Shiver v. Atlantic Coast Line R. Co.

• Decision Date: 03 April 1930
• Docket Number: 12881.
• Citation: 152 S.E. 717,155 S.C. 531
• Parties: SHIVER v. ATLANTIC COAST LINE R. CO. et al.
• Court: South Carolina Supreme Court

152 S.E. 717

155 S.C. 531

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

No. 12881.

Supreme Court of South Carolina

April 3, 1930

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of all the evidence, however, on motion of counsel for the appellants, five of the specifications of negligence were withdrawn from the consideration of the jury; and at the close of the charge of the presiding judge another specification of negligence was withdrawn by the respondent.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 of the circumstances surrounding the death of plaintiff's intestate.

In our review of the evidence, we have been guided more by the ""Statement of Facts" submitted by the attorneys for the respondent, rather than by that statement on the part of the appellants, for the reason that we conceive it to be our duty in disposing of the exceptions under consideration to give the respondent the benefit of any and all evidence in the case favorable to the allegations of negligence contained in her complaint.

The plaintiff's intestate, Shiver, about 30 years of age, in good health, was a brakeman in the employ of the defendant railroad company, with about five years' experience in that work, and other experience as a railroad employee. At the time of his death, he was in service on a train engaged in interstate commerce. The train, known as a "tonnage test train," consisting of an engine and 76 cars, 73 of which were loaded with vegetables and 3 cars being empty, left Bennett's Yard, near Charleston, destined for Florence. The length of the train was not unusual, for often engines of the class of that which pulled this train carried as many as 85 cars. The trainmaster, Rush, was on the train with the view of ascertaining the pulling power of the engine, so that in case the tonnage was not heavy enough, he would recommend that more tonnage be added. The engine was pulling a tonnage of around 275 tons more than the maximum tonnage usually given it. The crew consisted of the trainmaster, the engineer, fireman, brakeman, conductor, and flagman, the usual crew, with the exception of the trainmaster, for a freight train of this class. There was no entire inspection of the train between Bennett's Yard and Cades, a distance of approximately 66 miles. When the train passed Kingstree, some 2 miles from the place where Shiver's body was found, a telegraph operator for the railroad company at Kingstree, in handing orders to the crew, noticed a "squealing" about midway the train, which he thought was a brake rigging, and this condition should have been corrected if possible. The duty to release the brakes rested upon the brakeman, who usually did so by getting on the ground and pulling a rod near the center of the car, which opens an air valve and which produces a release of the brakes; and to do that it is necessary for the brakeman to get off the moving train. The evidence does not disclose plainly, however, that Shiver was aware of the brake rigging. From Kingstree, there is an upgrade for a distance of a mile and a half, then there is a dip about three-quarters of a mile downgrade. Shiver's body was found about a quarter of a mile from the bottom of the dip, slightly on the downgrade. Between Kingstree and Cades, Shiver, the engineer, fireman, and trainmaster were riding on the engine; the conductor and flagman were in the caboose. Soon after the train passed Kingstree, and while it was going upgrade, with the engine laboring and pulling hard uphill, Shiver got down from the engine. The plaintiff contends that, in all probability, he left the engine for the purpose of releasing the brakes, but there is no evidence to sustain that theory. One of the crew testified that night was fast coming on, and that Shiver said that he was going back to the caboose for the purpose of getting his lantern.

The trainmaster testified that Shiver said, "Tell him (the engineer) not to shut off," which was understood to mean that the engineer was not to reduce speed of the train on account of Shiver having to board it a little later. The evidence shows that the speed was not increased. After he left the engine, he may have discovered something wrong with the brakes. There was testimony to show that the last seen of him by any of the crew was when the fireman saw him, some 30 car lengths from the engine, squatting down in a position to inspect the brakes and running gear. Although the train stopped at Cades, for the purpose of taking on water, the stay there was very brief, and no member of the crew saw Shiver. The conductor inspected about half of the train on one side during that stay. It was the duty of the brakeman to assist in this inspection by examining the train on the opposite side, and the conductor was under the impression that Shiver was performing this duty, although at the time he did not see him. Those riding on the engine thought Shiver was in the caboose; those riding in the caboose thought he was on the engine. He was not missed until the train reached Florence. When the trainmaster discovered that Shiver had not reached Florence, he reported the fact that the brakeman was missing to various points along the line of railroad, and particularly to Kingstree, near which place he had left the engine. The operator at Kingstree was a brother-in-law to Shiver.

The morning after Shiver was killed, there was some evidence that near the point where his body was found something had been dragged for a distance of around 50 feet in a northerly direction; at the edge of the cross-ties on the left-hand side of the track, the side on which Shiver had gotton off the engine, the grass and weeds at the edge of the cross-ties had been pressed forward in a northerly direction, at which point there was also evidence of blood, and near which point Shiver's missing shoe was also found....