Rhodes v. Southern Ry. Co.

• Decision Date: 15 March 1927
• Docket Number: 12178.
• Parties: RHODES v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

137 S.E. 434

139 S.C. 139

RHODES v. SOUTHERN RY. CO. et al.

No. 12178.

Supreme Court of South Carolina

March 15, 1927

On Petition for Rehearing, April 7, 1927.

Appeal from Common Pleas Circuit Court of Greenwood County; S.W. G Shipp, Judge.

Action by E. J. Rhodes against the Southern Railway Company and another. Judgment for plaintiff against the defendant Southern Railway Company, and it appeals. Affirmed.

Cothran J., dissenting.

The motion for nonsuit by defendant named, directed to be reported, is as follows:

Mr Bonham: We ask the court for nonsuit on the ground:

(1) That it has not been shown by the testimony that the engine was at the time of the accident emitting any unnecessary amount of steam, or that same was done in a negligent, careless, reckless, willful, or wanton way.

(2) On the further ground that it is alleged by the complaint that the plaintiff's injury was due to the joint and concurrent negligence of the defendant Southern Railway Company and the defendant R. C. Carter, and it has not been shown that the defendant R. C. Carter was guilty of any negligent, willful, reckless, or wanton act.

(3) That it is alleged that the plaintiff's injury was due to the joint and concurrent negligence, willfulness, and recklessness of the Southern Railway Company and R. C Carter, and it has not been shown by the testimony that the defendant R. C. Carter was in any way connected with this injury, or that he was in charge of the engine.

(4) On the further ground that the testimony absolutely fails to support the allegation of the complaint that said injury was due to an unnecessary and unusual act constituting negligence, recklessness, wantonness, etc., on the part of the defendants.

(5) That said proof absolutely fails to show that said injury was due in any way to the joint negligence of the defendants.

(6) That the only act of negligence alleged on the part of the railroad company is alleged acts of negligence on the part of the servant, R. C. Carter, and it has not been proved that R. C. Carter was in charge of the train or guilty of any act of negligence or wantonness.

Frank G. Tompkins, of Columbia, and Bonham, Price & Poag, of Greenville, for appellant.

W. H. Nicholson and Mays & Featherstone, all of Greenwood, for respondent.

BLEASE J.

Action for tort brought in the court of common pleas of Greenwood county by the plaintiff, Rhodes, against Southern Railway Company and one of its engineers, Carter, as defendants. The trial before Hon. S.W. G. Shipp, circuit judge, resulted in the following verdict:

"Verdict against Southern Railway only account this steam being beyond Engineer R. C. Carter's control for plaintiff of eight hundred dollars."

From the verdict and judgment, Southern Railway Company has appealed to this court.

When the plaintiff announced that his case was "rested," a motion for nonsuit on behalf of Southern Railway Company was made. Plaintiff's counsel admitted that, on the testimony submitted, the defendant Carter was entitled to a nonsuit, and the trial judge stated that, if a motion was made in behalf of that defendant, he would grant it. The attorney for the defendants announced that he did not make any such motion as to Carter. Thereupon the attorneys for the plaintiff requested that they be permitted to offer additional testimony, which the court allowed. It is urged here that the action in allowing the plaintiff to reopen his case, under the circumstances mentioned, was improper. In Carter v. S. A. L. Ry. Co., 114 S.C. 517, 104 S.E. 186, this court, speaking through Mr. Justice Gage, said this:

"All the competent and relevant testimony in a cause ought to be presented to the jury, and the order of its presentation is often a secondary matter, so justice is done."

Under the authority of that case, as well as the case of Denny v. Doe, 116 S.C. 307, 108 S.E. 95, we approve the action of the circuit judge.

At the close of plaintiff's testimony, the defendant Southern Railway Company asked for a nonsuit on six grounds, which will be reported. The failure to grant a nonsuit is alleged by several exceptions to have been erroneous.

The plaintiff, in his complaint, alleged that the injuries, claimed to have been received by him, were occasioned under these circumstances, briefly stated: That he was driving a team of mules on a street in the city of Greenwood adjacent to the railroad track of the railway company, which street was frequented by persons driving teams along the same, all of which was known, or should have been known, to the railway company and its employees, and as an engine of the railway company, in charge of Carter, as engineer, reached its closest point of proximity to plaintiff and his team, "the defendants, by their joint and concurrent negligence, carelessness, recklessness, gross negligence, willfulness, and wantonness, unnecessarily caused and allowed said engine to make a sudden, loud, and unusual noise, and to suddenly emit an unusually great volume of steam, which spread out rapidly from the tracks of the defendant company and reached to and around the team of the plaintiff, which noise and steam were calculated to frighten a team of horses or mules, and actually did frighten plaintiff's team and caused same to jump violently and run away, and to throw the plaintiff from the wagon, thereby breaking his left leg."

The liability of a railway company for injuries occasioned by frightening horses and mules, by the making of unnecessary noises and permitting the escape of steam, seems to us to be correctly stated in Cyclopedia of Law and Procedure as follows:

"A railroad company's authority to operate a railroad includes the right to make any noise necessarily incident to the operation of its road and the movement and working of its engines; and it is not liable therefore for injuries occasioned by horses taking fright at the ordinary movements, noise, or appearance of trains of cars, or at other noises necessary to the operation of its road, unless under the circumstances of the particular case the railroad employees have reason to apprehend injury therefrom and fail to use due care to prevent it, or unless they are otherwise so negligent in running the train or cars that their ordinary movement naturally frightens a horse. But where the acts of the railroad employees in operating its trains, cars, or other apparatus are unnecessary, negligent, or wanton, and a horse is frightened thereby and injuries are caused without any fault on the part of the injured person, the railroad company is liable.

*** The usual and proper sounding of whistles or other signals, or the proper escape of steam from its engines, is not negligence, and does not make the railroad company responsible for injuries caused by horses becoming frightened thereat. But where the employees unnecessarily, negligently, or wantonly blow the whistle, or allow the steam to escape, thereby causing horses to become frightened, the railroad company is responsible for the resulting injury; and this is especially true where the acts are done in violation of statute." 33 Cyc. 936, 937, 938.

The plaintiff offered testimony to show that the place where his injuries were alleged to have occurred was a highway frequently used by teams and vehicles, and that this fact was well known to the railway company and its servants; that, just as the engine (which was a switch engine) and train of cars got opposite plaintiff's team, the steam "popped off" and "squealed out" from under the engine and on both sides thereof, and came towards the plaintiff's mules and under them; that it came in an unusual amount, and that the "pop off" was not "like an ordinary engine," and that the steam was let off in an unusual way, and that the noises were unusually loud. There was also testimony that the defendant Carter was engineer in charge, and that accompanying him on the engine was a negro fireman. Mr. Carter was a witness for the defendants, and denied allowing steam to escape in any unusual quantity. The negro fireman was not called as a witness. We think the evidence on the part of the plaintiff was entirely sufficient, under the rule of the law quoted before, to carry the case to the jury.

The appellant insists, however, that as the plaintiff alleged "joint and concurrent" acts on the part of Carter and the railway company, and that, as it claims, there was no evidence that Carter was guilty of any negligence, or that he was connected in any way with the injury, alleged to have been received by the plaintiff, and because there was no proof of any joint negligence on the part of the two defendants, the motion for nonsuit should nevertheless have been granted. The same position of the appellant is also referred to in other exceptions as to another phase of the case, which will be referred to later.

As stated before, we think there was evidence to carry the case to the jury as to both of the defendants. Even if there was none to require the submission to the jury as to the defendant Carter, however, the appellant railway company cannot take advantage of that fact, since it was distinctly announced by the attorneys for the defendants that a nonsuit was not asked for as to Carter.

Again, in a suit for a joint and concurrent tort, proof of the commission of the tort by one of the defendants only is sufficient to take the case to the jury, and to justify a verdict against that defendant. Carter v. Railway Co., 93 S.C. 329, 75 S.E. 952; Ruddell v. Railway Co., 75 S.C. 293, 55 S.E. 528; Gardner v. Railway Co., 65 S.C. 341, 43 S.E. 816; Schumpert v. Railway Co., 65 S.C. 332, 43 S.E. 813, 95 Am. St. Rep. 802.

When the verdict of the jury, quoted in full above, was returned counsel for plaintiff stated to the...