Gadsden v. Catawba Power Co. ( 1908 )

I think there should be a new trial, on the ground that plaintiff's evidence shows conclusively that his own negligence contributed as a proximate cause to his injury. Lyon v. Charleston, etc., R.R.Co., 77 S.C. 328.

The undisputed evidence was that at the time of the accident, June, 1903, the plaintiff was seventeen and a half years old, with a slight mustache, weighing 140 pounds; that he was strong and active, and skilled as a carpenter, at which business he had been working for eight years; that he had been working for defendant as a carpenter for about five weeks, and soon after his employment he became foreman of a squad of workmen; that two nights before the accident, at the request or upon the demand of defendant's superintendent, he undertook to act as brakeman and switchman on the private railroad operated by defendant in transporting material in the construction of its plant. He had not informed defendant of his age, but nevertheless defendant took the precaution to instruct him as to his duties. At folio 115 plaintiff testified: "Q. Did anybody else give you lessons as to how to throw switches? A. Yes, sir; the engineer showed me on the signs. Q. When was that? A. That was the first night I went to work." And again, at folio 131: "Q. You had thrown switches then two nights before this? A. Yes, sir. Q. Done the switching for the engine? A. Yes, sir. Q. And you knew how to turn the switch? A. Yes, sir; I had learned that; anybody could learn that. Q. And he showed you the signs? A. Yes, sir; showed me two signs."

The switch was about five feet from the rail of the track and the crossties extended about two feet. The switch was operated by means of a horizontal lever, to be turned over toward or from the track as the case may require.

Plaintiff testified that on this occasion he was standing on the crossties and reached over to turn the lever toward himself, standing on the ties, but before he could throw the switch the cars struck him. Plaintiff testified that he knew that was a dangerous way to operate the switch, but that he was relying on the engineer not to move until he had made the signal, that he had been directed by the engineer that when he ran out of the switch, in fifteen or twenty minutes, when the hands had crossed the track, to sign him back and he would go back and hook up the cars.

The only inference that could be drawn from these undisputed facts is, that plaintiff was of age, experience and information sufficient to assume the risks of his employment and to be guilty of contributory negligence, that at most he sustained his injuries through the negligence of a fellow-servant, and that his own negligence contributed to his injury.

The injuries sustained by plaintiff naturally excite commiseration, but the province of the Court is only to properly fix the responsibility according to law

MR. JUSTICE WOODS dissents, and concurs in the opinionof MR. JUSTICE JONES.