Williamson v. Southern Ry. Co.

• Decision Date: 27 April 1937
• Docket Number: 14473.
• Citation: 191 S.E. 79,183 S.C. 312
• Parties: WILLIAMSON v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

191 S.E. 79

183 S.C. 312

WILLIAMSON v. SOUTHERN RY. CO.

No. 14473.

Supreme Court of South Carolina

April 27, 1937

CARTER J., dissenting.

Appeal from Common Pleas Circuit Court of Richland County; G. Duncan Bellinger, Judge.

Action under Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59, by Sarah Rebecca Calhoun Williamson, as executrix of the last will and testament of W. L. Williamson, deceased against the Southern Railway Company. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

John W Sholenberger and Gary Paschal, both of Columbia, for appellant.

Frank G. Tompkins, of Columbia, for respondent.

FISHBURNE Justice.

On December 11, 1934, about midnight, W. L. Williamson chief trainmaster of the defendant, Southern Railway Company, on the Columbia Division, was struck and killed by an engine of train No. 52, operated by the defendant, which at the time was engaged in switching cars on a sidetrack at Montgomery, S. C.

At the time of his death, the deceased was engaged in interstate commerce as an employee of the defendant. The plaintiff, as executrix, brought this action under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59) in the circuit court of Richland county, for the recovery of damages on account of his alleged wrongful death while in the service of the defendant.

The specifications of negligence and willfulness alleged in the complaint are substantially as follows: (a) In backing an unprotected engine in the darkness of night, without taking proper precautions; (b) in failing to have upon the rear of said engine a proper signal light; (c) in moving the engine without first giving proper warning and signal; (d) in failing to ring the bell on the engine at the time it was moving, in a dark and dangerous place; (e) in failing to have a person on the rear end of the engine; (f) in moving said engine before the trainmen knew of the position of the deceased; (g) in failing to keep a proper lookout on the right of way for the deceased.

There are other specifications, but they are repetitious of those we have just stated.

The defendant's answer duly set up contributory negligence and assumption of risk on the part of plaintiff's testator, as well as a general denial.

The trial resulted in a nonsuit, upon motion of the defendant, which was granted upon the ground that the evidence failed to show negligence, and upon the further ground that the deceased assumed the risks.

The plaintiff appeals to this court upon several exceptions from the order of nonsuit.

The essential facts are not in dispute.

On the night in question, a freight train of the defendant, composed of 57 cars, and designated as train No. 52, was proceeding from Spartanburg to Columbia. At some point along this route, between the stations of Richtex and Bookman, a car, located in the train eighth from the engine, became disabled by reason of a broken axle. The train crew were unable to repair the damage, so they uncoupled the cars, and the engine proceeded with the first seven cars to Bookman, where the cars were placed upon a sidetrack. From there the engine crew and conductor proceeded to Columbia for the purpose of securing what is known as the derrick equipment, used in clearing up wreckage, and which consisted of four or five cars. While there the wreck was reported to Mr. Williamson, the chief trainmaster.

The testimony shows that it is customary when a wreck occurs on the railroad for an official to go to the place of its occurrence to direct the movements of trains and switching operations, and generally supervise the work of clearing the track. In accordance with this custom, Mr. Williamson accompanied the train crew of No. 52 and the derrick equipment back to the scene of the trouble. The wreck occurred on the main line, and it was necessary that this track be cleared as soon as possible in order to allow the passage of passenger trains Nos. 10, 16, and 17, which were held up until the main line could be opened. The disabled car was repaired and taken to Bookman, and there placed on a sidetrack. Thereafter the train crew were engaged for a considerable length of time in switching operations, after which the engine of No. 52, pushing three cars ahead of it, proceeded to Montgomery, with passenger trains Nos. 10 and 16 following behind. When it reached Montgomery it took the sidetrack so that the passenger trains could proceed on their way on the main line.

In considering the sufficiency of the evidence, we are wholly concerned with what took place with reference to the engine and three cars of train No. 52 on this sidetrack, because it was there that Mr. Williamson met his death. We are not concerned with train No. 17, because it had preceded No. 52, and had gone on its way.

The undisputed evidence is that while the conductor, Mr. Eleazer, was in direct charge of the freight train, No. 52, he was subject to the general control of Mr. Williamson with reference to every move he made respecting whatever operations were necessary to reassemble his train so as to continue on to Columbia. Mr. Williamson, during all of the necessary switching movements, was the superior officer of Conductor Eleazer. Williamson rode back and forth in the cab with the trainmen, and it was understood that when the work was completed he would return to Columbia on train No. 52. When proceeding from the scene of the wreck to the sidetrack at Montgomery, Mr. Williamson was told by the conductor that when he reached the sidetrack, he intended to uncouple and leave the three cars at its eastern end, and would then back his engine to Richtex, and couple on to those cars of his train which had been placed there. From Richtex, train No. 52 would then return to Montgomery on the main line, back into the sidetrack from its western end, couple the three cars to the rear end of the train, and thence proceed to Columbia.

The entire movement and prearranged plan was explained in detail by the conductor to the deceased, in all of which he concurred. It was fully understood that the engine of train No. 52, upon which they were riding and which was pushing the three cars ahead of it, would stop, as stated, on the eastern end of the sidetrack at Montgomery, and would be there only momentarily-only long enough to uncouple the cars. Upon reaching the sidetrack about midnight, Mr. Williamson and the conductor alighted from the cab of the engine, and the brakeman, upon his arrival from the switch terminus, uncoupled the engine from the three cars. As determined upon beforehand, the engine and tender of No. 52 were then to back out from the sidetrack for the return trip to Richtex.

Witnesses for the plaintiff all testified that the bell was rung continuously from the time the engine stopped until after it had started again, and that this continuous ringing of the bell was the customary warning and signal to all trainmen that the engine had not stopped for any length of time, but that it had come to rest only momentarily, and would immediately start again. It was further testified by plaintiff's witnesses that it was the established railroad custom and practice during switching operations such as were being carried on, for no one to ride on the rear of the engine or tender, when backing. The brakeman having uncoupled the engine and signaled the conductor, the latter thereupon directed the engineer to "back up and move on."

The last time the deceased was seen, he was standing in the space between the sidetrack and the main line track, three car lengths behind the engine, waving his lantern to passenger train No. 10, which was then passing. The brakeman was the only one who saw him, and he saw him just before he uncoupled the cars. As the engine started backwards, with the tender ahead of it, the conductor climbed aboard, and not finding Mr. Williamson in the cab, and knowing that he was to return with them, directed the engineer to stop. The engine had then progressed slowly, at a speed of about four or five miles per hour, to a point about three car lengths beyond, where Mr. Williamson had last been seen, standing in the space between the two tracks. About the same time that the conductor discovered that the deceased was not in the cab, the brakeman, who was riding on the pilot of the backing engine, saw the electric lantern which the deceased had been carrying, some distance behind him in the middle of the track. The engine was stopped, and the body of Mr. Williamson was found between the rails of the sidetrack, over which the engine had just traveled, two or three car lengths to the rear. The deceased had been run over and instantly killed.

The undisputed evidence is that the night was clear and cold, but that the visibility was good; that Mr. Williamson had been in the employment of the defendant for over a quarter of a century, and was an experienced railroad man, was vigorous for his years, mentally alert, and with unimpaired sight and hearing; that it was the practice of trainmen in switching operations, while the train was in motion, to climb aboard and that this was attended with no unusual risk; that Mr. Williamson was well aware of this practice, and had himself been seen to board moving trains.

As stated, there were no eyewitnesses to the actual occurrence. Mr. Williamson when last seen alive was in a place of safety standing in the space between the two tracks. The plaintiff endeavored to prove that there was no light on the rear of the engine tender, which was the forward unit on the backing engine. There was, however, a total absence of any testimony to prove this specification of negligence. No witness testified that the light on the back of the tender was not burning, nor did any witness testify that it was burning. ...