Neal v. Southern Ry

• Decision Date: 31 December 1931
• Docket Number: No. 13047.,13047.
• Citation: 160 S.E. 837
• Parties: NEAL v. SOUTHERN RY., CAROLINA DIVISION.
• Court: South Carolina Supreme Court

160 S.E. 837

NEAL

v.SOUTHERN RY., CAROLINA DIVISION.

No. 13047.

Supreme Court of South Carolina.

Dec. 31, 1931.

COTHRAN, J, dissenting.

Appeal from Common Pleas Circuit Court of Charleston County; H. F. Rice, Judge.

Action by Minnie L. Neal, as administratrix of the estate of Emmett H. Neal, deceased, against the Southern Railway, Carolina Division. Judgment for plaintiff, and defendant appeals.

Affirmed.

Certiorari denied in 52 S. Ct 9.

N. B. Barnwell and Lionel K. Legge, both of Charleston, and Frank G. Tompkins, of Columbia, for appellant.

W. A. McIlwaine, W. Turner Logan, and Logan & Grace, all of Charleston, for respondent.

CARTER, J.

The plaintiff, Minnie L. Neal, as administratrix of the estate of Emmett H. Neal, deceased, commenced this action against the defendant, Southern Railway, Carolina Division, in the court of common pleas for Charleston county, August 3, 192S, to recover damages for the death of the said Emmett H. Neal, alleged to have been caused by the defendant while he was in the employment of the defendant as a flagman and engaged in interstate commerce, which action was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59) and for the benefit of the widow and minor children of the said deceased. Issues being joined, the case was tried at the October, 1929, term of said court, before his honor, Judge H. F. Rice, and a jury, resulting in a verdict for the plaintiff in the sum of $10,000. From the entry of judgment on the verdict the defendant has appealed to this court.

The allegations of error imputed to the trial judge are set forth under thirteen exceptions, but, as stated in appellant's brief, the exceptions may be considered under six divisions, and in our consideration of the case we shall in the main follow the outline made by appellant's counsel.

The first question presented is: Was there evidence of negligence on the part of the defendant?

It is admitted by the defendant that on the date in question, March 17, 1928, the plaintiff's intestate, Emmett H. Neal, was an employee of the defendant, as a flagman, and engaged in interstate commerce, and the defendant alleges that on said date the said Emmett H. Neal "received a contusion on his head while engaged in his work on a freight train on which he was employed as a flagman, which resulted in his disability of two or three days, after which he returned to work and worked regularly for over two months * * * "; but the defendant denies that it was guilty of any negligence.

In addition to the general allegations, the plaintiff set forth the following specific allegations of negligence:

"Sixth: That, as plaintiff is informed and believes, the injuries and death of the said Emmett H. Neal were caused by the negligence and carelessness of said defendant, Southern Railway, Carolina Division, its agents and servants, as aforesaid, and in the following particulars to wit:

" '(a) In failing and omitting to furnish said decedent a reasonably safe place to work.

" '(b) In causing and allowing an unsafe and unfit and incompetent engineer to operate the train on which said Emmett H. Neal was employed.

" '(c) In causing and allowing the said Claude B. Heidt, engineer of the train on which the said Emmett H. Neal was employed, to fail to keep a careful and proper lookout and to proceed with his train at a reasonable rate of speed under the circumstances.

" '(d) In causing and allowing said Claude B. Heidt to suddenly and unnecessarily put on his emergency brake.

" '(e) In causing and allowing said train to give a sudden unusual and extraordinary jolt, jar or jerk, throwing said Emmett H. Neal down.

" '(f) In causing and allowing the "y" track of said defendant to be obstructed with box cars.

" '(g) In failing and omitting to keep said track clear of box cars as it was its duty to do.

" '(h) In failing to place any light on said box cars or take any other precautions whatever to give notice of the presence of said box cars being on said track.

" '(i) In failing and omitting to follow its own rules made for the safety of its employees and its trains.'"

In response to the allegations contained in plaintiff's complaint, testimony was introduced which tended to establish the following state of facts:

The injury to the said deceased occurred at Branchville, S. C, while he was in the caboose of defendant's train on which he was working. The train was from Columbia, S. C, bound for Charleston, S. C, and when it reached the town of Branchville it was ordered by the duly authorized agent of the defendant into the "wye, " for the purpose of enabling another train going in the opposite direction to pass, and as it (the train on which the said deceased was working) was going into the "wye" it came upon three box cars which had been left there. On seeing these box cars the engineer applied the emergency brakes, stopped the train suddenly, about fifty feet short of a collision, and as a result of the sudden stopping of the train, without any notice whatsoever, so far as the record discloses, the deceased was knocked down in the caboose and severely injured. This took place in the nighttime. The "wye" into which the train in question was directed to go was presumed to be clear, and the members of the train crew had no notice that it was not clear. The box cars which had been left there were not lighted, were not protected by guard or in any other way, and they were not seen until the train in question was "right on them, " within about fifty feet. These cars were in the curve of the "wye, " and for that reason it was more difficult to see them; it being in the nighttime and the cars not being lighted or guarded in any way whatsoever. There were sixty-five or seventy cars in this train, and when the engineer came upon these box cars on the curve of the "wye" and applied the emergency brakes, without warning, it caused the train to stop suddenly. One of the witnesses (a member of the train crew) in the course of his testimony testified in this connection as follows:

"Q. When you put on that emergency brake that increases in violence as it goes down the train? A. Yes, sir, it takes it up one by one.

"Q. The shock of it goes right down the train? A. Yes sir."

It may thus be reasonably and readily concluded that the shock was much greater on the caboose on which the deceased was riding, sixty-five or seventy cars back of the engine, than it was on the engine or the car next to the engine, and could have caused the said deceased to be knocked down and injured in the manner alleged, being given no warning that the emergency brakes would be applied. One of the witnesses who saw Neal, the deceased, at Branchville right after he was injured, testified that he had a knot on his head. Soon after the injury occurred to the plaintiff's intestate, the conductor of the train in question was heard to say to the engineer that he (the engineer) had killed a man; that Neal was knocked down. Neither the engineer nor the conductor testified in the case, and it appears that the defendant offered no testimony on the question of negligence. In our opinion there was ample testimony in support of the allegations of negligence to take the case to the jury on that question. As we view the testimony, it clearly supports the contention that the plaintiff's intestate was not furnished a safe place to work, Box cars, contrary to custom, were left on the curve of the "wye, " in the nighttime, without any lights and unguarded, where the train in question, consisting of sixty-five or seventy cars, was directed to go, and without any notice to the crew in charge of the said train of the impending danger. Furthermore, it appears that the engineer went into the "wye" without having his train under proper control, under the existing conditions, so as to avoid the necessity of applying the emergency brakes to stop the train to prevent a collision; the sudden and violent stopping of the train having caused the plaintiff's intestate to be knocked down and injured. It is true, as contended by appellant, that the case is governed by the federal rule; but we think the evidence fully meets the requirement of the federal rule, and that negligence on the part of the defendant was shown which resulted in injury to the plaintiff's intestate as the proximate cause thereof.

The second question raised by the exceptions is: If the defendant was negligent, was the negligence the proximate cause of the death of the plaintiff's intestate?

It is the contention of appellant that even if the defendant was negligent and such negligence resulted in injury to plaintiff's intestate, such injury did not cause his death. In this connection appellant concedes that under the "scintilla rule" it could not be said that there was no testimony on this point, but contends that under the federal rule there is not sufficient evidence to remove the question from the "realm of speculation." We are unable to agree with this contention. While there was testimony introduced by the defendant to the effect that the injury re-ceived by the plaintiffs intestate at Branchville, S. C., March 17, 1928, while working for the defendant, did not cause his death, there was testimony introduced on the part of the plaintiff which strongly supported the contrary view, a part of which testimony we quote herewith. Mrs. M. L. Neal, widow of the said deceased, testified in this connection as follows:

"Q. What is your name? A. Minnie L. Neal.

"Q. Where do you live? A. 2 Raco Street.

"Q. Are you the administratrix of the estate of your husband, Emmett H. Neal? A. Yes, sir. (Letters of administration offered in evidence, Exhibit A.)

"Q. What was your husband's business? A. Flagman on the Southern Railway.

"Q. How long had he been in the railroad business? A. I think about 19 years.

"Q. What salary was he getting on the 17th of March, 1928, what wages was he earning? A. From ninety to ninety-five dollars every two weeks.

"Q. Did he have any...