Rhodes v. Southern Ry. Co.

March 15, 1927. On petition for rehearing, April 7, 1927.

The opinion of the Court was delivered by Action for tort brought in the Court of Common Pleas of Greenwood County by the plaintiff, Rhodes, against Southern Railway Company and one of its engineers, Carter, as defendants. The trial before Hon. S.W.G. Shipp, Circuit Judge, resulted in the following verdict:

"Verdict against Southern Railway only account this steam being beyond Engineer R.C. Carter's control for plaintiff of eight hundred dollars."

From the verdict and judgment, Southern Railway Company has appealed to this Court.

When the plaintiff announced that his case was "rested," a motion for nonsuit on behalf of Southern Railway Company was made. Plaintiff's counsel admitted that, on the testimony submitted, the defendant Carter was entitled to a nonsuit, and the trial Judge stated that, if a motion was made in behalf of that defendant, he would grant it. The attorney for the defendants announced that he did not make any such motion as to Carter. Thereupon the attorneys for the plaintiffs requested that they be permitted to offer additional testimony, which the Court allowed. It is urged here that the action in allowing the plaintiff to reopen his case, under the circumstances mentioned, was improper. In Carter v. S.A.L. Ry. Co.,114 S.C. 517; 104 S.E., 186; this Court, speaking through Mr. Justice Gage, said this:

"All the competent and relevant testimony in a cause ought to be presented to the jury, and the order of its presentation is often a secondary matter, so justice is done."

Under the authority of that case, as well as the case ofDenny v. Doe, 116 S.C. 307; 108 S.E., 95, we approve the action of the Circuit Judge.

At the close of plaintiff's testimony, the defendant Southern Railway Company asked for a nonsuit on six grounds, which will be reported. The failure to grant a nonsuit is alleged by several exceptions to have been erroneous.

The plaintiff, in his complaint, alleged that the injuries, claimed to have been received by him, were occasioned under these circumstances, briefly stated: That he was driving a team of mules on a street in the city of Greenwood adjacent to the railroad track of the railway company, which street was frequented by persons driving teams along the same, all of which was known, or should have been known, to the railway company and its employees, and as an engine of the railway company, in charge of Carter, as engineer, reached its closest point of proximity to plaintiff and his team, "the defendants, by their joint and concurrent negligence, carelessness, recklessness, gross negligence, willfulness, and wantonness, unnecessarily caused and allowed said engine to make a sudden, loud, and unusual noise, and to suddenly emit an unusually great volume of steam, which spread out rapidly from the tracks of the defendant company and reached to and around the team of the plaintiff, which noise and steam were calculated to frighten a team of horses or mules, and actually did frighten plaintiff's team and caused same to jump violently and run away, and to throw the plaintiff from the wagon, thereby breaking his left leg."

The liability of a railway company for injuries occasioned by frightening horses and mules, by the making of unnecessary noises and permitting the escape of steam, seems to us to be correctly stated in Cyclopedia of Law and Procedure as follows:

"Railroad company's authority to operate railroad includes the right to make any noise necessarily incident to the operation of its road and the movement and working of its engines; and it is not liable therefore for injuries occasioned by horses taking fright at the ordinary movements, noise, or appearance of trains of cars, or at other noises necessary to the operation of its road, unless under the circumstances of the particular case the railroad employees have reason to apprehend injury therefrom and fail to use due care to prevent it, or unless they are otherwise so negligent in running the train or cars that their ordinary movement naturally frightens a horse. But where the acts of the railroad employees in operating its trains, cars, or other apparatus are unnecessary, negligent, or wanton, and a horse is frightened thereby and injuries are caused without any fault on the part of the injured person, the railroad company is liable.

"* * * The usual and proper sounding of whistles or other signals, or the proper escape of steam from its engines, is not negligence, and does not make the railroad company responsible for injuries caused by horses becoming frightened thereat. But where the employees unnecessarily, negligently, or wantonly, blow the whistle, or allow the steam to escape, thereby causing horses to become frightened, the railroad company is responsible for the resulting injury; and this is especially true where the acts are done in violation of statute." 33 Cyc., 936, 937, 938.

The plaintiff offered testimony to show that the place where his injuries were alleged to have occurred was a highway frequently used by teams and vehicles, and that this fact was well known to the railway company and its servants; that, just as the engine (which was a switch engine) and train of cars got opposite plaintiff's team, the steam "popped off" and "squealed out" from under the engine and on both sides thereof, and came towards the plaintiff's mules and under them; that it came in an unusual amount, and that the "pop off" was not "like an ordinary engine," and that the steam was let off in an unusual way, and that the noises were unusually loud. There was also testimony that the defendant Carter was engineer in charge, and that accompanying him on the engine was a negro fireman. Mr. Carter was a witness for the defendants, and denied allowing steam to escape in any unusual quantity. The negro fireman was not called as a witness. We think the evidence on the part of the plaintiff was entirely sufficient, under the rule of the law quoted before, to carry the case to the jury.

The appellant insists, however, that as the plaintiff alleges "joint and concurrent" acts on the part of Carter and the railway company, and that, as it claims, there was no evidence that Carter was guilty of any negligence, or that he was connected in any way with the injury alleged to have been received by the plaintiff, and because there was no proof of any joint negligence on the part of the two defendants, the motion for nonsuit should nevertheless have been granted. The same position of the appellant is also referred to in other exceptions as to another phase of the case, which will be referred to later.

As stated before, we think there was evidence to carry the case to the jury as to both of the defendants. Even if there was none to require the submission to the jury as to the defendant Carter, however, the appellant railway company cannot take advantage of that fact, since it was distinctly announced by the attorneys for the defendants that a nonsuit was not asked for as to Carter.

Again, in a suit for a joint and concurrent tort, proof of the commission of the tort by one of the defendants only is sufficient to take the case to the jury, and to justify a verdict against that defendant. Carterv. Railway Co., 93 S.C. 329; 75 S.E., 952. Ruddell v.Railway Co., 75 S.C. 293; 55 S.E., 528 Gardner v.Railway Co., 65 S.C. 431; 43 S.E., 816. Schumpert v.Railway Co., 65 S.C. 332; 43 S.E., 813; 95 Am. St. Rep., 802.

When the verdict of the jury, quoted in full above, was returned, counsel for plaintiff stated to the Court that he thought it would be proper to instruct the jury about the wording of the verdict and get it in the usual form. The trial Judge announced that he thought the verdict was perfectly plain. Attorneys for the defendants made no motion or any comment as to the form of the verdict. After the verdict was rendered and the jury discharged, the attorneys for the railway company made a motion for a new trial. This occurred late at night and by consent of all parties it was agreed that this motion would be heard at Laurens, after the final adjournment of the Court of Common Pleas of Greenwood county. The trial Judge entered the motion for a new trial on the calendar, and marked it "heard." No other entry was made.

When the attorneys for the parties appeared at Laurens to argue the motion for a new trial, the plaintiff's attorney announced that he was not averse to the granting of the motion, and Judge Shipp stated that he would grant the same, but the attorney for the appellant withdrew that motion. The appellant's attorney then moved that the verdict in the cause be set aside, and judgment entered for the defendants generally, upon these grounds, stated briefly: (1) That the only negligence charged in the complaint against the railway company were acts of negligence alleged against the engineer, Carter, and that the verdict of the jury having acquitted Carter, thereby the railway company was also acquitted; (2) that the verdict established the fact that the escaping steam was beyond the control of the engineer, and that the evidence showed that the only steam which was beyond his control was that which escaped from the safety valve; (3) that, under the testimony and verdict, it would be improper to allow a verdict against the railway company to stand, since there is no act of negligence alleged or proved to sustain the same. Judge Shipp held that he was without jurisdiction to set aside the verdict; all he could do was to entertain the motion for a new trial; and in that holding we think he was correct.

Counsel for appellant cites the cases of Roberts v. Wessinger,69 S.C. 283; 48 S.E., 248. Lummus Cotton GinCo. v. Counts, 98 S.C. 136; 82 S.E., 391. Stokes v.Murray, 94 S.C. 18; 77 S.E., 712. Rushton v. Woodham,68 S.C. 110; 46 S.E., 943, and State v. Fullmore, 47 S.C. 34;24 S.E., 1026, to show that the Circuit Judge had jurisdiction of the motion made by the appellant. We do not think these cases are in point here. In the case at bar, when the judge marked the motion for a new trial "heard," it gave him full authority to hear that motion, and the cases cited here are authority to that effect. They do not bear out the contention of the appellant that, after the Court of Common Pleas of Greenwood county had adjourned sinedie, the judge had the right to set aside the verdict and judgment. If it should be conceded, however, that Judge Shipp should have entertained, in the hearing at chambers before him at Laurens, the motion of the appellant, still it is our opinion that the motion should have been refused. The appellant, in its exceptions, asked this Court to hold that the verdict is improper and should be set aside, and for that reason we pass particularly upon that question.

It is contended that this case comes clearly within the rule laid down in the recent cases of Sparks v.Railroad, 104 S.C. 266; 88 S.E., 739. Jones v.Railroad, 106 S.C. 20; 90 S.E., 183. Collins-Plass Thayer Co. v. Hewlett, 109 S.C. 245; 95 S.E., 510, and Durstv. Southern Railway, 130 S.C. 165; 125 S.E., 651. In these cases, it was held that where the only negligence charged against the principal was an act of negligence of the agent, and where the verdict exonerated the agent from the charge of negligence the effect was to also relieve the principal, and that a verdict against the principal should be set aside. The case here is different. The complaint not only sought to hold the railway company for negligence on account of the acts of its engineer, but it also alleged negligence, generally, against the railway company. There wasevidence to sustain the finding of the jury that the railwaycompany through some other servant, perhaps the fireman,may have been guilty of negligence, although its codefendant,Carter, was not guilty. In our opinion, the verdict, as stated by Judge Shipp, showed clearly that the intention of the jury was to hold the railway company liable and to acquit the defendant Carter. We think, too, that any objection to the form of the verdict should have been made by the defendant in open Court before the jury was discharged.Rhame v. City of Sumter, 113 S.C. 151; 101 S.E., 832.McAlister v. Thomas Howard Co., 116 S.C. 319;108 S.E., 94. Thornhill v. Davis, 121 S.C. 49;113 S.E., 370; 24 A.L.R., 617.

It is the judgment of this Court that all the exceptions be overruled, and that the judgment of the lower Court be, and the same is, affirmed.

MR. CHIEF JUSTICE WATTS and MR. JUSTICE STABLER, concur.