Miller v. Railroad Company

April 30, 1913. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendants, while in the employment of the defendant, Atlantic Coast Line Railroad Company, as a locomotive engineer.

The defendants denied the allegations of the complaint except those specifically admitted.

The jury rendered a verdict in favor of the plaintiff against the defendant, Atlantic Coast Line Railroad Company, for thirty-five thousand dollars, and it appealed upon exceptions, which will be reported:

First Exception: Immediately after the testimony quoted in the exception the following question and answer appear in the record: "If brakes had been put on the cars on that track, which ran down and struck your engine, as required by that rule, had been put on tightly, would they have remained there on the track, or have gone down on that track? They would have remained there."

Rule 853 is as follows: "When cars are left on siding they must not obstruct street or road crossings. They must see that the brakes were put on tightly to prevent them from being moved, and that all other precautions against their interfering with trains on the main line are taken."

We desire to call special attention to the fact that the only objection interposed by the defendant's attorneys to the introduction in evidence of rule 853, was, "on the ground that it has no application to this case, in that the rule itself shows, with the other connected with it, that this rule referred solely to freight conductors in charge of freight trains on the line of road, and has no application to switching on yards." (Italics added.)

In their argument the appellant's attorneys say: "Isolated and deprived of the necessary context, rule 853 might easily be referred to as governing the duties of the yard conductors in the present case." Thus showing that the rule was not objectionable upon its face, but would only become so when considered in connection with other facts. In such cases the rule is thus stated in Glover v. Gasque, 67 S.C. 34: "It is unquestionably the duty of the Court, in construing a written instrument, to interpret its language, and it may also state the effect thereof where it is susceptible of but one inference; but where the inferences to be drawn from the facts stated in the instrument is in dispute, and such facts susceptible of more than one inference, then the question must be determined by the jury, especially when the inference to be drawn is dependent upon other facts in the case."

"Courts, in the construction of contracts, look to the language employed, the subject matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed."Nash v. Towne, 5 Wall. 689.

"Doubtless the general rule is that it is the province of the Court to construe written instruments, but it is equally well settled that where the effect of the instrument depends, not merely on its construction and meaning, but upon collateral facts and extrinsic circumstances, the inference of fact to be drawn from the paper must be left to the jury."West v. Smith, 101 U.S. 363; 2 Paige on Contracts. sec. 1129; Williamson v. Association, 54 S.C. 582; 32 S.E. 765.

"Where the parties to a contract have given it a particular construction, such construction will generally be adopted by the Court in giving effect to its provisions: and the subsequent acts of the parties, showing the construction they have put upon the agreement themselves, are to be looked to by the Court, and in some cases may be controlling." 8 Cyc. 588-9; 21 A. E. Enc. of Law, 1115.

These principles are recognized in the cases of Holliday v. Pegram, 89 S.C. 73, and Watson v. Paschall, 93 S.C. 537.

There is another reason why the exception cannot be sustained.

In the case of Wilson v. Ry., 51 S.C. 79, the Court uses the following language: "Whether an engineer, brakeman or switchman is, when exercising his ordinary duties, a fellow servant with a car cleaner, is a question of law. But whether, in a particular case, either of them was engaged in performing certain acts which the law requires of the master, and which would prevent them from being fellow servants, is a question of fact to be determined by the jury. The question as to who are fellow servants is a mixed question of law and fact. It is for the Court to define the relation of fellow servants, but it is for the jury to determine whether the employees in a particular case, come within the definition."

So, in this case, it was for the jury to determine whether, under all the circumstances, the yard conductor in this particular instance, was discharging a duty ordinarily imposed on freight conductors, as there was testimony that he was operating under a rule, also applicable to freight conductors.

This exception is overruled, and as the appellant's attorneys admit that exception V and VI raise practically the same question, they are also overruled.

Second and Third Exceptions: In answer to the question, "Are you willing to permit all or any of these doctors to examine you at this time?" the plaintiff answered: "If my counsel are." Having made answer to the interrogatory, the exceptions raise merely a speculative question. There can be no doubt that the plaintiff was entitled to be advised by counsel as to his rights at every stage of the trial.

These exceptions are overruled.

Fourth Exception: What was said in considering the first exception is conclusive of this question.

The seventh exception was abandoned.

Eighth Exception: The testimony involved the opinion of the witness on a question at issue in the case. The case of Easler v. Ry., 59 S.C. 311,37 S.E. 938, shows that such testimony was not admissible.Ninth Exception: The motion was addressed to the discretion of his Honor, the presiding Judge, and the appellant's attorneys have failed to satisfy this Court that it was abused.

Tenth Exception: What was said in considering the ninth exception is conclusive of this question.

Eleventh Exception: Without undertaking to discuss the voluminous testimony in detail, we deem it only necessary to say that the appellant has failed to satisfy this Court that there was error.

Twelfth Exception: This exception is disposed of by what was said when the first exception was under consideration.

Thirteenth Exception: What has already been said disposes of this exception.

Fourteenth Exception: The questions presented by this exception have already been considered, or are dependent upon the view which this Court takes of the facts. The appellant's attorneys have failed to satisfy this Court that there was error in any of the particulars therein mentioned.

Judgment affirmed.

MR. JUSTICE WOODS concurs in the result.