[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 166 March 28, 1928. The opinion of the Court was delivered by "The judgment from which this appeal is taken is one entered upon the verdict of a jury rendered in the Court of Common Pleas for Charleston County on November 12, 1925, in the amount of Twenty-five Thousand ($25,000.00) Dollars and costs. *Page 209
"STATEMENT "This is an action for damages in the amount of One Hundred Thousand ($100,000.00) Dollars, brought in the Court of Common Pleas for Charleston County, under the Federal Employers' Liability Act, as amended (U.S. Comp. St., §§ 8657-8665 [45 USCA, §§ 51-59]), by the plaintiff as administratix of William A. Driggers, deceased, for the benefit of herself as the widow of the said William A. Driggers, and of her two children. The action is against the defendants, Atlantic Coast Line Railroad Company and M.H. Brandt, and in the pleadings and at the trial it was admitted by both plaintiff and defendants that at the time of the accident to, and injuries and death of the deceased, both the deceased and the defendants were engaged in Interstate Commerce, and that action was brought and maintained under the Federal Employers' Liability Act, as amended, as aforesaid."
The appellant states the questions involved as follows:
"(1) There was no evidence of actionable negligence on the part of the defendants which was a proximate cause of the death of plaintiff's intestate.
"(2) Plaintiff's intestate assumed, as a matter of law, the risk of injury by coming into collision with a train on the main line track when he stepped toward or upon said track, the risk and danger being obvious and apparent, or would have been to an ordinarily prudent person under the circumstances.
"(3) Refusal to strike an allegation in the complaint charging the defendant railroad company with negligence in respect to the presence of billboards and shrubbery not on defendant company's land or right-of-way in charging the jury that the railroad company owed a duty to keep such places unobstructed and that the jury might find negligence in that respect. *Page 210
"(4) Refusal to charge that under the evidence the presence of alleged obstructions to the view of the deceased, even if negligence, could not, as a matter of law, be the proximate cause of the death of the plaintiff's intestate.
"(5) Refusal to charge a proper request on assumption of risk.
"(6) Error in charging that a servant does not assume any extraordinary hazards or risks.
"(7) Refusal to send the jury to the scene of the accident and abuse of discretion in overruling defendant's motion that the jury be so sent.
"(8) Error in charging that the defendants would be guilty of a violation of law in running their trains at a high and dangerous rate of speed.
"(9) Error in charging that the defendants would be guilty of a violation of law in running a train at an excessive rate of speed.
"(10) Error in charging that it was a violation of law to allow billboards and shrubbery to obstruct the view of the main line tracks.
"(11) Error in charging that it was wrong to run a train at a high or dangerous rate of speed, rule or no rule.
"(12) Error in charging on the facts with reference to the rate of speed of trains.
"(13) Error in charging on the facts with reference to the presence of alleged obstructions near the track.
"(14) Error in refusing to hold the verdict was against the weight of the evidence, and was excessive."
The exceptions raising the question that the Court was in error in not granting a nonsuit or directing a verdict as asked for by the defendants, made on the ground that there was no actionable negligence on the part of the defendants, which was the proximate cause of the death of plaintiff's intestate, we think there was plenty of evidence in the case to justify his Honor's rulings. *Page 211
The rule for the direction of a verdict in South Carolina has been repeatedly announced as follows: "Under the well-settled rule, if there was any evidence tending to support the defense interposed by defendant, the trial Judge could not properly have directed a verdict. Under the equally well-settled rule, on such motion defendant was entitled to have the evidence considered and construed most strongly in his favor." Brooks v. Floyd, 121 S.C. 356, 113 S.E., 490. See also Wilson v. A.C.L. Railway Co., 134 S.C. 31,131 S.E., 777; Miller v. A.C.L. Railway, 140 S.C. 123,138 S.E., 675.
This has been again stated in the case of Lower MainStreet Bank v. Caledonian Insurance Co., 135 S.C. 155,159, 133 S.E., 553, at page 555: "The well-established rule in this State is that if there is any testimony whatever to go to the jury on an issue involved in a cause, or even if more than one inference can be drawn from the testimony, then it is the duty of the Judge to submit the cause to the jury. This is true, even if witnesses for plaintiff contradict each other, or if a witness himself in his testimony makes conflicting statements."
These exceptions are overruled. It was properly submitted to the jury whether the defendants furnished the deceased a safe place to work.
"On a track where his vision was obstructed by billboards, shrubbery and bushes, and the failure on the part of the engineer to slacken his speed, blow his whistle, keep a proper lookout or to take any precaution to keep his train under control at a place where he knew constant switching was going on, and his failure to take such precaution in the face of the signal he could have seen Conductor McDonald giving to plaintiff's intestate, were acts of negligence, and, certainly, were questions to be submitted to a jury to determine whether or not they constituted negligence." Mann v. Seaboard Air Line Railway Co.,138 S.C. 241, 136 S.E., 234; Kirkland v. Southern *Page 212 Railway Co., 128 S.C. 47, 121 S.E., 594, Certiorari denied, 264 U.S. 594, 44 S.Ct., 453, 68 L.Ed., 866; Padgettv. Seaboard Air Line Railway Co., 99 S.C. 364,83 S.E., 633, affirmed by United States Supreme Court, 236 U.S. 668,35 S.Ct., 481, 59 L.Ed., 777; Squire v. SouthernRailway Co., 109 S.C. 400, 96 S.E., 152; Thorntonv. Seaboard Air Line Railway Co., 98 S.C. 348,82 S.E., 433; Dutton v. Atlantic Coast Line Railroad Co., 104 S.C. 16,88 S.E., 263, affirmed by United States Supreme Court,245 U.S. 637, 38 S.Ct., 191, 62 L.Ed., 525.
In the Dutton case, supra, affirmed by the United States Supreme Court, this Court held that the "scintilla of evidence" rule is applicable to cases brought under the Employers' Liability Act, and that the same rule of procedure applies to the administration of that Act in the state Court as it does to the administration of state laws. Free v. SouthernRailway Co., 78 S.C. 57, 58 S.E., 952.
In the case of Free v. Southern Railway Co., supra, this Court said, through Mr. Justice Woods: "As Free was returning across the tracks with water, his attention attracted by an approaching freight train, he was struck and killed by a switch engine coming from the opposite direction on another track. Witnesses variously estimated the speed of the switch engine at from twenty to thirty-five miles an hour, and they all testified there was no watchman on its pilot, and no warning of his approach by bell or whistle. From this evidence the jury might well infer the defendant was negligent in running its switch engine at such a rate of speed in a yard where there were several tracks and the confusion of other moving trains, without a guard on the pilot and without signals; and that in these circumstances, the unfortunate boy in crossing the track in the discharge of the duty assigned to him was not guilty of contributory negligence in not seeing the engine and getting out of its way."
As to failure to apprehend danger when train is not running on schedule time, see Wrightsville T.R. Co. v. *Page 213 Gornto, 129 Ga. 204, 58 S.E., 770; Seaboard Air-LineRailway Co. v. Hollis, 20 Ga. App. 555, 93 S.E. 264, 267.
The question whether or not these acts, if they constituted negligence, individually or jointly and concurrently, were the proximate cause of the death of plaintiff's intestate, presented questions of fact for the jury to determine, and the Court properly submitted these questions of fact for their determination, and they resolved them in favor of the plaintiff.Milwaukee St. P. Railway Co. v. Kellogg,94 U.S. 469, 24 L.Ed., 256; Cooper v. Richland County, 76 S.C. 202,56 S.E., 958, 10 L.R.A. (N.S.), 799, 121 Am. St. Rep., 946; Thompson v. Seaboard Air Line Railway Co.,78 S.C. 384, 58 S.E., 1094.
In the Milwaukee St. P.R. Co. v. Kellogg case,supra, the Court said: "The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances * * * attending it."
In the Thompson case, supra, our Supreme Court, through Chief Justice Pope, says: "Suffice it to say here that the question of proximate cause is one peculiarly within the province of the jury."
We think that the assumption by the deceased was properly submitted to the jury under the cases ofMcAlister v. Southern Railway Co., 130 S.C. 458,126 S.E., 627, certiorari denied, 266 U.S. 632,45 S.Ct., 225, 69 L.Ed., 478; Hudson v. Atlantic Coast Line RailroadCo., 123 S.C. 488, 124 S.E., 584; Lorick v. SeaboardAir Line Railway Co., 102 S.C. 276, 86 S.E., 675, Ann. Cas., 1917-D, 920, affirmed by the United States Supreme Court, 243 U.S. 572, 37 S.Ct., 440, 61 L.Ed., 907;Pendergrass v. Southern Railway Co., 114 S.C. 78,113 S.E., 150; Hankinson v. Charleston W.C. Ry. Co.,94 S.C. 150, 77 S.E., 863; Hall v. Northwestern R. Co.of S.C., 81 S.C. 522, 62 S.E., 848. *Page 214
His Honor was not in error in refusing to strike out that part of the complaint charging the defendant company with negligently permitting the presence of billboards, shrubbery, and bushes. That was a question for the jury whether on railroad property or elsewhere. If they were there, whether on the company's property or elsewhere, and obstructed the view, and the company knew it, it was properly submitted whether under all the facts of the case the company was negligent operating its trains at that particular point so as not to endanger anyone. Wideman v.Hines, 117 S.C. 516, 109 S.E., 123.
It was a question for the jury whether it was negligent on the part of the defendants to require Driggers to work on a railroad track where his vision would be obstructed by billboards, shrubbery, and bushes, regardless of the fact that the company might have no control over the land on which they were located, because whether or not the company had control over that land, it was its duty to furnish Driggers with a place at which he could safely work, and which was not obstructed by billboards, shrubbery, and bushes.
The language quoted by the defendants from Ruling Case Law under this point (22 R.C.L., 995) is found under a section which discusses the rights between the railroad company and travelers at crossings, and does not in any way cover the question when these obstructions make unsafe the place at which the company's employees are required to work. On the other hand, the principle of the master's liability for dangerous conditions created by third persons near the place of work, as a breach of the duty to provide a reasonably safe place to work, is well established by a number of decisions in the several states. Boston M.R.R. v. Brown (C.C.A.), 218 F., 625; Doyle v. Toledo, S. M. Ry. Co., 127 Mich., 94, 86 N.W., 524, 54 L.R.A., 461, 89 Am. St. Rep., 456; Pittsburgh, etc., Railway Co. v.Parish, 28 Ind. App. 189, 62 N.E. 514, *Page 215 91 Am. St. Rep., 120; Devine v. Delano, 272 Ill., 166, 111 N.E., 742, Ann. Cas. 1918-A, 689; Clark v. Union Iron Foundry Co.,234 Mo., 436, 137 S.W. 577, 45 L.R.A. (N.S.), 295.
In Boston M.R.R. v. Brown, supra, the Court of Appeals of the First Circuit, reviewing a case in which a brakeman was knocked off the top of a moving freight car by a bridge near Lawrence, Mass., said: "Although, according to the evidence, this bridge was unusually low, and maintained, not by the defendant the railroad, but by the City of Lawrence, this did not entitle the defendant to the requested instructions that the railroad could not be held negligent with respect to its height. If the passage beneath it was not reasonably safe under all the circumstances, the railroad might still be negligent in continuing to permit the passage of trains beneath it while in such condition."
In Doyle v. Toledo, S. M. Ry. Co., supra, it was held that it is the duty of a railway company to see that a building over its switch track is reasonably safe for employees whose duties call them thereunder, though the building belongs to third persons. In that case the building was the shed of a lean-to, a brick kiln near the railroad's switch track. The railroad had no control over it. The Court based its holding squarely on the doctrine that the railroad owed a duty to provide a reasonably safe place to work and reversed the trial Court, which had directed a verdict for defendant.
In Devine v. Delano, supra, the principle was applied to an obstruction alongside the track of the railroad on the premises of a manufacturing plant, the Court saying that if the railroad company had no such control as to be able to remove such dangerous conditions itself, it had to make some arrangements with the owners to change the conditions or had to stop switching at that point.
In Clark v. Union Iron Foundry Co., supra, the Missouri Supreme Court held that one who contracts to erect a building in close proximity to wires carrying a heavy *Page 216 electrical current owes his employees the duty of determining whether or not the insulation is safe, although his contract gives him no authority over the poles or wires or the space by them. The Court says: "The test is not that the place within itself is reasonably safe, but it must be reasonably safe from all internal and external dangers which are liable to do injury to the servant."
His Honor properly submitted to the jury, on all the facts and circumstances, whether or not there was actionable negligence on the part of appellants, and whether or not that was the proximate cause of the death of plaintiff's intestate.
On the question of assumption of risk the Court charged as follows: "And there is a corresponding duty on the servant. The servant has a right to assume that the master has furnished him a reasonably safe place to work, and he does not have to make any minute inspection, or any investigation. He may assume that the master has performed his duty. But if the place is dangerous — obviously dangerous, and can be seen by the servant, and he goes on and performs his duty after knowing that, why he assumes that risk. He takes the risk on himself, and if he is injured on account of that, he could not hold the master for that. Suppose you were employed by a railroad to work at a certain place. You would have a right to assume that the place was reasonably safe. But if the place was not reasonably safe, was dangerous, the danger was obvious to you, you could see it and knew it, and you undertook to work in that place and you got hurt it would be your fault. Whether that happened in this case I don't know."
In the light of the full instructions given on this point, there was no likelihood of the jury's being misled.
His Honor, the trial Judge, instructed the jury that a servant could not hold the master liable if the place was obviously dangerous and he undertook to work there, and that it was a risk which he assumed, and could not recover *Page 217 as a result of any injuries sustained by him by reason of the assumption of such risk. Booth v. J.G. White EngineeringCo., 101 S.C. 483, 86 S.E., 32; Harrell v. ColumbiaMills, 112 S.C. 177, 98 S.E., 324; Mann v. Seaboard AirLine Railway Co., 138 S.C. 241, 136 S.E., 234.
The Court properly refused to send the jury to the place where Driggers was killed, and properly exercised its discretion in not requiring the jurors to go there after the jurors advised his Honor that they did not care to go. Bodie v. Charleston W.C. Ry. Co., 66 S.C. 302,44 S.E., 943; Parrott v. Barrett, 81 S.C. 255,62 S.E., 241.
In the Bodie case, supra, this Court said: "The jury informed his Honor, the presiding Judge, that they had decided that it would be of no benefit to them to visit the place where the accident occurred. It was wholly within the discretion of the presiding Judge whether he would send the jury to view the place where the injury occurred, and under the circumstances, his discretion was properly exercised."
His Honor's language as complained of in charging that certain conduct alleged was in violation of law has given me some trouble, but a careful reading of his charge as a whole convinces me that it was a slip of the tongue and not prejudicial.
His Honor instructed the jury that the specifications of negligence, as charged in the complaint not complied with, were a non-observance of the law, and if the jury believed that plaintiff could recover. It was unfortunate that he used the words in violation of law, but taking his charge as a whole, it was eminently fair and not prejudicial, because the jury could not have inferred from it that appellant was guilty of violating any criminal law or statute.
"They charged that the law required the defendants to do certain things, as specified therein, and that they failed to comply with the same, and that they, therefore, became liable for whatever damages the plaintiff sustained as a *Page 218 result of the failure on their part to comply with these requirements. But the Court jealously guarded the rights of the defendants in so charging and repeatedly told the jury that it was for them to decide whether or not the defendants complied with the law as charged by it, and, if they did not comply therewith, whether or not that constituted negligence, and that even then the plaintiff could not recover unless such negligence was the proximate cause of the injury."
The matter of a new trial was within the discretion of his Honor, and his refusal to grant it will not be disturbed.
All exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur: