Youngblood v. Southern Ry. Co

• Decision Date: 22 September 1926
• Docket Number: (No. 12073.)
• Citation: 134 S.E. 660
• Court: South Carolina Supreme Court
• Parties: YOUNGBLOOD. v. SOUTHERN RY. CO. et al.

134 S.E. 660

YOUNGBLOOD.

v.SOUTHERN RY. CO. et al.

(No. 12073.)

Supreme Court of South Carolina.

Sept. 22, 1926.

Cothran, J., and Purdy, A. A. J., dissenting.

Appeal from Common Pleas Circuit Court of Barnwell County; W. H. Townsend, Judge.

Action by Mary O. Youngblood as administratrix of the estate of Cleveland J. Young-blood, deceased, against the Southern Railway Company and the Southern Railway-Carolina Division. Judgment on directed verdict for defendants, and plaintiff appeals. Reversed and remanded for new trial.

Wolfe & Berry, of Orangeburg, W. C. Martin, of Branchville, W. M. Warren, of Augusta, Ga., and R. C. Holman and Brown & Bush, all of Barnwell, for appellant.

Harley & Blatt, of Barnwell, for respondents.

STABLER, J. An action for damages brought against the defendants by the plaintiff, Mary O. Youngblood, as administratrix of the estate of Cleveland J. Youngblood, deceased, for the death of her intestate due to alleged acts of negligence on the part of the defendants.

The record, in brief, shows that in the early morning of January 3, 1924, two trains, moving on the Southern Railroad between the town of Branchville and city of Columbia, one going in an easterly, and the other in a westerly, direction, about three miles west of the city of Orangeburg, met in a head-on collision, resulting in the death of a number of persons, one of whom was Youngblood, operating as conductor train No. 483 going west. This suit is the outgrowth of that fearful wreck.

The plaintiff alleged in her complaint, among other things, that the injuries received by Youngblood, and his death, which resulted from said injuries, were due to the negligent acts of the defendants, in that they had incompetent officers and agents to signal and direct the movements of the train which Youngblood was operating as conductor, and in that these officers and agents of the de-fendants did negligently signal and direct the movements of the said train, bringing about the collision and resulting in the injury and death of Youngblood. The answer of the defendants interposed a general denial, and set up the affirmative defenses of contributory negligence and assumption of risk.

The case came on for trial in the court of common pleas at Barnwell, March, 1925. At the conclusion of the testimony offered, which was voluminous, on motion of counsel a verdict was directed for the defendants by his honor, Judge Townsend, for the reasons stated by him, that he did not think the evidence tended to show negligence on the part of the defendants in the operation of the trains; that "the letting down of the semaphore board by the agent at Orangeburg merely brought about a condition under which the collision occurred"; and that "the collision was due entirely to the fault of Conductor Youngblood in failing to carry out the orders given him at Branchville."

This appeal is taken by the plaintiff, imputing error to the circuit judge in directing a verdict for the defendants.

It was agreed by all parties that this action was tried under the federal Employers' Liability Act of Congress (U. S. Comp. St. §§ 8657-8065), and that, at the time Cleveland J. Youngblood received the injuries from which he died, he and the defendants were both engaged in an act of interstate commerce.

There is no dispute as to the law. If the injuries and resultant death of Youngblood, an employee of the defendants at that time, were caused, wholly or in part, by the negligent acts of the defendants, the plaintiff would be entitled to recover, unless defeated by some affirmative defense, duly pleaded and proved. If, however, the injuries received by him resulting in death were due solely to his own acts, no right of action would lie against the defendants, and a directed verdict would be proper.

The testimony shows that on the morning of the clay of the collision the engine of a freight train going toward Columbia was disabled at Ft. Motte, a point about 25 miles west of Orangeburg. The company kept a switching crew at Branchville about 18 miles east of Orangeburg, which crew consisted of Youngblood, the conductor, and an engineer and a fireman, and was a night crew. The defendants, through their dispatcher at Charleston, ordered the switching crew to proceed in a westerly direction from Branchville with an engine and tender to carry to Andrews, the company's yards at Columbia, the freight train at Ft. Motte. The train set out from Branchville and operated by Youngblood as conductor was designated as extra 483. At the same time a freight train designated as extra 723 was moving over the same line of road in an easterly direction from Columbia toward Charleston. In view of the necessity that these two trains should meet and pass each other at some point on the road, the dispatcher at Charleston sent the following order, known in railroad circles as a 31 order, to Branchville and Orangeburg: "Extra 723, east, gets this order and meets extra 483, west, at Orangeburg, engine 483 run extra from Branchville to Andrews." This order was delivered to Youngblood before bo left Branchville.

Rule 208 of the defendants' rule book is as follows:

"A train order to be sent to two or more offices must be transmitted simultaneously to as many of them as practicable. When not sent simultaneously to all, the order must be sent first to the superior train.

"The several addresses must be in the order of superiority of trains, each office taking its proper address, and, when practicable, must include the operator at the meeting or waiting point.

"Copies of the order addressed to the operator at the meeting or waiting point must be delivered to the trains affected until all have arrived from one direction.

"A train order must not be sent to a superior train at the meeting point if it can be avoided. When an order is so sent, the fact will be stated in the order, and special precautions must be taken to insure safety."

The words "and operator" in an address in a 31 order mean that the operator is to make five copies of the message, one to be kept by him and two to be delivered to the crew of each train. In case the words "and operator" are omitted, the operator makes but three copies, one copy to be retained by himself and two to go to the crew of the superior train. There is conflict in the testimony as to the use of the words "and operator" in the address of the above order, the dispatcher at Charleston asserting that he used them in sending the order, and the copy of the order in his records containing them, while the copy of the order in the records of the operator at Orangeburg does not contain them. It appears that the operator at Orangeburg made only three copies of the order, one for himself and two for the crew of extra 723, which two, however, were never delivered to extra 723 because the collision occurred several miles west of Orangeburg, and before extra 723 reached that city.

Leaving Branchville, extra 483 proceeded in the direction of Orangeburg; and on approaching the station at Orangeburg, within 100 yards of same, the semaphore being held on him, the engineer blew four blasts of the whistle as a signal for directions for the movement of his train. In the meantime, Tyson, operator at Orangeburg, according to his testimony, advised the chief dispatcher at Charleston as to the status of extra 483, and was told by him to clear him (Youngblood), and let him go to the west end of side track or yard at Orangeburg. Rogers, the dispatcher, testified that he told Tyson to clear him (Youngblood), and to tell him to go to the west end pass track and wait on extra 723. For some reason, however, Tyson did nothing except to drop the semaphore. Youngblood then continued with his train in a westerly direction, and soon afterward the wreck occurred.

There is conflict in the testimony as to whether the dropping of the semaphore, the indication of which, according to the defendants' rule book, is "proceed, " indicated to Youngblood that his previous orders had been fulfilled, and that he might proceed to his destination, or merely that the Orangeburg operator had no further orders for him, and that he should carry out the order he already held by meeting extra 723 at Orangeburg.

The movement of the trains was entirely in the hands of the dispatcher and the operator, who were responsible for the proper movement and signaling thereof. Over these agents of the defendants the conductor had no control, but in fact received his orders from them.

As this case must be sent back for a new trial, we shall not comment at length or in detail on the testimony. There was testimony tending to show negligence on the part of the defendants in the matter of signaling and directing the movement of the trains in question. The meet order being sent to the superior train at the meeting point, a situation arose, which under the defendants' rule, required special precautions to insure safety. A question of negligence on the part of the defendants arises in connection with the sending of the meet order by the dispatcher at Charleston or its disregard by the operator at Orangeburg. The operator at Orangeburg also failed to stop the train and give the crew the verbal instructions which the dispatcher at Charleston testified that he had directed him to give. Hence we are of the opinion that, in spite of any contributory negligence on the part of the deceased, Youngblood, the whole matter should have been submitted to the jury for their determination.

The respondents cite a number of cases in support of their contention that no error was committed by the circuit judge in directing a verdict, and urge with great force that these cases are conclusive of the present case. We shall not enter into a review of the cases cited further than to say that examination of them shows that the case at bar differs from each of them, as to facts, in several essential particulars.

The judgment of this court is that the judgment of the circuit court be...