Covington v. Atlantic Coast Line R. Co. , 158 S.C. 194 ( 1930 )

I think that the case of Chesapeake O.R. Co. v. Nixon, 271 U.S. 218,46 S.Ct., 495, 70 L.Ed., 914, in connection with the cases therein cited, is conclusive against the plaintiff in this case. In that case, the Court reversed a judgment of the Supreme Court of Virginia, which affirmed a judgment of the Circuit Court in favor of the plaintiff under circumstances strikingly parallel with those of the case at bar. A review of the facts appearing in the opinion of the Virginia Court, reported in140 Va., 351, 125 S.E., 325, discloses even a stronger case for the plaintiff than the present case.

The leading opinion is apparently based upon the theory that if the injury to the plaintiff was caused by the negligence of a fellow servant, the Federal Employers' Liability Act (45 U.S.C.A., §§ 51-59) foreclosed all other inquiry and demands a verdict in favor of the injured servant. The decisions of the Supreme Court of the United States do not support this theory. On the contrary, they are explicit in holding that under circumstances evidencing knowledge on the part of the servant of conditions and operation fraught with peril to him, he will be held to have assumed the risk of such negligence, though it be that of a fellow servant. The case of Nixon, above referred to, is clear to the point; there the engineer and the fireman were unquestionably guilty of negligence in not keeping a lookout for the injured servant on his way to work on a velocipede, whose movements they had notice of.

The case of Boldt v. R. Co., 245 U.S. 441,38 S.Ct., 139, 140, 62 L.Ed., 385, distinctly sustains the proposition advanced. Referring to the case of Seaboard A.L.R. Co.v. Horton, 233 U.S. 492, 34 S.Ct., 635, 58 L.Ed., 1062, L.R.A., 1915-C, 1, Ann. Cas., 1915-B, 475, the Court said:

"The risk held to have been assumed in the Horton case, certainly arose from negligence of some officer, agent or employee; and if the negligence of all these should be excluded in actions under the Employers' Liability Act, it is difficult to see what practical application could ever be given in them to the established doctrine concerning assumption of risk."

In the present case the plaintiff is shown to have been an experienced railroad man, and had for months traveled in his velocipede from his station across the trestle to Marion and back; fully cognizant of the situation and of meeting other cars upon the single track; the installation of facilities for meeting and passing such cars was notice to him that he was apt to encounter them; he knew of the work that was then being done by employees engaged in the installation of a new signal system who went out upon their work about the same time that he laid off from his.

I am unable to distinguish this case from those cited and think that it should have been held that the plaintiff assumed the risk of injury from a collision with a meeting car, notwithstanding the failure of the operators of it to afford him the opportunity to reach a safety point as alleged in the complaint.