got orders, he went over and caught hold of the lever on on the outside, without going in between the lever on the cattle car so that you could stand on the outside, without going in between the cars and uncouple it, one of those iron automatic levers? Yes, sir; it don't set outside the car, it sets in between. You can stand outside of the car without going in between them? Yes, sir. And you intended to turn that lever over and raise the peg up and uncouple the car? That was Steve New's idea, and it seemed he could not work his lever. When Steve New caught hold of that lever, where were you? On the flat car. Why did you get on the flat car? I was going down with the train, and when it got near the siding I was going to get on the top of the cattle car and apply the brakes, as ordered to do. How were you going to get across the gap between the flat car and the cattle car? Several ways. I could have got down on the ground and got up, or I could have reached over and got the ladder. You knew that Steve New was going to separate them as soon as he could? He was getting pretty close to the clear post, and he had not got them loose, and I just pulled the lever on the flat car. When Steve New first caught hold of the lever, where were you? I was on the flat car. You got on the flat car? I was already on the flat car. I just got up to ride on down. There was not any need of my trotting beside it. You got on the flat car the first thing you did, before Steve New caught hold of the lever? That is true, is it not? I don't recollect about that. You knew that as soon as Steve New worked that lever, if it worked all right, the cars would separate? Yes, sir; but as I cut the car I was expecting to give my own signals, but it was done before I could do it. I thought you said that Steve New was going to cut the car off? I said he was trying to pull it up and it looked like he could not get the lever to work, and I pulled the lever on the flat car. But, when you went on the flat car, you did not intend to have anything to do with the lever? I was going to carry out the orders of the conductor. Didn't you, when you got on the flat car, think that Steve New would operate the lever so as to separate the cars? I knew that was his intention, sir. And at that time you did not intend to have anything to do with uncoupling the cars? I was going to carry out the orders of the conductor, and I could not have done it otherwise. But, when you got on the flat car, your intention was that Steve New should do the uncoupling, and then you were to get over on the other car and put on brakes? Yes, sir; but, when he could not do it, there was but one lever on his side, and I was compelled to pull the lever. And, when he had difficulty in uncoupling, you undertook to help him? Yes, sir."

1. Negligence as a proximate cause of the injury is charged against the conductor, in that he "ordered, required and directed this plaintiff to get upon and uncouple the said cars while in motion, and get upon and apply the brakes to the trailing cars while in motion, and in leaving the train without seeing that his orders were carried out and the train operated with due care, without a sudden increase of the speed of the train." The plaintiff's own account shows clearly the accident was due to his act of leaning over the corner of the moving car and uncoupling it by pulling a lever at the side; but there is no evidence whatever that the conductor ordered the plaintiff to get upon the moving car and uncouple it from that position, or even saw him when he did it. There is evidence of an order from the conductor to uncouple the moving car, but a lever was provided on each side of the car as a means of uncoupling from the ground. That the plaintiff, as well as New, understood the order to mean that the lever should be used from the ground, is conclusively shown by his evidence that they went about the uncoupling in that manner; New handling the lever and the plaintiff mounting the car in order to leap over on another car and put on the brakes as New uncoupled. New, the brakeman, made an unsuccessful effort to use the lever on his side from the ground, and then the plaintiff, without giving any signal to stop the train or attempting to use the lever on the other side from the ground, or even reporting to the conductor or receiving any order from him, of his own volition, without even giving notice to any one in control of the motion of the train of his intention, attempted the perilous feat, of stooping over from the moving car and pulling the lever below him. There is no ground for saying the order of the conductor required or contemplated such peril. Without doubt, when an order is given, it is the duty of the servant to take the safe way of carrying it out, if one is provided; and, if that fails, he cannot, except, perhaps, in cases of emergency arising from the fault of the master, charge the master with the result of using a dangerous method not in the purview of the order. If the order of the conductor could in any reasonable view be regarded as suggesting to the plaintiff to stand on the flat car and uncouple from that position, then there might be ground for saying that the defendant could not escape liability for a condition of things produced by its order to him, in which on a sudden impulse he took a dangerous course, resulting in his injury. But it would be beyond all reason to say the order contemplated mounting a flat car as the plaintiff did, with the intention of stepping or leaping from that to the following car, in order to apply the brakes to that car, or the attempt to use the lever while stooping from the end of the flat car. Here, then, was a general order from the conductor to uncouple, and there was a lever provided for the purpose to be used from the ground, and, if it had been used as intended by the defendant, the plaintiff could not have been injured by falling from the car. This distinguishes the case from Carson v. Railway, 68 S.C. 55, 68, 46 S.E. 525, 529; for in that case the court said: "It was shown, or rather there was testimony offered tending to show, that the conductor ordered this servant, the plaintiff, to couple those cars; that such conductor in this matter represented the master; that the servant called to such conductor to hold fast the train until he signaled; that this servant did not signal the conductor to move the train; that it was under these circumstances the train was moved so that the two cars bumped against each other, thus causing his injuries; that, when the cotter pin was out of its place, it would be necessary for a servant to go between the cars to arrange it; that it was necessary to go between the cars to open the instrument by which the coupling was made." The conductor's position at the time of the accident does not appear from the evidence, and therefore there could be no finding of negligence on the ground that he was not present to direct the details of the uncoupling and the movements of the train. The plaintiff's testimony shows that he clearly understood the manner in which the lever was to be used, without any instruction or direction. That the master is not liable for any injury which results from the use of a safe appliance in an unsafe and dangerous manner not contemplated by him seems too obvious to require a particular citation of...