Primus v. Atlantic Coast Line R. Co.

• Citation: 171 S.E. 1,171 S.C. 199
• Decision Date: 13 March 1933
• Docket Number: 13599.
• Parties: PRIMUS v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

171 S.E. 1

171 S.C. 199

PRIMUS v. ATLANTIC COAST LINE R. CO.

No. 13599.

Supreme Court of South Carolina

March 13, 1933

Appeal from Common Pleas Circuit Court of Richland County; C. C Featherstone, Judge.

Action by Janie Primus, as administratrix of the estate of Noah Primus, deceased, against the Atlantic Coast Line Railroad Company. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

McKay & Manning, of Columbia, and Thos. W. Davis, of Wilmington, N C., for appellant.

W. W Hawes, James S. Verner, and A. F. Spigner, all of Columbia for respondent.

CARTER Justice.

This action, commenced in the court of common pleas for Richland county, April 20, 1931, by Janie Primus, as administratrix of the estate of Noah Primus, deceased, against The defendant, Atlantic Coast Line Railroad Company, is a suit for damages on account of the death of the said deceased, alleged to have been caused by the wrongful acts of the defendant, while in the employment of the defendant and engaged in the performance of his duties as a crossing flagman at Green street crossing in the city of Columbia, said state of South Carolina. The action was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59). In its answer the defendant set up a general denial, and also interposed the pleas of contributory negligence and assumption of risk. The case was tried at the December, 1931, term of said court before Judge C. C. Featherstone and a jury, resulting in a verdict for the plaintiff in the sum of $2,500. From judgment entered on the verdict, pursuant to due notice, the defendant has appealed to this court.

The allegations of error imputed to the trial judge are based upon his honor's refusal to grant defendant's motion for direction of a verdict, and also upon certain portions of his honor's charge.

The pertinent allegations of fact alleged by the plaintiff, briefly stated, are as follows:

The defendant, Atlantic Coast Line Railroad Company, as a common carrier, owns, operates, and controls a line of railway extending from Wilmington, N. C., through and beyond the city of Columbia, S. C., together with certain locomotives, trains, etc., and at the time in question used same in intrastate and interstate transportation; that one of the railroad tracks of the said railroad so used by the defendant crosses Green street in the said city of Columbia, "at a point at which the defendant keeps and maintains a watchman for the purpose of warning the traveling public of the approach of trains and locomotives used by the defendant in the transaction of its business; that at a point where the said Green Street intersects the said defendant's line of railroads the defendant maintained, and used, and now maintains and uses, certain spur or side tracks which run parallel with defendant's main track at that point, said spur tracks being used by defendant for the switching of cars; that on or about the 23rd day of October, 1930, the plaintiff's intestate, Noah Primus, was employed by the defendant herein as a watchman at said crossing, his duties being to keep a watchout for approaching trains and to warn the traveling public by signalling as, and when, any train or locomotive was approaching said crossing, and on said date and while the plaintiff's intestate was so engaged in flagging and protecting the traveling public from injury by a certain train of cars then being used in the transportation of both intrastate and interstate freights which was then approaching or had just crossed said Green Street, on one of the main line of railroad at that point, which railroad tracks were used by the defendant in the transportation of both intrastate and interstate commerce, he was run into, over and killed by a string of freight cars in charge of and operated by defendant's agents and servants, and which cars were then being used at the time in the transportation of intrastate and interstate freight."

No question is involved as to the appointment of the administratrix of said estate, nor for whose benefit the action was instituted.

The following were the special allegations of negligence set forth by the plaintiff:

"That the death of the said Noah Primus was due to, and brought about by carelessness, negligence, wilfullness and wantonness of the defendant Atlantic Coast Line Railroad Company, its agents and servants in that:

"(a) The agents and servants of the defendant company in charge of, and engaged in the running and operating of a locomotive and string of freight cars along and over said spur tracks, which are parallel to the defendant's main line of railway where the same crosses the said Green Street, in the city of Columbia, State of South Carolina, were pushing the said string of cars behind one of the defendant's locomotives without having at the front end of said string of cars any flagman, brakeman, watchman or other servant to warn plaintiff's intestate and the traveling public of the approach of said string of cars and locomotive as required by the rules of the defendant Company and the ordinances of the city of Columbia.

"(b) In that the agents and servants of the defendant Company in charge of said string of freight cars and locomotive failed and refused to provide a light, or other signalling device, on the front end of said string of cars to warn plaintiff's intestate and the traveling public of the approach of said string of cars and locomotive as required by the rules of the defendant Company, and the ordinances of the city of Columbia.

"(c) In that the defendant's servants and agents in charge of the operating of said string of cars and locomotive failed and refused to blow the whistle or ring the bell as required by the statute laws of the State of South Carolina, and the ordinances of the city of Columbia, as the said train approached the said crossing;

" (d) In that the said defendant, its agents and servants, were operating said string of cars and locomotive at an excessive rate of speed in violation of the ordinances of the city of Columbia, and without keeping an observation or watch along and over the track on which said train was backing for the purpose of observing and warning anyone who might be on the track in front of the said string of cars or approaching the same."

Appellant's exceptions, I and II, reading as follows, will be considered together:

"1. The trial Court erred in refusing to direct a verdict for the defendant since there was not sufficient evidence of actionable negligence to warrant the cause being submitted to the jury, the evidence being clear that the train was backed slowly over the crossing, in a shifting movement and struck plaintiff's intestate who was a watchman employed at the crossing to protect same when he knew or by the exercise of slight care he should have known of the car's approach whether or not in yard limits.

"2. The trial Court erred in refusing to direct a verdict for the defendant, since there was not...