Sturdyvin v. Atlanta & C. A. L. R. Co.

• Decision Date: 04 July 1914
• Docket Number: 8867.
• Citation: 82 S.E. 275,98 S.C. 125
• Parties: STURDYVIN v. ATLANTA & C. AIR LINE RY. CO.
• Court: South Carolina Supreme Court

82 S.E. 275

98 S.C. 125

STURDYVIN v. ATLANTA & C. AIR LINE RY. CO.

No. 8867.

Supreme Court of South Carolina

July 4, 1914

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

Action by John M. Sturdyvin against the Atlanta & Charlotte Air Line Railway Company. From a judgment for complainant, defendant appeals. Affirmed.

Cothran Dean & Cothran, of Greenville, for appellant.

Ansel & Harris, of Greenville, for respondent.

HYDRICK J.

Plaintiff recovered judgment against defendant for $5,000 damages for personal injuries sustained while assisting, as a brakeman in operating a switch engine in defendant's yard at Greenville, S. C., by attempting to mount said engine when it was in motion. The engine was provided with two steps sometimes called running boards, at the front, on each side of the drawhead, and two on the rear of the tender, similarly placed. The steps were about 12 inches wide and 3 feet long, with backstops about six inches high. They extended over the rails and hung about 12 inches above them. They were so placed for the employés to stand upon, as the engine went about its business over the yard, and so that they could conveniently get on and off to throw switches and attend to their other duties. To enable him to better perform his duties, and especially that of giving signals to the engineer, the brakeman was expected to ride on one of the steps at the forward end, that is, the end in the direction in which the engine was moving.

One of defendant's yard conductors, who had been for seven years, and was still at the time of the trial, in defendant's service, testified that he had instructions from the superintendent not to allow any of the employés to attempt to get upon the steps of an approaching engine from the track, presumably because, in such an attempt, to fall or a misstep would throw them directly in front of the approaching engine, and that they were permitted to mount an approaching engine only from the side of the track. This instruction or rule was generally obeyed and enforced. Rule 11 of the company was as follows:

"Every employé must exercise the utmost caution to avoid injury to himself or to his fellows, especially in the switching of cars, and in all movements of trains, in which work each employé must look after and be responsible for his own safety. Jumping on or off trains or engines in motion, getting between cars in motion to couple or uncouple them, and all similar imprudences are dangerous and in violation of duty. All employés are warned that if they commit these imprudences it will be at their own peril and risk."

It will be seen that the rule does not, in so many words, prohibit the practice of jumping on or off moving engines or trains; and, though a prohibition of it may be implied from the warning therein given, the evidence is that, in that respect, the rule has never been observed or enforced. On the contrary, the custom of defendant's servants has been to get on and off moving engines and trains, and this custom has been so general and long-continued as to warrant the inference that it obtained with the knowledge and acquiescence of defendant, notwithstanding the rule. The same conductor testified that, during seven years that he had been in the service, the custom had prevailed and still prevails, and that it was known to and even practiced by the superior officers and agents of defendant. In fact, he said that he did not think it was a violation of the rules.

The night of the accident was dark and rainy. At the place where it occurred there was no light, except that afforded by the switch light and the lantern which plaintiff carried, and the tracks were on an embankment, which began to slope very close to the end of the cross-ties, there being just enough room for a person to walk along the roadbed at the ends of the cross-ties, which were from 8 to 12 inches thick, and extended about that distance outside the rails. The roadbed was not surfaced, nor was there any ballast between the cross-ties outside the rails.

Plaintiff threw the switch to the track into which he had been ordered to take the engine. As he did so, the engineer, seeing that the switch had been properly set, did not wait for a signal, but immediately reversed his engine and started backwards into that track. Plaintiff was standing by the side of the track, and, as the engine approached him, at a speed from six to eight miles an hour, he attempted to jump upon the step at the end of the tender. His right foot struck the edge of the backstop an inch or two above the step, glanced off, and passed between the back of the step and the wheel. Before he could recover his balance his leg was caught by the wheel and crushed, so that it had to be amputated a few inches below the thigh.

The sole question presented by the appeal is whether the trial judge erred in refusing defendant's motion for a nonsuit. It is unnecessary to cite authority for the proposition that, on a motion for nonsuit, the testimony and all inferences from it must be taken most strongly against the defendant. It is also well settled that, if there was any testimony tending to prove any one or more of the specifications of negligence, the motion was properly refused. It follows that it is necessary to consider only those allegations of negligence which are found to be supported by the evidence.

Negligence is charged in the failure of defendant to provide handrails or grabirons and steps, or running boards, at the sides of the tender, Plaintiff testified that it would be easier and safer to get on and off a moving engine if the steps were on the sides, and he mentioned two railroad systems which had them so placed. While it is true that the allegation of defendant's negligence is not to be tested conclusively or exclusively by what other well-regulated companies did or failed to do, still the testimony had some bearing upon the...