The opinion of the Court was delivered by
Mr. Justice Carter.
Ehis case, commenced in the Court of Common Pleas for Florence County, but transferred to Aiken County, is an action under the Federal Employers’ Riability Act (45 U. S. C. A., §§ 51-59) for the alleged wrongful death of the plaintiff’s intestate, Joseph R. Temple. The defendant, by way of answer, set up a general denial and wrongful and malicious act of a third party. The case was tried in the Court of Common Pleas for the said county of Aiken, be-fore Honorable C. J. Ramage, special Judge (now regular Judge), and a jury, November 20, 1928, resulting in a ver-dict for the plaintiff for the sum of $20,000.00 actual dam-ages. From the entry of judgment on the verdict the de-fendant has appealed to this Court.
A number of exceptions are presented, but the only allegation of error relied on by appellant for reversal is: "There is no evidence to show negligence by appellant in maintaining its tracks, as alleged, but on the contrary, the undisputed circumstantial evidence shows that the wreck was cause~d by the criminal acts of third persons."
We shall, therefore, not consider any of the other questions raised by the exceptions.
At the time of his death, June 20, 1921, the plaintiff’s intestate, Joseph R. Temple, was in the employ of the defendant, Atlantic Coast Line Railroad Company, as a locomotive engineer, running on passenger train No. 38 from Augusta, Ga., bound for Sumter, S. C., engaged in interstate commerce. When the train had proceeded several miles from the city of Augusta and was near Beach Island, in Aiken County, S. C., the engine attached to said train overturned, together with two of the attached cars, and, as a result, the plaintiff’s intestate was wounded, which caused his death. The suit was brought for the benefit of the infant children of the deceased who reside with their grandmother, their mother, widow of the deceased, having died while the action was pending. It appears that two of these children are feeble-minded. The acts of negligence, charged and relied on by the plaintiff as a basis of recovery, are as follows :
“4.
That late in the afternoon of May 19th, 1921, the agents, servants and employees of the Charleston and Western Carolina Railway had been working on the roadbed over which said engine was driven at the point where the same was overturned and had negligently, carelessly, wilfully and wantonly failed to properly spike and bolt one of the iron rails on which said engine and train of cars had to run and keep the same properly spiked and bol¡ted, and that when said engine and cars came upon said rail the same did not hold in the position it should have held to support the engine and cars, but one of the rails spread, thus causing the engine on which plaintiff’s intestate was riding to turn over and the resultant death of plaintiff’s intestate.
“5. That although the defendant Atlantic Coast Line Railroad Company was not in the actual charge of the maintenance of the said track at the place of the accident, yet it was its duty to see that its employees were furnished a safe track
on which to operate its trains, the negligence and carelessness of the servants, agents and employees of the Charleston & Western Carolina Railway in the construction and maintenance of its roadbeds and tracks used by the defendant Atlantic Coast Line Railroad Company being the negligence and carelessness of the defendant Atlantic Coast Line Railroad Company.”
Counsel for respondent state their position as follows:
“The allegation of the complaint being that the death of plaintiff’s intestate was due to the negligence and carelessness on the part of the defendant to properly spike and bolt one of the iron rails on which said engine and train of cars had to run and its failure to keep the same properly spiked and bolted, the result being that when said engine and train of cars came upon said rail the same did not hold in position to support the engine and cars, if there was sufficient testimony to support that allegation, the verdict should be sustained.”
As stated, the contention of appellant is: “There is no evidence to show negligence by appellant in maintaining its tracks, as alleged, but, on the contrary, the undisputed circumstantial evidence shows that the wreck was caused by the criminal acts of third persons.”
The federal statute (Federal Employers’ Liability Act § 1 [45 U. S. C. A., § 51]) under which the action was instituted reads as follows: “Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia, and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such-carrier in such commerce, or, in the case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and,
if none, then of such employee's parents; and if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."
In accordance with the requirement of this statute, as construed by the Courts, the plaintiff assumed the burden of establishing negligence on the part of the defendant as to the acts alleged to have caused the death of the plaintiff's intestate, that is, the failure to properly spike and bolt one of the iron rails on which said engine and train of cars had to run, and keep the same properly spiked and bolted. In its answer the defendant admitted that one of its rails in the track at the point where the accident occurred~ did not hold, but the defendant contends, as alleged, that the failure of the said rail to hold was caused and occasioned by the malicious act or acts of a person or persons not in the employ of the defendant, without the knowledge and without opportunity of discovery on its part. As stated by the trial Judge in his refusal to order a new trial, the plaintiff relied on nine circumstances to establish the act or acts of negligence alleged, to wit: (1) The fact of section hands working in neighborhood of wreck; (2) the wreck itself; (3) bolts unsecured; (4) spikes pulled clear and drawn; (5) bolts and ntits neatly piled at the ends c~f the tires; (6) angle plates were properly removed; (7) passage of four or five trains over the point before the wreck occurred; (8) the dent in the end of the rail; (9) the rigid part of the engine had passed over the point before rail spread. Just what time the section hands were working at or near the place of the wreck may be said to be in dispute, but, if the testimony of the witness C. M. Randall is to be believed, it may be reasonably inferred that they were working there, fixing a rail in the afternoon of May 19, 1921,
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The opinion of the Court was delivered by
Mr. Justice Carter.
Ehis case, commenced in the Court of Common Pleas for Florence County, but transferred to Aiken County, is an action under the Federal Employers’ Riability Act (45 U. S. C. A., §§ 51-59) for the alleged wrongful death of the plaintiff’s intestate, Joseph R. Temple. The defendant, by way of answer, set up a general denial and wrongful and malicious act of a third party. The case was tried in the Court of Common Pleas for the said county of Aiken, be-fore Honorable C. J. Ramage, special Judge (now regular Judge), and a jury, November 20, 1928, resulting in a ver-dict for the plaintiff for the sum of $20,000.00 actual dam-ages. From the entry of judgment on the verdict the de-fendant has appealed to this Court.
A number of exceptions are presented, but the only allegation of error relied on by appellant for reversal is: "There is no evidence to show negligence by appellant in maintaining its tracks, as alleged, but on the contrary, the undisputed circumstantial evidence shows that the wreck was cause~d by the criminal acts of third persons."
We shall, therefore, not consider any of the other questions raised by the exceptions.
At the time of his death, June 20, 1921, the plaintiff’s intestate, Joseph R. Temple, was in the employ of the defendant, Atlantic Coast Line Railroad Company, as a locomotive engineer, running on passenger train No. 38 from Augusta, Ga., bound for Sumter, S. C., engaged in interstate commerce. When the train had proceeded several miles from the city of Augusta and was near Beach Island, in Aiken County, S. C., the engine attached to said train overturned, together with two of the attached cars, and, as a result, the plaintiff’s intestate was wounded, which caused his death. The suit was brought for the benefit of the infant children of the deceased who reside with their grandmother, their mother, widow of the deceased, having died while the action was pending. It appears that two of these children are feeble-minded. The acts of negligence, charged and relied on by the plaintiff as a basis of recovery, are as follows :
“4.
That late in the afternoon of May 19th, 1921, the agents, servants and employees of the Charleston and Western Carolina Railway had been working on the roadbed over which said engine was driven at the point where the same was overturned and had negligently, carelessly, wilfully and wantonly failed to properly spike and bolt one of the iron rails on which said engine and train of cars had to run and keep the same properly spiked and bol¡ted, and that when said engine and cars came upon said rail the same did not hold in the position it should have held to support the engine and cars, but one of the rails spread, thus causing the engine on which plaintiff’s intestate was riding to turn over and the resultant death of plaintiff’s intestate.
“5. That although the defendant Atlantic Coast Line Railroad Company was not in the actual charge of the maintenance of the said track at the place of the accident, yet it was its duty to see that its employees were furnished a safe track
on which to operate its trains, the negligence and carelessness of the servants, agents and employees of the Charleston & Western Carolina Railway in the construction and maintenance of its roadbeds and tracks used by the defendant Atlantic Coast Line Railroad Company being the negligence and carelessness of the defendant Atlantic Coast Line Railroad Company.”
Counsel for respondent state their position as follows:
“The allegation of the complaint being that the death of plaintiff’s intestate was due to the negligence and carelessness on the part of the defendant to properly spike and bolt one of the iron rails on which said engine and train of cars had to run and its failure to keep the same properly spiked and bolted, the result being that when said engine and train of cars came upon said rail the same did not hold in position to support the engine and cars, if there was sufficient testimony to support that allegation, the verdict should be sustained.”
As stated, the contention of appellant is: “There is no evidence to show negligence by appellant in maintaining its tracks, as alleged, but, on the contrary, the undisputed circumstantial evidence shows that the wreck was caused by the criminal acts of third persons.”
The federal statute (Federal Employers’ Liability Act § 1 [45 U. S. C. A., § 51]) under which the action was instituted reads as follows: “Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia, and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such-carrier in such commerce, or, in the case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and,
if none, then of such employee's parents; and if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."
In accordance with the requirement of this statute, as construed by the Courts, the plaintiff assumed the burden of establishing negligence on the part of the defendant as to the acts alleged to have caused the death of the plaintiff's intestate, that is, the failure to properly spike and bolt one of the iron rails on which said engine and train of cars had to run, and keep the same properly spiked and bolted. In its answer the defendant admitted that one of its rails in the track at the point where the accident occurred~ did not hold, but the defendant contends, as alleged, that the failure of the said rail to hold was caused and occasioned by the malicious act or acts of a person or persons not in the employ of the defendant, without the knowledge and without opportunity of discovery on its part. As stated by the trial Judge in his refusal to order a new trial, the plaintiff relied on nine circumstances to establish the act or acts of negligence alleged, to wit: (1) The fact of section hands working in neighborhood of wreck; (2) the wreck itself; (3) bolts unsecured; (4) spikes pulled clear and drawn; (5) bolts and ntits neatly piled at the ends c~f the tires; (6) angle plates were properly removed; (7) passage of four or five trains over the point before the wreck occurred; (8) the dent in the end of the rail; (9) the rigid part of the engine had passed over the point before rail spread. Just what time the section hands were working at or near the place of the wreck may be said to be in dispute, but, if the testimony of the witness C. M. Randall is to be believed, it may be reasonably inferred that they were working there, fixing a rail in the afternoon of May 19, 1921,
not many hours before the wreck occurred, which was on the following morning about 3 a. m. The other facts stated, 2 to 9, inclusive, are not in dispute or are clearly established. It clearly appears from the testimony that when an inspection of the scene was made soon after the wreck it was discovered that the rail in question was badly bent and the spikes and bolts where the track was loose were seen lying on the cross-ties, three or four cross-ties had been taken loose, and, it appeared, according to the witness Dobson, that the “flanges or angle plates were on the Augusta end of the rail.” There also appeared to be a dent about the center of the middle of the rail. With reference to the condition of this rail, the witness Dobson testified:
“Q. A train going towards Augusta would not hit the rail that way? A. No, sir; it would push it back in, it looks like.
“Q. But one coming from Augusta would hit it? A". Yes, sir.”
If this be true, a train going over the rail in question in the direction of Augusta would not be wrecked, and this accounts for the fact that the trains that passed over the place going in the direction of Augusta during the same night passed over safely. According to our view of the testimony, the conditions found to exist at the place of the accident lead to the conclusion that the rail in question was left unbolted and unspiked by the section hands and not caused and occasioned by some outside person, as contended by the defendant. It is hard to conceive of a person bent on mischief taking time enough to arrange the bolts and spikes in the order in which they were found and to have done the other acts in the manner described by witnesses. On the other hand, it may be reasonably inferred from all of the facts and circumstances that the section hands left the work at that place unfinished the evening before the wreck occurred. According to our view, this was an issue for the jury.
It may be that not any one of the circumstances to which we have referred would be sufficient to establish the allegation of negligence charged by the plaintiff against the defendant, but, when all of these circumstances are considered together, in our opinion, a case for the jury was made.
The exceptions are therefore overruled, and the judgment affirmed.
Mr. Chiee Justice Beease, and Mr. Justice StabeEr concur.