Reed v. Southern Ry.&mdash

• Citation: 75 S.C. 162,55 S.E. 218
• Court: United States State Supreme Court of South Carolina
• Decision Date: 12 September 1906
• Parties: REED. v. SOUTHERN RY.—CAROLINA DIVISION.

55 S.E. 218
75 S.C. 162

REED.
v.
SOUTHERN RY.—CAROLINA DIVISION.

Supreme Court of South Carolina.

Sept. 12, 1906.

1. Railroads — Leased Lines — Negligence of Lessee—Liability of Lessor.

Where a railroad company leased its road, it was liable for an injury to an employs of its lessee in operating the road, under Acts 1902, p. 1152, providing that a consolidated railroad company shall be subject to any action that may arise out of the operation of its lines of road, notwithstanding its lease of the same, and shall be subject to suit for causes of action arising out of such operation as formerly.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 803, 813.]

2. Master and Servant—Injury to Railroad Employe—Right of Action.

Const, art. 9, § 15, provides that every employe of a railroad company shall have the same right of action against an employer for an injury suffered by the negligence of a railroad corporation or its employes as is allowed other persons not employes, when the injury results from the negligence of a superior officer or a person having a right to control the party injured. Held that, where an injury to an employs of a railroad was the result of negligence on the part of the conductor, the legal representative of the person injured was entitled to the same remedies as are allowed to other persons not employSs.

[Ed. Note.—For cases in point, see vol. 34. Cent. Dig. Master and Servant, §§ 354-358.]

3. Same—New Trial—Evidence.

In an action for injuries to an employs, a motion for a new trial, on the ground that there was an entire absence of evidence to support the verdict, was properly overruled, where there was evidence tending to show negligence.

4. Appeal—Review.

Where a new trial has been refused, on appeal therefrom it must be shown that the rulings to which exception was taken were erroneous, and that the appellant has suffered prejudice by such erroneous rulings.

[Ed. Note.—For cases in point, see vol. 3. Cent. Dig. Appeal and Error. §§ 3670, 4047.]

Appeal from Common Pleas Circuit Court of Dorchester County; D. E. Hyriek, Special Judge.

Action by Leize W. Reed, administrator of Arthur T. Reed, against the Southern Railway—Carolina Division. Judgment for plaintiff, and defendant appeals. Affirmed.

The following are the exceptions: First. To the charge:

"(1) Because it is respectfully submitted that his honor, the circuit judge, erred in charging the jury as follows: 'I charge you that the defendant, Southern Railway—Carolina Division, is liable for all causes of action arising out of the operation of its railroad by the Southern Railway Company, just as liable as the Southern Railway Company itself would be. It Is made so by the express terms of the statute law of this state. Of

[55 S.E. 219]

course, if the Southern Railway Company would not itself be liable, the defendant company would not be. To make the defendant liable, a case of legal liability must be made out; whereas, it is submitted that the defendant, Southern Railway Company— Carolina Division, being only the lessor company, is not responsible for the injury causing the death of plaintiff's intestate, Arthur T. Reed, an employe of the Southern Railway Company, the lessee of the defendant company, for the negligence of the Southern Railway Company, its servants, agents, and employes.'

"(2) Because it is respectfully submitted that his honor, the circuit judge, erred In refusing to charge the defendant's fourteenth request, which was as follows: 'That if the jury find from the evidence that the defendant, Southern Railway—Carolina Division, was not the employer of the plaintiff's intestate, Arthur T. Reed, but that he was employed by the Southern Railway Company, and that the officers and employes of the train upon which said Arthur T. Reed was, and of the train with which it came in collision, were officers and employes, not of the defendant company, but of the Southern Railway Company, the lessee of the defendant company, and that the trains above mentioned belonged to and were operated by the Southern Railway Company, and did not belong to and were not operated by the defendant company, Southern Railway—Carolina Division, then the plaintiff cannot recover anything in this suit against the defendant.'

"(3) Because it Is respectfully submitted that his honor, the circuit judge, erred in refusing to charge the jury the fifteenth request of the defendant, as follows: 'That the act of the Legislature permitting the consolidation of certain railroad companies mentioned in the complaint, and the lessee of such consolidated companies to the Southern Railway Company, did not render the consolidated company liable for Injuries to the employes of the Southern Railway Company arising out of the negligence of the Southern Railway Company or its agents and employes.'"

Second. To the order granting a new trial conditionally:

"(4) Because It is respectfully submitted that his honor committed an error of law in holding that it was negligence for a railroad company to allow an engineer, even If willing to do so, to run his engine over the road for 42 hours consecutively, without rest, and in refusing to set aside the verdict absolutely, and in refusing to direct a new trial without condition on that account; whereas, it is submitted that, under the law of South Carolina, In a suit by the administratrix of the engineer for causing his death, even if It was negligence on the part of the railroad company to allow the engineer to run his engine for such a time consecutively, without rest, yet, if the engineer was willing to do so, then, under the law of South Carolina, he was himself guilty of negligence as a matter of law, and there was no cause of action proved against the defendant company, and there was no evidence to sustain the verdict.

"(5) Because it Is respectfully submitted that his honor committed an error of law in holding that the measure of the liability of the defendant company to the plaintiff, as administratrix of Arthur T. Reed, the engineer and employe of the defendant company, for an injury to him caused by his exhaustion from overwork, was the responsibility of the railroad company to another employe or passenger upon the train injured through such exhaustion and overwork of said engineer, and in refusing to set aside the verdict absolutely and directing a new trial without condition on that account; whereas, it is submitted that the liability to such passenger or employe would not be affected by the voluntary act of plaintiff's intestate in working until exhausted, and therefore the liability to such passenger or employe is not a measure of the liability to the plaintiff for the death of her intestate.

"(6) Because it is respectfully submitted that his honor committed an error of law in holding that the verdict of the jury eliminated the question of contributory negligence on the part of...