Mann v. Seaboard Air Line Ry. Co.

• Decision Date: 09 December 1927
• Docket Number: 12121.
• Citation: 136 S.E. 234,138 S.C. 241
• Parties: MANN v. SEABOARD AIR LINE RY. CO.
• Court: South Carolina Supreme Court

136 S.E. 234

138 S.C. 241

MANN v. SEABOARD AIR LINE RY. CO.

No. 12121.

Supreme Court of South Carolina

December 9, 1927

Appeal from Common Pleas Circuit Court of Abbeville County; J. W. De Vore, Judge.

Action by G. E. Mann, as administrator of the estate of S. B. White deceased, against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The trial court's instruction on the law applicable to the assumption of risk, and to the effect that recovery could not be had on mere fact that employee was killed in the railroad yard, are as follows:

"The defendant, having set up the defense of assumption of risk has got to prove that by the greater weight or preponderance of the evidence before that defense could be successful in this case. On the other hand the plaintiff has to prove his case by the greater weight or preponderance of the evidence. That is to say, that, if the evidence in support of the plaintiff's cause of action is evenly balanced with that opposed to it, the plaintiff cannot recover, because the law says that the testimony in support of the plaintiff's cause of action must be heavier, outweigh, and go down, and preponderance over that opposed to it. If that be so, the plaintiff would be entitled to recover."

"The defense says that the servant in this case assumed the risk of his work. Now the law in regard to that is this: A servant assumes the risks that are ordinarily incident to, and connected with, the work that he is hired to do. But he does not assume any extraordinary risks. It is just the risks that are ordinarily incident to, and connected with, the work that he is hired to do; and that is just as much binding on the servant as if he had signed a contract with the master in which he says that, 'if I am injured or killed by any of the risks that are ordinarily incident to, and connected with, this work, I can't hold you liable,' and, if he was so injured or killed on that account, the master would not be liable. But, if there was any risk imposed upon him outside of those that are ordinarily incident to, and connected with, the work, imposed on him by the master, that he knew nothing of, and that was the cause of the injury or death, why the master would be liable, responsible, for it." Glenn & Glenn, of Chester, and Wm. P. Greene, of Abbeville, for appellant.

J. Howard Moore, of Abbeville, and J. William Thurmond, of Edgefield, for respondent.

RAMAGE A. A. J.

The preliminary state-appearing in the agreed case is adopted, and it is as follows: "The above-stated action was commenced by the service of summons dated October 30, 1924. Plaintiff sought to recover damages against the defendant-appellant on account of the alleged wrongful killing of plaintiff's intestate, S. B. White, in the yards of Seaboard Air Line Railway Company at Abbeville in said state, on October 30, 1923."

The suit is brought for the benefit of the widow and children of the said S. B. White by the administrator. The complaint alleges negligence, recklessness, wantonness, and willfulness, and is appropriate to both actual and punitive damages; but the judge held that the case was under the federal Employers' Liability Act, and eliminated punitive damages, and the case was submitted to the jury on the question of actual damages only. S. B. White died intestate, and it is admitted that at the time the mortal injuries were inflicted upon him he was an employee of the defendant as a car repairer in its yard at Abbeville on track No. 7. The relation of master and servant between the deceased and the defendant is admitted.

The record further shows that on the morning of October 30, 1924, S. B. White, J. R. White, and Clifton Sprouse were repairing cars on west end of track No. 7 in said yard, and at 12 o'clock they knocked off for dinner, and went east to a shanty car or cab, which was possibly about midway between the eastern and western limits of the yard. Between 11:20 and 12 o'clock, a car was put in No. 7 track, and the switchman, Douglass, stopped it before it collided with the car on which Sprouse was at work. Sprouse was then brassing a car on track No. 7, and Douglass, the switchman, had a conversation with him. At 12:30 the car repairers returned to their work on said track, and the yard foreman was with them. Sprouse, a witness for defendant, and one of the car repairers, testified as follows:

"Q. Mr. Sprouse, I believe you came out there with Mr. White and Mr. Carter. Mr. White (referring to S. B. White) said that he needed a knuckle pin, and Mr. Carter told him to get one where? A. Mr. Carter told him not to draw a knuckle pin over to the storeroom, but to look on the platform.

Q. He (referring to yard foreman) didn't tell you to go anywhere? A. No, sir.

Q. Just told Mr. Shirley White? A. Yes, sir.

Q. Told Mr. Shirley White to go to the clinker pit? A. Yes, sir.

Q. He didn't say where Mr. Jim White should go? A. No, sir.

Q. You went back to work? A. After Mr. Carter left and went up the track, I went over and went to packing the box."

Carter, the yard foreman, testified that he knew there was shifting on the track. The record shows that he knew that S. B. White was going to fit a coupling pin, and, after directing him where to get it, then says he directed him not to work on the track, but to go to the cinder pit, though said foreman did not notify the other two car repairers at work on track No. 7 to resume their work, and they returned to their work on said track. The jury had the right to draw inferences, and evidently they concluded that the yard foreman directed Mr. S. B. White to go to the cinder pit after he had fitted the pin, if he told him to go at all. The record shows that Sprouse was at work on a car between the car on which plaintiff's intestate was at work and the lead track, that is, west of where White was when injured, and that a car without switchman or brakeman on it was kicked into track No. 7, with great force, and the impact with the first car caused a succession of impacts with the cars on No. 7, until the car being repaired by S. B. White and J. R. White was suddenly struck, and he was dragged some feet and mortally injured.

No notice was given that a car would be kicked then into track No. 7, though it was the custom of the defendant to send some one down the track to give such notice. No derailer protected the car repairers, and no flag was up to give notice of the car repairers on track No. 7, but Sprouse testified that it was his duty to place the derailer, and the yard foreman testified that he saw the derailer was not up, and that, while it was his duty to require the car repairers to keep them up, on this occasion he did not do it, for there was no room on the track for it, as the track was blocked with cars. The yard foreman was vice principal on the spot, and he knew they were kicking cars into the track No. 7, and knew that car repairers were at work on that track, and knew they were not protected by derailers or flag, and failed to require the defendant to observe the custom at this time of giving notice of kicking a car into the track.

The defendant offered in evidence several rules, among them rule 104 (e), which provided: "Running switchers must not be made." Other rules offered by defendant required car repairers to display blue signal by day, etc. The switching crew knew that car repairers were at work on track No. 7; nevertheless kicked a car into that track without notice to them. All of said acts and omissions to act involved questions of fact for the jury, and the jury solved them in favor of the plaintiff.

After all the testimony was in, and both sides closed, the defendant made a motion for the direction of a verdict for the defendant on the following grounds:

"That there is no proof of negligence in any of the particulars alleged and

set forth in the complaint.

That the undisputed evidence in this case shows that Mr. White's disobedience of orders given on the spot and the rules of the company, for which he was working, is the proximate cause of his own injury.

That Mr. White was engaged in interstate commerce, and the question of liability is to be determined by the act of Congress and the decisions of the Supreme Court on the act of Congress; and that, even under the state laws, the defendant is entitled to have a verdict directed for it on same grounds."

The court overruled the motion, and delivered his charge to the jury, and, after deliberation, the jury rendered a verdict for the plaintiff for $6,500. Within due time notice of appeal and exceptions were served.

In Pendergrass v. Southern Ry. Co., 114 S.C. 78, 103 S.E. 150, this court held:

"In an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) for death of railroad employee working under a car on side track, whether railroad employees were negligent in kicking a car into such track in violation of the company's rule, though there was no flag indicating deceased's presence as required by another rule, held a question for the jury."

"And, as to the assumption of the risk, that Pendergrass cannot be held, as matter of law, to have assumed it, because it was Baldwin's duty to put out the blue flag; but, even if it can be said, as matter of law, that Pendergrass should have put it out, then he cannot be held to have assumed any greater risk than that of injury incident to the usual operations carried on in an ordinarily careful manner, according to the rules of the company, which would exclude the extraordinary risk of being injured by a car kicked in on him, in violation of the rules." 114 S.C. 81, 103 S.E. 152.

See also, Koennecke v. S. A. L. Ry., 101 S.C. 87, 85 S.E. 374; Pinckney v. A. C. L. Ry., 92 S.C. 528, 75...