Moore v. Southern Ry. Co.

• Decision Date: 27 January 1931
• Docket Number: 13059.
• Citation: 161 S.E. 525,163 S.C. 342
• Parties: MOORE v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

161 S.E. 525

163 S.C. 342

MOORE v. SOUTHERN RY. CO.

No. 13059.

Supreme Court of South Carolina

January 27, 1931

Appeal from Common Pleas Circuit Court of Barnwell County; C. C Simms, Special Judge.

Action by R. R. Moore, as administrator of the estate of Edwin A Wagnon, deceased, against the Southern Railway Company. From an adverse judgment, defendant appeals.

Affirmed.

See also, 155 S.E. 740, 158 S.C. 446, 73 A. L. R. 582.

Harley & Blatt, of Barnwell, and Frank G. Tompkins, of Columbia, for appellant.

Wolfe & Berry, of Orangeburg, and Brown & Bush and R. C. Holman, all of Barnwell, for respondent.

GRAYDON A. A. J.

This was an action by R. R. Moore as administrator of the estate of Edwin A. Wagnon, deceased, against the Southern Railway Company for the alleged wrongful death of Edwin A. Wagnon. The case was tried at the September term of the court of common pleas for Barnwell county in 1928, before his honor, Special Judge Charles Carroll Simms, and a jury, and resulted in a verdict in favor of the plaintiff for the sum of $12,000.

From the testimony, it appears that Edwin A. Wagnon was a locomotive engineer in the employ of the Southern Railway Company, and on April 9, 1927, operating a train from Branchville, S. C., to Augusta, Ga. This train met other trains at Branchville, among the same being a train from Columbia commonly known as the Carolina Special. At the time of the injuries which resulted in Wagnon's death, he was attempting to cross the main line of the Southern Railway from Columbia north of the depot at Branchville, going in the direction of his engine which was parked on another track beyond the main line. It was admitted and stipulated by all parties concerned that the case was brought and tried under the provisions of the Federal Employers' Liability Act (45 USCA § § 51-59).

There are eight exceptions.

Exception 1 alleges error on the part of the circuit judge in refusing to continue the case on the ground that there was then pending an appeal to the Supreme Court of South Carolina involving the validity of the plaintiff's appointment as administrator of the estate of Edwin A. Wagnon. The matter of continuing a case is largely within the discretion of the trial judge, and there could be no prejudice to the defendant by the trial of the case with the other appeal pending. No supersedeas had been granted, and not only was it within the discretion of the trial judge to try the case, but it was his duty to try it. This exception is therefore overruled.

Exception 2 alleges error on the part of the trial judge in admitting in evidence the ordinance of the town of Branchville making it unlawful to operate a train within the corporate limits of said town at the rate of speed in excess of six miles an hour.

Under the decisions of the United States Supreme Court, no presumption of negligence arises in a case tried under the Federal Employers' Liability Act from the violation of a state statute. The case of Chesapeake & Ohio Railroad Co. v. Stapleton, 279 U.S. 587, 49 S.Ct. 442, 73 L.Ed. 861, holds this view. In the Stapleton Case, a boy under the age of sixteen had been hired by the railroad company as a section water boy to assist his father, the section master. The Kentucky Statute (Section 331a-9) provides: "No child under the age of sixteen [16] years shall be employed, permitted or suffered *** (6) nor to work upon any railroad whether steam, electric or hydraulic. ***"

Under the decisions of the courts of Kentucky, the violation of a state statute, whether criminal or civil, constitutes negligence per se. The plaintiff prayed for an instruction fixing the liability of the railroad company, provided the jury found from the evidence that the plaintiff was under sixteen years old, and was injured in the course of his employment as a child under sixteen years old. The court granted such instruction, and the United States Supreme Court held this to be error on the theory that no presumption of negligence would arise from the violation of a state statute in a case tried under the Federal Employers' Liability Act.

If the circuit judge in this case had charged that the violation of a state statute or the town ordinance in question was negligence per se, this would have been clearly against the principle laid down by the United States Supreme Court in the Stapleton Case. The judge did not attempt to place such construction upon the town ordinance. The introduction of the ordinance was permissible in the cause as a circumstance tending to establish a negligent operation of the train; the force and effect to be given to this evidence was entirely with the jury.

Exception 3 alleges error on the part of the circuit judge in allowing the witness Patrick to give his opinion as to the result if the train had not been moving at a rate of speed in excess of six (6) miles per hour. Patrick was present and saw the entire situation and the admission of this testimony was largely within the discretion of the trial judge. Patrick was not testifying as an expert, but merely as a layman from his observation of the surrounding circumstances at time of the accident. This testimony was therefore competent.

Exception 4 alleges error on the part of the Circuit judge in refusing to grant a nonsuit. There was ample evidence to go to the jury on the question of negligence upon which to base a verdict. That the train was being operated at an excessive rate of speed; that there were other trains known to be at Branchville at the time; that Branchville is a junction point where people change from one train to another that the deceased always placed his train at a certain spot across the main line from the depot; that the deceased had to go to the dispatcher's office and then come back to his engine to cut in certain sleeping cars to return to Augusta; that the engineer on the Carolina Special knew all of these facts; that such engineer saw the deceased cross the track ahead of him in ample time to slow down; that the Carolina Special was late and was being driven at such a high rate of speed that it...