1. The exception to the refusal to nonsuit the case as to count three of the petition merges with the general grounds of the motion for a new trial.
2. The court did not err in overruling the motion to dismiss count three.
3, 4, 5. The evidence authorized a verdict on any one count, especially count three and possibly on one and two or one and three, counts two and three being practically identical under the rulings in this case, and the evidence demanded a verdict for some amount.
6, 7, 8, 9, 10. None of the amended grounds of the motion for a new trial shows error.
DECIDED OCTOBER 7, 1949. REHEARING DENIED NOVEMBER 1, 1949. *Page 298 Mrs. Evelyn Graham Singletary, as administratrix of the estate of John William Singletary, sued the Atlantic Coast Line Railroad Company for damages allegedly resulting from the death of her husband, John William Singletary. The action as amended was in three counts. Allegations which were common to all counts, and involving the questions raised in this appeal, are as follows: that at all times mentioned her husband was in the employ of the defendant and that the deceased and the defendant were at the times mentioned engaged in interstate commerce; that the deceased was employed as a freight brakeman running between Florence, S.C., and Charleston, S.C., and that his duties as such at said time required that he ride on the engine of the train on the fireman's side while the train was moving between stations and keep a lookout for any hot boxes on the cars of the train, or of the parts of the train and engine that might cause injury to persons employed thereon or damage to the property of the defendant; that it was also a part of his duties to listen for any unusual noises on the engine and cars and to look out of the window of the engine from time to time to see that there was nothing wrong with the train; that an engineer operated the engine from the right-hand side and the fireman and the deceased were sitting on the seat box on the left-hand side; that on Nov. 8, 1947, at about three o'clock p. m. her husband was riding behind the fireman on the seat box of the engine and saw metal objects fly up into the air past the cab of the engine next to the fireman's seat box and that the train was running at a speed of approximately forty miles per hour at said time and was approaching a bridge over the Santee River; that when deceased saw the objects flying through the air past the cab he stuck his head out of the window, as his duties at the time and place required, to see what was wrong with the engine. First Count. The first count alleged in addition to the above: that as the deceased stuck his head out of the window for the purpose of discovering what was wrong with the engine, after having seen parts fly from the side of the engine, the cover of the trailer box or the trailer collar, or keeper bolts, or other parts of the engine unknown to petitioner, *Page 299 became loose and were thrown from the engine up into the air, one of the parts striking the deceased behind the right ear, fracturing his skull and instantly killing him; that at the time the deceased was killed the engine was just entering upon the bridge; that his body slumped over after he was struck, with his head and shoulders hanging out of the window of the locomotive and as the engine entered the bridge the girders of the bridge struck the deceased on the forehead; that both of his eyes were knocked out of their sockets, the top of his head knocked off and his brains scattered over the bridge; that the engine was not in proper condition and safe to operate because of the insecure fastening of the front trailer box and trailer collar and keeper bolts and that such condition of the engine was a violation of the duty of the defendant under the Boiler Inspection Act and that such violation was in whole or in part the proximate cause of the death. Second Count. In addition to the allegations common to all counts the second count alleged: that as the train approached the Santee River bridge at a speed of forty miles per hour the deceased and the fireman suddenly heard unusual noises from the engine and saw metal objects flying from some part of the locomotive past the outside of the engine cab window beside them and that the deceased in said emergency and without time to think about or reflect on the location of the train with reference to the bridge, stuck his head out of the window in order to determine the extent of the defects causing the objects to fly from the locomotive and the extent of the danger therefrom and to determine his course of action in the interest of safety of the train; that before he realized he was about to enter on the bridge, the train passed on to said bridge over the Santee River and caused his head to strike one or more of the steel girders extending up above the track along the lefthand side of the bridge at a distance of about 16 1/2 inches from the side of the locomotive as it passed over the bridge and that his head was crushed by said girders and that he was instantly killed. The count further alleged as in count one what the flying parts were and alleged that the treads of the front trailer wheels of the locomotive were so defective as to cause excessive vibration by reason of certain shelled spots over a distance of 12 inches on the tread of the wheel varying in size and thickness *Page 300 from one-half inch to one and one-quarter inch and that these defective parts of the engine and the fact that they were defective and would shake loose constituted a violation by the defendant of the Federal Safety Appliance Act and the Boiler Inspection Act. Count Three. In addition to the allegations common to all counts, count three further alleged: that the deceased when about 1000 feet north of the bridge over the Santee River, saw a metal object flying up into the air past the cab of the engine and realized that the object was a part of the engine and that an inspection was necessary in order to determine a course of action in the interest of the safety of the train; that in the emergency thus created he stuck his head out of the window; that it was necessary for the train to cross the Santee bridge which was constructed more than thirty-five years prior to the time of the accident and that the bridge clearance at the scene of the accident was 14 feet; that the bridge was approximately 500 feet long, containing at least 5 spans, with metal trusses and girders to support it; that the deceased, in the emergency thus created, without having time to think about or reflect on the location of the train with reference to the bridge, stuck his head out of the window and his head came in contact with one or more of the girders of the bridge, instantly killing him; that the defendant was under a duty to use reasonable and proper care to provide the deceased with a reasonably safe place to work; that the defendant failed in this duty in that, at the time the bridge was constructed, the various engines in service had an overall width varying between 10 feet 4 inches and 10 feet 6 inches, and the bridge stood at a reasonable distance from the track at the time of its construction, having reference to the size of the engine then in use; that the engine on which the deceased was working, being a class 1800 engine, had a width of 11 feet 3 inches and only had a clearance of 33 inches or 16 1/2 inches on each side of the locomotive and that the defendant in increasing the width of its engines carelessly and negligently rendered them dangerously near the bridge; that the defendant knew, or might have known, of the unsafe character of the bridge so situated but failed to have the bridge widened or removed to a safe distance from the track, and carelessly and negligently subjected the deceased to extraordinary *Page 301 risk and hazard in his employment, and that such negligence resulted in his death as above stated; that the following acts of negligence were the proximate and direct causes of the death of deceased: (a) In using on its line a locomotive with parts and appurtenances thereon that were not in proper condition and safe to operate without unnecessary peril at said time, and would shake loose and fly into the air as herein alleged and endanger the lives of employees thereon; (b) in failing to provide her husband with a reasonably safe place to work; (c) in requiring the deceased to ride the engine of the train on which he was employed over the bridge aforesaid with insufficient clearance; (d) in continuing the use of said bridge for the passage of trains over it while in such condition, with insufficient clearance; (e) in using on its lines a locomotive with a clearance of only sixteen and one-half inches from the cab of the same to the girders or uprights or trusses of the bridge, so that the deceased could not perform his duties with safety. The defendant in its answer denied all material allegations of the petition or neither admitted nor denied them for lack of information and in addition alleged that the deceased came to his death solely through his own negligence and without fault on the part of the defendant; that he was thoroughly familiar with the Santee River crossing, short clearance and all conditions surrounding the bridge and its approaches; that the accident occurred in the daytime; that the metal objects were thrown off prior to reaching the drawbridge and that the deceased was under no duty to stick his head out of the window and that he did stick his head out of the window after the engine had entered and traveled some distance over the drawbridge and was killed by his head striking one of the vertical supports or girders of the drawbridge and that if he had watched he would not have been injured. The jury found for the plaintiff. The defendant here excepts to the overruling of its motion for a new trial as amended and to the overruling of its motion to dismiss count three of the petition and to nonsuit all three counts. The first ground of the amended motion for a new trial is that the court erred in refusing to allow the engineer, T. W. Johnston, a witness for the defendant, to answer questions as to whether the deceased or fireman appeared to be excited or calm. The second ground *Page 302 excepts to a refusal by the court to give the following request to charge: "I charge you that there is no ground to charge negligence against the railroad on the width of the bridge in this case or the clearance of the engine with the bridge, when the actual clearance exceeds the minimum permitted by the Public Service Commission and when it does not appear that to make the place safe by increasing the distance would have been practicable for the railroad company and I further charge you that should you find that the clearance provided exceeded the minimum permitted by the Public Service Commission and should you find that Mr. Singletary met his death by his head striking a girder of the bridge, solely as the result of the proximity of the engine cab to the girders of the bridge, that you must find for the defendant." The third ground excepts to the refusal of the court to give the following charge: "I charge you that in order to recover under the Federal Employers' Liability Act, it is incumbent upon petitioner to prove that respondent was negligent and that such negligence was the proximate cause in whole or in part of the fatal accident. The plaintiff is required to present probative facts from which the negligence and the causal relation could be reasonably inferred. The essential requirement is that mere speculation be not allowed to do the duty for probative facts after making due allowance for all reasonably possible inferences." Ground seven excepts to the following charge: "Of course if you find that his conduct was such as to amount to negligence which constituted and was the sole proximate cause, then under count 3 the plaintiff would not be entitled to recover." Ground eight complains of the following charge: "Now gentlemen, there is another rule or principle of law to which I call your attention. In an action under the Federal Employers' Liability Act or the Boiler Inspection or Safety Appliance Act against a railroad by the personal representative of a deceased employee, where there are no witnesses as to the manner in which the employee met his death, there is a presumption in law that the deceased was actually engaged in the performance of his duties and exercised due care for his own safety at the time of his death. This presumption may be refuted or rebutted by evidence which destroys the force of the presumption." *Page 303 The evidence necessary for a determination of the issues in the case is substantially as follows: The train involved was pulled by Engine No. 1805 and left Florence, S.C. for Charleston about midday November 8, 1947, destination Savannah. The deceased was riding as head brakeman. He sat behind the fireman on the left side of the engine. The fireman's name was Jeffords and the engineer's was Johnston. The Santee River bridge is about sixty miles from Florence. The bridge is an old one, crossed by a single track. The fireman testified that he had been employed by the Atlantic Coast Line Railroad Company for almost seven years and that series 1800 engines, of which No. 1805 was one, had been in use during the entire time of his employment. The duties of a head brakeman were to check cars for hot boxes by looking backward out of the engine and also to look forward for any trouble and to watch the signal boards ahead. The approach to the Santee River bridge goes into a single track about a mile before the bridge is reached. Nothing unusual occurred before the train reached the single track. After the train entered the single track the fireman looked out of the window and noticed an object which flew outward and downward from the side of the engine immediately ahead of and below him. This was at a point about half way between the beginning of the single track and the bridge. The fireman did not definitely identify the object but believed it to be the grease cellar. He described the object as being about two feet long and ten inches wide. He also saw a second object fly off which he believed to be the trailer-box cover. He called deceased's attention to the two objects and discussed with him what should be done about it. They determined that the engineer should be advised and the fireman started to cross to the engineer's side of the engine, went back and took another look and then went over and advised the engineer that something was coming off the journal box on the engine. The fireman last recalled that the deceased was sitting on the seat box looking out of the window and at that time they had not reached the bridge. He reported to the engineer and said he had better stop and investigate. *Page 304 The engineer then stopped the train after it passed over the bridge. After the train had passed over the bridge he returned to his seat to again look at the journal box. At that time he noticed that the deceased had been struck and his head crushed. The exact position of his body after crossing the bridge varies under the varying testimony of the witnesses, but that is immaterial. The engineer and fireman examined the trailer-truck-journal box and found that the cellar-keeper bolt, the cellar, the journal-box cover and three of the four nuts which held the journal-box cover were gone. The cellar-keeper bolt necessarily left the engine prior to the cellar but the two large pieces which the fireman saw fly out were identified by him as the cellar- and journal-box cover and necessarily the three missing nuts which held the journal-box cover must have left the engine with the cover. However, since the fourth nut was in place, it was testified that the journal-box cover must have broken or separated through the hole around this fourth bolt and that there must have been a small triangular piece of metal with sides about two inches long which left the engine separately from the main piece of the cover and which may have left a few moments after the cover itself. The upright girders of the bridge were in line. The first sign of blood or hair was on the seventh upright on the first span of the bridge and the full imprint of the deceased's head appeared on the first upright of the second span. There was no evidence of anything having struck the first six uprights but there was some blood and flesh found on one or two uprights between the seventh upright of the first span and the first upright of the second span. The witnesses testified that there was no mark or sign to indicate that any piece of metal had struck any portion of the bridge. The engineer testified that it would have been impossible for any piece of flying metal leaving the area of the journal box to have flown up and struck deceased directly because of the overhang of the engine cab beyond the actual rail on which the wheel was traveling; that he inspected the engine before he went back across the bridge and saw marks on the edge of the trailer or truck frame, marks such as are made by metal striking metal; that they were on the inside of the engine on the trailer frame and bottom of the trailer-brake cylinder; that he had not noticed any of *Page 305 these marks on the engine prior to the time they left Florence that day; that they were fresh marks that scarred the heavy paint. The father of the deceased testified that the condition of the engine was serious and could cause the engine to turn over. The deceased's head was crushed in and there was also an injury in the skull behind the right ear. An undertaker testified that there was a perpendicular gash in the skull, a sharp cut clean to the bone, which appeared to be entirely separate from other wounds and which was so deep that brains were coming out of the opening; that it did not appear to be such a wound as was caused by coming in contact with a girder or iron upright on the bridge and that it could have been caused by hitting a triangular piece of metal about two inches on the short side and two or two and one-half inches on the long side and about three-eighths of an inch thick; that there was a sharp cut in the lobe of the ear, and that he was not an expert. The local surgeon of the railroad testified that the wounds could have been caused by coming in contact with a girder of the bridge; that the whole crushing lick on the head produced death; that it was all one wound; that the deceased's head could have been knocked back against the window and one blow could have caused the whole thing; that he did not notice any grease on the head. Other evidence not set forth here will be referred to later in the opinion.
1. The question of refusal to grant a nonsuit merges into the general grounds of the motion for a new trial. Pepper v.Flanagan, 204 Ga. 265 (2) (49 S.E.2d 525).
2. The court did not err in overruling the motion to dismiss count three. The count set forth a cause of action and did not show on its face that the defendant was not negligent, nor did it show on its face that if the railroad was negligent the negligence was not a contributing proximate cause of the death of the deceased.
3. The railroad contends that the verdict was contrary to the evidence on each and every count. It contends that the evidence did not authorize a finding that the deceased was struck and instantly killed by being struck by a part of the engine which had become detached, before the engine entered the bridge, for the reason that no evidence of the contact of the deceased's *Page 306 head was found before the seventh girder of the bridge. While this theory may be less probable than others it is not beyond the realm of possibility. It might have been impossible for a flying piece of metal to strike the brakeman while he was in his upright seated position in the cab, still, if he was leaning out of the window to observe the defective part of the engine, a flying part of the engine could have hit him. And it could have been possible for him to have been killed by the flying part and that his position for a while was such that his head was not projected far enough to be struck by a girder, but the motion and away of the engine could have caused his head to continue to project farther as the train moved along so as to bring it into contact with the seventh girder. However, if the jury decided that the death resulted in one of the three ways shown in the petition and that the negligence of the railroad was in part or in whole the proximate cause thereof, a general verdict would have been authorized without the jury's being required to find exactly which theory was correct.
4. The defendant contends that the verdict on the second count was not authorized. This contention is based on the theory that the second count should be construed to mean that the deceased stuck his head out of the engine before the engine entered the bridge and that therefore he must have been struck by the first girder rather than the seventh. This contention is plausible but not necessarily correct because the deceased could have stuck his head out for a very short distance before entering the bridge and could have moved it further out just before approaching the seventh girder. In the absence of a demurrer the second count is held to cover the latter theory. The railroad concedes that it was negligent in permitting the engine to be operated while parts could become loose and fly off but contends that such negligence was not the proximate cause of the death. The evidence was undisputed that the railroad was negligent in the above respect. It was also undisputed that the deceased's duty was to look out of the window of the engine to look out for hot boxes and other causes of trouble. The defendant contends that in view of the fact that the defects in the engine were discovered several hundred yards before the engine entered the bridge it was not the deceased's duty to stick his head out *Page 307 of the window when the engine was on the bridge when it was dangerous for him to do so when he should have known of the danger. We cannot agree with this contention. However negligent the deceased may have been, we think that the evidence authorized but one finding, and that is that the deceased was sticking his head out in the discharge of his duty. There is no evidence of any nature to indicate that he did so for any other purpose or that he intended to commit suicide. There is no exception to the amount of the verdict. In fact the brief of the defendant shows that it is of the opinion that the jury reduced the amount found by some amount charged to the negligence of the deceased. At any rate, a verdict for the plaintiff was demanded and the jury fixed the amount. The verdict was authorized on the second count.
5. The railroad contends that the verdict was not authorized on the third count. It construes the third count to be based solely on the insufficient clearance between the tracks and bridge girders. We do not so construe the third count. We think the count shows plainly on its face that the count is based on the defects in the engine as well as the insufficient clearance. The railroad contends that the charge of negligence as to the insufficient clearance is unfounded for the reason that the South Carolina Public Service Commission had issued an order requiring a particular clearance in such cases, and that, although the order expressly did not refer to the bridge in this case because it was built prior to the order, the order nevertheless set up a standard of care in the erection of bridges and that the measurements of the bridge in this case met that standard because it met the requirements of the order. Assuming that the railroad is correct in this contention, and that the jury could not find negligence because of insufficient clearance, the verdict was nevertheless demanded that the negligence of the railroad because of the defective engine was at least in part the proximate cause of the deceased's sticking his head out of the window and getting killed, in that the sticking of his head out of the window was in the discharge of his duty whether the deceased was excited in the emergency or whether he was calm and exercised bad judgment in sticking his head out at all or in sticking it out too far. Whether a verdict was authorized on the second count, as we *Page 308 have indicated it might be, a verdict was authorized on the third count. In fact, omitting the clearance charge in the third count, counts two and three contain the same cause of action. It is immaterial whether they are brought under the F. E. L. Act or for violation of the Safety Appliance and Boiler Inspection Act.
6. It was not error to refuse to give the request to charge set forth in ground five of the amended motion for the reason that the evidence would not have authorized the jury to find that the death of the decedent was caused solely by the lack of sufficient clearance between the engine and the bridge girders. The defective engine and flying parts were at least one of the proximate causes.
7. The ruling complained of in ground four of the amended motion, if error, was harmless, in the view we take of the case. If the engineer had answered the questions and had stated that the fireman and the deceased were calm it would merely have been cumulative of the fireman's testimony to the same effect. If the witness had stated that the fireman and deceased were excited the evidence would have been harmful to the railroad. It would have authorized the jury to find less negligence on the part of the deceased which would have increased the amount of damages against the defendant.
8. Even if the charge requested, as shown in ground six of the amended motion, is correct and easily understandable, especially insofar as the last sentence is concerned, the refusal to give the charge was harmless to the defendant because the evidence required the finding that the defendant's negligence contributed proximately to the death.
9. The charge complained of in ground seven of the amended motion was harmless to the defendant. There was no evidence authorizing the finding that the deceased's negligence was the sole cause of his death under any of the three counts.
10. The charge complained of in ground eight of the amended motion was not harmful, because even if it was erroneous because sufficient facts appeared to authorize the arrival at a conclusion as to what the deceased was doing at the time of his death, in this case the facts shown demanded the finding that at the time of the deceased's death he was sticking his head out of *Page 309 the engine window in the performance of his duty, however unwisely it might have been done.
The evidence authorized the verdict. The amended grounds of the motion for a new trial show no error. The court did not err in overruling the motion to dismiss the third count or in overruling the motion for a new trial.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.