Parker v. South Carolina & G. Ry. Co.

• Decision Date: 01 March 1897
• Citation: 26 S.E. 669,48 S.C. 364
• Parties: PARKER v. SOUTH CAROLINA & G. RY. CO.
• Court: South Carolina Supreme Court

26 S.E. 669

48 S.C. 364

PARKER v. SOUTH CAROLINA & G. RY. CO.

Supreme Court of South Carolina

March 1, 1897

Appeal from common pleas circuit court of Edgefield county; Ernest Gary, Judge.

Action by J. R. Parker against the South Carolina & Georgia Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Defendant's requests to charge were as follows:

"(1) The foundation of this action brought by the plaintiff against the South Carolina & Georgia Railroad Company is an allegation of negligence made by the plaintiff against the defendant, in that it is claimed that the plaintiff, while riding upon the engine of the defendant as an employé of the railroad, was injured, because, it is claimed, the engine was thrown from the track by reason of some defects in the said engine, and by reason of defects in the track. This being, in substance, the charge made by the plaintiff, the plaintiff must show by the preponderance of evidence that the defendant, its agents and servants, were guilty of negligence in the manner as charged; in other words, the plaintiff must satisfy the jury by the preponderance of evidence that, under the circumstances proven in the case, the defendant has omitted to do what a prudently conducted railroad company would have done, or has done what a prudently conducted railroad company would not have done.

"(2) In this charge of negligence brought by the plaintiff against the defendant, the burden of proof of establishing the negligence is upon the plaintiff, and no presumption of negligence arises from the mere fact that the engine jumped from the track, or that the plaintiff was injured. In cases between passengers and a railroad company when there is an accident, ordinarily there is a presumption of negligence; but in cases between the employés or servants of the railroad company and such railroad no such presumption arises from the occurrence of the accident which caused the injury complained of, and the burden is upon the plaintiff to satisfy the jury that there was negligence. Nitro-Glycerine Case, 15 Wall. 539; Shear. & R. Neg. § 99; Railroad Co v. Smith (Pa. Sup.) 17 A. 443.

"(3) That as between passengers and a railroad company when an injury has happened, the measure of care is extraordinary care, and the company is held liable for the slightest negligence; but not so as between employés (as in this case), and the railroad company, where the measure is only the exercise of ordinary care and diligence.

"(4) Railroad companies do not warrant their employés the safe condition of their line, nor the absolute security of their appliances, machinery, and roadbed. They only guaranty that due care will be used in constructing and keeping them in repair, and due care used in operating the line, appliances and machinery. When the railroad has exercised all of the care and caution which a prudent man would take for the safety and protection of his own person the law does not hold it liable for the consequences of a defect which could not be discovered by careful inspection. Patt. Ry. Acc. Law, § 284.

"(5) In a case like the present one, the proper inquiry is not whether the accident might have been avoided if the company had anticipated its occurrence, but whether, taking the circumstances as they then existed, the company was negligent in failing to anticipate and provide against the occurrence. The duty imposed does not require the use of every possible precaution to avoid injury, nor that the company should have employed any particular means which it may appear after the accident, would have avoided it. It was only required to use such reasonable precautions to prevent accidents as would have been adopted by prudent persons prior to the accident. Railway Co. v. Locke (Ind. Sup.) 14 N.E. 391; Beatty v. Railway Co. (Iowa) 12 N.W. 332.

"(6) The liability of the railroad to its employés or servants being dependent upon its negligence, it is not liable for injuries to them resulting from inevitable accidents or misfortunes such as could not be averted by diligence in the management of the road. Patt. Ry. Acc. Law, § 282; Railroad Co. v. Filbern's Adm'x, 99 Am. Dec. 693.

"(7) The jury is charged that if they find from the evidence that the engine of the defendant, upon which the plaintiff was traveling, was well constructed, and in reasonably fair order, and that it was thrown from the track through the culpable act of some person, known or unknown, who maliciously or mischievously placed spikes or other obstructions upon the track by which the engine was derailed without the knowledge of the defendant or its agents and servants who had charge of the track, and without want of care on the part of the defendant or that of its agents in discovering such obstructions in time to remove them, that the plaintiff cannot recover, no matter what may be his misfortune in being injured, and the jury must find for the defendant. Railway Co. v. Kane (Ga.) 18 S.E. 18.

"(8) The jury is further charged that the plaintiff must introduce evidence to show that the injury is more naturally to be attributed to the negligence of the defendant than any other cause, or he cannot recover. If the accident appears upon the evidence to be as consistent with the absence of negligence for which the defendant is responsible as with the existence of such negligence, the plaintiff must fail, and the verdict must be for the defendant. Griffin v. Railroad Co. (Mass.) 19 N.E. 166.

"(9) The testimony must not only establish that the defendant was guilty of negligence, but it must establish that the injury arose from such negligence; in other words, that the injury was proximately caused by the negligence of the defendant company, its agents and servants. Glenn v. Railroad Co., 21 S.C. 466.

"(10) An employé of a railroad company, in entering into the service thereof, knows, or is taken to know, that there are extraordinary dangers inseparable from such a service, which human care and foresight cannot always guard against. He is not bound to incur these known perils, incident to the service, and may refuse to do so; or he may, as far as can be done, provide for them, in the rate of compensation or otherwise. But if he voluntarily engages to serve in view of all of the hazards to which he will be exposed, it is well settled that, as between him and his employer, he undertakes to run all of the ordinary risks of the service; and this includes risk of injuries which may arise from an unexpected cause, and which could not be guarded against by the exercise of ordinary care and diligence; and if the jury in this case find from the evidence that the plaintiff was injured by such an accident, arising from an unexpected cause, which could not be guarded against by the exercise of ordinary care and diligence, he cannot recover. Railroad Co. v. Elliott, 78 Am. Dec. 509; Rodman v. Railroad Co. (Mich.) 20 N.W. 788.

"(11) The employer or the railroad company, as in this case, is not bound to use the safest machinery, or the newest inventions in machinery, or in the keeping up of their roadbed, but if they use machinery that is suitable for the work, and exercise that degree of skill and labor which is ordinarily used in the keeping up of a roadbed, employing proper section masters or inspectors, who properly and carefully discharge their duty, and, notwithstanding such discharge of duty and such exercise of ordinary care and diligence, an injury occurs to an employé then the railroad company is not responsible in damages, and the verdict must be for the defendant. Patt. Ry. Acc. Law, § 285; Durkin v. Sharp. 8 Am. & Eng. R. Cas. 522.

"(12) It is claimed that the engine was defective in the way as is alleged in the complaint and sought to be proven in the evidence. The jury should first inquire whether or not there was any defect, in any way, in the engine, and then they should inquire whether or not such defect contributed to the accident, or brought it about; and, even if they be satisfied that there was a defect in the engine which contributed or brought about the accident, or, in other words, which caused the engine to mount the track, then they should enter upon the important inquiry whether or not the plaintiff, Parker, knew of these defects; and the jury is charged that, if they find he had such knowledge, and still continued to use the engine, and from the said defects the injury occurred, the plaintiff cannot recover, and the verdict must be for the defendant. Hooper's Case, 21 S.C. 541; Evans v. Chamberlain, 40 S.C. 109, 18 S.E. 213; Wood, Mast. & S. §§ 368-376.

"(13) That an employé who works defective machinery, knowing the defect, assumes the risk, and, if injured from such defect, cannot recover, even if his employer knows it. In order to shift the responsibility to the employer, he must have promised to repair. In this case the jury is charged that if in February, 1895, Parker delivered the engine No. 6 to Blackwood, the repairing agent of the defendant, and they find he promised to repair it as to the parts claimed to be out of repair and dangerous, yet, if they further find that he did not so do, and Parker again accepted said engine, and in a dangerous condition, known to him, ran it from time to time until June 25, 1895, and that from such condition of said engine he was then injured, he cannot recover, no matter how many times he again notified the agents of the company, unless they again promised to repair. Wood, Mast. & S. § 379."

The charge of the court was as follows:

"Mr. Foreman and Gentlemen of the Jury: It is a matter of congratulation to you that this case, which has consumed nearly three days, is about drawing to a close; and I must say that from the attention that you have given, not only to the evidence, but to the

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