Wilson v. Southern Railway , 73 S.C. 481 ( 1906 )

March 15, 1906. The opinion of the Court was delivered by This action of the plaintiff was to recover damages of the defendant because of personal injuries. The trial was before Judge Klugh and a jury. The verdict was for $800 for the plaintiff. An appeal was taken. The history of the facts, or allegations of fact, in the pleadings and testimony was about as follows: The plaintiff had no knowledge or experience with the railroad track and the stations on defendant's railroad from Columbia, S.C. to Charlotte, N.C., and when called upon by the railroad authorities to run the train known as No. 74 from Columbia to Charlotte, objected to doing so, because of his want of knowledge of these things; but the defendant insisted that he would do so and agreed to place him in the hands of a pilot for said trip, which was done by placing over him, Capt. Drake as such pilot, who was the conductor of said train known as No. 74. The difficulties of the trip over said railroad at that date were greatly increased by reason of an accident on another line of defendant's system of railroads, which necessitated many of defendant's trains being run on the railroad from Columbia to Charlotte andvice versa. The plaintiff, under the pilotage of Capt. Drake, who was conductor on train No. 74, started on his trip on the morning of June 8th, 1903 — having lost sleep during the nights of the 7th and 8th of June, 1903 — and no accident occurred except that on account of delays of his train; when he reached the station of White Oak, being more than twelve hours late, his train lost its class as No. 74, and became known as Extra 193. That when his train — Extra 193 — reached the station known as Fort Mill, he was held twenty-five or thirty minutes. That at Fort Mill the station agent, who was also the telegraph operator, as plaintiff alleges, negligently and recklessly gave the plaintiff the signal to leave the station by showing him the "white board," and also negligently and recklessly gave him an order conferring on extra 193 the right of track over No. 73, which was not due to leave Charlotte for fifty minutes; that Charlotte was only fourteen miles from Fort Mill, and plaintiff had ample time to have gone there; that at that time said station agent knew, or ought to have known, that there was a passenger train coming from Charlotte and due to leave Pineville, the station above Fort Mill, and between that place and Charlotte, and that a collision was inevitable; that when he was ordered to leave Fort Mill, plaintiff had been on duty for more than twenty hours and was in no condition to run his engine; that the conductor, Drake, who had been ordered to pilot him, negligently and recklessly gave plaintiff orders to leave Fort Mill, when he knew, or ought to have known, that the 4th section of No. 33 was coming and was bound to collide with Extra 193; that acting upon the said orders and instructions from those who had a right to direct his services, the plaintiff being ignorant of the whereabouts of the passenger train and thinking that the track was clear, pulled out of Fort Mill and collided with the passenger train before he got to Pineville, the next station; that seeing a collision inevitable, the jumped, broke his ankle, etc.

The defendant answered, denying the charges of negligence and recklessness; charging that the accident was due to the negligence of the plaintiff, and pleading the contributory negligence of the plaintiff, as follows: As a further defense, the defendant alleges that at or about 9 o'clock A. M. of June 8, 1903, the day upon which the collision occurred, the plaintiff while acting as engineer of Extra 193, received from the defendant at White Oak, S.C. a written order that the fourth section of train No. 33, a train running in the opposite direction, would run eight hours twenty minutes late; that the regular schedule leaving time at Charlotte of train No. 33 was 8.50 A.M., and the leaving time of said fourth section of 33 at Charlotte, according to said order, was 5.10 P.M.; that the regular schedule leaving time at Pineville of train No. 33 was 9.11 A.M., and the leaving time of said fourth 33 at Pineville, according to said order, was 5.31 P.M.; that the regular schedule leaving time at Fort Mill of train No. 33 was 9.22 A.M., and leaving time of said fourth 33 at Fort Mill, according to said order, was 5.42 P.M. That said fourth 33 was twenty minutes late — leaving Charlotte at 5.30 P.M., it passed Pineville without stopping at 5.43 P.M., six and one-half miles north of Fort Mill. That the plaintiff with his train, Extra 193, arrived at Fort Mill at 5.25 P.M., and left that station at 5.48 P.M., going in the direction of Pineville. That the plaintiff negligently, carelessly and recklessly overlooked the order that he had received as aforesaid, notifying him of the movement of fourth 33, and in consequence collided "head on" with the said fourth 33 between Fort Mill and Pineville, at or about 5.25 P.M. That the plaintiff, which he left Fort Mill, knew, or with the exercise of ordinary care should have known, that fourth 33 at that time was coming towards him between Pineville and Fort Mill, and that a collision was inevitable. That by the rules of the company under which the plaintiff was working, he was jointly responsible with the conductor for the movement and protection of his train. "The defendant alleges that the-aforesaid negligent acts and omissions of the plaintiff contributed to his injury in the manner stated, in conjunction with the alleged acts of negligence on the part of the defendant set forth in the complaint."

The plaintiff admitted that when he arrived at White Oak he passed three sections of No. 33, and that he knew that there was a fourth section to come, not only by the signals given and the whistles blown by those trains, indicating another section following, but by a written order handed to him by the agent at White Oak, reading as follows: "4th 33, engine unknown, will run 8 hrs. 20 m. late Charlotte to Winnsboro, and 8 hrs. late Winnsboro to Columbia."

Reference is made to the word "pilot." In the rules of defendant railway, a pilot is thus defined: "A person assigned to a train when the engineman or conductor, or both, are not fully acquainted with the physical characteristics, or running rules of the road or portions of the road, over which the train is to be moved." Rule 105. "Both conductors and engine men are responsible for the safety of their trains and, under conditions not provided for by rules, must take every precaution for their protection." Rule 367. "They (conductors) will have charge of the trains to which they are assigned and of all persons employed thereon. They are responsible for the safe and proper management of such trains, for the protection and care of passengers, baggage and freight, for a thorough performance of duty by the train employees, and for the observance and enforcement of all rules and orders relative thereto. * * *" Rule 502. "They (engine men) are jointly responsible with the conductor for the movement and protection of their trains in accordance with the rules; and while they must obey all proper orders by the conductors or others, as provided by the rules, they are individually responsible for the observance of rules relative to their duties, and must decline to obey any order by the conductor or any person which involves the violation of such rules or peril to person or property." Special Rule 50. "Conductors and enginemen are required to consult with one another and have a thorough understanding as to the meeting points." "A train receiving this order is not required to protect itself against opposing extras unless directed by orders to do so, but must keep clear of all regular trains unless required by rule."

Let the report of this case contain the Judge's charge and the exceptions thereto.

We will now pass upon these exceptions.

The first three relate to an alleged failure of the Circuit Judge in his charge to the jury in regard to the defense of contributory negligence. An examination of the charge of the Circuit Judge will show it to be in exact accord with the definitions of this Court of contributory negligence. The principles are announced in Freer v. Cameron, 4th Rich., 232; Cooper v. Railway Co., 56 S.C. 91,95, 34 S.E., 16. In this latter case this Court said: "The best definition of contributory negligence we have seen is the following from 7th Ency. Law, 371 (2d edition): ``Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.'"

It is thus seen that contributory negligence by plaintiff can never exist except when the injury has resulted from the negligence of the defendant as a "concurring proximate cause." In Bowen v. Railway Co., 58 S.C. 228,36 S.E., 590, this exact definition has been adopted by the Court. InEasler v. Railway Co., 59 S.C. 322, 37 S.E., 938, where the definition in the two previous cases of Cooper and Bowen was adopted. Chief Justice McIver remarked as follows: "From this as well as what is said in Farley v. Basket andVeneer Co., 51 S.C. 237, 28 S.E., 193, and in Disher v.Railway Co., 55 S.C. 192-193, 33 S.E., 172, it is apparent that the definition of contributory negligence can only arise when the injury complained of is the compound result of both plaintiff and defendant, both contributing to such result by their combined and concurrent action as a proximate cause of the injury. Hence, as is said by the late Judge McGowan, in Simms v. Railway Co., 26 S.C. 497, 2 S.E., 286, ``Until a prima facie case of negligence is made out against the defendant there can be no such question as that of contributory negligence on the part of the plaintiff.'"

In the notes of the 7th Ency. of Law, 372-373, in discussing the subject of contributory negligence, the learned author lays down the principles in exact accord with our definition. In notes, page 373, in the American and English Ency., the author well quotes from the annotater of the Am. Dec.: "Scarcely any theme in the whole range of legal science has been more fruitful in adjudications than the subject of contributory negligence; but the multiplicity of decisions on this point has not by any means cleared it of difficulties. On the contrary, it has in some respects seemed rather to ``darken counsel' by the introduction of a great variety of metaphysical refinements and subtle distinctions." If contributory negligence is made clear by the Circuit Judge, too many refinements had better be obviated by him.

It seems to us that where a definition is broad and true that it is better to adhere to the same rather than to follow the suggestions overly refined. We, therefore, overrule these exceptions.

Exception IV. It must always be remembered that it is a concrete case and not an abstract one that is under consideration on appeal. Under the rules of the defendant company, when the plaintiff objected to taking No. 74 out of Columbia because he was unacquainted with said division, and had never worked on it, did not know the road, and did not care to go out over that division, the master mechanic told the plaintiff that the conductor, Mr. Drake, would pilot the plaintiff over said road and that Mr. Drake told him of his directions to act as pilot. An observation of the rules of the defendant road shows that the engineman, along with the conductor, are responsible for the safety of their train. See Rule 105 and also Rule 368, which hold that conductors and enginemen are jointly responsible. While Rule 367 provides that conductors will have charge of the trains to which they are assigned and of all persons employed therein, they are responsible for the safe and proper management of such trains for the protection and care of passengers, baggage and freight, for a thorough performance of duty by the train employees, and for the observance and enforcement of all rules and orders relative thereto. When these rules are considered, including the appointment of the conductor as pilot, it will be seen that the Circuit Judge did not err here as complained of. The train cannot move ordinarily without the order of the conductor, and, therefore, orders issued by another department of the railroad cannot supersede the authority given under these rules, to the conductor. This exception is overruled.

Exception V. The conductor is to a certain extent the master of the railroad train, and when injury is produced by his negligence in carrying out the purposes of his appointment, the defendant railroad is responsible therefor. This exception is overruled.

Exception VI. Error was assigned because the Circuit Judge charged plaintiff's third request. We think there was no error here. This exception is overruled.

Exception VII. When the Circuit Judge charged the tenth request of the plaintiff, "That a servant obeying the instructions of the representatives of the master on the spot is not guilty of contributory negligence in so obeying said master," he committed no error. Carson v.Railway Co., 68 S.C. 55, 46 S.E., 525. This exception is overruled.

Exception VIII. The error assigned to the Circuit Judge is in charging plaintiff's eleventh request — "That the fact that the servant's work is done in the presence and under the immediate direction of the master's foreman, or conductor in this case, is equivalent to the assurance by the master that the servant may safely proceel to the work required of him, etc." This was not error. See Carson v. Railway, 68 S.C. 55,46 S.E., 525. This exception is overruled.

It is the judgment of this Court, that the judgment of the Circuit Court be and it is hereby affirmed.