Bober v. Southern Railway Co. , 151 S.C. 459 ( 1929 )

July 25, 1929. The opinion of the Court was delivered by A trial of this cause was had before his Honor, Judge W. H. Townsend, presiding Judge, and a jury at the February Term, 1928, of the Charleston Court of Common Pleas. The jury rendered a verdict in favor of the plaintiff for the sum of $7,500 actual damages.

The plaintiff, Stanley J. Bober, was a member of the United States Army, and was stationed at Ft. Bragg, N.C. On November 10, 1923, the football team, composed of members of the United States Army at Ft. Bragg, N.C., journeyed to Charleston to engage the football team of the United States Navy in combat in this magnificent and manly sport. After the game was completed, the football team, of which plaintiff was a member, was transported from the Navy Yard to the Union Station at Charleston, S.C. for the purpose of there entraining for Ft. Bragg, N.C. Upon arrival at the Union Station, it was ascertained by the person in charge of the arrangements that the train had departed, and the football team was ordered to return to the Navy Yard at North Charleston and wait until the arrival of another train. On the return trip from the Union Station the accident occurred from which resulted the injuries to plaintiff.

The principal outlet from the city of Charleston by automobile is Meeting Street, which leads in the general direction of the Navy Yard. From this street or road emerge various State highways leading to points in the upper part of the State. At a point some distance north of the Union Station there is a railroad track which crosses Meeting Street connecting two series of tracks on each side thereof. The truck in which plaintiff was riding was going north on Meeting Street toward the Navy Yard at about 5:30 o'clock on the morning of November 11. At this hour it was admittedly dark.

The truck was being driven at the time by one Bickham, a member of the United States Naval forces stationed at the North Charleston Navy Yard, designated as the person to drive the plaintiff and his team to and from the Union Station.

A train belonging to the defendants consisting of 77 coal cars was moving over this crossing at the time of the accident in a northwesterly direction as the truck in which plaintiff was riding was approaching from the south.

The street car track runs parallel to Meeting Street, and both cross the railroad track at the same point. There is an interlocking device controlled by a watchman in a tower permitting the train to cross at proper intervals upon its approach, and at the same time making it impossible for the street car to cross the railway crossing. By the opposite manipulation, when the street car crosses the railroad track, the railroad train cannot cross the car track. When this interlocking device is operated for the passage of the train, a small red light appears on the north and south side of the railroad track beside the street car track showing the occupancy or intended occupancy of the crossing. From about midnight until an early morning hour the street cars do not run over this line, and the red light appears burning along the street car track during this entire time, for the railroad spur track is open and the street car track is closed.

As before stated, the truck in which plaintiff was riding was proceeding northwardly along Meeting Street approaching this railroad crossing, which was at the time blocked by the train of coal cars of defendant. There was no light over the crossing, and there was no lantern, torch, fusee, or flagman placed alongside the train to warn the public of the approach or crossing of the train. There were no gates at this point, and there was no warning bell or signal device placed by the railroad company at this crossing. The railroad track in question is not a main line, but is merely a transfer track, which is used by the defendants and others to transfer cars and trains from one set of tracks to the other. The plaintiff was seated on the front of the truck in the lap of a fellow member of his party next to the driver, Bickham. Meeting Street at this point and at this time was paved with Belgian blocks. When the truck was within a short distance of the railroad train, the driver saw the train, and attempted to stop the truck, but failed, finally jumping from the truck himself to a place of safety after he had attempted, unsuccessfully, to apply the brakes. The truck struck the side of one of the coal cars.

There are ten exceptions in number, but only three questions are involved in the case. Exceptions 1 to 5, inclusive, allege error because of the refusal of Hon. T.S. Sease to allow an amendment to the answer of the defendants that the plaintiff was not the real party in interest, but that under the Acts of Congress providing for compensation for injured employees the cause of action must be assigned to the United States government, and, that therefore the United States government, and not the plaintiff, was the real party in interest. At the trial of the case the defendant attempted to introduce testimony as to this matter which Judge Sease had refused to allow by way of amendment to the answer. Judge Townsend refused to allow this line of examination, and, from the order of Judge Sease refusing to allow the amendment to the answer, and the ruling of Judge Townsend refusing to allow testimony as to this issue, the first five exceptions are directed.

The Act of Congress does not provide that the plaintiff must assign the cause of action to the United States Government, but that the United States Government may require the cause of action to be assigned to it under the compensation statute. Under the law of the State of South Carolina, an action in tort before judgment is non-assignable. This, however, is not controlling of the matter, for the reason that, where the United States Government itself requires the assignment, it might be contended with considerable force that the Federal law would control in so far as it dealt with its own employees. In this case, however, there was no allegation in the original answer on the part of the defendants that the cause of action had actually been assigned and that the government was the real party at interest.

In any event, under the compensation section of the Acts of Congress, the national government is only interested in the cause in so far as it affects the compensation of the individual. It is well recognized even by the Act itself that the amount recovered over and above the compensation belongs to the individual and not to the United States Government. The government merely reserves the right to require the employees to assign the action if it sees fit. Even where the cause of action is assigned to the government by the employee, the action could still be brought in the name of the individual, for the reason that he still has an interest in the claim over and above the amount which the government might be entitled to. This procedure is akin to where a person holds a chattel mortgage which is past due covering a piece of personal property. As a matter of law, the legal title to the personal property, after the mortgage is due and condition broken, is in the mortgagee, but yet this Court has held that the mortgagor still has such an interest in the property that he can sustain an action in his own behalf against an individual or corporation doing damage to the property.

The Courts of this country which have passed upon the identical question have held that the government has no such interest in the claim as would warrant the introduction of testimony or the pleading of such facts as a matter of right.Gould v. Chicago, B. Q. Ry. Co., 315 Mo., 713,290 S.W., 141; Cox v. Detroit United Ry. Co., 238 Mich., 527,213 N.W., 710; Pettersch v. Grand Rapids Gaslight Co.,245 Mich., 277, 222 N.W., 123.

We do not think that the language of the Federal Employer's Liability Act (45 U.S.C.A., §§ 51-59), as applied to the Director General of Railways, is applicable to the case at bar. We therefore conclude that Stanley J. Bober was the real party in interest, and had such interest in the cause in any event which entitled him to sue in his own name as plaintiff, and that a verdict in such action determines all of the issues finally. These exceptions are therefore overruled.

Exceptions 6, 7, 8, and 9 charge error on the part of the Circuit Judge in refusing to grant a non-suit or directed verdict for the defendants.

In considering these exceptions it must be kept in mind that Bober, the plaintiff, was not in charge of the truck. Either he occupied the position of a passenger or he was engaged in a common enterprise with the driver. In the event that he was the passenger, the negligence of the driver cannot be imputed in any particular to him, Bober. The contention that he was engaged in a common enterprise with the driver usually resolves itself into a question of fact for the jury under proper instructions. The jury, by its verdict, found that the plaintiff was not engaged in a common enterprise with the driver of the truck. This finding of fact is well sustained by the evidence. The plaintiff and Bickham, the driver of the truck, were not even members of the same organization. Bickham was stationed at the Navy Yard in Charleston as a member of the Marine Corps, a branch of service under the jurisdiction of the Navy Department. Bober was from Ft. Bragg, N.C., as a member of the Field Artillery, a branch of service under the jurisdiction of the War Department. The plaintiff was being furnished transportation by the Marine Corps, who were charged with the duty of transporting the plaintiff and his companions to and from the railroad station. The charge of the Circuit Judge on this question was more favorable to the defendants than they were entitled to. There was not a particle of testimony that the plaintiff either exercised, or had the right to exercise, any control over the truck. His riding on the front seat was merely a matter of chance. The remaining members of the team were on the other part of the truck, and the plaintiff, for comfort and convenience, was placed on the front seat in the lap of a companion next to the driver.

In this case the inquiry is, not as to the negligence of the driver of the truck, but as to whether there was any negligence on the part of the defendants, which contributed as proximate cause to the injury, and without which the same would not have occurred. If there was any negligence on the part of the defendants thus contributing, and the driver of the truck was ever so negligent, the plaintiff would still be entitled to recover as a matter of law. The inquiry here then is solely directed to the question of the negligence of the defendants.

Negligence is generally a question of fact to be determined by a jury under proper instructions from the Court. It has been defined as the failure to exercise due care, or that care which a person of ordinary reason and prudence would exercise under the given circumstances. There are a number of facts surrounding this case which the jury might well have taken into consideration in determining the question of negligence. The road in question is one of the most heavily traveled roads in South Carolina. The track in question was not one which was constantly used; it is not a main line or a regular side track. It was used only at intervals to transfer trains and cars from a set of tracks on one side of Meeting Street to a set of tracks on the other side of Meeting Street. When the crossing is to be occupied by a train is not known by the public in general but is known to the railroad company. Under the admitted facts in this case, the crossing in question would have been blocked for a period of several minutes with this train of black coal cars. There was no light over the crossing. There was no warning signal by light, bell, or otherwise placed at the crossing to indicate the presence of a train, and there was no flagman placed out on either side of the train to indicate its presence.

It is true that there was a light some short distance from the railroad crossing along the street car track which showed red. This light, however, showed red during the entire night, and could have constituted no warning to any one of the approach of a train. There was ample evidence to carry the issue of negligence to the jury, and the exceptions imputing error in this regard are overruled. See Miller v. A.C.L. Ry.Co., 140 S.C. 123, 138 S.E., 675, and cases cited.

Exceptions 10 and 11 allege error on the part of the trial Judge in charging certain requests of the plaintiff. These requests were taken from the cases of Lawson v. Ry. Co., 91 S.C. 219,74 S.E., 473; Douglass v. Ry., 82 S.C. 79,62 S.E., 15, 63 S.E., 5; Fitzgerald v. Threshing Machine Co.,100 S.C. 439, 84 S.E., 991, and under the authority of these cases these exceptions are overruled.

The defendants had a fair and impartial trial under a comprehensive charge by an able Circuit Judge. There was ample evidence to sustain the finding of the jury in favor of the plaintiff.

Judgment affirmed.

MESSRS. JUSTICES STABLER and CARTER concur.

MR. JUSTICE BLEASE concurs in result.

MR. CHIEF JUSTICE WATTS did not participate.