Logan v. Atlanta & Charlotte Air Line R. R.

64 S.E. 515, 82 S.C. 518, 1909 S.C. LEXIS 83

• Court: Supreme Court of South Carolina
• Decided: May 8, 1909
• Docket: 7187
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice Jones.

This action was instituted in Greenville county December 5, 1906, to recover of the lessor, Atlanta & Charlotte Air Line Railway Company, damages for personal injuries sustained by plaintiff at Spartanburg, S. C., April 17, 1902, while acting as yard master of the lessee, Southern Railway Company, as the result of the alleged negligence of the employees of the Southern Railway Company. Plaintiff recovered judgment for $3,488.

1 Both in request to charge and on the motion for a new trial, defendant-appellant raised the question that defendant company as lessor is not liable to a servant of the lessee for injuries received by him through the negligence of the lessee. In the case of Reed v. Railway, 75 S. C., 168, 55 S. E., 218, this Court has expressly decided the question against appellant’s contention and we are satisfied with the decision.

2 It appears that in July, 1903, plaintiff brought an action in Spartanburg county against the Southern Railway Company to recover damages for the same injury, which cause was removed to the Federal Circuit Court and was there tried resulting in a verdict for the plaintiff, from which an appeal was taken to the Circuit Court of Appeals, whereupon that Court reversed the judgment and remanded the case for a new trial de novo in accordance with the opinion of the Court, 138 Fed. Rep., 725.

The defendant requested the Court to instruct the jury that plaintiff is concluded and bound by all questions of fact and law decided by the Circuit Court of appeals in the judgment referred to which would have bound him in a second trial in the United States Court. The refusal of the Court to give this instruction is vindicated by the opinion of Judge Hydrick, herewith reported, refusing the motion for a new trial based upon that ground. The parties are not the same and the judgment of the Federal Court granting a new trial is not final.

The defendant’s plea that the pendency of the said action in the Federal Court is a bar to the present action was properly overruled, under the authority of Mayfield v. Atlanta & Charlotte Air Line Ry. Co., 79 S. C., 558, 61 S. E., 106.

The exceptions that there was no testimony tending to show negligence of defendant, that the testimony shows conclusively that plaintiff assumed the risk of injury, that the testimony shows conclusively that plaintiff was guilty of contributory negligence, can not be sustained, there being some testimony sufficient to carry the case to the jury upon these issues.

The judgment of the 'Circuit Court is affirmed.