Green v. Atlanta & C. A. L. Ry. Co.

July 7, 1928. The opinion of the Court was delivered by The plaintiff was a night yard conductor in the freight yards at Hayne, near the city of Spartanburg. On the night of February 27, 1922, while he was engaged in the performance of his duties as such yard conductor, he was shot by a gang of robbers, and was painfully and dangerously wounded. For damages for the injuries thus received, he brings this action, based upon certain alleged negligent acts of the defendants.

The complaint sets out that, prior to and on February 27, 1922, the plaintiff was employed by the defendant Southern Railway Company as a yard conductor, and was placed at work in its yards at Hayne on the line of the defendant Atlanta Charlotte Air Line Railway Company, his duties being, in the course of his employment, to break up incoming freight trains left there and to make them up into outgoing freight trains for various points; that the defendants furnished him an unsafe place to work, in that "the vast accumulation of loaded freight cars in the Hayne yards and the storage of large quantities of freight in the transfer shed at Hayne operated as a great temptation to the evil-disposed, and induced thieves, robbers and desperadoes to frequent and resort to the said Hayne yards for the purposes of looting, thieving, robbing, car-breaking and the perpetration of all manner of kindred misdemeanors and felonies, and who were, as a rule, prepared and inclined to prevent detection and make sure escape at the cost of human life"; that "some time prior to February 27, 1922, the plaintiff complained to his superiors that, by reason of the increasing numbers of outlaws, thieves, and desperadoes that were beginning to accustom themselves to rendezvous in the yards for the purposes of pillage, thievery, car-breaking and robbery, it was becoming unsafe for the employees at work in the yards during the nighttime, and was advised that such unsafety was known, but would be remedied"; that the defendants kept an inadequate number of men on duty in the yards for the purpose of policing the same, "and by reason of the inadequacy, the outlaws frequenting the Hayne yards were encouraged and increased in number; that the plaintiff relied upon the assurance given when he complained that the matter would be corrected"; that about 11:30 on the night of February 27, 1922, while plaintiff was engaged in making up a freight train for Spencer, N.C., and beyond, he unintentionally surprised a gang of desperadoes, evidently engaged in car-breaking, who, upon his approach, opened fire upon him with pistols inflicting painful and serious gunshot wounds, from which he suffered serious operations, incurred heavy expenses, and sustained injuries of a permanent nature, etc.

By the thirteenth paragraph of his complaint, the plaintiff sets out the particular negligent acts of the defendants alleged to be the proximate cause of his injuries and sufferings:

"That the plaintiff's aforesaid injuries and sufferings were directly and proximately due to the negligence of the defendants in failing to provide the plaintiff with a safe place in which to do the work he was required to do in that:

"a. They knowingly caused and permitted the Hayne yards to become a resort for thieves and robbers, prepared and inclined to prevent detection and secure escape, by murder, if need be, the existence of such condition being directly due to the accumulation of vast numbers of loaded freight cars and vast quantities of valuable freight in said yards, and, by inaction, permitting it to be discovered by the evil-disposed that valuable property easy to be stolen and carried away was constantly and continuously being placed and kept throughout the great length of the Hayne yards in the nighttime in a situation that it could not be adequately guarded by a force of only three men.

"b. In failing to make reasonable provisions for even the protection of the property situated and kept in the yards, so as to discourage the would-be thieves and robbers, thereby emboldening them and increasing their number and activities, the failure to adequately protect the property resulting in directly hazarding the life and limb of every yard employee.

"c. In failing, after knowledge of unsafe conditions, to provide a proper police protection for the property and employees in the yards, their neglect in protecting the property directly operating as an invitation to the evil-disposed.

"d. In not providing a sufficient force of officers and agents to police the yards, protect the property and employees, and rid the situation of its characteristics, which may be phrased as an attractive nuisance to thieves, robbers and desperadoes.

"e. In not increasing the force of officers and agents, after knowledge of its inadequacy to protect employees and property in the Hayne yards, and after admitting such inadequacy and promising remedy, the Hayne yards being located outside of any municipally policed area.

"f. In not adequately providing for the lighting of said yards in the nighttime, the yards being very long and the numerous tracks for storage, etc., being practically parallel throughout the length of the yards, and being nearly always completely occupied by loaded freight cars, and there being only one line of lights in the yards, the said lights being arranged in a straight line and serving only to illuminate immediately beneath them and only the tops of the freight cars on either side, and serving only to deepen the shadow in which the outlaws might lurk and successfully conceal themselves, instead of serving to illuminate the yards, said line of lights being so placed as to cast shadows on either side and about the edges of the yards, thereby making it easy for outlaws both to approach and to leave the yards in the shadow, whereas the lights should have been so arranged as to surround the yards with a zone of illumination, and instead of being arranged in one continuous line, they should have been ``zig-zagged' or ``staggered,' so as to light all parts of the yards, and should have been sufficient in number for that purpose."

The defendants pleaded: (1) A general denial; (2) assumption of risk by the plaintiff; (3) contributory negligence on the part of the plaintiff; (4) the benefit of the Federal Employers' Liability Act to the exclusion of all state laws, either common or statutory.

The case was tried in March, 1927, before Judge Townsend and a jury. On the trial, it was agreed that, when the plaintiff was shot and wounded, he and the defendants were engaged in interstate commerce, and the action was tried under the Federal Employers' Liability Act.

At the conclusion of the testimony, the defendants made a motion for a directed verdict, which was overruled. The jury found for the plaintiff in the sum of $20,000. The defendants appeal to this Court.

There are a number of exceptions, but the appellants state the questions raised by them to be only three. These we will discuss in order.

I. The first question is: "Was there sufficient evidence of negligence to require a refusal to direct the verdict and the submission of the case to the jury?" This case has been before this Court twice before. The first appeal was form an order overruling a demurrer to the complaint (131 S.C. 124, 126 S.E., 441, 38 A.L.R., 1448); the second, from an order overruling a motion to strike out parts of the complaint and to make certain allegations of same more definite and certain (135 S.C. 147,132 S.E., 172).

On the first appeal, this Court held that the lower Court had properly overruled the demurrer, and that the complaint stated a cause of action. In considering the grounds of the demurrer, the Court said:

"Ordinarily, it may be conceded that the danger of injury to a servant from the illegal or criminal acts of independent third persons is not a danger of which the master in the discharge of his duty to provide a safe place to work, etc., has such knowledge, or the opportunity to acquire knowledge, as would impose liability for such an injury. * * *

"But, where it appears that the master has actual knowledge of conditions within his control which conduce to expose a servant in the performance of the master's work to danger from the lawless acts of third persons, and that the intervention of such illegal acts of third persons is a consequence reasonably to be expected from the maintenance of such conditions a different case is presented. In the case at bar it is alleged that the conditions rendering the servant's place of work unsafe were ``knowingly' maintained; that defendants had actual notice of the danger from the intervention of the lawless acts of third persons; and that the unsafety of the place of work from that source was recognized by the defendants as a condition calling for remedial action. Proof of that state of facts would, we think, clearly warrant the inference that the lawless act of the third persons which resulted in injury to the servant was a consequence within the actual contemplation of the defendants and was not such a consequence as could not reasonably be expected to follow in natural and ordinary sequence from the original act or omission upon which the actionable negligence is predicated. If the intervention of the lawless acts of third persons was by virtue of the defendants' knowledge of the situation, a consequence reasonably to be expected, it was not a consequence too remote to entail liability, for ``that which is reasonably to be expected will be regarded (as both proximate and natural), although it may be considerably removed.'Harrison v. Berkeley, 1 Strob., 525, 549 (47 Am. Dec., 578). In that state of the facts there remains no tenable basis for a conclusion that, merely because the act which results in, or concurs as an efficient cause in producing, the injury was illegal in character, and was an act for which independent third persons were also liable as tort-feasors, the alleged negligence of the defendants was thereby insulated, and the causal connection broken. If the intervention is reasonably to be expected, and hence is to be regarded as a natural and proximate consequence, the fact that it consists in wrongful misconduct for which third persons might also be held legally responsible furnishes no sound reason, as we apprehend, for declining to apply the logical and well-established doctrine that an intervening cause, brought to bear by an independent, responsible human agency, will not break the causal connection, if such intervening cause was induced, produced or set in motion by the negligence charged to the original wrongdoer. * * *

"Accepting at their face value the allegations of the complaint in the case at bar, the plaintiff's injury was both a natural and probable consequence which not only might reasonably have been expected to result from the alleged delicts of the defendants, but was actually recognized as a consequence so probable as to justify the promise of remedial action."

With respect to the question now under consideration, the appellants contend that, admitting the complaint states a cause of action as held by this Court on the first appeal, there was not, on trial of the cause, sufficient evidence of actionable negligence on the part of the appellants to require the submission of the case to the jury — in other words, that the respondent failed to prove the allegations of his complaint.

In the first place, the appellants argue that, this action having been brought under the Federal Employers' Liability Act, the rights and obligations of the parties in the case depend upon this Act of Congress and the principles of the common law as interpreted and applied by the federal courts; and that, under the law applicable, the evidence shown was not sufficient to sustain the finding that the carriers' negligence was the proximate cause of the injury, and a verdict should have been directed for them. In the same connection, they contend that, on the first appeal of the case to this Court, the question of the applicability of the Federal Employers' Liability Act was not raised.

The complaint, which was before the Court in its consideration of the demurrer, contains allegations showing that both the respondent and the appellants were engaged in interstate commerce at the time of the alleged accident. We think that, when the complaint was attacked for insufficiency, the question of whether a cause of action was stated under the law applicable was embraced in the question raised. But the point is immaterial, since we conclude that, under the construction of the Act as given by the federal courts, the evidence in this case was sufficient to sustain the verdict of the jury that the negligence of the appellants was the proximate cause of the respondent's injuries.

In the second place, the appellants say that the case should not have been submitted to the jury, for the reason that the testimony left uncertain whether the injury complained of resulted from appellants' negligence or from some independent cause, and was thus rendered a matter of conjecture or speculation not properly to be considered by the jury.

The trial Judge, in refusing to direct a verdict for the appellants, said:

"Well, I think there is some testimony tending to show that the conditions in the yard were such that it was within the range of probability that the workmen in the yard might get shot by some of these marauders, and is a question for the jury whether or not that such a probability should have been anticipated by the master and guarded against. The question of proximate cause is one peculiarly for the jury."

We have carefully read the testimony, and the following facts may be fairly inferred from same: That the yards where the respondent was working as a yard conductor were very large, and contained a great many tracks for the parking of freight trains, and also a shed for the storing of freight unloaded from any of these trains; that all freight going into the city of Spartanburg, or originating on or beyond either of the crossing main lines, and destined for any point on the other, had to lie over there; that at certain points woods were close to the yards, this being true of the point where the plaintiff was shot. There was testimony tending to show that the yards were poorly lighted; that freight cars when brought in were placed upon the parallel tracks, and in this way formed intercommunicating passages; and that, by reason of these conditions, persons desiring to rob or commit other crimes were afforded an easy method of approach as well as an easy way of escape. The testimony further tended to show that the yards, at the time of the shooting of the respondent, and for a considerable time prior thereto, were a rendezvous for robbers, tempted and induced to resort there because of the opportunity for looting and thievery afforded them by the conditions; that the situation was dangerous to employees working at night because of the chance of contact with these criminals; and that, at the time the shooting occurred, the respondent, in the nighttime, was engaged in the performance of the usual duties required by his employment. The testimony also tended to show that this dangerous condition was known to the appellants, and that they failed to rectify it, either by properly policing the yards or by having same properly lighted, or by adopting and putting into effect any other remedy appropriate, under the circumstances, for the safety and protection of their employees. We think that the evidence was sufficient to warrant the submission of the case to the jury on the question of negligence.

II. The second question is thus stated: "Did defendants upon complaint promise remedial relief, and did plaintiff continue to work in reliance upon any promise made to him upon such complaint?"

The testimony tends to show that the freight yards where the respondent worked had become infested with robbers and thieves, and were thereby rendered unsafe and dangerous, especially to employees working there at night. The respondent, Green, testified that there was a growing epidemic of robbing on the yards; that thieves could be seen jumping out of the looted box cars and creeping in from the light of the engines in the yards; that he told Kirby, who was the yard master and his immediate superior, about the condition in the yards — that the robbing condition was bad on the north yard, that they could see thieves jumping out of cars, and "in fact, it was getting to be a dangerous condition over there"; that Kirby replied he knew about the robbery, and would have it looked into; that he would take the matter up with Maxwell (the superintendent) or have it done himself; that he talked to Kirby about the matter at other times, and also reported the matter to Hunsucker, the night yardmaster, who told him he would leave a note for Kirby to see about it; that he also reported the matter to the railroad detective, Evans, who told him, about a month before he was shot, that he was after the situation, and was doing all he could in the matter, and, about two weeks before he was shot, that the bunch of thieves he had been complaining about had been captured. The plaintiff's testimony as to his report to Kirby and Kirby's promise to him was corroborated by another witness.

We think that, from the evidence, the jury might reasonably conclude that the appellants promised Green that the dangerous situation would be corrected, and continued to assure him that remedial relief would be given and that Green, relying on these promises, continued to work as a yard conductor, and was so doing at the time he was shot. The testimony on the points here raised was sufficient to require the submission of the question to the jury.

III. The appellants' statement of the third question is: "After discovering the danger, and that no remedial relief was being furnished, did the plaintiff assume the risk by remaining in defendants' employ?"

In this question the appellants assume that the respondent discovered (1) the danger, and (2) that no remedial relief was being furnished, and upon these assumptions base their contention that he assumed the risk by remaining in their employment.

It appears that the dangerous situation created in the freight yards by reason of the fact that it had become infested with thieves and robbers arose after the respondent's employment by the appellants as yard conductor and manifested itself some time before he was shot. There can be no doubt, nor is it disputed, that the respondent knew of this dangerous situation. However, the same cannot be said as to the assumption that he discovered that no remedial relief was being furnished. To the contrary, the evidence tended to show that the appellants repeatedly sought to impress upon the mind of the respondent that remedial measures would be and were being taken, and that, in fact, they assured him the dangerous situation had been relieved by the capture of the thieves themselves.

From the nature of the danger, the most effective remedial measures might be of a nature requiring secrecy and strategy and time for the accomplishment of the purpose sought, and might be known only to those actively engaged in putting them into effect. The jury might conclude, if they believed the respondent's testimony, that the appellants assured him from time to time, after his complaint, that they were continuously at work, as they might be guided by circumstance and opportunity to relieve the dangerous situation. It does not appear that the appellants promised to remedy the situation in any specified period of time, but it might be inferred from the testimony that they viewed the danger as one that might require considerable time in the correction, and that the plaintiff so understood their attitude and relied upon their repeated statements. At no time did the appellants indicate to him, by word or action, that they had done all they intended to do in remedying the dangerous situation. Certainly, the respondent was in no position to know of his own knowledge whether any remedial measures were being taken, and under the circumstances he had a right to rely upon any representations with respect to the matter made to him by those in authority or responsible for correcting the condition.

As stated by the trial Judge, assumption of risk is an affirmative defense, and should not be taken from the jury where more than one inference can be drawn from the testimony. Under the evidence in this case, it cannot be said as a matter of law that the respondent assumed this extraordinary risk, and the question was properly submitted to the jury.

We have examined the cases from other jurisdictions cited by the appellants in support of the several questions raised and argued by them. No one of these cases, however, presents facts so analogous to those of the present case as to render it controlling. The same may be said of our own case of Carter v. Atlantic Coast Line R. Co., 109 S.C. 119,95 S.E., 357, 11 A.L.R., 1411, particularly relied on by the appellants. As stated by the Court in the first appeal of this case, the facts involved in the Carter case are essentially different from the facts of the case at bar.

On motion of the defendant for a directed verdict, the evidence, together with all inferences which the jury could justifiedly draw therefrom, must be considered most favorably to the plaintiff in determining whether the motion should be granted. Crews v. Sweet, 125 S.C. 303,118 S.E., 613, 29 A.L.R., 43; Green v. AtlanticCoast Line R. Co., 136 S.C. 337, 134 S.E., 385; Ashev. Southern R. Co., 104 S.C. 414, 89 S.E., 482; Templetonv. Charleston W.C.R. Co., 117 S.C. 44,108 S.E., 363. And, where more than one inference can be drawn from the testimony, the case must be submitted to the jury.Kell v. Fertilizer Co., 123 S.C. 199, 116 S.E., 97.

All exceptions are overruled, and the judgment of the Circuit Court is affirmed.

MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES BLEASE and CARTER concur.