McDowell v. Southern Ry. Co.

• Decision Date: 23 February 1920
• Docket Number: 10377.
• Citation: 102 S.E. 639,113 S.C. 399
• Parties: MCDOWELL v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

102 S.E. 639

113 S.C. 399

MCDOWELL v. SOUTHERN RY. CO.

No. 10377.

Supreme Court of South Carolina

February 23, 1920

Appeal from Common Pleas Circuit Court of Cherokee County; R. W Memminger, Judge.

Action by Gilmore McDowell against the Southern Railway Company. Order of nonsuit, and plaintiff appeals. Reversed.

N. W Hardin, of Blacksburg, for appellant.

Harry E. De Pass, of Spartanburg, for respondent.

GARY C.J.

This is an action for damages under the interstate commerce law, and the appeal is from order of nonsuit. The complaint alleges:

"(1) That at the times hereinafter mentioned the defendant was and now is a railroad corporation owning property within the state and now operating freight and passenger trains as a common carrier for hire in Cherokee county, S. C., and other parts of the state, and into and from other states; has a freight and passenger office at Blacksburg, with agents therein. That plaintiff is a resident and citizen of the state.

(2) That at the times herein mentioned the plaintiff was an employé of the defendant, doing work at all times under the direction of the boss or superior officer of the defendant at various places on its line of road as bridge and trestle hand, and such other work as he was directed to do.

(3) That while engaged in tearing down some bents of a bridge of the defendant, near Sumter, S. C., on or about March 1 1916, with rope attached to the cap of said bents, under the direction of the boss in charge, which was very dangerous on account of unusual rough, boggy ground, underbrush, high weeds and grass, an uncovered drain and stream, and rotten timbers in bridge falling around--was being done in a very dangerous place and unsafe place to work. As the cap was being pulled off the bent, plaintiff was instantly forced upon some barbed wire, concealed upon the right of way of the defendant, that plaintiff did not know of, but which the defendant did know of, or by the exercise of due diligence could have known, and plaintiff became entangled in said barbed wire, and his legs and body badly cut, lacerated, and injured, from which he suffered much pain and distress in mind and body, and has ever since so suffered, and was disabled from work in consequence from the 27th of May to the 9th of August, 1916, due to the negligent, reckless, wanton and willful conduct of the defendant, its servants, and agents as above set forth. * * *"

The defendant denied all the allegations of the complaint, except those in the first paragraph, and set up the defenses of contributory negligence, assumption of risk, and that prior to the commencement of the action the plaintiff, in writing, released the defendant from all liability.

At the close of the testimony for the plaintiff, the defendant's attorneys made a motion for a nonsuit; one of the grounds being that there was no negligence, but, if so, it was the negligence of a fellow servant. In disposing of this ground his honor the presiding judge thus ruled:

"This place is where they were repairing a trestle, and taking out old work and putting in new; so there can be no claim about its being unsafe and rotten timber, because that is the work they were engaged in--taking out old timber and putting in new timber. Now, it appears to this court, under the evidence taken in connection with the complaint, that the plaintiff has no cause whatsoever."

The plaintiff testified as follows:

"Q. You say you were hurt where? A. At Sumter, Green Swamp trestle, South Carolina. Q. And you say Mr. Pope, I believe, was foreman there? A. Yes, sir. Q. Tell the jury how you happened to get hurt; what was the cause of it? A. We set off some bents in the creek parallel with the water, and tied a rope to the cap, and me and several other men were pulling it, and we had to run to keep the cap from falling on us, and we ran into the barbed wire fence, and we ran into the wire fence, and it cut one of them veins in two in my leg, and a place about two inches long. Q. What sort of a place were you working in? A. Right on the side of a swamp--weeds and boggy--about waist high. Didn't any one know the wire was there at all. It was about 50 feet from the trestle, and the cap come over whirling, and we had to get out of the way. Q. Were the timbers you were handling sound? A. Rotting."

Lonnie Moore, a witness for the plaintiff, thus testified:

"Q. What was the cause of his getting hurt, do you know, Will? (Mr. De Pass objects, unless the witness saw the occurrence.) A. I was on top of the trestle, and I had a bar, and Gilmore and them had a rope tied to the cap, and they had a strain on the cap with a rope to keep it from rocking and knocking down another bent. I shoved out, and they had to keep pulling to keep it from falling on another bent, and by them pulling it they had to run away to keep it from falling on them. Q. Had he not run, what would likely to be the result? (Mr. De Pass objects, on the ground that the question is leading.) Q. What kind of a place was it there, Will? A. It was swampy and grown up around there. * * * Q. Why did you have to run? A. To save ourselves, to keep the cap from falling on us. Sometimes, on a high trestle, they fall more than 50 feet from the trestle." (Italics added.)

The testimony tended to show that it was necessary for the plaintiff and the other servants to run to the place where he was injured, in order to prevent the cap from falling on them, and that the danger arising from the wire was not obvious, but hidden. Therefore it was a question for the jury whether the plaintiff assumed the risk of his employment. Lester v. Railway, 93 S.C. 395, 76 S.E. 976; Anderson v. Lumber Co., 99 S.C. 100, 82 S.E. 984; Nelson v. A. G. & P. Co., 107 S.C. 1, 92 S.E. 194.

The fact that the defendant may not have had notice of the hidden danger, arising from the wire which was concealed, is a matter of defense, and is no part of plaintiff's cause of action. Branch v. Railway, 35 S.C. 405, 14 S.E. 808; Hicks v. Railway, 63 S.C. 559, 41 S.E. 753; Richey v. Railway, 69 S.C. 387, 48 S.E. 285; Willis v. Manufacturing Co., 72 S.C. 126, 51 S.E 538; Grainger v. Railway, 101 S.C. 73, 85 S.E. 231; Prince v. Massasoit Co., 107 S.C. 387, 93 S.E. 2; Rikard v. Middleburg Mills, 101 S.E. 643. None of the cases cited by the respondent's attorney are applicable, as...