Johnson v. Atlantic Coast Line R. R.

I think that the direction of the verdict for the defendant should be sustained for the very satisfactory reasons given by the presiding Judge.

I agree with the leading opinion that as the facts upon this trial are practically the same as upon the former trial, the judgment of this Court on appeal from the nonsuit in that trial is conclusive upon the issue of negligence on the part of the defendant; that is, that there was sufficient evidence of such negligence to require the submission of that issue to the jury. But in the former appeal, the Court specifically and distinctly states that the questions as to interstate commerce, employment, and assumption of risk were not involved, and were not therefore considered. It is evident that the appeal was decided upon the theory that the employment was intrastate, and subject to the elimination of the defense of assumption of risk under the Constitution of this State, Article 9 § 15. (I am not to be understood as indorsing the proposition that the Constitution eliminates in railroad cases all assumption of risk, being of the opinion that it eliminates only that assumption of risk which previously was inferred from the use of defective or unsafe machinery, etc., with knowledge of that character or condition; and that the doctrine so far as the ordinary risks of the employment are concerned is unaffected.) An entirely different aspect of the case is presented when it appears, as it does upon the second trial, that the employment was interstate in its character, and subject to the federal statute which does not eliminate assumption of risk.

The facts from the plaintiff's standpoint alone make out as unquestionable a case of assumption of risk as in my opinion could possibly be conceived; it is impossible to draw any other reasonable inference from them.

The plaintiff was directed to assist in cutting a steel rail in two. This was to be done with a chisel and hammer. The plaintiff was expected to hold and direct the chisel while another laborer used the hammer. The foreman sent the plaintiff to the tool-house to get a chisel where three or four were kept. They were all more or less "mushroomed" at the striking end. The plaintiff after an examination of them selected the one which he testified "was the best one." He did not see it at all after the accident, but testified:

"I looked at the chisel that morning before we started using it and noticed the battered edges."

The colaborer who was using the hammer also noticed the battered head of the chisel, called the plaintiff's attention to it, and advised him to get another one.

Assuming, as I am perhaps bound by the former decision in this case to assume, that the chisel was defective for the lack of repair, which as a prima facie showing would have carried the case to the jury upon the issue of the defendant's negligence, I think that the testimony for the plaintiff presented the elements of assumption of risk which should justify the action of the Circuit Judge in directing the verdict for the defendant.

These elements are: (1) Knowledge of the defect, actual or presumed, from the exercise of ordinary care; (2) appreciation of the danger reasonably incident to the use of the instrumentality in its defective condition.

That the plaintiff had actual knowledge of the defective condition of the chisel appears conclusively from his own statement. The selection by him of this particular chisel from the lot of others as "the best one," denotes an examination of all of them, and a knowledge from that inspection and comparison of its condition. He specifically admits, moreover, that he looked at the chisel that morning, and "noticed the battered edges;" that he did not see it at all after the accident.

That he appreciated the danger in the use of the defective chisel must be assumed from his long experience with such instrumentalities, and the express warning given by his colaborer. The condition of the chisel was directly under his eye, and as Mr. Justice Fraser says in his dissenting opinion upon the former appeal:

"If the Court can take judicial notice of the dangerous condition of the cold-chisel, then the plaintiff, a practical railroad man, should also be charged with notice."

I cannot distinguish this case from the federal cases ofRy. Co. v. Horton, 233 U.S. 492, 34 Sup. Ct. 635,58 L. Ed 1062, L.R.A. 1915 C, 1 Ann. Cas. 1915 B, 475; Jacobs vs.Ry. Co., 241 U.S. 229, 36 Sup. Ct. 588, 60 L.Ed. 970;Ry. Co. vs. Hall, 232 U.S. 94, 34 Sup. Ct. 229,58 L.Ed. 521; Boldt v. Ry. Co., 245 U.S. 441, 38 Sup. Ct. 139,62 L.Ed. 385, or from our own cases of James v. FountainInn Mfg. Co., 80 S.C. 232, 61 S.E. 391; Lewis v. BuildingCo., 87 S.C. 210, 69 S.E. 212; Bodie v. R. Co., 61 S.C. 468,39 S.E. 715.

Upon the issue of the defendant's negligence, this now being a case under the federal acts, I am not at all sure that the rule laid down in Branch v. R. Co., 35 S.C. 405,14 S.E. 808, as to the presumption of negligence from proof of a defective instrumentality, obtains. Ry. Co. v. Harris,247 U.S. 367, 38 Sup. Ct. 535, 62 L.Ed. 1167.