Shiver v. Atl. Coast Line R. Co, 12881.

Citation152 S.E. 717
Decision Date03 April 1930
Docket NumberNo. 12881.,12881.
PartiesSHIVER. v. ATLANTIC COAST LINE R. CO. et al.
CourtUnited States State Supreme Court of South Carolina

152 S.E. 717

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

No. 12881.

Supreme Court of South Carolina.

April 3, 1930.


The evidence indicated that the brake-man left the engine for purpose of going to caboose for his lantern, and on his way he squatted to ground for purpose of inspecting brakes, and in attempting to board moving train, he failed to get secure hold and fell from train and received injuries which caused his death. The evidence further showed that path near track for use of employees was covered with rock, which might have injured brakeman, but could not be said to have caused his fall. The rules of the com pany provided that, if it was too risky to board moving train, brakeman was not required to attempt to board.

Appeal from Common Pleas Circuit Court of Charleston County; J. K. Henry, Judge.

Action by Fannie L. Shiver, as administratrix of the estate of William H. Shiver, deceased, against the Atlantic Coast Line Railroad Company and others. Judgment for plaintiff, and defendant named and another appeal.

Reversed and rendered.

Hyde, Mann & Figg, of Charleston, for appellants.

Shimel & Rittenberg, Thos. P. Stoney, A. R. McGowan, J. D. E. Meyer, and Hamer & Crosland, all of Charleston, for respondent.

BLEASE, J.

This action for damages, instituted and tried in the court of common pleas for Charleston county, grew out of the death of the plaintiff's intestate, William H. Shiver, who was killed while engaged in his employment as a brakeman for the defendant railroad company. Originally, the defendants were Atlantic Coast Line Railroad Company and E. B. Rush, a trainmaster, and Samuel T. Seymour, an engineer, in the employ of the railroad company, who were performing their duties in their respective capacities on the train where Shiver was also employed at the time of his death. The result of the first trial was a mistrial.

At the second trial before his honor, Circuit Judge J. K. Henry, the defendant Rush was unable to be present on account of illness. The plaintiff agreed discontinuance of the case as to him, and, by consent, his testimony at the first trial was introduced on behalf of the other defendants. For the reason that there was no evidence of willfulness, the presiding judge instructed the jury that their verdict must be limited to actual damages. The trial resulted in a verdict in favor of the plaintiff, and from that verdict and the judgment thereupon entered, the defendants Seymour and the railroad company have appealed.

The complaint charged that the death of Shiver was occasioned through the negligence and willfulness of the defendants in eleven particulars set forth. At the close of all the evidence, however, on motion of counsel for the appellants, five of the specifications of

[152 S.E. 718]

negligence were withdrawn from the consideration of the jury; and at the close of the charge of the presiding judge another specification of negligence was withdrawn by the respondent. So the specifications of negligence submitted to the jury, five in number, were as follows:

1. "In causing and allowing the said engine to haul an excessive number of cars so great as to make the distance between the engine and the rear of the train too long for a proper and sufficient watch to be kept for employees who had alighted from the train in the performance of their duties and would have to board the same again; all in disregard of the safety of plaintiff's intestate and in violation of the rules of the defendant company."

2. "In failing and omitting to have the roadbed at or about the place where the plaintiff's intestate was killed properly and sufficiently ballasted so as to provide a firm and secure, footing for employees who, having alighted from the train in the performance of their duties, found it necessary to board the train again while it was in motion."

3. "In failing and omitting to have any lookout on the said train or on any of the cars between the engine and the caboose thereof, to watch out for the safety of the plaintiff's intestate while he was inspecting the said train."

4. "In failing to stop or to slacken the speed of the said train so as to enable the plaintiff's intestate to safely inspect the said train and to relieve its strain, and to board the same for the purpose of performing his duties thereon in connection with the operation thereof."

5. "In failing to employ a sufficient number of persons on the said train to look out for the safety of one another to enable the plaintiff's intestate to perform his duties safely."

The eight exceptions of the appellants relate to the refusal of the presiding judge to grant the defendants' motion for a nonsuit at the close of the plaintiff's evidence, and the refusal to grant their motion for a directed verdict at the close of all the evidence. All these exceptions may well be disposed of together.

While the record shows here and there some minor conflicts in the testimony of the witnesses, they are of no great consequence, and, we think, it is not a matter of much difficulty to make a fair statement...

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