Powe v. Atlantic Coast Line R. Co.

• Decision Date: 19 September 1930
• Docket Number: 12975.
• Parties: POWE v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

159 S.E. 473

161 S.C. 122

POWE v. ATLANTIC COAST LINE R. CO.

No. 12975.

Supreme Court of South Carolina

September 19, 1930

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

Action by C. M. Tyner, as administrator of the estate of George A Marshall, deceased, against the Atlantic Coast Line Railroad Company. Plaintiff having died, J. L. Powe was appointed administrator of the estate of George A. Marshall, and as such was substituted as plaintiff. Judgment for plaintiff and defendant appeals.

Affirmed.

Following are the defendant's exceptions:

1. The defendant excepts that his honor the presiding judge erred in admitting into evidence, over the objection of the defendant the seventh paragraph of the defendant's answer, as follows:

"Seventh. Further answering said complaint, and for a further defense to said action, this defendant alleges that the injuries and death of the deceased were due to and caused by the negligence of the said deceased contributing to and combining and concurring with the alleged negligence of the defendant and constituting a proximate cause thereof, without which the same would not have happened, in the following particulars, to wit:

"(a) In not going directly to the roof of the freight car on which he was riding as instructed by the conductor of said train, but in remaining on the side of the car, contrary to said orders and instructions.

"(b) In not keeping a proper lookout for the signal devices and other obstructions which are ordinarily erected on the side of tracks of the defendant, near said tracks.

"(c) In failing and omitting to keep a proper lookout for the semaphore mentioned in the complaint herein, whose presence and location were well known to the deceased.

"(d) In leaning outward from the ladder of said freight car so far as to bring his body in contact with the said semaphore erected at a greater distance from the track than is required by the regulations of the South Carolina Railroad Commission, hereinbefore set forth."

It being respectfully submitted that the facts alleged in the defendant's answer in the affirmative defense, to wit, contributory negligence, could not be used as evidence against it especially in this case where his honor charged the jury that there was no element of contributory negligence in the case.

2. That his honor erred in refusing to charge the defendant's first request to charge, as follows:

"I charge you that the jury cannot consider the allegations of defendant's answer in regard to contributory negligence as evidence against it and that the statements in paragraph seven cannot be considered as evidence in this case."

And instead charging as follows:

"Now that brings up the same question again, I think, and I charge you that the statements of fact set out in paragraph seven you may consider. As to any admission whatsoever of negligence against the Atlantic Coast Line Railroad Company, you can't consider. It is only those statements of fact set out in paragraph seven which facts they allege constitute contributory negligence. As I say, contributory negligence goes out of the case, but the facts set out there and upon which they sought to base their charge of contributory negligence you may consider. The rest of it you can't consider at all."

It being respectfully submitted that the statements made in the affirmative defense of contributory negligence cannot be used as evidence against the defendant and further that if the jury were to consider the facts as pleaded in said paragraph they were also bound to take into consideration the fact alleged that plaintiff's intestate was negligent as therein set out.

3. That his honor erred in refusing to direct a verdict for the defendant on the ground that the plaintiff failed to prove any actionable negligence on the part of the defendant in this case, it being respectfully submitted that there is nowhere in the testimony any proof of negligence on the part of defendant.

4. That his honor erred in refusing to direct a verdict for the defendant upon the ground urged that the deceased came to his death as the result of one of the risks assumed in his employment, to wit, the risk of striking the semaphore described in the testimony, the presence and location of which was well known to the deceased, and the alleged danger and risk of which he saw, or by the exercise of ordinary care could have seen, and appreciated at the time of the accident, it being respectfully submitted that if the deceased was killed by striking a semaphore on the side of the track, that it was a risk he assumed when he accepted the employment as a switchman and a risk that was plain and obvious and which he could have seen and appreciated by the exercise of ordinary care.

5. That his honor erred in refusing to direct a verdict for the defendant because there is no evidence in this case at all as to how the deceased came to his death or as to the proximate cause thereof, it being respectfully submitted that there is no evidence showing how the deceased came to his death and it cannot be left to the jury to conjecture to a proximate cause of the death, but that the plaintiff is required to prove by the greater weight of the evidence how the deceased came to his death and the proximate cause thereof and to prove negligence on the part of the defendant.

Hagood, Rivers & Young, of Charleston, for appellant.

Logan & Grace and Lionel K. Legge, all of Charleston, for respondent.

C. T. GRAYDON, A. A. J.

This action was commenced in the court of common pleas for Charleston county on the 30th day of May, 1924. The action was originally in the name of C. M. Tyner as administrator of the estate of George A. Marshall, as plaintiff, against the defendant Atlantic Coast Line Railroad Company. The case has been twice tried, and after the first trial C. M. Tyner died, and by an order dated 19th of September, 1929, J. L. Powe was appointed administrator of the estate of George A. Marshall and as such administrator was substituted as plaintiff.

The action was one admittedly under the Federal Employers' Liability Act and the amendments thereto (45 USCA § § 51-59).

The case was first tried on October 10, 1925, and resulted in a verdict in favor of the plaintiff for the sum of $28,800. An appeal was taken to the South Carolina Supreme Court, which affirmed the decision of the lower court. Tyner, Administrator, v. A. C. L. R. Co., 149 S.C. 89, 146 S.E. 663. The defendant carried the case on a writ of certiorari to the United States Supreme Court and the same was reversed and remanded for a new trial. Atlantic C. L. R. Co. v. Tyner, 278 U.S. 565, 49 S.Ct. 35, 73 L.Ed. 508. The case was again tried at Charleston in October, 1929, before Judge Rice and a jury and resulted in a verdict in favor of the plaintiff for the sum of $30,000.

A full statement of the pleadings and facts developed on the first trial of the case can be found in Tyner, Administrator, v. A. C. L. R. Co., supra, and only a brief statement will here be made with such facts as were developed on the second trial of the cause which were not developed on the first trial. George A. Marshall was employed as a switchman by the defendant railroad company, and on January 6, 1923, was killed while in such employment. He left surviving him a widow and three small children for whose benefit the action was brought under the Federal Employers' Liability Act (45 USCA § § 51-59).

The first two paragraphs of the complaint cover the formal allegations as to the appointment of the administrator and for the benefit of whom the action was brought. The third paragraph of the complaint alleges the incorporation of the defendant; that at the time the defendant was engaged in interstate commerce and that the said George A. Marshall, while employed by said railroad corporation and while engaged in the duties incident to and growing out of his employment, met with an accident on or about the 5th day of January, 1923, and was so badly injured as to cause his death. The fourth allegation of the complaint alleges that the action was brought under the provision of the Federal Employers' Liability Act. The fifth and sixth allegations of the complaint were as follows:

"Fifth: On information and belief, that on said 6th day of January, 1923, said deceased, George A. Marshall, was engaged in the performance of his duties as a switchman attached to an engine and train of cars moving over defendant's main line of tracks at or near the city of Charleston, state aforesaid, and in the direction of said city; that it was dark and foggy, the time being about three o'clock in the morning; that while proceeding as aforesaid at or about Five Mile Crossing, near said city the said engine and train of cars were caused to be stopped by reason of trouble with the brakes on some of said cars, and that the said George A. Marshall in the course of his duty and employment got down to the ground to examine into and correct said trouble; that at or near the point where said engine and train of cars had stopped as aforesaid, defendant herein, Atlantic Coast Line Railroad Company, its agents and servants, in violation of its duty to furnish for the use of the said George A. Marshall a reasonably safe roadbed and track free from obstructions which might be placed on the side of the track, and to place and maintain signal devices at a reasonably safe distance from the track, so as not to extend over towards the track in such close proximity as to endanger the lives of its employees who might be running or operating its trains by said signal devices, had placed and maintained a signal device or obstruction too close to the track, and in such close proximity to the

...