Whisenhunt v. Atl. Coast Line R. Co

• Decision Date: 09 August 1940
• Docket Number: No. 15140.,15140.
• Citation: 10 S.E.2d. 305
• Court: South Carolina Supreme Court
• Parties: WHISENHUNT. v. ATLANTIC COAST LINE R. CO.

10 S.E.2d. 305

WHISENHUNT.

v.ATLANTIC COAST LINE R. CO.

No. 15140.

Supreme Court of South Carolina.

Aug. 0\9, 1940.

Appeal from Common Pleas Circuit Court of Charleston County; C. C. Feath-erstone, Judge.

Action by Lawrence Whisenhunt against the Atlantic Coast Line Railroad Company, to recover damages for injuries sus-tained while employed by defendant as a blacksmith. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hagood, Rivers & Young, of Charleston, for appellant.

H. L. Erckmann and Stoney, Crosland & Pritchard, all of Charleston, for respondent.

J. STROM THURMOND, Acting Associate Justice.

This is an action for $50,000 for personal injuries sustained by the plaintiff on April 24, 1936, and was commenced by service of the Summons and Complaint on July 19, 1938.

The complaint alleges that the defendant is a corporation created under the laws of the State of Virginia and operates a railroad through the County of Charleston where it has offices and agents to transact business.

That plaintiff was a man about forty years of age and was employed by defendant as a blacksmith at a salary of approximately $1,700 per annum.

That on the date he was injured he was ordered to repair the running board on top of a freight car of defendant in its yard at Charleston, S. C. That he got on top of the car and, in order to get to the running board of same, had to walk over a plank known as an extension leading from the end of the top of the car to the said running board.

That plaintiff and his helper had been working there for some time, and while he was engaged in repairing a saddle of said running board about the middle of the top of said car one J. E. Bunch, an engine carpenter, and his helper, P. A. Antley, employees of defendant, without any notice or warning to plaintiff, came on top of said car and removed the extension board and placed in its stead a new extension board, and failed to fasten same securely, although they knew it was there as a walkway to and from the top of the car.

That after the lapse of about fifteen minutes a whistle blew to discontinue work for the day and plaintiff gathered his tools and proceeded to leave the top of the train by the same way as he came. In so doing, he had to pass Antley, who was on top of the car, and told him he was leaving. That neither Bunch nor his helper (Antley) told him they had failed to fasten the extension board and plaintiff, believing it to be secure, stepped on same to go down from top of the car, and the said extension board not being fastened, began to slip and give way, causing plaintiff to jump from the top of the car to prevent his being thrown down, and he was seriously and permanently injured. His right heel was fractured and left heel crushed, and he is unable to perform his accustomed work or any kind of work which requires him to stand on his feet or to perform work sufficient to earn a livelihood for himself and family.

The complaint sets out that the said injury to the plaintiff was proximately caused by defendant and was a direct result of the wilful, reckless and negligent conduct of the defendant in the following particulars:

(a) In failing to provide for plaintiff a safe place to work and a safe place to walk in order to leave said box car upon the completion of his working day.

(b) In ordering the performance by said J. E. Bunch and his helper, of a different piece of work on the same freight car, in a manner that did not properly safeguard the rights of plaintiff and in ordering said J. E. Bunch and his helper to do work on the same car without notice to plaintiff and without warning him as to the nature of the work done and to be done.

(c) In sending an engine carpenter and helper to repair the extension on said box car and in failing to employ competent workers to do said job.

(d) In removing the running board from said box car and in placing in its stead a new one without securely fastening same when it knew that said running board was there as a walkway to and from the top of the car.

(e) In failing to warn plaintiff that said running board was not securely fastened.

(f) In allowing plaintiff to step on said running board without warning him that same was not securely fastened.

(g) In failing to anticipate or provide against the danger of injury to plaintiff from the repair of said running board and in failing to supervise said work properly.

That plaintiff suffered great and grievous bodily pain and mental anguish. He was confined to the hospital for twelve days, had his feet in casts and stayed in bed for six weeks, had to use crutches for several months and afterwards supported himself with a stick, and is permanently injured and unable to stand on his feet for anylength of time or keep his equilibrium or do any work.

The answer of the defendant admits the corporate capacity of defendant, and so forth.

Admits that on April 24, 1936, plaintiff was about forty years of age and was employed by it as a blacksmith at a salary of approximately $1,700, but says that plaintiff was liable to have his salary reduced or not to be employed continuously. It admits that plaintiff was ordered by defendant to repair the running board in question and that he had to get on top of the car and walk over the extension in question to get to the running board. It says that Bunch and Antley were directed to go and aid the plaintiff in completing his job, and that plaintiff knew that their work was to put on a new extension board, and denies that they wilfully, carelessly and incompetently failed to fasten same securely, and that if the same were not fastened securely that plaintiff knew or with slightest care for his own safety could have seen and known that the extension board was not securely fastened.

It admits that when the whistle blew plaintiff proceeded to leave the top of the car. It denies that Antley was on top of the car at the time and says that plaintiff should have known and could have seen that said extension board was not securely fastened. That had he gone to the other end of car where the extension board had not been removed he had a perfectly safe way to leave the said car, and if he was hurt it was due entirely to his own recklessness and carelessness in not taking care of his safety. It denies the extent of his injuries. It denies the specifications of wilfulness and negligence and the damages alleged in the complaint.

The defendant pleads contributory negligence and alleges that the wilfulness and negligence of the plaintiff consisted:

(a) In not looking to see if the new extension board had been fastened before he stepped thereon or attempted to use it, the said plaintiff at the time well knowing that the said extension board was in process of renewal.

(b) In not taking a suitable and safe way to leave the car by going to the opposite end of the car from the end he chose and where the extension board was fastened and was not being repaired, and which was the safe and proper end of the car.

The answer further alleges that this action was not commenced within two years from date that plaintiff's supposed cause of action accrued and is barred under Section 8370 of Code of South Carolina. It further alleges that plaintiff was experienced and knew or should have known the risk and that he assumed same.

The answer further alleges that if the plaintiff were injured at the time and place as set forth in the complaint such injury was the result of the negligence of his fellow servants, J. E. Bunch and P. A. Antley, who were engaged in the same department of labor as the plaintiff.

The case was tried before His Honor, Judge C. C. Featherstone, and a jury, on October 31, 1939, and resulted in a verdict for the plaintiff of $20,000 actual damages, the Presiding Judge having charged the jury that they could not find punitive damages. On motion for a new trial this amount by order nisi was reduced to $15,-000.

During the trial defendant moved for a nonsuit at the close of the plaintiff's case, and at the end of all testimony made a motion for a directed verdict in its favor, both motions being refused. The defendant has appealed to this Court upon two exceptions, both involving the refusal of the trial Judge to grant a nonsuit and directed verdict on the grounds of fellow servant and contributory negligence. No other questions are before this Court.

At the trial of the case the respondent offered evidence to sustain the allegations of the complaint, and the appellant offered evidence tending to establish its defenses, but its own witnesses testified that the master (appellant) had furnished defective appliances and equipment, namely, an extension board with holes so out of line that the bolts which were out of line could not and did not fit, and that had the holes in the extension board been in line everything would have been all right and that this was the trouble.

The Statute of Limitations defense as set out in Section 8370 of 1932 Code of South Carolina was plead by appellant in its answer but the said Section is not applicable to this type of action. Appellant evidently reached such conclusion as it did not press this defense or attempt to avail itself of same.

The appellant also plead assumption of risk, but it admits in the transcript that it abandoned this defense. The doctrine ofassumption of risk rests upon contract, and contributory negligence rests in tort. Montgomery v. Seaboard Air Line Railway, 73 S.C. 503, 507, 53 S.E. 987. Assumption of risk and contributory negligence are so closely allied though that it is difficult at times to draw the true line of distinction between them. Hall v. Northwestern R. Co., 81 S.C. 522, 525, 62 S.E. 848. In a broad sense, assumption of risk shades into contributory negligence, the difference being one of degree rather than kind. Stogner v. Great Atlantic & Pacific Tea Co., 184 S.C. 406, 192 S.E. 406.

In his brief, counsel for appellant states that the exceptions raise only two questions, to...