Pinckney v. Atlantic Coast Line R. R.

October 2, 1912. The opinion of the Court was delivered by This was an action by plaintiff against defendant for personal injuries received, while he was engaged at work, as car repairer in the employ of defendants at Yemassee, South Carolina, on May 25, 1907.

The cause was first tried, in March, 1911, before Judge Ernest Gary and resulted in a nonsuit. Plaintiff appealed, and the judgment of the Circuit Court was reversed and a new trial ordered. The case is reported in 89 S.C. 525. The cause was then tried before Hon. Thos. S. Sease and a jury, at the November term, 1911, and resulted in a verdict in favor of the plaintiff against the defendants for the sum of thirteen thousand ($13,000) dollars actual damages. At the close of plaintiff's testimony, defendants made a motion for a nonsuit, on the grounds which are set out in the "Case," and which should be reported in the case. This motion was refused at the conclusion of the testimony of both plaintiff and defendants. The defendants made a motion to direct a verdict on grounds that should be reported in the case and which was refused by the Court. After verdict, motion for a new trial was made and overruled. Defendants then appealed and by thirty-five exceptions allege error on the part of the trial Judge. These exceptions should be set out in the report of the case and may be divided into three (3) heads. First. In refusing to direct a verdict and to grant a new trial on the ground that the evidence showed plaintiff's negligence was the sole cause of his injury or that plaintiff was guilty of contributory negligence, or that he was injured through the negligence of a fellow servant.

Second. Error in the Judge's charge, in charging certain propositions of law and in refusing to charge certain propositions of law and in refusing to charge certain propositions of law as requested.

The exceptions of the defendant, Atlantic Coast Line Railroad Company, which are 32, 33, 34 and 35, raise the exceptions that the testimony nowhere shows any liability on their part for any injury inflicted on the plaintiff.

The law is so well settled in this State, at least, that where there is any testimony at all or where more than one inference can be drawn that the case must go to the jury to be determined by them, and to grant a nonsuit or direct a verdict under such a state of facts would be error, that no citation of authority is necessary. In the former appeal in this case, in 89 S.C. 529, this Court held in reference to the negligence of the plaintiff: "There was no conclusive evidence that the blue flags were not used on this occasion, but, even if there had been, we are unable to agree that a nonsuit was proper without allowing the plaintiff to testify as to the condition of the flags furnished him, for it might have appeared that they were so broken as to be useless, and that he was unable to procure others, etc., etc. We think the evidence required that these issues and the issue of contributory negligence growing out of the rule requiring the use of a blue flag should be submitted to the jury."

The rule, No. 989, introduced in evidence, provides: "They will make no inspection or repairs to cars, either in trains or where liable to be moved except under the protection of the signal prescribed in Rule 26." Rule 26 is the blue flag rule, and requires that the workmen shall display a blue flag by day and a blue light at night, and that when a car is thus protected it must not be coupled to or moved. The same workmen who place the flag are alone authorized to remove it. Other cars are not allowed to be placed on the same track so as to obstruct the view of the blue signal without first notifying the workman.

It seems to us, that there was sufficient testimony in this case to carry the case to the jury as to whether or not it was practicable for the plaintiff to obtain a blue flag and whether or not at that time he was directed by a superior officer to proceed with the work, knowing he had no flag, and, inasmuch, as the object of the blue flag is to give notice and warning to the trains, and if Conductor Partain had actual notice that plaintiff was under this car, and with such notice, ran back against the car and caused his injuries, then the company would be liable.

There was testimony that the plaintiff was 19 years old and had been in the employ of the company about two months and knew the rules in reference to the blue flag. That previous to the occasion of his injury, flags, six in number, had been furnished by the defendant, Atlantic Coast Line Railroad Company, to the workman and while repairing a car ten or fifteen days before the injury, with two flags displayed as required by rule of the company, a train was run against the car and one of the flags broken and torn to pieces and the other carried away and never seen by plaintiff afterwards. Two days before the injury to plaintiff, while at work with both flags displayed, he was again run into and both flags broken and he narrowly escaped serious injury on that occasion. His request to the chief car inspector to report the conductor for this was refused. Shortly before plaintiff's injury, he was again run into while at work and the remaining two flags broken. There being no flags at all and Rabb having full knowledge of this directed the plaintiff on the morning of the injury to repair a car on the siding. At that time, there was one train on the yard, a local freight, in charge of Conductor Partain. This train was on the main line, headed for Augusta, then taking water at the tank. Plaintiff, before going to work, told Conductor Partain what he was about to do. The following is the testimony: "After receiving instructions from Mr. Rabb to repair this car, what did you do next? I met the conductor going to the car. How did you happen to meet him? I went down the yard to inspect a car after Mr. Rabb sent me to inspect this one, just a minute, and came back. On my way back to get the tools, I met this conductor as he was going to his train to take it to opposite side of main line. I went over and inspected that car and came straight back to Mr. Rabb to get the tools and get Mr. Freeman to help me with this car, and on my way back to the shanty, I met the conductor at about half way between the car and the depot and told him that I had this car to repair and told him what place, and all about the car, showed him the car."

Before going to work on this car there is evidence to show that the plaintiff placed Freeman, a repairer, to watch for other trains. We find the following testimony: "Did you put out the flag? We had none to put out. I asked you if you put it out. No, sir. When Freeman came out, you went under? Yes, sir. What did you ask him to do for you? I asked him to look out and see if any other trains arrived on the yard he could give the alarm."

Later, we find: "In going to work under the car, had you no blue flag to display? No, sir. What did you rely on for your protection? What I relied on was the conversation I had with the conductor, relying on his not coming back in there. I merely put Mr. Freeman back, you might say, as a second precaution, mostly against other trains that might come in, extras."

Here, we have evidence that plaintiff, notwithstanding the rule requiring the use of flags for his protection, had used them on three different occasions and narrowly escaped death or serious injury, previous to his injury. The flags had failed to accomplish the purpose they were intended to serve and had been destroyed. There was none on hand to use at the time he was actually injured, and he took the extra precaution to notify and warn the conductor of the only train there that he was going to inspect the car and pointed out to the conductor the particular car he intended to inspect, and put out a person to watch for, and warn him against other trains and went to inspect the car under orders of his superior, who was present and gave the orders to him. It was clearly competent for the jury to determine under all of the evidence and circumstances of the case, whether it was the negligence of the defendants which was the proximate cause of plaintiff's injury and whether he, by his acts, was in any manner negligent and contributed to the proximate cause of his injury. It was also for the jury to say, under the testimony as given, whether there was wantonness or a conscious advertent failure on the part of Conductor Partain to observe due care under the particular circumstances of the case. Could the placing of the blue flag have told the conductor more than what the plaintiff had told him? Plaintiff had given him explicit notice of what he intended to do and in less than ten minutes after the notice, the conductor, without any notice to plaintiff, ran his car into him and caused the injuries complained of. Plaintiff not only gave notice to the conductor as to what he intended to do, pointing out the car, but was assured by the conductor that he was going to pull out for Augusta and plaintiff could safely go to work on the car without molestation. Whether the work to be done was an emergency case was for the jury. There was evidence that it was broken down and plaintiff was ordered to repair it by his superior, who had the right to give the order. It was his duty to obey. There is testimony that the superior knew the work would be done without the flags, and that plaintiff had made an effort to obtain flags and failed. That he had called for locks to lock switches and failed to get them.

"If a master or superior orders an inferior into a situation of danger, the law will not charge him with assumption of risk unless the danger is so glaring that no prudent man would have entered into it." 14 Eng. Law 357, cited and approved in Mew v. Railway Co., 55 S.C. 102. "Whether the matter of assumption of risk by an employee is to be tested by the law of waiver, Hooper v. R.R., 21 S.C. 541, or the law of negligence, Bussey v. R.R., 52 S.C. 438,30 S.E. 477, is a question of fact for the jury." Mew v. RailwayCo., 55 S.C. 103, 32 S.E. 828.

His Honor committed no error in refusing the motion made by the defendants for a nonsuit or to direct a verdict, and the exceptions raising these questions are overruled.

As to the second group of exceptions, which allege error in the Judge's charge, a careful reading of the exceptions and the Judge's charge as a whole, will show that he has committed no error. Every question raised by these exceptions was virtually raised and decided in the case of Carson v. Southern Railway Company, 68 S.C. 55,46 S.E. 525, in the full, elaborate and able opinion of Chief Justice Pope, and reaffirmed in the cases of Wilson v. Railroad, 73 S.C. 481, 53 S.E. 958; Stevens v.Railroad, 82 S.C. 542, 64 S.E. 601.

In the case of Moore v. St. Louis P.R.R. Company (Missouri), 21 Am. Eng. R.R. Cases 509, the pleadings and facts of that case show that it was a case very similar to the case at bar. Dealing with the legal principles involved, the Court, at pages 513-514, say: "The defendant's refused instructions asserted the following general propositions, viz.: That although plaintiff and Kestler were not fellow servants, Kestler was not authorized by the company to make the promise alleged to protect plaintiff while under the car, and that notwithstanding such a promise yet plaintiff could not recover if he failed to set out the red flag, as required by the rule, or to set some one to watch for the approach of engines and trains.

"It being conceded, as it must be, that the company owed a duty to the men under the car to provide for their safety, can it be that the foreman had no authority in an emergency to use any other means than those adopted by the company — that the red flag, and nothing but the red flag, was the means he was to employ? If for any reason that would clearly, in a given case, have been insufficient as a warning, can it be possible that the foreman would be restricted to the use of red flags? Or, if in such case he had had the red flag set up, and one of the men was injured in consequence of its insufficiency to give the warning, that the company would not be liable to the injured party?

"Has it discharged its duty by simply adopting a means of protection ordinarily sufficient when the person in charge of the work knows that in the particular case it is not a sufficient warning?

"If the foreman has authority in such an emergency, that authority results from his general authority to perform the duty of the company in protecting the employees under his control in the performance of a dangerous work for the company, and he was authorized to make the promise to plaintiff for the company, and undertook to set out the red flag in his possession, or to adopt any other means necessary to secure the safety of the men, thereby absolving them from the duty of setting out the flag or setting the watch. As to the latter, there was no proof of a rule requiring one man to watch while the others worked; and it was in the proof that while the work in question could possibly have been done by one man, it could not be conveniently or promptly done by less than two. It being the duty of the company to provide for the safety of the men while engaged in its dangerous service, if it delegates such authority as to the employment of men and their control and management to an agent, will the law, in the absence of an express stipulation to that effect, declare that such agent is under no obligation and has no power, as the representative of the company, to provide means for the safety of servants whom he sends in a place of danger to work?

"If so the duty of the company to provide such security may be easily evaded by having no one on hand to perform it. And by simply adopting reasonable rules, the observance of which will ordinarily afford protection, although in a given instance the observance of such regulation would afford no protection whatever, and the person representing the company in the direction of the work and the control of the hands knew the fact, such abdication of duty can certainly find no support either in reason or authority."

As to the contention that the injury was the result of the combined contributory negligence of the plaintiff and the negligence of a fellow servant, Freeman, this Court, in the former decision in this case, said: "If the negligence of Freeman, the fellow servant, was the sole proximate cause, or one of the proximate causes, the negligence of the plaintiff being the other, then the plaintiff could not recover, but if the proximate cause of the injury was the negligence of the defendants combined with the negligence of Freeman, the fellow servant, the plaintiff would not be precluded from recovery. Elms v. Sou. Power Co., 79 S.C. 502,60 S.E. 1110; Roberts v. Virginia C.C. Co., 84 S.C. 283;66 S.E. 298. We think the evidence required that these issues and the issues of contributory negligence growing out of the rule requiring the use of a blue flag should be submitted to the jury."

It will be seen that it was decided in this case, reaffirming the rule as laid down in Elms v. Sou. Power Co., 79 S.C. 502,60 S.E. 1110, and a long line of decisions, that the plaintiff would not be precluded in recovering if the defendants were negligent, because of the negligence of plaintiff's fellow servant, Freeman, if the negligence of the master, the defendants, combined and commingled with the negligence of such fellow servant. In order to escape liability on the ground of negligence of a fellow servant, it must appear that the master was not negligent at all as to any of the proximate causes of plaintiff's injury. It was for the jury to say under the evidence and what weight it would give to it that the act of the conductor in running his train back and striking the cars on the siding under the circumstances was negligence or not on the part of the defendants.

There was ample testimony to go to the jury on the question of waiver of the blue flag rule, and we will not further discuss the testimony on this line, being content with what has already been said in reference to why they were not used on this occasion. As to these exceptions in reference to the Judge's charge the exceptions are overruled.

As to exceptions 32, 33, 34 and 35, which are the exceptions of the defendant, Atlantic Coast Line Railroad Company, that there is no evidence to sustain the verdict against it on any view of the facts proved, the evidence conclusively shows that both of the defendants, at the time of plaintiff's injury, owned and jointly operated the yard at Yemassee, South Carolina, a station on the line of both defendant roads, and that plaintiff was employed by both of the defendants to work as car repairer in their yard at Yemassee. There was evidence to show that he was paid by the Atlantic Coast Line Railroad Company; that the flags were furnished by this defendant, through Rabb, the chief car inspector, under whom plaintiff worked. It was not for plaintiff to inquire which road he was working for. It was his duty to obey the reasonable orders given him by his superior in the due course and within the scope of his employment, and he had every reason to assume that his superior would not require him to work for a road that it was not his duty to work for, and it was not expected of him to ascertain whether he was working for one or both roads when he was directed by his superior to work. Under the peculiar facts of the case, it would be difficult for him to determine when he ceased to become the servant of one road and become the servant of the other. As to that, possibly some of the higher officials of the two roads knew what the agreement in reference to this was, but that secret was locked up with them and maybe would not be made known until it was to their interest to divulge it. He took the situation as he found it and obeyed the orders of his superior.

There was some evidence to show that both roads, by some agreement among themselves, jointly used this union yard at Yemassee, and there was sufficient evidence to infer that each furnished their proportionate share of machinery and men necessary to operate the same, and if plaintiff was entitled to recover he had the right to recover against one or both and they can settle among themselves according to their agreement, if they have any. With that plaintiff is not concerned. This view is sustained by the cases of GulfC. S.R.R. Co. v. Dorsey (Texas), 25 Am. Eng. R.R. Cases 446; Vary v. Railroad Co., 42 Iowa 246; WisconsinRailroad v. Ross, 31 N.E. 413; 2 Wood on Railroads, Minors' Edition, 1558. These exceptions are overruled.

As to the exceptions that his Honor was in error in submitting to the jury the question of punitive damages: His Honor instructed the jury that they were to find, if at all, separately, the actual and punitive damages and they only found actual damages. So it is immaterial now, whether he was in error in submitting this question or not and this exception is overruled.

After a careful consideration of all the exceptions, it is the judgment of this Court that the exceptions be overruled.

Judgment affirmed.

MESSRS. CHIEF JUSTICE GARY and JUSTICE HYDRICKconcur.

MESSRS. JUSTICES WOODS and FRASER concur in theresult.