Powe v. A.C.L.R. R. Co.

159 S.E. 473, 161 S.C. 122, 1930 S.C. LEXIS 139

• Court: Supreme Court of South Carolina
• Decided: September 30, 1930
• Docket: 12975
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Acting Associate Justice C. T. Graydon.

This action was commenced in the Court of Common Pleas for Charleston County on the 30th day of May, 1924. The action was originally in the name of C. M. Tyner as administrator of the estate of George A. Marshall, as plaintiff, against the defendant Atlantic Coast Line Railroad Company. The case has been twice tried, and after the first trial C. M. Tyner died, and by an order dated 19th of September, 1929, J. E. Powe was appointed administrator of the estate of George A. Marshall and as such administrator was substituted as plaintiff.

The action was one admittedly under the Federal Employers’ Liability Act and the amendments thereto (45 U. S. C. A., §§ 51-59).

The case was first tried on October 10, 1925, and resulted in a verdict in favor of the plaintiff for the sum of $28,800.-00. An appeal was taken to the South Carolina Supreme Court, which affirmed the decision of the lower Court. Tyner, Administrator, v. A. C. L. R. Co., 149 S. C., 89, 146 S. E., 663. The defendant carried the case on a writ of certiorari to the United States Supreme Court and the same was reversed and remanded for a new trial. Atlantic C. L. R. Co. v. Tyner, 278 U. S., 565, 49 S. Ct., 35, 73 L. Ed., 508. The case was again tried at Charleston in October, 1929, before Judge Rice and a jury and resulted in a verdict in favor of the plaintiff for the sum of $30,000.00.

A full statement of the pleadings and facts developed on the first trial of the case can be found in Tyner, Administrator, v. A. C. L. R. Co., supra, and only a brief statement will here be made with such facts as were developed on the second trial of the cause which were not developed on the first trial. George A. Marshall was employed as a switchman by the defendant railroad company, and on January 6, 1923, was killed while in such employment. He left surviving him a widow and three small children for whose benefit the action was brought under the Federal Employers’ Liability Act (45 U. S. C. A., §§ 51-59).

The first two paragraphs of the complaint cover the formal allegations as to the appointment of the administrator and for the benefit of whom the action was brought. The third paragraph of the complaint alleges the incorporation of the defendant; that at the time the defendant was engaged in interstate commerce and that the said George A. Marshall, while employed by said railroad corporation and while engaged in the duties incident to and growing out of his employment, met with an accident on or about the 5th day of January, 1923, and was so badly injured as to cause his death. The fourth allegation of the complaint alleges that the action was brought under the provisions of the Federal Employers’ Liability Act. The fifth and sixth allegations of the complaint' were as follows :

“Fifth: On information and belief, that on said 6th day of January, 1923, said deceased, George A. Marshall, was engaged in the performance of his duties as a switchman attached to an engine and train of cars moving over defendant’s main line of tracks at or near the City of Charleston, State aforesaid, and in the direction of said city; that it was dark and foggy, the time being about three o’clock in the morning; that while proceeding as aforesaid at or about Five Mile Crossing, near said city the said engine and train of cars were caused to be stopped by reason of trouble with the brakes on some of said cars, and that the said George A. Marshall in the course of his duty and employment got down to the ground to examine into and correct said trouble; that at or near the point where said engine and train of cars had stopped as aforesaid, defendant herein, Atlantic Coast Line Railroad Company, its agents and servants, in violation of its duty to furnish for the use of the said George A. Marshall a reasonably safe roadbed and track free from obstructions which might be placed on the side of the track, and to place and maintain signal devices at a reasonably safe distance from the track, so as not to extend over towards the track in such close proximity as to endanger the lives of its employees who might be running or operating its trains by said signal devices, had placed and maintained a signal device or obstruction too close to the track, and in such close proximity to the track as to leave an insufficient space intervening betwe'en it and the side of the train, and so close as to interfere with the proper operation of defendant’s trains and the proper performance of their duties by its employees thereabout, so that upon said train proceeding forward, and while the said George A. Marshall was mounting the ladder of one of the cars attached or while he was examining the defective car as aforesaid, the defects in which were due to the negligence of the defendant herein, thereby necessitating that said decedent examine the same, and while thus engaged in the duties incident to his employment, he was struck by said signal device or obstruction and thrown from his train and so badly injured as to capse his death soon thereafter.

“Sixth: That the injuries and death of the said George A. Marshall were caused by the negligence, carelessness, recklessness, wilfulness and wantonness of said defendant, Atlantic Coast Line Railroad Company, its agents and servants,, as aforesaid, and in the following particulars, to wit:

“(a) In failing and omitting to furnish the said decedent a reasonably safe place to work.

“(b) In failing and omitting to furnish a reasonably safe roadbed and track free from obstructions.

“(c) In failing and omitting to place and maintain said signal device at a reasonably safe distance from the track.

“(d) In causing and allowing said signal device or obstructions to be placed and maintained too close to the track.

“(e) In causing and allowing said signal device or obstructions to be placed and maintained in such close proximity to the track as to leave «insufficient space between it and the side of a train within which employees might safely perform the duties incident to their employment, and the proper operating of defendant’s trains.

“(f) In causing and allowing said signal device or obstruction to be at the point, place and position the same was maintained.

“(g) In failing and omitting to notify or warn said decedent of the close proximity of said signal device or obstructions to the side of the train.

“(h) In causing and allowing a defective and bad outer box car to be attached to and form a part of the train and to be transported by the engine to which decedent was attached.

“(i) In causing and allowing said engine and train of cars to be run at a high and dangerous and excessive rate of speed within the yard limits and block system of defendant and in violation of its rules and regulations governing the same.”

The seventh allegation was that George A. Marshall left him surviving his wife and three minor children who depended upon him for support and maintenance; that he was earning $180 per month and was a young man of twenty-five years, strong, healthy and able-bodied; and that his death resulted in great pecuniary loss to said wife and children.

The eighth paragraph demands judgment in the sum of $50,000.00.

As the answer of the defendant is involved in the consideration of the exceptions made by the defendant, it is here given in full:

“First: It admits the allegations of the first, third and fourth paragraphs, and so much of the second paragraph as alleges that the said decedent, George A. Marshall, on the 6th day of January, 1923, and for some time prior thereto. was employed by the defendant railroad company in the capacity of switchman.

“Second: It denies each and every other allegation in said complaint not hereinabove or hereinafter specifically admitted.

“Third: Further answering said complaint and with specific reference to the subdivisions a, b, c, d, e, f, and g in paragraph sixth of the complaint, and the other allegations in the complaint referring to the semaphore hereinafter mentioned, the defendant alleges that heretofore, to wit, on or about the 24th day of May, 1916, the Railroad Commission of South Carolina in Circular No. 211, amending Circular No. 208 with regard to clearance, unanimously adopted the following resolution:

“ ‘Taking into consideration not only the safety of the general public and employees of the railroad, but for the further consideration that it is absolutely necessary for all railroad employees to give and receive signals:

“ ‘Be it resolved that no building, or platform, or other obstruction be allowed erected or maintained nearer than four feet of the outer edge of the nearest rail of the main or side track of any railroad in the State of South Carolina. This limit of clearance shall not apply to bridges already constructed, or to passenger station landings.’

“A copy of which was served upon the defendant by said Railroad Commission; also, that on or about October 11th, 1916, the Railroad Commission of South Carolina in Circular No. 216 with regard to clearances, adopted the following resolution:

“ ‘Taking into consideration not only the safety of the general public and employees of the railroad, but for the further consideration that it is absolutely necessary for all railroad employees to give and receive signals;

“ ‘Be it resolved that no building, or platform, or other structure about station grounds be allowed erected or maintained nearer than four feet from the outside edge of the main or side track of any railroad in the State of South Carolina, measurement being made at rail top level; and furthermore, that no obstruction be allowed erected or maintained at any point other than station grounds nearer than four feet from the outer edge of the main or side track rail of any railroad in the State of South Carolina, measurement being made four feet above the top of the rail.

“ ‘This limit of clearances shall not apply to bridges already constructed, or to passenger landings.’

“A copy of which'was also served upon this defendant by the said Railroad Commission.

“Fourth: That this defendant complied with the terms of the said resolution in the erection of the semaphore mentioned in the complaint, the same being at a greater distance than four feet from the outer edge of the nearest rail of the track at the point as so required. •

“Fifth: Further answering said complaint and for a further defense to the said action, on information and belief the defendant alleges that the injuries and death of the said George A. Marshall were due to and caused by one of the risks of his employment assumed in wdrking for the defendant, that is to say, the risk of riding on the side of a freight car and of passing various obstructions such as signal devices, semaphores and the like, whose presence was known to him and the dangers of which were obvious and so assumed by him.

“Sixth: Subject to defendant’s motion to strike out certain allegations of the complaint with reference to defects in certain of the freight cars on the said train mentioned in said complaint, and subject further to its motion to make said allegations more definite and certain, in various particulars, and saving and reserving all its rights under said motions, and further answering said complaint and for a further defense to said action, on information and belief, the defendant alleges that the injuries and death of the said George A. Marshall were due to and caused by one of the risks of his employment, assumed in working for the defendant, that is to say, the risk of the work of a switchman about cars, with defects arising in the ordinary operation of the cars the occurring of such defects in such operation being reasonably in the contemplation of the parties when the deceased undertook to work for the defendant, and said defects in this case being obvious and actually known to the deceased and ordinarily incident to his employment.

“Seventh: Further answering said complaint, and for a further defense to said action, this defendant alleges that the injuries and death of the deceased were due to and caused by the negligence of the said deceased contributing and combining and concurring with the alleged negligence of the defendant and constituting a proximate cause thereof, without which the same would not have happened, in the following particulars, to wit:

“(a) In not going directly to the roof of the freight car on which he was riding as instructed by the conductors of said train, but in remaining on the side of the car, contrary to said orders and instructions.

“(b) In not keeping a proper lookout for the signal devices and other obstructions which are ordinarily erected on the side of tracks of the defendant, near said tracks.

“(c) In failing and omitting to keep a proper lookout for the semaphore mentioned in the complaint herein, whose presence and location were well known to the deceased.

“(d) In leaning outward from the ladder of said freight car so far as to bring his body in contact with the said semaphore erected at a greater distance from the track than is required by the regulations of the South Carolina Railroad Commission, hereinbefore set forth.”

The plaintiff offered two pieces of evidence which were not given at the former trial which were vital to the plaintiff’s case. The first was the testimony on the part of the witness C. C. Tyner, a brother-in-law of the deceased, who was in the employ of the Atlantic Coast Line Railroad and for that reason did not care to testify in the trial, who testified in substance that he knew the location of semaphore 3911; that on the morning of the 6th of January, 1923, he went to semaphore 3911 and examined the semaphore casing and surrounding conditions; that he found about four feet from the base of the semaphore something had apparently wiped the smoke and the soot from the semaphore and about six or seven inches further there were apparently blood' stains on the north side of the semaphore casing; that he examined the body of Marshall and found a pad on the back of the head and two blood clots on each side of the pad and the head was crushed in and soft; that switchmen and brakemen are supposed to ride wherever their duties call them on the train; that a car moving at the rate of twenty or twenty-five miles an hour would have from ten to twenty inches sway in it; that he arrived at the scene of the accident about noon or a little after noon on the 6th of January along with a Mr. J. H. Lee.

In the first trial there seemed to have been some question as to whether or not Marshall was actually killed by coming-in contact with the semaphore post. There was no evidence offered showing any blow to any part of his body which might have been caused by striking- the semaphore post. Between the first and the second trial the body of Marshall was exhumed by Dr. Powe, who performed an autopsy. The skull was removed and actually produced in Court. The back of the head was crushed in, its condition indicating that it had received a terrific blow near the place it joined with the spine. The neck was broken and the head was “dis-articulated” from the spine. This new evidence was important to the plaintiff because it showed that the semaphore was struck and had blood upon it as well as other marks and that the skull of the deceased received a terrific blow at the base of it sufficient to crush it in and sever the head from the spine. All doubt was removed as to whether Marshall was actually killed by contact with the semaphore post.

The exceptions of the defendant are five in number, which will be taken up in'their order.

Exception 1 alleges error on the part of the Circuit Judge in admitting in the evidence, over the objection of the defendant, the seventh paragraph of the defendant’s answer set forth supra.

In the consideration of this exception it is well to note that the answer of the defendant was not a general denial but was a qualified denial. The second paragraph of the answer states: “It denies each and every other allegation in said complaint not hereinabove or hereinafter specifically admitted.” It will be seen from the wording of the paragraph of the answer and a consideration of the decisions of this Court that the answer was not a general denial under the rule laid down by this Court, Judge Cothran speaking, in the case of Blake v. Southern Railway, 126 S. C., 407, 120 S. E., 360, 361. The Court there said: “The so-called general denial in the first defense is limited by its terms to such allegations as may not ‘hereinafter be admitted’; those that are admitted, including the allegations of interstate employment, are excepted from the force of the general denial by its terms.”

Nowhere in the answer of the defendant is it denied that the plaintiff’s intestate came to' his death while doing the things which were alleged in the complaint in part. In fact, the answer of the defendant expressly affirmed and admitted that he was killed, and then set forth in paragraph 7 and stated in what respects he was negligent and stated the facts upon which such conclusions were based.

It is true that where there is a general denial and after-wards inconsistent defenses are set up, this Court has held repeatedly that the facts stated in such inconsistent defenses are not substantive facts by way of admissions; but where the denial is qualified as it is here and admissions are made in the answer of the defendant which are not specifically denied in a denial, this Court has held that such admissions are competent in evidence insofar as the same refer to facts and not legal conclusions. This is the rule laid down in the case of McJimpsey v. Southern Railway, 89 S. C., 122, 71 S. E., 42, where an answer somewhat similar in form to the answer here under consideration is construed. This rule has also been recognized in the Federal Court where it has been held that the scope and sufficiency of the pleadings are governed by the practice of the states in which the trial is held. Glenn v. Sumner, 132 U. S., 152, 10 S. Ct., 41, 33 L. Ed., 301. Following the decisions of both Federal and State Courts, the matters set up in an affirmative defense where there has been no general denial, but where the defendant has pleaded, denying only such matters as were not therein-after specifically admitted, such admissions on the part of the defendant there may be offered in evidence by the plaintiff.

The second exception complains of error on the part of the Circuit Judge in refusing to charge as follows : “I charge you that the jury cannot consider the allegations of defendant’s answer in regard to contributory negligence as evidence against it and that the statements in Paragraph 7 cannot be considered as evidence in the case.”

This exception is disposed of by the disposition of Exception 1.

The third exception alleges error on the part of the Circuit Judge in refusing to direct a verdict for the defendant on the ground that no actionable negligence had been proven on the part of the defendant in the cause.

A careful analysis of the evidence is convincing that this exception cannot be sustained. It was shown that the 'base of the semaphore was four feet ten inches from the track, only ten inches more than the minimum allowed by the railroad commission; that when the train was running twenty or twenty-five miles an hour the car swayed from eight to twenty inches. Under the testimony the car projected beyond the track a distance of two feet four, inches with the ladder two and one-half inches more, making a total projection of two feet six and one-half inches; that when the car was at rest the clearance between the semaphore and the ladder was two feet and one-half inches; that the clearance when the car was moving at a rate of twenty or twenty-five miles per liour would be from one foot seven and one-half inches to seven and one-half inches. Taking into consideration the swaying, of course, and the thickness of a man’s body, the jury could have well concluded that the semaphore was placed within an unsafe distance of a moving train.

This is distinguishable from the case of Southern Pacific Co. v. Berkshire, 254 U. S., 415, 41 S. Ct., 162, 65 L. Ed., 335, where the engineer was killed by being struck on the head by a mail crane while leaning out the window of his cab. The crane had been erected in accordance with the regulations of the post office department. The Court there stated that the decision was confined to the case of postal cranes. There are but a few postal cranes along the route of an engineer. At each one of them the train on occasions “snatches” mail and they are clearly visible and known to the engineer as he approaches them. It is as much his duty to know of the existence of the postal cranes as it is his duty to know of the existence of a crossing and an engineer assumes the risk of being struck by one of these cranes which he passes constantly. The case of a semaphore is entirely different, for who could expect a switchman or brakeman or trainman to know the exact location of these posts and boxes which are sometimes close together and which are placed at regular and irregular intervals all along the railroad right-of-way? The case of Chesapeake & Ohio Railroad Co. v. Leitch, 276 U. S., 429, 48 S. Ct., 336, 72 R. Ed., 638, is another case involving a mail crane and follows under the same proposition as announced in the Berkshire case.

It might be well here to consider also that if a mail crane was put further back that it would be impossible for it to perform the functions for which it is intended, to wit, “snatch” the mail from the mail cars. The mail crane must of necessity be in close proximity of the right-of-way, and it would be impossible for the railroad company to place it in any other position and in addition would be in direct violation of the postal regulations.

In the absence of proof that it was fully known and appreciated by him, we do not think that the deceased assumed, as a matter of law, such an extraordinary risk as this, a risk which the railroad company could have by due care avoided.

The defendant company invokes the order of the railroad commission in substantiation of its position with reference to the placing of the semaphore post. These regulations are not conclusive for the reason that they merely state the minimum distance which obstructions are allowed to be placed from the outer edge of the rail, whereas the postal regulations state the exact distance that a mail crane must be placed. There was nothing to prevent the defendant from placing the semaphore post further back if it knew or should have known that it was dangerous in the position which it was.

This also disposes of the fourth exception as to the assumption of risk.

The fifth exception alleges error in the refusal of the Circuit Judge to direct a verdict for the defendant on the ground that there was no evidence showing how the deceased came to his death, or as to the proximate cause thereof.

There are very few cases where a trainman is killed that can be proven except by circumstantial evidence. Very seldom is more than one man sent to perform a particular duty on the train, and if he is killed there is usually no living eye-witness to testify, and only the mute, unmovable circumstances can be adduced to show the cause and manner of his death. In the consideration of this matter it must be kept in mind that the degree of proof required of circumstantial evidence is not and should not be as great in civil cases as in criminal cases. In criminal cases the presumption of innocence arises in favor of the defendant, and the circumstances must be of such force and character as to convince the jury beyond a reasonable doubt of the guilt of the accused. In civil cases where there is no presumption and where the proof merely has to be by the preponderance or greater weight of the evidence, it would be harsh and unjust to hold that the criminal circumstantial rule should be invoked. The weight to be given to the circumstances should be determined by the jury, and if from that weight they determine that the plaintiff has proven his case by the preponderance of the evidence, such finding should not be disturbed.

Fortunately for the plaintiff in this case, the circumstances are so many and so well knit together that a Judge would be required to submit the facts and circumstances to a jury even in a criminal case. We have a strong young man twenty-five years of age, healthy and able-bodied, in good health and apparent good spirits at the beginning of the trip with no .known physical infirmity or defect; he is found dead beside the railroad track a few moments after having been seen alive by his companions. The dew on the ground is disturbed, the semaphore post shows unmistakable evidence of having been struck and there is evidence of human blood upon it; the skull of the deceased is found crushed, evidently from a lick of some terrific force. This tends to establish the rate of speed of the train, the fact that the post was too close to the track, that the deceased was on the side of the car riding where he had a right to ride and where his duty often called him to ride and at a place provided for him to ride upon, that the cars were swaying, and that his head came into collision with the semaphore post with a terrific blow and caused him to be killed. Foggy and dark, the eye of man could not see and the eye of God will not disclose the exact manner of his death, but these mute and silent circumstances, unchanged and unchangeable, speak silently of the manner and circumstances thereof.

This case is a much stronger case than the case of Chicago, M. & St. P. R. Co. v. Coogan, 271 U. S., 472, 46 S. Ct., 564, 70 L. Ed., 1041. In the Coogan case the deceased was found near the west end of the second car from the caboose, lying parallel with the track outside the south rail and on or at the ends of the ties. There were indications to show that he had been between the rails; that he had been run over by the east truck of the car next to the cab; that his left leg and arm had been crushed between the wheel and the rail and that his body had been dragged about fifteen feet.

The theory of the plaintiff was that Coogan stepped between the rails with his right foot, leaving his left foot outside the south rail between the south rail and a certain pipe line; that he stooped to raise the air hose, his left foot slipping backwards under the bent pipe; that before he could make the coupling the car started backwards to clear the switch; and that as he attempted to straighten up his left foot was caught under the pipe and he was forced backward, run over, and killed. The sole ground of negligence ’was the presence of the bent pipe along the track of the defendant. Coogan’s shoes were removed from his feet and placed in a garage where they remained for a number of days before they were examined. The condition of the left shoe before the accident was not known and several days afterwards a rounding depression was noticed on the counter of the shoe. There was no evidence as to the condition of the shoe before the accident. There was no evidence that the shoe had been kept in the same condition after the accident. Assuming that the depression in the shoe counter was made by contact with the bent pipe, there was nothing to indicate that it was made before or after he was knocked down by the train. There was nothing to indicate whether the depression was not made some time before. Suppose the shoe had been torn, the foot had been lacerated, and on the pipe had been found leather from the shoe and blood from the foot, the case would not have then been as strong as the case here under consideration.

The present case was reversed and remanded for a new trial by the United States Supreme Court under the authority of the following cases: Chicago, M. & St. P. R. Co. v. Coogan, supra; Southern Pac. Co. v. Berkshire & Chesapeake & Ohio Co. v. Leitch, supra; Gulf, C. & S. P. R. Co. v. Mosler, 275 U. S., 133, 48 S. Ct., 49, 72 L. Ed., 200.

The first case, Coogan, is on the question of the quantity and quality of the evidence and, as I have attempted to demonstrate heretofore, the case now under consideration is a much stronger case than the Coogan case. In the Coogan case there was presumption built upon presumption, supposition upon supposition; at best the case was only a good theory and not sustained by any positive facts.

The Berkshire case and the Leitch case are both on the question of assumption of risk and, as I have attempted to demonstrate, do not control this case. It is well to note here also that at the former trial, Tyner v. A. C. L. R. Co., supra, there was a question as to the charge upon assump•tion of risk. This is disposed of at pages 105-108 inclusive of 149 S. C., 146 S. E., 669, 670. There is no question here as to any error in the charge with reference to assumption of risk, and if the United States Supreme Court intended to direct a verdict on the ground of assumption of risk it is not so stated in its decision. I cannot but feel that the United States Supreme Court intended just what was written in the decision, to remand the case for a new trial on this ground.

The Mosler case is with reference to the measure of damages and as to error in the charge in the Tyner case. There is no question that under the federal rule, as applied to the Federal Employers’ Liability Act (45 U. S. C. A., §§ 51-59), the Judge in the first trial clearly failed to charge the proper measure of damages. The decision of the United States Supreme Court was that the case should be reversed and remanded for a new trial, having in mind the questions which are decided in the cases cited.

In passing it might be well to consider for a moment the reason for the passage of the Federal Employers’ Liability Act. It was passed for the purpose of enlarging, not limiting the rights of the employees to recover against railroad companies when engaged in interstate commerce. Numbers of rights were conferred by this Act of Congress which did not exist prior to its passage. The plaintiff was permitted to bring his suit in the State Courts and not to be subject to removal to the Federal Court. He was to be relieved of the burden of being carried out of the county of his choice into the Federal Court where it would be both inconvenient and expensive to carry on the litigation. The doctrine of fellow servant was abolished entirely by the terms of the Act itself. Contributory negligence ceased to be a complete defense as it is under the South Carolina law but could be considered in diminution of damages only under the standard fixed by Congress in the trial of these cases. The suit was limited in favor of those who were dependent upon the deceased or the injured person for support, clearly indicating that it was the purpose of Congress to grant that broad and comprehensive relief to the dependents of one killed or injured in the service of his employer which was not permitted formerly under the state and federal decisions. It was to be a shield to the working man to give him additional security that upon being killed in the line of his duties his dependents would not suffer by reason of it. The amount of recovery was limited to actual damages so that the scope of the Act could not be enlarged by capricious or prejudiced jurors. The appeal was made ultimately to the highest Court in the land so that this great judicial body could overlook and supervise the operation of the Act in accordance with the intention of its framers. It was and is one of the most progressive steps in legislation of the twentieth century and stands today a monument to the progressive and humanitarian spirit which is characteristic of this new century. Thousands of men have been benefited by its terms and thousands more will be benefited by its terms in the future. I feel that a construction should be given, broad and comprehensive, to carry out the real intent of the framers of the Act and yet circumscribe it with such rules of law as will amply protect the employer under its terms.

All of the exceptions are therefore overruled, and the case is affirmed.

Messrs. Justices BeEase, Stabeer and Carter concur. Mr. Justice Cothran dissents.