McAlister v. Southern R. Co.

• Decision Date: 14 October 1924
• Docket Number: 11579.
• Citation: 126 S.E. 627,130 S.C. 458
• Parties: MCALISTER v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

126 S.E. 627

130 S.C. 458

MCALISTER v. SOUTHERN RY. CO.

No. 11579.

Supreme Court of South Carolina

October 14, 1924^[a1]

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

Action by Kate B. McAlister, administratrix of D. G. McAlister against the Southern Railway Company. Judgment for plaintiff and defendant appeals. Affirmed.

On following page is a sketch of defendant's tracks, to which reference is made in the opinion:

RPT.CC.1925103796.00010

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Cothran J., dissenting.

Frank G. Tompkins, of Columbia, for appellant.

D. W. Robinson and A. F. Spigner, both of Columbia, for respondent.

WATTS J.

"This action was commenced by the service of a summons and complaint on the 10th day of January, 1923, in which the plaintiff, as administratrix of the estate of D. G. McAlister, deceased, alleged that his death had been caused by the negligence, willfulness, and wantonness of the defendant; that both the plaintiff and defendant were engaged in interstate commerce at the time of his death; and that the beneficiaries of the deceased had suffered damages by reason of his death in the sum of $100,000.

The defendant admitted the formal portions of the complaint and that both the plaintiff and defendant were engaged in interstate commerce, but denied all other allegations of the complaint, and set up further that the plaintiff's intestate died as a result of his own negligence, and that he contributed to any negligence of which the defendant may have been guilty, and that he assumed the risk of the dangers complained of in the complaint, and prayed that the complaint be dismissed.

The case came on to be tried before Judge J. W. De Vore and a jury at the fall term of the common pleas court for Richland county, 1923, and the jury rendered a verdict for the plaintiff in the sum of $16,920 on the 11th day of October, 1923. Notice of appeal was served on the 22d day of October from the orders, rulings, and judgments rendered or to be rendered herein.

At the conclusion of the plaintiff's testimony, a motion for a nonsuit was made on grounds hereinafter set out in the record, which motion was refused.

At the conclusion of all the testimony, a motion was made for a direction of verdict, upon grounds hereinafter set out in the record, which motion was refused also."

The exceptions, five in number, raise practically two questions: First, that the plaintiff's intestate was killed by his sole negligence; second, that, if the railroad company was negligent in any of the particulars set out in the complaint and substantiated by the proof, the dangers, which were complained of, were open, obvious, and well known to plaintiff's intestate, and were assumed by him as a part of his contract of service.

The deceased was one of the oldest engineers in the service of the defendant. No complaint is made by the exceptions as to the law as declared by his honor in his charge to the jury.

At the request of defendant's counsel the jury were taken down to where the deceased was killed. They examined both by day and at night the surroundings, the light, the curvature, the trains passing. This might have been, and no doubt was, valuable to the jury, in passing on the vital issues in the case.

It is necessary to carefully examine the evidence in the case without going into special detail. There was sufficient evidence to carry the case to the jury on the question of lookout, warning, and notice from the evidence of Turnipseed, the fireman, of McAlister's engine, when McAlister was killed. Also from that of the witness, Edwards, and Robb, witnesses introduced by the defendant.

The evidence shows that McAlister on his engine was backing in an easterly direction, and that he was sitting with his body facing the west, but with his head out of the window looking back in the direction his engine was backing. It also shows that another engine was following him, facing him, operated by Engineer Long, and the fireman (on McAlister's engine), Turnipseed, testifies:

"We didn't have anything on our engine to give us a light or to show us the long barrel (freight train), and I first saw it when No. 16 engine showed me the cars by his headlight; that was Mr. Long's engine which was following ours, and its headlight showed me the cars on the freight train. I do not know what part of the train I saw. I saw only the box cars, and didn't see any lights on the freight train."

Long also testified as to the light. Turnipseed gave the signal as soon as it was possible to do so when he saw the other train. He testifies when he gave the signal, "we were right at the cars then, and I jumped."

Martin testified, "I didn't hear the fireman speak but once, he said, 'Hold.' "

Turnipseed further testified:

"When we got up there where I could see, that is when I saw the cars, I mean to tell the jury I could not have possibly have seen these cars until I got within two or three car lengths."

The evidence shows that the collision occurred immediately after the other train was sighted by Turnipseed and the one warning notice given. Edwards puts it:

"Sitting as Mr. McAlister was, with the levers between his limbs and putting on the brakes, when I hollered I don't know what chance he had to get out. It would be hard to get out I reckon in that position after Turnipseed hollered."

There was ample testimony to go to the jury both from the witnesses of the plaintiff and defendant as to whether the order given to McAlister and his fireman was misleading. The block operator in giving permission to use the block notified McAlister that there was a long barrel (meaning a freight train), ahead, for which they were to look out. Turnipseed testifies that as they went back he was looking out for the long barrel, as the instructions they had received were to look out for the long barrel on the permissive block, and that he was expecting the long barrel to be behind them. There was sufficient evidence to carry the case to the jury as to whether or not it was safe to back a train in the nighttime, on a busy track, and whether or not on this particular track they had to back in because they could not head in. There is testimony that, following a custom, just as many trains go into the block towards Blanding street backing as forward. The evidence shows this custom is well established, adopted, and acquiesced in as to the method of handling the engines, and was well known to the company.

As to whether or not it was safe, there is a conflict of testimony. The defendant's witness, Long, an engineer of 35 years' experience, says:

"I wouldn't say it was exactly as safe to go backward at night, as to go forward, but without any light in the back you can at a moderate speed, say four or five miles per hour, back pretty safely. When you are going forward with a headlight, you have the whole road lit up for a good distance ahead, except on curves; whereas, going backward you have very little light. That little red light gives very little light. On a dark night you haven't much to see by but the stars, moon, or something like that."

Rinehart and Collins say the custom is safe, and other witnesses, Long and Turnipseed, say it is not. Under all the facts and circumstances developed in the evidence, it was the province of the jury to settle it.

There were no lights on the rear (the forward end as it was moving), except a little red light which did not cast any light on the track, according to the evidence, and was only of value to a person in another engine or train who might see the red light. It furnished no light to see with; this is the evidence of witnesses both for plaintiff and defendant. There was some evidence that the operation of an engine backing at night, equipped as this one was, is without safeguard or protection.

Mr. Brand, trainmaster of A. C. L. Railway, a witness of defendant, testifies amongst other things on cross-examination:

"Going at that speed (six or eight miles an hour), with an engine running backwards, you couldn't see anything from the engine cab, but a man on the back of the engine could probably see 40 or 50 feet from him. You are supposed to have a man on the back of the engine in backing up. The rules of safety and prudence require that. In my opinion it is not safe to back an engine on the main line without a man on the back. * * * I wouldn't run without him if I were operating the block. I wouldn't allow a man in the block without some one on the rear. * * * It is up to the superintendent or trainmaster to determine how many men shall be on the engine."

The evidence in this case shows that no one is provided or assigned by the defendant to keep a lookout on the back of the engine. One of the acts of negligence alleged as contributory to the injury was the failure to provide and furnish the freight train with which the engine collided with proper and adequate lights, safeguards, and signals. The evidence shows that there were 53 cars in the freight train, and that the engine of McAlister struck this freight train at the thirty-fourth car.

The defendant's witness Harris, who was the engineer pushing the freight train from behind, says that there were no lights along that long freight train; his headlight was pushed right up against the caboose and didn't shine out on the track. "I do not know whether there were any flagmen on top of the train or not."

McAlister was ordered by the station master, after McAlister had received and read the block order, to move his engine and back it out of the way for another engine. The station master ordered him to move and back out, and asked him what was the matter that he couldn't get away. McAlister said nothing but got up on his engine and went on. The...