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

162 S.E. 239, 164 S.C. 123, 1931 S.C. LEXIS 249

• Court: Supreme Court of South Carolina
• Decided: September 10, 1931
• Docket: 13240
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] September 10, 1931. The opinion of the Court was delivered by In the first trial of this cause, a judgment in favor of the respondent was reversed, and a new trial ordered. Cato v.A. C. Air Line Ry Co. et al., 155 S.C. 304,152 S.E., 522, 527. In the second trial before Hon. T.S. Sease, presiding Judge, and a jury, in the Court of Common Pleas for Spartanburg County, the respondent again recovered judgment, and this appeal is therefrom.

The statement of facts on the part of the respondent seems to us to be so full and fair, and the argument in her behalf on the legal questions involved cover so clearly the issues to be determined, that we have drawn extensively from these in the preparation of this opinion.

In connection with this opinion, in order for it to be fully understood, we refer to the former opinion, where this Court, on a matter of evidence, reversed the lower Court and unanimously held that the respondent was entitled to have her case submitted to the jury. The conclusions announced in that case became and are "the law of the case," and we are still satisfied with the holdings there made.

The action was brought by Mrs. Verna Cato, as administratrix of the estate of her deceased husband, O.C. Cato, to recover damages for the benefit of herself and three minor children against the Southern Railway Company et al., for the wrongful death of her husband.

The complaint alleges two causes of action; the first under the State law, and the second under the Federal statute. Both causes of actions were submitted to the jury under proper instructions by the Court. The Supreme Court, in the first appeal, reversed a judgment for the respondent and sent the case back for a new trial upon the ground that the presiding Judge erred in construing the terms of Paragraph 157 of a certain agreement entered into between the Southern Railway Company, and others, and the Brotherhood of Railway Carmen of America. Before the second trial, respondent secured an order allowing her to amend her complaint by striking out Paragraph 157 of the said agreement, and the cause proceeded to trial on the complaint, thus amended.

O.C. Cato was employed by the appellants as a car repairer, under the supervision and control of R.W. Watson, general foreman of appellants' yards at Hayne Junction, and on December 6, 1926, was ordered by appellants to proceed to track No. 10 and repair the drawhead of a baggage car which had two days before been placed on that track. Cato was informed that the drawhead of the car must be repaired so it could be taken to the car repair shop of the Southern Railway Company, about one and a half miles from Hayne Junction, in Spartanburg County, for general repairs.

It was necessary for Cato to go underneath the baggage car to perform his duties and, while there engaged in repairing the car, a switch engine backed into a cut of cars coupled to the baggage car, underneath which Cato was working, causing the wheels of the baggage car to pass over his body, horribly mutilating him, subsequently causing his death. Appellants failed to protect Cato and the other men working upon the said baggage car with a blue flag, as required by the agreement entered into between the Southern Railway Company, and others, and the Brotherhood of Railway Carmen of America, and others, effective March 1, 1926, which superseded all other rules and agreements up to that date, copy of which agreement was delivered to Cato by the railway company, and under the guidance of which he performed his duties as a car repairer for the appellants, and upon which he relied for protection while repairing the baggage car upon the said track. The agreement upon which the action is based provides, among other things:

"55. Employees Required to Work Under Locomotivesand Cars. — No employee will be required to work under a locomotive or car without being protected by proper signals. Where the nature of the work to be done requires it, locomotives or cars will be placed over a pit, if available."

"158. Trains or cars, while being inspected or worked on by train-yard men, will be protected by a blue flag by day and a blue light by night, which will not be removed except by men who place them."

"163. Carmen Sent Out on Road to Perform Work. — When necessary to repair cars on the road or away from the shops, carmen will be sent out to perform such work. Two carmen, or one carman and an experienced apprentice, or one carman and an experienced helper, will be sent to perform such work as putting in couplers, draft rod, draft timbers, arch bars, truss rods, and wheels and work of similar character."

"175. Miscellaneous. — Except as provided for under the special rules of each craft, the general rules shall govern in all cases."

"This agreement supersedes and cancels all previous agreements and understandings and constitutes the sole agreement between the company and the employees affected.

"These rules and rates of pay agreed upon become effective as of March 1, 1926, and shall remain in effect until June 30, 1927, and thereafter until thirty (30) days' written notice shall be given by either party to the other of a desire to change: Provided, however, that the said thirty (30) days' notice herein referred to may be given by either party on or after May 31, 1927."

The appellants' appeal to this Court contains twenty-three exceptions, but they appear to present only four questions which we shall consider.

Did the presiding Judge err in refusing motions for a nonsuit and directed verdict? Exceptions 2, 3, 11, 12, and 13.

The record shows that appellants did not move for a nonsuit or a directed verdict as to the first cause of action upon the ground that there was no evidence to show that the deceased, at the times of his injuries and death, was engaged in intrastate work, but asked the Court to grant a nonsuit and direct a verdict as to the first cause of action upon the ground that "it appears from all the evidence in this case that the action is controlled by the Employers' Liability Act of Congress." The motions were not made upon the absence of evidence, but the Court was asked to grant a nonsuit and direct a verdict upon all the proof submitted. A motion for a nonsuit or a directed verdict can only be granted by the Court upon the entire absence of evidence. It can never be granted by the Court upon an "appearance from all the evidence." The trial Judge has no power to weigh the evidence. Constitution, Art. 5, § 26. Therefore, it is doubtful if a proper motion for a directed verdict or nonsuit has been made in this case.

Conceding the motion to have been properly made, however, an inspection of the printed case in the first appeal and of this appeal will disclose that the evidence, in substance, is practically the same in each. It is only necessary to cite the decision of this Court in this case on the first appeal, where the Court unanimously decided that the evidence was entirely sufficient to require a submission to the jury for determination of the first cause of action. We there said. "If there was any evidence at all to show that the deceased, Cato, was engaged in interstate commerce at the time he received his injuries, that resulted in his death, it was certainly scant"; and that "The true information as to whether the action should have been brought under the Federal Employers' Liability Act or under the laws of South Carolina should be within the knowledge of the appellants, and they should disclose the information fully and freely if they have it."

Notwithstanding the duty imposed by this Court to disclose what kind of commerce the baggage car was used in, and notwithstanding admission of appellants on the second trial that a record of all cars was kept by the appellants, the appellants failed to sufficiently disclose what kind of commerce, if any, the baggage car was used in. The record, however, in this appeal shows to our entire satisfaction that the baggage car upon which Cato was working at the time of his injuries and death had been withdrawn from whatever service it had been in for the purpose of sending it to Hayne shop, in Spartanburg County, S.C. for general repairs. The car was picked up in Columbia, S.C. as a "dead soldier," without even a waybill, and hauled by a freight train in charge of Conductor Humphries from Columbia, S.C. to the Hayne yards, at Hayne, S.C. where it arrived about 8 p. m. on December 4th. The train with which the baggage car came to Hayne yards was placed on one of the yard tracks and later broken up to be made into trains to be sent to other points, and at the time of the injuries and death of Cato the baggage car was not connected with any of the cars, engine, or crew that it came from Columbia with, and had no relation whatsoever to the freight train from Columbia.

It appears from the record that all trains that come into Hayne yards are broken up and made into other trains that go to different points. That the western end of track No. 10 is used for storage track for "bad order" cars destined to Hayne shops; that the day Cato was killed the baggage car was attached to a cut of cars, but those cars had no relation to the baggage car and were not a part of any train. They were simply put on to the storage track to be made up into different trains at a later time.

It was proved by both parties at the trial of this case that no blue flag or other signals were placed by the appellant company, as required by the contract with the craft, the appellants' counsel contending that the general rule, which required the workmen to place the signals, governed the conduct of the parties, and not the agreement. This Court has ruled to the contrary. So the case is narrowed, so far as the facts are concerned, to the question, "Was the deceased Cato at the time of his injury engaged in interstate commerce?"

The complaint contained two causes of action, the first being an action under the State Liability Act, the second an action under the Federal laws. This practice has been decided to be proper by this Court (first appeal). The respondent contended that the action was one of intrastate and produced no evidence to show that interstate traffic was involved. It appears from the appellants' testimony that the car upon which the deceased Cato was working was lying on a side track in the yards of the defendant at Columbia, S.C.; a freight train conductor, seeing it in a state of want of repair, without any instructions or bill of lading, took the baggage car and brought it to Hayne yards, near Spartanburg, in this State. These yards are the depository for all cars needing repairs at the shops, which are a mile and half from the yards, but under the same superintendent. There is no station at the shops, and all freight trains upon reaching the yards, are broken up and the cars of such trains reformed and placed in position to be taken up by or formed into other trains. The western end of track No. 10, upon which this broken and unfit baggage car was placed, was the depository for all damaged cars intended for Hayne car shops, where such repairs are made. These cars were then taken in charge by an engine from the shops, or a shifting engine, and carried to the shops, where they were left for repairs for an indefinite time. The foreman, upon examining these cars, found that the baggage car brought from Columbia without a bill of lading had a drawhead which was pulled out, rendering it impossible to be moved. He took a part of the broken drawhead, left it at the blacksmith's to be repaired, and then ordered Mr. Davis, a yard car repairer, to get his "partner" and proceed to repair the drawhead on the disabled car. Mr. Cato was secured, and, arriving at the car, Cato proceeded to go underneath, the necessity requiring it, Davis remaining on the outside. While they were working on the car a shifting engine backed in upon them, setting the car upon which Cato was working in motion, running over his body, of which injuries he died in the afternoon.

Respondent rested her case upon the following undisputed facts: (1) The baggage car was found on track No. 10, wounded, damaged, unfit, and not engaged in commerce of any kind, but waiting to be repaired at a point within the State of South Carolina and destined for the shops at Hayne, in the State of South Carolina. The car was ordered by the foreman to be repaired and placed in condition to be taken to the shops by a shifting engine used for that purpose, and not by any train engaged in commerce of any kind, interstate or intrastate. (2) The contract of the company with the United Carmen, or the craft, as it is called, which (under the decision of this Court), made it the duty of the appellant employer to protect workmen in the position of the deceased by placing a blue flag by day and blue light by night. (3) The failure of the company to perform its duty, and as a direct cause of such negligence the death of the deceased. This made a prima facie case of intrastate commerce, and falling directly under the laws of the State of South Carolina. Under such circumstances, the law presumes the subject-matter to be intrastate, and a prima facie case was made against the appellants. Trimmier v. RailwayCompany, 81 S.C. 203, 62 S.E., 209; Garner v. TelegraphCompany, 87 S.C. 316, 69 S.E., 510. The Judge refused to direct a verdict for the appellants or grant a nonsuit. The appellants attempted to show by their evidence that the question of interstate commerce was involved, and that the case fell under the Federal Employers' Liability Act (45 U.S.C.A., §§ 51-59). There is little, if any, testimony showing that this car was engaged in interstate commerce. The appellants showed by competent testimony that every other car disabled, in want of repair, lying on the same track with the car upon which Cato had worked, was sent to the Hayne yards from different parts of the country and other States, but all detached and placed upon this track. No sufficient testimony was offered to show where this baggage car originated, came from, or what traffic it had been engaged in, or why it was left abandoned in Columbia. Most of the witnesses professed absolute ignorance of anything concerning this car. Testimony was brought out, however, that the records in Columbia should show where the car came from, what it was used for, when it was ordered to be sent to the shops, by whom, and for what purpose. This Court held in this case that, the information to prove this important fact being in possession of the appellants, it was their duty to furnish the evidence, and yet they failed, or refused, to so show. They did show that the baggage car was found abandoned in Columbia, engaged in no commerce of any kind, and picked up without a waybill by a sympathetic conductor, who brought the sufferer to the shops, as he thought must have been intended. The only record introduced was the notebook of the conductor, stating where he picked up the car and where he brought and left it. This is all the evidence concerning the car, except the fact that an engine from the shops came down and carried it a mile and a half to be repaired.

Deceased, Cato, is presumed to have been engaged in intrastate commerce at the time of his injuries and death. The railway company must show affirmatively that Cato was engaged in interstate commerce before the case can be considered under the Federal statute. WabashRailway Co. v. Hayes, 234 U.S. 86, 34 S.Ct., 729,58 L.Ed., 1226.

"The employee at the time of the injury must be engaged in interstate transportation or in work so closely related to it as to be practically a part of it, in order to displace State jurisdiction and make applicable the Federal Act." IndustrialAccident Commission v. Payne, Agent, etc., 259 U.S. 182,42 S.Ct., 489, 491, 66 L.Ed., 888.

Even if the baggage car had been used in interstate traffic,it had been withdrawn for general repairs, and theFederal statute would not apply.

The Judge charged the jury as follows: "I charge you that equipment out of use, withdrawn for repairs, may or may not partake of an interstate character, according to the circumstances, and among the circumstances is the time withdrawn for repairs, the duration of the withdrawal from use, and I charge you that if you find from the testimony in this case that the baggage car had at the time of Cato's injuries definitely been withdrawn from whatever service it was in for the purpose of general repairs, then, under such facts, you would find the deceased Cato was not engaged in interstate commerce at the time of his injuries and death, and if you find for the plaintiff, your verdict would be under the First Cause of Action instead of the Second Cause of Action."

The jury could have found under this instruction from the Court that, even if the baggage car had been used in interstate commerce, it had, before and at the time of Cato's injury, definitely been withdrawn for the purpose of general repairs, and hence they were justified in finding their verdict.

"A machinist's helper, engaged, while making repairs in the roundhouse, upon an engine which had been used in hauling over the railway company's lines freight trains carrying both intrastate and interstate freight, and which was used in the same way after the accident was not then employed in interstate commerce within the meaning of the Federal Employers' Liability Act of April 22, 1908 (35 Stat. at L., 65, Chap. 149 [Comp. St., 1913, §§ 8657-8665 (45 U.S.C.A., §§ 51-59])), governing the liability of an interstate carrier for injuries to its employees when employed in interstate commerce." Minneapolis St. L. Ry. Co. v.Winters, 242 U.S. 353, 37 S.Ct., 170, 61 L.Ed., 358, Ann. Cas., 1918-B, 54.

"This is not like the matter of repairs upon a road permanently devoted to commerce among the States. An engine,as such, is not permanently devoted to any kind of traffic, and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time, not upon remote probabilities or upon accidental later events." Minneapolis St.L. Ry. Co. v. Winters, 242 U.S. 353, 37 S.Ct., 170, 171,61 L.Ed., 358, Ann. Cas. 1918-B, 54; Industrial Accident Commission v. Payne, Agent, 259 U.S. 182, 42 S.Ct., 489,66 L.Ed., 888.

A baggage car is used for the purpose of hauling baggage just as an engine is used for the purpose of pulling trains. At the time of the injury, the baggage car was not engaged in transporting baggage, either interstate or intrastate, but had been withdrawn at Columbia from whatever commerce it had been engaged for the sole purpose of being repaired at the car repair shops at Hayne, S.C. Chicago, etc., Ry. Co.v. Kindlesparker, 246 U.S. 657, 38 S.Ct., 425,62 L.Ed., 925.

"The test of jurisdiction in repair cases is whether the rolling stock, engine or car is withdrawn from service at the time the repairs are made, as distinguished from being interrupted in the course of an interstate haul to go on." Jamesv. Chicago N.W. Ry. Co., 115 Neb. 164,211 N.W., 1003.

In Heimbach v. Lehigh Valley Railway Company (D. C.), 197 F., 579, it appeared that employees of a railway company were killed while repairing a car that had been transported from New Jersey to Pennsylvania, and during that transit had been engaged in commerce between the States, but it appeared that the car had reached its destination and was empty, and, having been found to need repairs, it was put upon a side track for that purpose.

It was held that the employees so engaged were not within the protection of the statute.

"Where a railroad engine previously employed in interstate commerce, was retired from service for repair in May, placed on a repair track until October, then removed to a roadhouse, where it was stripped and dismantled, the repairs were completed, and it was returned to service in December, plaintiff, who was injured October 27, while helping to dismantle it, was not at the time employed in interstate commerce." Connolly v. Chicago, M. St. Paul Ry.Co. (D.C.), 3 F.2d 818.

"Employee, rethreading bolts used on engine withdrawn from interstate service for six days for repairs, held not engaged in interstate commerce." Detroit, etc., v. Seigel (Ohio App.), 153 N.E., 870; Hines v. Industrial Commission,184 Cal., 1, 192 P., 859, 14 A.L.R., 720; Clements v. Nashville,C. St. L. Ry. Co. (1925), 1 Tenn. App. 47; Larkinv. Industrial Commission of Utah, 60 Utah 274,208 P., 500.

"An employee who was injured while making repairs on engine which had previously been used in both interstate and intrastate commerce, but which was withdrawn from service for five days and placed in a roundhouse for repairs, which did not arise from a cause which interrupted a run, was not engaged in interstate commerce, and was therefore not entitled to recover under the Federal Employers' Liability Act [45 U.S.C.A., §§ 51-59]." Conklin v. N.Y. Central Ry.Co., 206 App. Div., 524, 202 N.Y.S., 75, affirmed in238 N Y, 570, 144 N.E., 895, certiorari denied, 206 U.S. 607,45 S.Ct., 93, 69 L.Ed., 465.

"Where a servant was injured by the negligence of his master while repairing a locomotive, which had been dismantled and undergoing general repairs, and which was out of service several weeks before and after the injury, and where other locomotives were engaged in the actual work for which the locomotive being repaired was bought and used, the liability for the injury is governed by State law, and not by the Federal Employers' Liability Act * * * even though such locomotive was intended to be used solely in interstate commerce." New Orleans N.E. Railway Co.v. Beard, 128 Miss., 172, 90 So., 727, certiorari dismissed (1922), 260 U.S. 752, 43 S.Ct., 10, 67 L.Ed., 496.

"Car repairer working on a car which was entirely out of commission and was not being used for any purpose whatever was not engaged in `interstate commerce.'" Herzog v.Hines, 95 N.J. Law, 98, 112 A., 315.

"An employee of a common carrier who is injured while at work in repairing rolling stock of the carrier, and which is out of use for the purpose of having the repairs made, is not injured `while engaged in interstate commerce.'" Pricev. Railway Co., 99 N.J. Law, 425, 123 A., 756, 757; Chesapeake,etc., Ry. Co. v. Mizelle, 136 Va., 237, 118 S.E., 241;Flack v. Atchison, etc., Ry. Co., 285 Mo., 28, 224 S.W. 415,423, certiorari denied, 256 U.S. 690, 41 S.Ct., 449,65 L.Ed., 1173.

In the last case, the Court said: "At the time of the accident here in suit, the engine in question was not being used in `moving interstate or foreign traffic,' nor was it `in the active service of such carrier in moving traffic' within the intent and purpose of that Act, as we construe it. The engine was undeniably being prepared for use in interstate traffic, and the deceased met his death while engaged in that preparation."

"Railway car repairer, who at time of injury was repairing car which had been wholly withdrawn from service and commerce of every character and placed on repair track, to be overhauled and rebuilt, and which had been in course of repair for nearly two months, was not engaged, and the car on which he was working was not employed, in interstate commerce." Scoggins v. Railway Co. (D.C.), 292 F., 162, 163.

In the case of Philadelphia, etc., Railway Company v.Polk, 256 U.S. 332, 41 S.Ct., 518, 65 L.Ed., 958, the Court said: "At the time of the occurrence of the injury the company was a common carrier, by rail, engaged in interstate and intrastate commerce, and that at such time there was a draft of freight cars attached to the engine which was in charge of the crew of which Polk was a member."

Of course, if Polk was a member of the crew engaged in interstate commerce, the statute would apply, but, in the instant case, Cato was not a member of the crew of the train that caused his death. He was repairing a baggage car that had been withdrawn from commerce for general repairs.

The Court, in this case cited by appellants, said: "The employment concerned both kinds of commerce and was to be exercised as much on one as on the other. In other words, was as much and as intimately directed to the interstate cars and freight as to the intrastate cars and freight."

In the case under discussion, the employment of Cato was not directed to any interstate cars, or any cars carrying interstate freight, but only to the baggage car that had been withdrawn from commerce for repairs.

In the case of New York, etc., Railway Company v. Carr,238 U.S. 263, 35 S.Ct., 780, 781, 59 L.Ed., 1298, "the plaintiff was a brakeman on an interstate train. As such, it was a part of his duty to assist in the switching, backing, and uncoupling of the two cars so that they might be left on a siding in order that the interstate train might proceed on its journey. In performing this duty it was necessary to set the brake of the car still attached to the interstate engine, so that, when uncoupled, the latter might return to the interstatetrain and proceed with it, with Carr and the other interstateemployees, on its interstate journey. * * * The fact that they might soon thereafter be used in interstate business did not affect their intrastate status at the time of the injury;for, if the fact that a car had been recently engaged in interstatecommerce, or was expected soon to be used in suchcommerce, brought them within the class of interstate vehicles,the effect would be to give every car on the line thatcharacter. Every case must be decided in the light of theparticular facts with a view of determining whether, at thetime of the injury, the employee is engaged in interstate business,or in an act which is so directly and immediately connectedwith such business as substantially to form a part ora necessary incident thereof."

Cato's duties connected him in no way with interstate business at the time of his injury and death. The baggage car which ran over him had been in the yard for two days, and was not moved to the Hayne shop until the next day. There is no evidence that on its journey to the shops the next day the baggage car had any connection with the cut of cars that backed into it. It would make no difference, however, if such cars did accompany the baggage car to the shops, for the baggage car had been withdrawn from commerce for repairs, and cannot be said to have been engaged in interstate commerce at the time of the injury. Cato was not a member of the crew handling the engine or cut of cars. He had no relation to any car except the baggage car that had been withdrawn from service for some time for the purpose of general repairs.

In the case of St. Louis, San Francisco, etc., Ry. Co. v.Seale, 229 U.S. 156, 33 S.Ct., 651, 653, 57 L.Ed., 1129, Ann. Cas., 1914-C, 156, the Court said: "The train for Oklahoma was not only an interstate train but was engaged in the movement of interstate freight; and the duty which the deceased was performing was connected with that movement, not indirectly or remotely, but directly and immediately."

The duty being performed by Cato was in no way connected with the transportation of the cars that backed into him. His duties related only to repairing the baggage car that had been withdrawn from commerce.

The case of Pedersen v. Railway Company, 229 U.S. 146,33 S.Ct., 648, 57 L.Ed., 1125, Ann. Cas., 1914-C, 153, is no authority, for as stated by the United States Supreme Court in Minneapolis St. Paul Ry. Co. v. Winters,supra: "This is not like the matter of repairs upon a road permanently devoted to commerce among the States."

A baggage car, as such, is not permanently devoted to any kind of traffic, and there is no testimony in the case to show that it was permanently devoted to interstate traffic. It was not interrupted while engaged in interstate commerce to be repaired, but was withdrawn from commerce to be repaired. Picked up in Columbia, abandoned on a side track without a waybill, and brought to the shop for repairs, no one to this day knows where it came from, what it had been doing, or by whose authority it was carried to Hayne.

In the case of Koennecke v. Railway Company, 101 S.C. 86,85 S.E., 374, and Howell v. Railway Company, 99 S.C. 417,83 S.E., 639, there was an issue of fact whether the State or Federal law was applicable.

The respondent was authorized by the decision of the Court in the first appeal to proceed to trial on both causes of action and to have both phases of liability submitted to the jury. This procedure was approved in Jenkins v. RailwayCompany, 152 S.C. 386, 150 S.E., 128, 66 A.L.R., 416.

The jury found its verdict upon the first cause of action, and found that respondent's intestate was engaged in intrastate work at the time of his injuries and death.

Pleader may allege liability of defendant under both State and Federal law, and may recover under whichever appears under the evidence to be applicable.Koennecke v. Railway Co., supra; Bankson v. Railway Co. (D.C.), 196 F., 171; Roberts, Federal Employers' Liability, 268, § 152; Railway Co. v. Hayes, 234 U.S. 86,34 S.Ct., 729, 58 L.Ed., 1226; Osborne v. Gray, 241 U.S. 19,36 S.Ct., 486, 60 L.Ed., 865; Roberts, Federal Employers'Liability, 119, 120, §§ 51-58; Railway Co. v. Lindsay,233 U.S. 44, 34 S.Ct., 581, 58 L.Ed., 838, Ann. Cas., 1914-C, 168.

Rules of evidence as to quantity of proof necessary to make out a prima facie case is that of the state where action is brought. Bennett v. Railway Co., 98 S.C. 42,79 S.E., 710 (affirmed in 233 U.S. 85,34 S. Ct., 566, 58 L.Ed., 860); Dutton v. Atlantic Coast LineRy. Co., 104 S.C. 16, 88 S.E., 263.

The presumption is that Cato was engaged in intrastate work at the time of his injuries and death, and this presumption follows throughout the case, and the facts must go to the jury. Trimmier v. Ry. Co., supra;Garner v. Telegraph Co., supra. Both phases of liability, under the law, should have been submitted to the jury. The jury found upon the first cause of action, and it is binding upon the Court.

The appellants set up in their answer that the car was engaged in interstate commerce, and it became their duty to prove that fact. When a car comes from one point in the state bound for another in the same state, the law presumes that it is engaged in intrastate commerce, and he who alleges the contrary must overcome this presumption by positive testimony.

There the evidence was that plaintiff was moving freight, but neither the origin nor destination of the freight was shown; the burden as to this question was on defendant, since it must be held to knowledge of the actual movement of freight committed to its care. Osborne v. Gray, 241 U.S. 16,36 S.Ct., 486, 60 L.Ed., 865; Myers v. Chicago, etc.,Ry. Co., 296 Mo., 239, 246 S.W. 257, certiorari denied,261 U.S. 624, 43 S.Ct., 519, 67 L.Ed., 832; Atchison,etc., Ry. Co. v. Industrial Commission, 290 Ill., 590,125 N.E., 380, certiorari denied, 252 U.S. 583, 40 S.Ct., 393,64 L.Ed., 728.

This case was said, in Philadelphia R.R. Co. v. Polk,supra, to be consistent with the rule there laid down. So in the instant case: "The railway company must be held to knowledge of the actual use the baggage car had been put to."

The railroad authorities knew, or should have known,exactly where this car came from and between whatpoints it was used, but did not offer sufficient competenttestimony tending to show the fact. The reason is apparent. They knew that it was a local car, and proved it sofar as they went.

Their witnesses swore that a record is kept in Columbia of these cars. It was not produced. Every disabled car on track No. 10 at Hayne yard was properly accounted for by waybills except the car upon which Cato was working. Only the conductor's notebook tells where it was picked up.

Did the presiding Judge err in not allowing parol testimony to vary the terms of the written contract between the Brotherhood of Railway Carmen of America and the Southern Railway Company et al., and in charging the jury that it was the duty of the railway company, and not that of respondent's intestate, to place the blue flag, as required by the agreement, and in refusing certain requests submitted by appellants relating thereto? Exceptions 1, 4, 5, 7, 8, 9, 10, 14, 15, 17, 18 and 19.

Our Court by its unanimous opinion and its refusal to grant a new trial upon practically the same grounds now complained of in the above exceptions, said:

"The appellants impute error on account of the Court's ruling as to the testimony and the instructions he gave. It is our opinion that the Judge was correct as to the holdings he made. It is undisputed that Cato was a member of the Brotherhood of Carmen at the time of his death. The agreement effective March 1, 1926, was made for his benefit, as well as for the benefit of all others affected by its terms, and that agreement was in force at the time of Cato's death. In the general rules set forth in the agreement, which applied to all the employees who are members of the crafts, who entered into the agreement, Rule 55 plainly said: `No employee will be required to work under a locomotive or car without being protected by proper signals.' Rule 158, contained in the `Special Rules as to Carmen,' is not inconsistent with Rule 55 of the general rules. On the contrary, the two rules are in absolute harmony. Rule 158 provides: `Trains or cars, while being inspected or worked on by train-yard men, will be protected by a blue flag by day and a blue light by night. * * *' The General Rule (55) is an agreement on the part of the railroad companies that they will protect an employee working under a locomotive or car by proper signals. Rule 158 only goes farther and states that the railroad companies will protect trains or cars, while being worked on by train-yard men, with certain kinds of signals, namely, a blue flag by day and a blue light by night. The old Blue Flag Rule, No. 26, contained in the book of rules of Southern Railway System, may apply, under certain circumstances, to certain employees of that railroad system. They did not apply, however, to the employees affected by the later agreement, effective March 1, 1926. The last agreement, effective March 1, 1926, by Rule 175, the miscellaneous rule, expressly provided that that agreement superseded and cancelled all previous agreements and understandings. And we think that it was clearly the intention of the parties to the agreement, effective March 1, 1926, so far as members of the crafts, who were parties to that agreement are concerned, to change the Blue Flag Rule. It is very significant to our minds that the language of the old rule, `Workmen will place the blue signals, and the same workmen are alone authorized to move them,' was left out of Rule 158 of the last agreement. Neither can we agree with the appellants that Cato was bound to observe the old `Blue Flag Rule' because of the statement made in his written application for employment. The agreement made by Cato in that paper was that he would obey the rules governing employees. Until the Blue Flag Rule was changed for the protection of carmen, it was Cato's duty to obey it. After the rule was changed, however, it was his duty not to obey a rule which had been revoked or modified, but to obey the new rule.

"We are unable to agree with the position which it appears that the appellants take in their argument, that the case ofOwens v. A.C.L. Co., 141 S.C. 359, 139 S.E., 779, conflicts with the rulings of the presiding Judge, now under consideration, as to the effect of the `Blue Flag Rule,' Rule 26 of the Southern Railway System. The injuries to, and the death of Owens, because of which the suit last mentioned was instituted, occurred on March 16, 1923, which was prior to the last agreement involved in this case, effective March 1, 1926. That agreement was not involved in the Owens case."

Appellants claim that Sections 55 and 158 were in effect in the same language in the working agreement effective December 27, 1921, as in the agreement effective March 1, 1926, and subsequent to the agreement of 1921, Rule No. 26 was reissued on August 1, 1923.

Rule No. 26 seems to have been first adopted November 15, 1899, and last adopted August 1, 1923. The agreement incorporating Paragraphs 55 and 158 was first adopted December 27, 1921. Then by this working agreement of date December 27, 1921, so far as members of the crafts who were parties to that agreement are concerned, Rule No. 26 was abolished, and even if it was readopted by the railway company in the face of that agreement on August 1, 1923, it was again abolished by the agreement of March 1, 1926, under which Cato was working at the time of his death. But Rule No. 26 was readopted to apply to everyone except those of the crafts mentioned in the agreement. Rule No. 26 is a valid rule today to all employees except those mentioned in the agreement.

Appellants complain that Rule 158 is ambiguous, and for this reason parol testimony should be received to explain its meaning. This question was decided against the appellants by the decision of the last appeal, where they raised the same question by their ninth exception, where they complained: "Because the Judge, in striking out and dismissing from the consideration of the jury the testimony of witnesses R.W. Watson and P.P. Manning, to the effect that it was the duty of O.C. Cato, under Paragraph 158 of the agreement, to place the blue flag signal required, etc." As to this exception, our Court said: "It is our opinion that the Judge was correct as to the holdings he made."

Our Court has already decided that Paragraphs 55 and 158 are not ambiguous, and that the presiding Judge in the first appeal was correct in holding that testimony should not have been permitted to prove whose duty it was to place the blue flag, because these two paragraphs plainly place that duty upon the railway company.

Did the presiding Judge err in holding that while the railway company, under the said agreement, could not delegate to another the duty of posting the blue flag, it could not delegate such duty to deceased, O.C. Cato? Exceptions 6 and 23.

The agreement would have been futile and useless if the law would permit the railway company to disregard it by delegating the very man who was to be protected to perform the duty which he was to be relieved of by the adoption of the agreement. The agreement was made for the purpose offurnishing protection to the car repairmen while working on or underneath cars, not merely for the railway company to pass a rule to say to the repairman that he must protect himself. The agreement provided that the railway company was to protect the repairmen. And if the railway company had delegated the duty to the repairman himself, the contract would have been violated and nullified. Sturdyvin v. RailwayCompany, 98 S.C. 125, 82 S.E., 275, 277.

Did the presiding Judge err in refusing appellants' twenty-first and twenty-second requests to charge to the effect that under the evidence as to custom and practice it was for the jury to say whether it was incumbent on the deceased to place the blue flag? Exceptions 16, 20, 21, and 22.

The testimony produced by the appellants as to custom and practice in regard to the placing of the blue flag was objected to by the respondent. In our opinion, the testimony was incompetent because evidence of custom and usage is not permissible to explain or vary the terms of an express contract, whether written or verbal, unambiguous in its terms. Coates v. Early, 46 S.C. 220,24 S.E., 305; Fairly v. Wappoo Mills, 44 S.C. 227, 22 S.E., 108, 29 L.R.A., 215; Alexas v. Post Flagg, 129 S.C. 53,123 S.E., 769, 35 A.L.R., 969; Martin v. Telegraph Co.,81 S.C. 432, 62 S.E., 833; Thomas v. Graves, 1 Mill, Const., 308; Patton v. Magrath, Dud., 159, 31 Am. Dec., 552; Hayward v. Middleton, 3 McCord, 121, 15 Am. Dec., 615.

In the case of Paster v. Pennsylvania Railway (C.C.A.),43 F.2d 908, cited by appellants, the Court was construing a rule of the company and not a contract. All the cases cited by appellants on this point apply to rules of the company, and not to contracts made with the employees for their protection.

This case is authority for respondent and not for appellants in this case. The Court did not consider the blue flag rule for the reason as stated: The signals were not available and the job was an emergency one. "The rule provides for that possibility and the real question is as to the words `protection must be given to those engaged in making repairs.'" The Court allowed the practice of the company and its employees to be proved as to what instruments were employed to gain such protection, the rule not being specific in that particular. In the instant case, the rule is specific and the instrumentalities are named, to wit, a blue flag by day and a blue light by night.

It is admitted by all the witnesses for appellants that no such protection was given; on the contrary, that the general rule required the workmen to place the flags and not the company.

The appellants undertook to show that the foreman of the yard had instructed his men that it was their duty to place these signals under penalty, as the workmen testified, of losing their lives or being discharged from the service, the foreman swearing, `losing their lives or being severely reprimanded," thus making this attempt fall squarely under the rule laid down by this Court in Sturdyvin v. Railway Company,supra. This Court observed: "Doing the work in the customary way was a condition of remaining in the service. Under such circumstances, the existence of the rule suggests the possibility of its having been made and promulgated for purposes other than the real desire to safeguard the defendant's employees. Under such circumstances, a rule should not be an effective shield from liability." Citing Bussey v. RailwayCompany, 78 S.C. 356, 58 S.E., 1015.

We do not find any reversible error in the trial below complained of in the exceptions of the appellants.

While we have read with interest the views expressed in the dissenting opinion, we are not moved by them to alter the conclusions reached by us heretofore. Perhaps, however, they require some notice. It might appear more systematic and orderly to revise our opinion on account of the dissenting opinion, but, for the reasons here given, we shall undertake a review of it in this easier, but more lengthy, way. The intestate, Cato, was killed on November 6, 1926. This case, brought by the administratrix of his estate, was not heard in the Court of Common Pleas for Spartanburg County until May, 1928. The appeal from the judgment in favor of the administratrix was not heard in this Court until the October, 1929, term. On account of its importance, the case received much attention from all the members of the Court, and our decision was not handed down until March 15, 1930, 155 S.C. 304, 152 S.E., 522. The second trial in the lower Court was had at the May, 1930, term. A second judgment in favor of the administratrix-respondent was recovered, and the railroad companies appealed therefrom to this Court. We heard the appeal at the January, 1931, term. It will be seen, therefore, that it has been four and one-half years since Cato was killed while in the employ of the appellants. It is not our wish to delay this decision longer than it is absolutely necessary, and, in order to prevent as much delay as possible, we notice in this manner the proposed holdings of the dissenting opinion.

It is proposed in the dissenting opinion that we hold that the motion of the appellants for a directed verdict in their favor should have been granted, and that the case be reversed and remanded to the lower Court for the entry of a judgment in their favor. This in face of the former unanimous holding of this Court "that the evidence was entirely sufficient to require a submission of the issues to the jury for determination as to the first cause of action. (That cause of action was brought under the provisions of the statutes of this State — not under the Federal Employers' Liability Act.)" The judgment proposed in the dissenting opinion is in direct opposition to the former unanimous judgment of this Court, which was expressed in this language: "It is the judgment of this Court that the judgment below be, and the same is hereby, reversed, and the cause remanded to the Court of Common Pleas of Spartanburg County for a new trial as to the first cause of action, with the right to the respondent to set up again the second cause of action and proceed to trial thereon, if she shall be so advised."

To sustain the general conclusion proposed in the dissenting opinion, these positions, in brief, are taken: (1) That the holding in the former opinion "that certain paragraphs of the agreement between the Railroad Company and the Brotherhood of Railway Carmen, imposed upon the Railroad Company the duty of protecting the car upon which the intestate was at work, by the placing of a blue flag" should not now be regarded as the law of the case and accepted at this time without question; (2) that the judgment rendered by this Court upon the former appeal was not a final judgment; it was in the nature of an interlocutory judgment, reversing the judgment of the Circuit Court and remanding the case to that Court for a new trial; and (3) that this Court "went out of its way to hold that the agreement of 1926, by Paragraphs 55, 158 and 175, superseded Rule 26 of the Railway Company, relating to protection by blue flag."

In discussing "the principle, or policy rather, of what is known as the law of the case," we shall not go to the trouble to review the numerous decisions of Courts of jurisdictions other than our own, quoted from in the dissenting opinion. The law on this subject is well settled by the decisions of our own Court, to a few of which, including the two mentioned in the dissenting opinion, we shall refer.

We accept, as properly declaring the principles ofres adjudicata or "the law of the case," the declarations of Mr. Justice McGowan for this Court inWarren v. Raymond, 17 S.C. 163, quoted in the dissenting opinion, but we suggest that the first sentence of the paragraph from which the quotation came should appear along with the other parts of the quotation. That sentence was this: "The first general question is as to what was decided by the former judgment, for we cannot reconsider what wasthere decided." (Emphasis added.) We hope to follow, as we think we have already done, the very clear and concise statement of Mr. Justice McGowan, that we cannot here reconsider what we decided in the first appeal.

The case of Dwyer v. Metropolitan Life Insurance Co.,139 S.C. 377, 137 S.E., 347, cited in the dissenting opinion, sustains our view of the law of the case, and follows the decision in Warren v. Raymond. In the Dwyer case, this Court, with Mr. Justice Cothran writing the opinion, reviewed the decision of the Court in the second appeal in that case (135 S.C. 303, 133 S.E., 547), also written by him. In that second appeal, Mr. Justice Cothran undertook to lay down a certain formula for the calculation of the amount due the insured on certain benefits under an insurance policy. The Circuit Court followed that formula. In the third appeal (139 S.C. 377, 137 S.E., 347, 348), the question of the correctness of the formula came up. It appeared, and the Court conceded in its opinion, that the first formula of Mr. Justice Cothran was incorrect. The respondent, the insured, insisted, however, that it had to be recognized and followed. In disposing of that question, Mr. Justice Cothran said this: "The respondent takes the position that the conclusions of the Court in reference to the formula adopted is res adjudicata, and cannot now be inquired into. As to this position the Court is of opinion that the statement in the former opinion setting forth the formula above referred to was not involved in the case, and must therefore be considered obiter dictum."

Attention was also called in the opinion to the fact that in the second appeal "the sole question for determination was the propriety of the proposed amendment submitted by the plaintiff." It is to be noted, therefore, that the Dwyer case, depended upon in the dissenting opinion as to the question ofres judicata, decided positively two things: (1) That the sole question in the former opinion was one as to an amendment; and (2) that the formula was obiter dictum.

In that same Dwyer case, we find something else as to the law of the case. In the first trial of the case, the plaintiff had a judgment against the insurance company, and the company appealed, and the case was sent back for a new trial. After the case was remanded to the lower Court, the plaintiff sought to amend her complaint, and when her motion therefor was refused she appealed to this Court. One of the same questions involved in the first appeal (132 S.C. 10,129 S.E., 84), came up again in the second appeal (135 S.C. 303,133 S.E., 547, 548). Speaking for this Court, Mr. Justice Cothran there said: "Whether intentionally or not, and whether correctly or not, the effect of this holding is to eliminate the defense of the company that, after the expiration of the period for the exercise of the options provided, the insured had accepted $34.54 in full settlement of the cash surrender value of the policy and had surrendered it for cancellation; and to confine the defendant to its rights and subject it to the obligations under the second option, which were to the insured a reduced amount of nonparticipating paid-up insurance. It means that, after the time for the exercise of the options had expired, the second option automatically went into effect, and the insured and the company had no right by agreement to change that situation. Whether the beneficiary had such rights in the lapsed policy as to demand this construction is not now open to question; it has become the law of the case."

It is to be observed that, in the decision of the Dwyer case last referred to, although there was some little intimation that the former decision of the Court had been wrong and may have deprived the insured of her legal rights, yet it was held that the former decision was the law of the case, intentionallyor not, and correctly or not. It is to be observed also in that case, where there had been a remand to the lower Court and direction for a new trial, at the instance of the insurance company, and where the former decision was absolutely decided to be the law of the case, not a single thing was said to indicate that this Court, or the writer of its opinion, regarded the judgment rendered on the first appeal as anything else except a final judgment, and there was not the slightest suggestion that the judgment rendered was "in the nature of an interlocutory judgment."

In Richardson v. N.W. Railroad Company, 131 S.C. 57,126 S.E., 397, 399, this Court, speaking through the late Mr. Justice Fraser, whose declaration was concurred in by Justices Watts and Cothran, said this: "When a new trial is ordered, the opinions of the appellate Court declare the lawthat governs the case." (Emphasis added.) Not a thing was said in that opinion as to the former judgment of the Court being only an interlocutory judgment.

In Sandel v. State, 140 S.C. 51, 133 S.E., 709, this Court, in very short order, disposed of an appeal, and there Mr. Justice Cothran said: "The exceptions raise only questions which have already been raised, considered, and decided by the Court en banc, and are res adjudicata." Although the judgment of the lower Court had been reversed on the former appeal (126 S.C. 1, 119 S.E., 776), and the case had been remanded for a new trial, not a thing was said in the last opinion of the Court about the former judgment being only an interlocutory judgment.

In Cayce Land Company v. Guignard et al., 140 S.C. 497,139 S.E., 145, with Mr. Justice Cothran speaking for a unanimous Court, we held that the opinion on the former appeal in the case was conclusive, after remand for further proceedings not inconsistent with the conclusions reached in the first opinion.

The most important of all our cases touching "the law of the case" is the recent one of Jenkins v. Southern Railwayet al., 145 S.C. 161, 143 S.E., 13, 14. It is important not only for the reason that it is a very recent decision, but for the further and more important fact that it went into only one question, the law of the case; so, having not discussed anything except that one question, it cannot be contended, with any degree of correctness, that anything said therein was obiter. The history of the case, for the purposes here necessary, briefly stated, is as follows: Jenkins sued the Southern Railway Company and an agent of that company for an alleged slander. The action in the Circuit Court resulted in a judgment in favor of the plaintiff for punitive damages against the agent for $150.00 and against the railway company for $2,000.00. Both defendants appealed to this Court, where the judgment below was reversed, and the case remanded to the lower Court for a new trial. 130 S.C. 180,125 S.E., 912. The ground of the reversal was that punitive damages could not be apportioned, as had been done in the jury's verdict. The case remained on the docket of the Court of Common Pleas of Barnwell County without having been again tried. Meanwhile, in the case of Johnsonv. Railroad Company et al., 142 S.C. 125, 140 S.E., 443, this Court expressly overruled the holding mentioned in theJenkins case, and held that punitive damages in such cases could be apportioned. The plaintiff in the Jenkins case, looking forward to another trial of his cause and realizing that when he went back into Circuit Court in that trial he would be tied down by the former decision of this Court in his case by "the law of the case," came back to this Court seeking the relief he felt himself entitled to have. He asked this Court to declare that he was not bound by the former decision of this case, because this Court had in the meantime held that its former decision was wrong. In a very able opinion, this Court, with Justice Cothran speaking for it, decided against the contention of Jenkins. In the opinion, the following language from 2 R.C.L., 223, was quoted with approval: "It may be stated generally, that a Court of review is precluded from agitating questions which were propounded, considered, and decided in a previous review; the decisions agree that, as a general rule, when an appellate Court passes upon a question and remands the cause for further proceedings, the question then settled becomes the `law of the case' upon a subsequent appeal, and the only mode of reviewing the decision in the prior appeal is by a motion for a rehearing."

Using his own words, Mr. Justice Cothran, for this Court, said: "The decision of the Court upon the appeal referredto is not only res adjudicata as between the parties, but isthe `law of the case,' right or wrong." (Emphasis added.)

Not a thing was said in the opinion about the former judgment being of an interlocutory nature. Jenkins, in his suit against the railroad company, was bound by law, decided on the railroad company's first appeal against the interest of Jenkins, although this Court had afterwards expressly declaredthat law to be bad.

To sustain the conclusion reached by Mr. Justice Cothran and concurred in by all the members of the Court who participated therein, there were cited the following South Carolina cases: Jones v. Railway Co., 65 S.C. 410,43 S.E., 884; Forrest v. McBee, 78 S.C. 105, 58 S.E., 955; Brownv. Telegraph Co., 92 S.C. 354, 75 S.E., 542; Halsnall v. Railroad Co., 100 S.C. 483, 85 S.E., 433; and Earle v.City, 84 S.C. 193, 65 S.E., 1050. We are still of the opinion that all those cases did sustain the conclusion reached in the Jenkins case. Since not one of them is referred to in the dissenting opinion, we deem it unnecessary to enter into a discussion of what their holdings were.

We cannot agree that this Court, or any one of its five members who participated in the decision, went out of theway to hold that the agreement of 1926 superseded Rule 26 of the railway company, relating to protection by the blue flag, which statement is so strongly announced in the dissenting opinion. Under the Constitution of this State (Art. 5, § 8), it is the duty of this Court, when a judgment or decree is reversed or affirmed by it, to consider and decide "every point made and distinctly stated in the cause and fairly arising upon the record of the case." When this Court endeavored faithfully to pass upon and to decide every point made and distinctly stated by the appellants in their first appeal, we hardly see how it can be fairly said by any one that the Court "went out of its way."

In the very excellent brief of appellants' counsel on the first appeal, in setting forth, as required by the rule of the Court, the questions involved in the appeal, they listed the fifth and sixth questions as follows:

"5. Should appellants have been allowed to prove whose duty it was to place the blue flag signals, required at the end of the car, before going to work thereunder?

"6. Did the Presiding Judge err in charging the jury that it was the duty of the railway company and not that of plaintiff's intestate to place the blue flag as required by Paragraph 158 and Rule 26, and in refusing defendants' requests relating thereto?"

Question No. 5 was based, as the counsel stated, on their Exception 9, which was as follows:

"Because the Presiding Judge erred in striking out and dismissing from the consideration of the jury the testimony of the witnesses, R.W. Watson and P.P. Manning, to the effect that it was the duty of O.C. Cato, under Paragraph 158 of Exhibit `A,' to place the blue flag signals required at the end of the car before going to work thereunder; the error being that said testimony was competent and relevant to the issues as raised by the pleadings in this case."

The sixth question, according to the argument of counsel for the appellants, was based on Exceptions 13, 14, 15, 17, and 18. It is not necessary to quote all these exceptions; the 13th discloses the gist of all of them.

"Because the Presiding Judge erred in charging the jury that under Paragraph 158 of agreement marked Exhibit `A,' it was the duty of the railway company to protect the deceased, O.C. Cato, by placing a blue flag at the end of the baggage car before sending him to work thereunder; the error being that this was not the duty of the railway company, but the duty of O.C. Cato himself."

It is true this Court did not, in its opinion on the first appeal, specifically refer to these exceptions by number. In referring to the numerous exceptions made by the appellants, there being nineteen, we called attention to the fact that they raised questions relating to "the refusal to admit certain testimony offered by them (the appellants), the failure to grant their motions for a nonsuit and a directed verdict, the refusal to grant certain of their requests to charge and certain instructions given in the charge." We unanimously said: "We shall not undertake to treat these exceptions separately, but we will cover all of them generally."

In discussing the questions raised, we quoted in full every one of the rules referred to in the dissenting opinion as follows:

"Rule 55 of the General Rules is as follows:

"`Employees required to work under locomotives and cars:

"`No employee will be required to work under a locomotive or car without being protected by proper signals. Where the nature of the work to be done requires it, locomotives or cars will be placed over a pit, if available.'

"158. Trains or cars while being inspected or worked on by train-yard men will be protected by a blue flag by day and blue light by night, which will not be removed except by men who place them."

175. "Except as provided for under the special rules of each craft the general rules shall govern in all cases.

"This agreement supersedes and cancels all previous agreements and understandings and constitutes the sole agreement between the company and the employees affected."

In our opinion, we quoted from the charge of the trial Judge as follows: "I charge you as to that section, Mr. Foreman, that the railroad company, under this head of `Protection for Repairmen,' by that provision agreed that trains or cars while being inspected or worked on by train-yard men will be protected by blue flag by day and blue light by night; and that under this provision it became the duty of the railroad company to see that such protection was afforded by the paragraph."

Discussing the quoted rules, the charge of the Judge, his rulings as to testimony, and the exceptions of the appellants thereabout, we said this: "The old Blue Flag Rule, No. 26, contained in the book of rules of Southern Railway system, may apply, under certain circumstances, to certain employees of that railroad system. They did not apply, however, to the employees affected by the later agreement, effective March 1, 1926. The last agreement, effective March 1, 1926, by Rule 175, the miscellaneous rule, expressly provided that that agreement superseded and canceled all previous agreements and understandings. And we think that it was clearly the intention of the parties to the agreement, effective March 1, 1926, so far as members of the crafts, who were parties to that agreement are concerned, to change the Blue Flag Rule. It is very significant to our minds that the language of the old rule, `Workmen will place the blue signals and the same workmen are alone authorized to move them,' was left out of Rule 158 of the last agreement. Neither can we agree with the appellants that Cato was bound to observe the old `Blue Flag Rule' because of the statement made in his written application for employment. The agreement made by Cato in that paper was that he would obey the rules governing employees. Until the Blue Flag Rule was changed for the protection of carmen, it was Cato's duty to obey it. After the rule was changed, however, it was his duty not to obey a rule which had been revoked or modified, but to obey the new rule."

After the opinion of this Court on the first appeal was handed down, counsel for appellants, railroad companies, filed a petition for rehearing. The first ground on which the rehearing was asked was that in affirming the charge of the presiding Judge, which we quoted above, this Court overlooked the testimony of certain witnesses in the case. The second ground was that our holding to the effect that the agreement, effective March 1, 1926, so far as members of the crafts who were parties to that agreement were concerned, changed the blue flag rule was erroneous; that the Court had misapprehended the meaning of Paragraphs 55, 158, and 175 of that agreement, and as a result of our holding we had "deprived appellants of any defense to this action."

The grounds stated in the petition for rehearing show that appellants' counsel were fully aware that our holdings as to the blue flag rule were properly involved in the appeal, and that our holdings thereabout had become, and on the second trial of the case would be, "the law of the case." That petition for rehearing, without any comment on the part of the Court, or any member of it, was unanimously dismissed.

The language of Mr. Justice McGowan in Warren v. Raymond,supra, emphasized so strongly in the dissenting opinion, is this: "The principle is that the decision of a Court ofcompetent jurisdiction upon a point which was considered or should have been considered as necessarily involved, isfinal and conclusive." Measured by the standard there laid down, the former decision of this Court as to the effect of the later agreement on the Blue Flag Rule was final and conclusive. This Court was one of competent jurisdiction to pass upon the point raised by the appellants in their appeal. The Court did consider that question, and it was necessarilyinvolved in the appeal — the appellants made the necessity. The case of Jenkins v. Southern Railway Co., 145 S.C. 161,143 S.E., 13, from which we have heretofore quoted, is absolutely in line with the decision in Warren v. Raymond,supra. There is only one distinction, too, to be noted between that case and the case at bar. That distinction is this: In theJenkins case the law of the case was favorable to the Railroad Company, while in this case the law of the case is against the Railroad Company. This Court, of course, as "administrators of the law," have a "passion for the justice and righteousness of a pending issue." And if we have heretofore committed error against the Railroad Companies, and our "technical rule" has the effect "to deprive one of its property," we are, of course, regretful: but, as Mr. Justice Cothran said in the Jenkins case, where our judgment was favorable to the Railroad Company, "The decision of theCourt upon the appeal referred to is not only res adjudicataas between the parties, but is the `law of the case,' right orwrong."

We do not concede, however, that our former opinion was erroneous. We still think it was right. The railroad companies made the agreement with the crafts; they had the agreement printed and distributed among the employees working for them. If the intention was not to change the blue flag rule, so far as the members of the crafts were concerned, the railroad companies were responsible for the unfortunate manner in which they allowed the matter to be handled.

"When this Court directed `that the case be remanded * * * for a new trial,' and the remittitur went down, this Court lost jurisdiction in the case, and it stood for a new trial in the Circuit Court between the plaintiffs and the railway company. Whatever error may have been committed by this Court, if any was committed * * * could not be corrected. Carpenter v. Lewis, 65 S.C. 400,43 S.E., 881; Forrest v. McBee, 78 S.C. 105, 58 S.E., 955." Durstv. Southern Railway Co., 161 S.C. 498, 159 S.E., 844,849, filed April 14th, 1931.

This Court on the first appeal unanimously laid down the law to govern the case on the second trial. The Circuit Judge there, in making his rulings, could do naught else than follow the plain declarations of this Court as to the law involved in the cause. The attorneys in the case were bound to follow what we had said was the law, and counsel for the appellants so conceded on their petition for rehearing. It would now be unfair to the trial Judge and the lawyers, and more than all, it would be unfair to Cato's widow and children, for this Court, after having put them to the suspense and anxiety of another trial in the Court of Common Pleas, to say to them that we should have thrown you out of Court on the first trial, and because we committed an error at that time you now have no standing in this Court. The policy of the law of the case has been invoked through many, many years just to prevent appellate Courts from allowing such occurrences to happen.

It is vigorously asserted in the dissenting opinion that allthe evidence showed without doubt that Cato knew that it was his duty to place the blue flag before he went to his honest work under the baggage car, engaged in intrastate commerce. Some of the testimony has been overlooked. Mr. C.M. Senn, a witness in the case and an employee of the railroad companies, one of the first men to reach Cato after he had been injured and mangled, testified he heard the dying man say to the foreman, who had come to the place of the accident, "Why did you send me out here where therewas no protection?" The words of the dying Cato show more strongly than any other evidence in the whole case that Cato not only thought and believed, but that he knew that it was the duty of the railroad company to protect his life and limb while he was under that baggage car by placing the blue flags at the ends of the car.

In our first decision, passing upon the numerous exceptions of the appellant for failure of the trial Judge to grant their motions for a nonsuit and directed verdict, and with especial regard to those motions as to the first cause of action brought under the State law (not under the Federal Employers' Liability Act), we unanimously said: "If therewas any evidence at all to show that the deceased, Cato, wasengaged in interstate commerce at the time he received hisinjuries, that resulted in his death, it was certainly scant."The baggage car, not fit for use and not shown to have recentlybeen in any kind of use, was found at a point withinthe State of South Carolina. It was carried from that pointto another point within the State of South Carolina; on itsjourney between these two points, it was at no moment withoutthe limits of the State of South Carolina; completing itsjourney, it was left at a point in South Carolina for repairs,and within the State of South Carolina, while it was beingrepaired, Cato, one of the men repairing it, was killed. The first jury who tried the case said that Cato was engaged in intrastate commerce. The presiding Judge at that time approved that finding. The jury who last heard the case said that Cato was engaged in intrastate commerce. The Circuit Judge there presiding approved that finding. Two juries and two presiding Judges have approved the first declaration of this Court. An examination of the record convinces us more than ever, that our former declaration and the findings of the jury, approved by the Circuit Judges, that the evidenceattempting to show that the baggage car was engaged in interstatecommerce was scant, was correct.

The judgment of this Court is that the judgment of the Court of Common Pleas of Spartanburg County be, and the same is hereby, affirmed.

MR. JUSTICE STABLER and MR. ACTING ASSOCIATE JUSTICE COSGROVE concur.

MR. JUSTICE CARTER concurs in result.