Rogers v. Atlantic Coast Line R. Co., 16648

• Decision Date: 11 July 1952
• Docket Number: No. 16648,16648
• Court: South Carolina Supreme Court
• Parties: ROGERS v. ATLANTIC COAST LINE R. CO. et al.

Page 585

71 S.E.2d 585

222 S.C. 66

ROGERS v. ATLANTIC COAST LINE R. CO. et al.

No. 16648.

Supreme Court of South Carolina.

July 11, 1952.

Hagood, Rivers & Young, Charleston, for appellant.

J. D. Parler, St. George A. R. McGowan, Thomas P. Bussey, Charleston, for respondent.

TAYLOR, Justice.

Respondent contends that on March 1, 1950, while employed as foreman by Wee-Car Lumber Co. at Parker's Ferry, S. C., he was engaged in overseeing the unloading of a carload of steel rails from one of appellant A. C. L. Railroad Company's low gondola cars which had been placed on a siding for this purpose at Parker's Ferry, S. C., and while standing on the end of such car to more readily facilitate the unloading operation, appellant, engaged in shifting other cars without notice to respondent and negligently, wilfully and wantonly caused the car on which he was standing to be struck by another resulting in respondent being thrown between the cars from which he received permanent injuries; that appellant J. B. Amerson was the conductor in charge of the train. The appellants set up a general denial and contributory negligence, recklessness, and wilfulness as their defenses. The matter was heard in the Court of Common Pleas for Charleston County, and both appellants made timely motions for nonsuits and directed verdicts and after the jury had found for the plaintiff in the sum of $26,000 actual damages, they moved for judgment non obstante veredicto and for a new trial on the minutes, all of which were refused.

Appellants now come to this Court contending: First, the respondent was guilty of contributory negligence which would bar him of recovery; second, that the evidence was not sufficient to warrant the submitting of the issues to the jury; third, that the verdict was excessive and the result of passion and prejudice.

The testimony shows that at approximately 4 o'clock on the date in question appellant Railroad's freight train with the appellant J. B. Amerson as conductor, arrived at Parker's Ferry, S. C., on its way to Charleston, S. C., from Savannah, Georgia. The train stopped near where respondent with a crew of workmen was engaged in unloading steel rails which were approximately some 30 to 35 feet long and weighing '1700 or 1800' pounds. Respondent Rogers asked the conductor if the car containing the rails could be moved closer to the crossing in order to facilitate unloading. A portion of this testimony appears as follows:

'Q. And where were you with reference to the gondola at the time that the caboose stopped close to you? A. I jumped down off the end of the car, and walked back about the middle of the car, and I saw the conductor get on the ground off the caboose.

'Q. Then what, if anything, took place between you and the trainman? A. I asked the trainman could he move this car closer to the crossing for me.

'Q. Did you explain to him at all why you wanted that done? A. So I wouldn't have to back the truck so far in there to get to the car.

'Q. And what, if anything, did the trainman say to you? A. He said, 'No sir, Cap, I can't move this car at all,' and he was walking all the time, he didn't stop.

'Q. In what direction was he walking? A. Towards his engine, the Charleston way.

'Q. Did you see that trainman again after the conversation? A. No sir, never did see him any more.'

As a result of this conversation, respondent stated to the employees under his direction, 'Boys, let's go back and go to work; he's not going to move the car.' Some several rails had been removed from the car when it was struck from the Charleston end by another car as a result of shifting operations in the siding by appellants, causing him to fall between the two, and allegedly resulting in such injury to respondent as will be hereafter referred to in detail. Respondent further states that the first thing the knew after the cars had made contact was being warned to protect his legs from the wheels as the car was rolling and in his estimation did so for approximately the length of the car. He further stated that he had relied upon the conductor's statement that the car would not be moved; that he received no warning from anyone to the contrary and was not aware that shifting operations were being carried out on the siding until after the car on which he was standing had been struck.

Respondent further testified that in order to co-ordinate the efforts of the employees engaged in unloading the heavy rails, he was standing on the end of the car (which was approximately 2' 9"' high from the floor with a flange 4 7/8"' wide at the top); that he gave orders to the employees which controlled their movements. A portion of this testimony appears as follows:

'Q. Now, tell us a little bit more in detail about how your crew handles rails, like that. A. Well, we divide the men in the car, some on one end and some on the other, so that one or the other can get up a rail, and the men on one end get up one end, and the men on the other end, they come up with theirs. Then they holler 'Hoist it high,' then when they come to the truck and get ready to put on the truck, then they holler 'Trow Way.'

'Q. Who does that hollering? A. Well, I did that. I didn't do the hollering to raise, but I did the hollering of the 'Trow Way.'

'Q. Who did the hollering about moving forward or back? A. I did.

'Q. Do or not the men working in a car like that, do they repeat the call, or do they just take the command from you, or just how do they do that? A. It's a man on the other end that repeats the word you say.'

There is other testimony to the effect that the low gondola car which was being unloaded was the last car on the siding away from the switch and that there were other cars between this car and the place where the switching operations were in progress such was to render it impossible for respondent to see such operations; that the car next to this car was a pulpwood car and that it contacted the gondola car after being struck by other cars being switched by the engine, causing respondent to lose his footing and fall between the cars.

The appellants, however, presented testimony which is a considerable variance with the foregoing, some of which was to the effect that the car was moved only a short distance, some a few inches, some that the car was not moved at all and some that the car was not touched. Others testified that the coupling to the pulpwood car was a 'light' or an 'ordinary' one and that they were not aware that anyone was injured until sometime later.

In passing upon a motion for a nonsuit, testimony and all inferences from it must be taken most strongly against the defendant and if there be any testimony tending to prove any one or more of the specifications of negligence, the motion should be refused. Sturdyvin v. Atlantic & C. A. L. R. R. Co., 98 S.C. 125, 82 S.E. 275; Montgomery v. National Convoy & Trucking Co., 186 S.C. 167, 195 S.E. 247; Jones v. American Fidelity & Casualty Co., 210 S.C. 470, 43 S.E.2d 355; Mullinax v. Great A. & P. Tea Co., S.C., 70 S.E.2d 911; Hopkins v. Derst Baking Co., S.C., 71 S.E.2d 407.

Where there is uncertainty as to the existence of negligence or contributory negligence, the question is one of fact and not of law, whether the uncertainty arises from a conflict in the testimony or because fairminded men might honestly draw different conclusions from the undisputed facts. Ordinarily, the question of contributory negligence is a mixed question of law and fact and is for the jury, but, when the evidence admits of but one reasonable inference, the question becomes a matter of law for the court. Negligence being a mixed question of law and fact, it is the court's duty to define negligence, but it is the jury's province to draw the inferences from the facts. Snipes v. Southern Ry. Co., 166 F. 1, 91 C.C.A. 593; Augustine v. Christopoulo, 196 S.C. 381, 13 S.E.2d 918; Turbyfill v. Atlanta & C. Air Line Ry. Co., 83 S.C. 325, 65 S.E. 278; see also 14 South Carolina Digest 455, Negligence, k136(2) and 136(3).

There is no contention that there is error in the charge and we are convinced that it cannot be said that the evidence is susceptible of no other reasonable inference than that respondent was guilty of contributory negligence as a matter of law. The first question, therefore, must be resolved against appellant.

In discussing the first question we have pointed out that the evidence presented sharp issues of fact which under such circumstances must be submitted to the jury with proper instructions. We are of the opinion, therefore, that the second question also should be resolved against appellants' contention.

Appellants next contend that the verdict was the result of passion and prejudice and should be set aside as excessive.

Dr. Ackerman testified that on March 1, 1950, he found respondent suffering with great pain in the region of the back and chest and gave him a sedative; that he failed to respond satisfactorily to treatment and developed discoloration in the lumbar region, whereupon he refered him to Dr. Herring.

Dr. Herring, who first saw respondent on March 6, 1950 testified in part as follows:

'There was a two inch contusion over the upper part of the abdomen, which was discolored, blue, tender to all palpatation over the contusion. The right wrist was swollen, was painful, and all movement of the wrist, right wrist was limited. All movement of his back was extremely painful. There was definite tenderness over the lower portion of the lack, the last three lumbar vertebrae, and the lumbo-sacral region. There was a blue discoloration over the region of the fourth and fifth lumbar vertebare, due to a contusion in this region. The left perineal region, or region about the rectum, was red; it was hardened, indurated; it was extremely painful. An internal examination at that time could not be done because of severe pain.

'X-rays of his wrist did not reveal any evidence of fracture. X-ray of his...