Bell v. Atlantic Coast Line R. Co. , 158 S.C. 168 ( 1930 )

April 5, 1930. The opinion of the Court was delivered by This is an action for damages in the amount of $95,000 brought in the Court of Common Pleas for Charleston County, S.C. by the plaintiff, as administratrix of the estate of John M. Bell, deceased, for the benefit of herself, as the widow of the said John M. Bell. The action is against the defendants, Atlantic Coast Line Railroad Company, Peter Friday, and Herman F. Cardwell. The answer of defendants alleged that at the time of the injuries to and the death of the plaintiff's intestate both the plaintiff's intestate and the defendants were engaged in interstate commerce, and that the action should be and is under the Federal Employers' Liability Act, as amended (45 U.S.C.A. §§ 51-59.

At the trial, the testimony showed that the deceased and the defendants were engaged in interstate commerce at the time of the accident, and it was admitted by both plaintiff and defendants that the action came within and was tried under the Federal Employers' Liability Act, as aforesaid; and the trial Judge so charged the jury.

The case was tried at the February, 1928, term of the Court of Common Pleas for Charleston County, and resulted in a verdict for the plaintiff against the defendants in the amount of $5,000 as aforesaid, which verdict was rendered on the 25th day of February, 1928. Due and timely notice of intention to appeal was served by the defendants, and thereafter within the time allowed by law this transcript of record and exceptions was prepared and served by the defendants-appellants.

While the appellants' exceptions are six in number, they by their brief submit for the consideration of this Court the single question as to whether the defendant was derelict in any duty that it owed to the plaintiff's intestate and guilty of any negligence.

In considering this question it should be remembered that cases tried under the Federal Employers' Liability Act are to be determined with respect to the form of action, sufficiency of pleading, and rules of evidence by the law of the state where the case is tried. See Dutton v. Railroad Company,104 S.C. 31, 88 S.E., 263; McNeil v. Holbrook, 12 Pet., 89, L.Ed., 1011; Central Vt. R.R. v. White,238 U.S. 507, 35 S.Ct., 865, 59 L.Ed., 1433, Ann. Cas., 1916-B, 252. See Randall v. Railroad Company, 109 U.S. 478,3 S.Ct., 322, 324, 27 L.Ed., 1003, where it said that the rule that prevails in the Federal Courts is as follows: "It is the settled law of this Court that when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, the Court is not bound to submit the case to the jury, but may direct a verdict for the defendant. * * * And it has recently been decided by the House of Lords, upon careful consideration of the previous cases in England, that it is for the Judge to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred; and it is for the jury to say whether from those facts, when submitted to them, negligence ought to be inferred."

In the Mulligan case it was held: "The state rules as to sufficiency of evidence to prove negligence apply in actions under the Federal Employers' Liability Act, * * * as that act contains no specific provisions as to quantity or method of proof of negligence." Mulligan v. Atlantic CoastLine R. Co., 104 S.C. 173, 88 S.E., 445, Judgment affirmed (1917). Atlantic Coast Line R. Co. v. Mulligan,242 U.S. 620, 37 S.Ct., 241, 61 L.Ed. 532.

And likewise in the Dutton case "The rule of the state Courts as to direction of a verdict applies to an action in them under the Federal Employers' Liability Act." Duttonv. Atlantic Coast Line R. Co., 104 S.C. 16, 88 S.E., 263, judgment affirmed. Atlantic Coast Line R. Co. v. Dutton,245 U.S. 637, 38 S.Ct., 191, 62 L.Ed., 525.

The next question, therefore, is: What is the law in this state relative to the granting of a nonsuit or the direction of a verdict as was stated in Thornton v. Seaboard Air Line Ry.,98 S.C. 348, 82 S.E., 433, 434, CHIEF JUSTICE WATTS, speaking for this Court, stated: "It is so well settled that, if there is any competent testimony to go to the jury, a nonsuit cannot be granted or verdict directed that quotation of authority is unnecessary," and, "``whenever there is any competent testimony it is the duty of the Judge to submit the case to the jury.' Buist v. Mercantile Co., 73 S.C. 48,52 S.E., 789." Cain v. R.R. Co., 74 S.C. 89, 54 S.E. 244.

We, therefore, see that under the Randall v. R.R. Companycase, supra, it is for the Judge to say whether any facts have been established by sufficient evidence from which negligence can be reasonably and legitimately inferred, and it is for the jury to say whether, from those facts when submitted to them, negligence ought to be inferred. And, from the Thornton v. Seaboard Air Line Ry. case, that: "Whenever there is any competent testimony it is the duty of the Judge to submit the case to the jury."

We next, therefore, inquire: Was there actionable negligence on the part of the defendant in this case? What duty would the defendant owe the plaintiff under the circumstances?

In order to determine these questions it is necessary that we first ascertain the nature and extent of the duty imposed by the law upon the employer in providing for the safety of its employees.

This duty has been often stated and clearly defined both by this Court and the United States Courts: "The employer, whether a natural person or a corporate body, is under obligation not to expose the employee in conducting the employer's business to perils or hazards against which he may be guarded by proper diligence on the part of the employer. Hough v. Railway Co., 100 U.S. 213, 217,25 L.Ed., 612."

In Taylor v. Winnsboro Mills, 146 S.C. 28, at page 36,143 S.E., 474, 477, it is said by the Supreme Court of South Carolina: "It is too well settled in this state to require the quotation of authorities to show that a master must exercise care to furnish his servant a reasonably safe place to work; however, the following cases sustain this principle:McKain v. Camden Co., 89 S.C. 378, 71 S.E., 949;Thomason v. Manufacturing Co., 95 S.C. 239,78 S.E., 895. Mann, Adm'r, v. Railway, 138 S.C. 251,136 S.E. 234."

In Wilson v. A.C.L. Railway Company, 134 S.C. 31, at page 33, 131 S.E., 777, the Court said: "The master is chargeable with the duty of exercising reasonable care in furnishing the servant with a safe place in which to work; he is not a guarantor of such safety. Seaboard Air LineRailway Company v. Horton, 34 S.Ct., 635; 233 U.S. 492,58 L.Ed., 1062, L.R.A., 1915-C, 1 Ann. Cas., 1915-B, 475. The proof of an injury does not raise the presumption of negligence on the part of the master. Holmes v.Davis, 119 S.E., 249, 126 S.C. 231. A motion for a directed verdict in such cases should not be granted except where the Court can say that no other reasonable inference can be drawn from the evidence than that the master has discharged his duty to the servant."

The care required of the employer is that of reasonable diligence; "and reasonable diligence implies, as between the employer and employee, such watchfulness, caution, and foresight as, under all the circumstances of the particular service, a corporation controlled by careful, prudent officers ought to exercise." Wabash R. Co. v. McDaniels, 107 U.S. 454,460, 2 S.Ct., 932, 938, 27 L.Ed., 605.

"In general terms, the degree of care required of an employer in protecting his employees from injury is the adoption of all reasonable means and precautions to provide for the safety of his employees while they are engaged in his employment, and this degree of care is to be measured by the dangers to be apprehended or avoided." DeGraff v.New York Cent. H.R.R. Co., 76 N.Y., 125, 131.

"It was the duty of the defendant to use reasonable diligence in furnishing a safe place for its employees to work in, and whatever risk the employee assumed in carrying on the defendant's business did not exempt the defendant from that duty." Baltimore Potomac R. Co. v. Mackey, 157 U.S. 72,87, 15 S.Ct., 491, 39 L.Ed., 624; Union Pacific Ry. Co.v. O'Brien, 161 U.S. 451, 457, 16 S.Ct., 618,40 L.Ed., 766. Choctaw, Oklahoma, etc., R.R. Co. v. McDade, 191 U.S. 64,67, 24 S.Ct., 24, 48 L.Ed., 96. Santa Fe Pacific R.R. Co. v. Holmes, 202 U.S. 438, 441, 26 S.Ct., 676,50 L.Ed., 1094. Kreigh v. Westinghouse Co., 214 U.S. 249,255, 29 S.Ct., 619, 53 L.Ed., 984.

So now, therefore, bearing in mind the principle that, "if there is any competent testimony to go to the jury, a nonsuit cannot be granted or verdict directed," and "whenever there is any competent testimony it is the duty of the Judge to submit the case to the jury." Thornton v. SeaboardAir Line Ry., supra.

There is no dispute that the deceased was killed in the yards at Charleston by Engine No. 263, which said engine was backing into the "hostler's" track situated between the "pocket" track and the deceased's automobile.

The testimony shows that the engineer was backing into the hostler's track at a place where it was the known custom for employees to pass and repass.

The testimony was that the engineer could not see the deceased, he being on the opposite side of the engine.

The testimony was that the fireman on the engine so backing was not keeping a lookout, and that, had he been keeping a lookout, he could have seen the deceased walking across the track.

There was testimony that the engine could have been stopped in six feet.

The testimony was that the fireman discontinued his lookout seventy-five feet from the place Bell was struck.

The terminal trainmaster in charge of the yard at the time of Mr. Bell's death testified that when the brakeman left the engine at the switch he did so without authority. The other trainmaster, who was off duty at the time of the tragedy, corroborated this statement.

There was testimony that the Company's rule provided that employees must exercise care to avoid injury to others.

The defendants' witness, Mr. Clark, trainmaster in charge of the yard, testified: "It is the duty of employees, each to the other to try to avoid injury to the other and do everything possible to prevent it."

The defendants admitted that the brakeman deserted the engine at the switch.

There was testimony that it was the invariable custom for brakemen to ride on the rear of engines passing into the hostler's track: "Q. Was it or not invariably the custom for engineers passing into the hostler's track to have a brakeman on the rear? A. Yes, sir."

And in response to the question: "Q. And if an employee saw an engine without a man on the rear would he or not have a right to assume that the engine was not moving?" the presiding Judge concluded: "Court: I think that would be a question for the jury."

There was testimony that, if a brakeman had been on the rear, it would have been possible for him to warn a man on the track.

As a matter of fact, there was testimony that, though Engineer O'Brien was not more than nine feet from the engine when it passed, he did not hear it or its bell when it passed, but that he did hear Mr. Cardwell call him, and that the fireman likewise heard a human voice above the din of noise.

We find that all of this was competent testimony from which the jury could and from its verdict did conclude that the deceased came to his death by reason of the negligence of the defendants in taking no precaution whatsoever in violation of its rules and in violation of the customs of its yards for the protection of the life of the deceased.

"Where the servant of a railroad was run down in the yards, but there were no eyewitnesses to his death, it will not be presumed that he intended to commit suicide, and threw himself under the cars, but it will be presumed that he was attempting to carry out his duties with due care." Thorntonv. Seaboard Air Line Ry., 98 S.C. 348, 82 S.E., 433.

In Hudson v. Atlantic Coast Line R.R. Co., 123 S.C. 488,124 S.E., 584, which was a case where a flagman was killed by being struck by the rear of a freight train when backed up to make a coupling, wherein the evidence was that the train was moved ten or fifteen feet, the body was found under the cab, no bell was heard to ring, no lookout on the rear of the train, but a light was on the rear of the train.

The unanimous opinion of this Court was: "His Honor committed no error in refusing to direct a verdict as asked for, but did right in submitting the case to the jury."

His Honor said, in refusing to direct a verdict for the defendant, this: "The Supreme Court has said in passing on a motion for a nonsuit, that an employer does owe some duties toward its employees, some duty for their protection while at work in the yard. And there is some testimony for the jury to say whether or not they discharged that duty. So I am going to let the case go to the jury. That was held in a case in this state. I don't recollect the case but it was discussing the duties owed at common law by an employer to employees in the railroad yard, where employees are generally moving about. Of course, employees must use care for their own protection, but the company owes them some duty; and if the jury find, under the Federal Act, that both were negligent, it would be for them to say how much each was negligent or whether the negligence of the employee was the sole cause. Of course, if the negligence of the employee was the sole cause, or if he was killed by a risk he assumed, he could not recover; but if his injury was due partly to the negligence of the railroad company, and partly his own negligence, then it would be left for the jury to say what recovery should be had. There is evidence for the jury to consider on those issues, and I will leave it to the jury."

We see no error, all exceptions are overruled, and judgment affirmed.