I think that the motion of the defendants for a directed verdict should have been granted; and, at the least, that serious errors in the charge of the presiding Judge required the reversal of the judgment, and the ordering of a new trial. I therefore respectfully dissent from the affirmance of the judgment indicated in the opinion of the Chief Justice, for the reasons which follow.
The action is by the administratrix of William A. Driggers, deceased, for damages resulting from the wrongful death of the intestate, a brakeman employed upon a switching train by the defendant railroad company, due as alleged to the negligence of the defendants in certain specified particulars.
The case was tried before his Honor, Judge De Vore, November term, 1925, resulting in a jury verdict of $25,000.00 in favor of the plaintiff.
The defendants have appealed upon numerous exceptions, assigning error in the refusal of their motions for a nonsuit and a directed verdict; in the charge of the presiding Judge; in his refusal to allow certain requests to charge; and in other particulars. *Page 219
The deceased brakeman was killed by collision with the engine of a passenger train, passing on the south-bound main line, as he jumped from a switch engine entering thenorth-bound main line from a spur track, pulling a string of 12 or 13 cars.
It is extremely important, in my opinion, to have a clear conception of the locus of the unfortunate occurrence, which resulted in the death of the brake man; this I will endeavor to present.
At the point of the accident about 3 miles north of Charleston, the double tracks of the Coast Line and Southern Railroads are parallel and quite near each other; they run practically due north and south, and for a distance of 2,000 feet toward the north are perfectly straight, with no intervening obstructions to the view; the double track of the Southern lies to the west of that of the Coast Line. (The Southern Railway Company is not involved in this controversy and no further reference need be made to it.) The eastern line of the double track of the Coast Line is used and known as the north-bound main line; the western, as the south-bound.
To one standing south of the point of accident, between the north-bound and the south-bound main lines, facing the north, with his back toward the city of Charleston, the situation is this: Upon his right is the north-bound main line, and upon his left, the south-bound; these lines measuring from the center of each are 12 feet apart; leading from the north-bound main line, from a switch controlled by a leveron the east side of that line, in a northeasterly course and on a curve to the right, is a spur track, crossing Meeting Street Road (which is parallel with the railroad), and running to a coal yard, known as the "Etiwan Lead track."
Meeting Street Road, where the Etiwan Lead track crosses it, is following the curve of that track, some 200 feet from the switch at the north-bound main line; between those points there were, at the time of the accident, at a *Page 220 point about halfway, a billboard and some shrubbery, which obstructed the view by one at any point between the crossing and the halfway point, of a train approaching the switch from the north; but between the halfway point and the switch, a distance of about 100 feet, there was nothing to obstruct the view, toward the north, for a distance of nearly three-quarters of a mile, the track as stated being straight.
On the day in question, one McDonald, yardmaster of the Coast Line (who is commonly spoken of in the record as "conductor"), with an engine and no cars attached, left the Charleston Yard for the purpose of transferring certain cars which were standing on the Etiwan Lead track, to the Seaboard Railway, at a connection point some distance north of the point of accident. His crew consisted of himself, one Yarborough, engineer (since deceased), a fireman, and the plaintiff's intestate, Driggers, brake man. The "light" engine (that is, an engine with no cars attached) was running backward. When it reached the switch leading into the Etiwan Lead track, into which it was proposed to enter for the cars to be transferred, the conductor stopped the engine, alighted, and turned the switch, standing on the east side of the north-bound main line. The engine was then backed into the Etiwan Lead track to bring out the 12 or 13 cars which were to be transferred.
It appears that the conductor did not accompany Yarborough and Driggers into the Etiwan Lead track, but after turning the switch, and leaving it open, sent them on to do the work; he then crossed the double tracks of both railroads, toward the west, and took a position beyond the Southern's double track and near it, "to look for a train" that might be coming from the south on the north-bound main line. Driggers, on the Etiwan Lead track, was in his view, for he states that he saw him shifting the cars to be transferred, flagging the Meeting Street Road crossing, and mounting the footboard on the front of the switch engine. *Page 221
After Driggers had "cut out" a car in the string of cars on the Etiwan Lead track, coupled, coupled up to the cars to be transferred, flagged the crossing, and mounted the footboard of the engine, which then was moving front foremost, pulling the cars, the switching train proceeded toward the switch at the north-bound main line (not the south-bound, as stated in paragraph 3 of the complaint).
The contemplated train movement of the switching train was to enter again the north-bound main line, by the switch which the conductor had left open, pass south of the switch until the last car attached to the switch engine had passed the switch, stop, turn the switch to the north-bound main line, and shove the train of cars up that line to the Seaboard Air Line Railway connection, some distance north of the switch.
Driggers was riding upon the footboard in front of the engine, which was in front of the string of cars; to retain that position until the last car had passed the switch and the engine had stopped meant a walk back the distance of 12 or 13 car lengths, to the switch that had to be turned again. Evidently to avoid this exercise, as the engine was about to enter the north-bound main line at the switch, Driggers was in the act of alighting from it on the right-hand side — the switch was on the left — between the two main lines. The conductor, who was at the position assumed by him "to look for a train," called as a witness for the plaintiff, testified: "I heard 79 (the train that struck the brake man), blow at the Riverside Iron Works, and I wanted to be sure he saw 79. I wanted to give him a signal, and I pointed at the train; he was looking at me; I tried to call his attention to the train. * * * I pointed at the train, told him to stay on the footboard. * * * That same signal would mean we were going to shove to the Seaboard Air Line railroad * * * 79 was coming down the south-bound track; as he stepped off right at this place he stepped into 79 there. * * * As he stepped off the footboard, I *Page 222 could see an object dangling in the driving-wheel of the engine * * * he swung into it, the pilot sill of the engine."
As he jumped he ran into the pilot beam of the passenger engine, which is back of the pilot (cowcatcher), was caught by the driving-wheel, and horribly mangled.
In reference to the matter of Driggers' opportunity to observe the approach of the south-bound train that struck him, the same witness for the plaintiff, McDonald, testified that after Driggers had passed a point half-way between the Meeting Street Road crossing and the switch, he would have been clear of the billboard and shrubbery and could have seen a train coming down on the south-bound main line a good deal further up than where the camera for the photograph was placed, 1,000 feet from the switch. This photograph shows that men standing on the Etiwan Lead track, 270 feet from the switch, can be seen from where the camera was placed. The witness (McDonald) testified that if the men shown on the photograph had been standing further up the Etiwan Lead track, they could have been seen, and of course could have seen a train where the camera was placed. From the position occupied by McDonald, he saw the coming train three-quarters of a mile away.
I do not suppose that in the thousands of railroad accidents, a parallel can be found to the extraordinary circumstances which attended the death of the unfortunate brake man in this case.
The circumstances mainly relied upon, to attribute his death to the negligence of the railroad company, cluster around the operation of the passenger train by the engineer, his conduct in that regard. It is alleged that he was running his train at an excessive and dangerous rate of speed; that he failed to keep a lookout; that he failed to give a signal, a warning of the approach of his train, in view of the prevalence of the custom of switching cars at that point. *Page 223
The charges against the company are that it failed to furnish the intestate with a safe place to work; in which is included its failure to provide sufficient space between the main lines (north-bound and south-bound) to enable the employees to safely board and alight from trains in the performance of their duties, in permitting the right-of-way of the Etiwan Lead track to be obstructed and screened by billboards and shrubbery.
I. First as to the charges of misconduct on the part of theengineer:
The charges should not be entertained unless the evidence at least tends to show that there was a reasonable ground for him to apprehend danger to a brake man at that point, under the circumstances.
The plat offered in evidence by the plaintiff shows that about 10 feet south of the switch for the Etiwan track, there is a switch for a cross-over track from the north-bound main line to the south-bound; but for the intervening 10 feet of north-bound main line track, between the switches, it is a continuation of the Etiwan track.
When the switch for the Etiwan track is turned, a red signal is displayed at a tower south of the switch, which warns a train from approaching the switch on the north-bound main line; and when the other switch, connecting the cross-over track with the south-bound main line, is turned, a similar signal is displayed at a tower north of that switch, for south-bound main line trains.
Upon this occasion the switch connecting the cross-over track with the south-bound main line was not turned; in fact, the cross-over track was not needed in the train movement then in progress. Consequently no signal was displayed for south-bound trains; the engineer had of right, a clear track.
So far he was unquestionably within his rights. The red signal for the north-bound main line was away south of the switch; it was not visible to him; and if it had been it would *Page 224 not have applied to him; he would have been chargeable with notice that the north-bound main line was in use, which of course would have no effect upon his use of the south-bound main line, upon which he had a clear track.
But if it can be said that the Etiwan track, in connection with the north-bound main line, was constantly being used as a switching ground, to such an extent as to charge him with notice that some brake man would likely be at that locality, in reason he could not have suspected that in the discharge of his switching duties a brake man would alight between the two main lines, on the west side of the north-bound main line, when the switch that he was expected to turn was ten feet away on the east side.
The engineer testified that some distance from the switch he saw the switch train coming out of the Etiwan track "for the north-bound track." He had the right to assume, in the absence of a red signal against his use of the south-bound line, that the activities of the switching train would be confined to the north-bound main line. As a conceded fact, the train movement of the switching train, as contemplated, was to be confined to that line.
Is it just to charge him with the prescience that a brake man upon the footboard of a switch engine, whose position was unknown to him, would make use of the south-bound main line, or of the space between the two lines, in the discharge of a duty which called him upon the other side of the line, and run into his train? I do not think so. Would the engineer under these circumstances be in the slightest danger of a conviction of manslaughter? If his negligence was sufficient to impose a pecuniary liability upon the railroad company, he could not escape from such criminal liability.
Upon the question of the alleged excessive and dangerous rate of speed, I do not think there is a particle of evidence. The point of the accident is not shown to have been within the Charleston Yard, and, if it was, no rule has been admitted in evidence (as the Circuit Judge held) fixing the rate *Page 225 of speed therein. It is shown by uncontradicted evidence that the engineer had the right, in this locality, to run 40 to 50 miles an hour.
But if it had been shown that the engineer was exceeding the speed limit, it has not been shown that it was the proximate cause of the collision.
The question appears to be concluded by the case of Pattersonv. Director General of Railroads, 115 S.C. 390,105 S.E., 746, where this appears in the opinion: "Plaintiff testified that No. 48 came into the yard at a speed of thirty or thirty-five miles an hour, in violation of the rule and city ordinance referred to in the complaint. But he said that the engine and tender of No. 48 had passed the junction of the side track with the main line, so that his engine collided with the first or second car in that train."
Referring to the question of proximate cause, the Court said: "Limiting the fourth ground, as suggested, to the speed of No. 48, we concur in the view that it was not the proximate cause of the injury, because that train did not run into plaintiff's engine, but his engine ran into the train, after its engine [of No. 48], had passed the junction of the switch with the main line. The speed and position of No. 48 was, therefore, only a remote cause of the injury."
II. Next as to the charge of misconduct on the part ofthe company:
The gravamen of this charge is that the company did not provide a safe place for the brake man to perform the service required of him. In that blanket charge there are specifications:
(a) That the space between the two main lines was insufficient to enable the employees to safely board and alight from the trains;
(b) In permitting the view from the Etiwan track, for trains coming from the north, to be obstructed by billboards and shrubbery, upon the right-of-way between that track and the main line. *Page 226
(a) As to insufficient space: The authorities universally hold that the place as to which complaint is made must have been a place provided by the master for the service. It cannot be assumed, simply from the fact that a servant was injured at a particular place, which the result shows to have been a place of danger, that that was the place provided by the master for him to work; particularly in view of the positive evidence in the case that there were other places perfectly safe.
In Broadway Co. v. Render (Ky.), 119 S.W. 198, it is said: "The duty of the master to furnish a reasonably safe place applies only to the place which the employee is requiredto use for the purpose of performing his duty."
In Harper v. R. Co., 131 Ky., 225, 115 S.W. 198, it is said: "But the duty of furnishing reasonably safe appliances and reasonably safe places and premises is confined to the appliances and places and premises with which the servant is required to work, or in which his duties require him to be."
In Smith v. Trimble, 111 Ky., 861, 64 S.W. 915, the Court said: "And when appellant, without invitation or knowledge of the owner, went into or upon other parts of the premises, not necessary for the performance of his labor, he assumed all the risks of doing so. He was neither required, expected nor allured to be at the place where he was injured, and consequently appellee was under no duty to him to provide there a place of safety."
In Albert v. McKay Co., 174 Cal., 451, 163 P., 666, the Court said: "The negligence charged in the first count is the failure to comply with the employer's duty to furnish his employee with a reasonably safe place to work. The duty is limited to `the premises where the employee is required, forthe purpose of his employment to be.'"
In Harris v. Det Farenede Dampskibselsbab Aktie Selskab,75 N.J. Law, 861, 70 A., 155, the Court said: "A master's duty in respect to furnishing his servants a safe place in which to work, extends to such parts of his premises only as *Page 227 he has prepared for their occupancy while doing his work, and to such other parts as he knows or ought to know they are accustomed to use while doing it."
"The duty of a master to furnish a safe and suitable place for his servants to do their work in extends only to such portions of the premises as he has prepared and designed fortheir occupancy while doing his work, and to such other parts as he knows, or ought to know, they are accustomed to use while doing it." Morrison v. Burgess Sulphite Fibre Co.,70 N.H. 406, 47 A., 412, 85 Am. St. Rep., 634.
"A master's duty to furnish his servant with a safe place in which to work, extends to such parts of his premises onlyas he has prepared for their occupancy while doing their work, and to such parts as he knows or ought to know they are accustomed to using while doing it." Triangle, LumberCo. v. Acree, 112 Ark. 534, 166 S.W. 958, Ann. Cas., 1916-B, 773.
"A master's duty in respect to furnishing his servant with a safe place in which to work, extends to such parts of his premises only as he has prepared for their occupancy while doing their work, and to such parts as he knows or ought to know they are accustomed to using while doing it." La Batt (1st Ed.), § 1558b.
"The employer is not an insurer of the employee's safety. He is liable for the consequences of his negligence but not of the dangers of the employment." 39 C.J., 260.
It appears to me therefore that the railroad company assumed no obligation whatever to the deceased in the matter of his voluntary effort in attempting to alight between the main lines. The foundation of the plaintiff's claim is that because Driggers selected the place to alight, the railroad company must be assumed also to have selected it and required him to work there.
The fact, if it be a fact, that the deceased may not properly be charged with negligence in not crossing over to the left footboard, where he could have alighted upon the side *Page 228 where the switch was, does not by any means establish the fact that the company provided or expected him to use the space between the lines for alighting; this is the gist of negligence in this respect.
(b) As to the billboards and shrubbery: Giving the plaintiff the benefit of the shortest distance testified to, between the Meeting Street Road crossing and the connecting switch at the north-bound main line, 200 feet, the evidence is overwhelming from the plaintiff's witnesses that the obstruction of vision did not extend further than halfway to the switch, and that for the remainder of the distance, 100 feet, a person at any point on the Etiwan track could have had an unobstructed vision of the south-bound main line for a distance of nearly three-quarters of a mile.
The plaintiff offered in evidence, and it is a part of the record for appeal, a photograph taken from a point on the south-bound main line, 1,000 feet from the switch in question. In that photograph three men appear standing on the Etiwan track 270 feet from the switch, who can be seen, of course, if they are in the picture, from the point where the camera rested. If they can be seen at that point by the eye of the camera, it is indisputable that they could see an engine as it reached the point where the camera rested.
III. I have discussed the case from the standpoint of the negligence of the engineer and of the company; I shall discuss it now from the standpoint of the brakeman's negligence. Whether his conduct may be considered negligent or not, I think that the sole proximate cause of the fatal occurrence was the act of the brake man.
The rule in the Federal Court, the final arbiter in cases involving the Employers' Liability Act, is thus stated in the case of Pheasant v. Director General of Railroads (C.C. A.), 285 F., 342: "While such negligence is contributory, and evidence of it is admitted under the Federal Employers' Liability Act ordinarily in diminution of damages, it is, *Page 229 nevertheless, a bar to recovery when it is clear that it was the proximate cause of the injury, or, stating it, perhaps, more accurately, when it appears that the decedent's death was caused solely by his own carelessness" — citing a number of cases including Linkous v. R. Co., 242 U.S. 630,37 S.Ct., 15, 61 L.Ed., 537.
It appears beyond dispute that the brake man flagged the Meeting Street Road crossing and mounted the right-hand front footboard of the switch engine which was then moving forward toward the switch — the most favorable position that he could have selected for observation. After he had passed the midway point between the road crossing and the switch, for a distance of at least 100 feet he had a wholly unobstructed view of the south-bound main line as straight as a gun barrel, for not less than 1,000 feet; and the evidence for the plaintiff by the photographer and the conductor of the switch train is to the effect that the point where the camera was placed, 1,000 feet from the switch, could have been seen by a man standing on the Etiwan track 270 feet from the switch. The evidence of the conductor is that standing 15 or 20 feet across the two double tracks, on the west, he could see the coming passenger train for three-quarters of a mile. He heard the whistle of the train away up north of the switch at the Riverside Iron Works.
It seems impossible to conclude otherwise than that Driggers could have both seen and heard the coming train if he had exercised the least degree of care to ascertain whether it was coming or not.
Most probably he concluded that as his work did not naturally call him to the south-bound main line, he had nothing to fear from a train upon that track; if so, was the engineer not entitled to draw the same conclusion? As a matter of fact, his use of the south-bound main line was purely accidental, caused doubtless by the momentum of his own body as he alighted from the moving switch engine. The conductor *Page 230 significantly testified: "He did not step on the south-bound track; he stepped between the tracks and turned; he had toget his balance." Evidently the switch engine was moving more rapidly than he calculated, and after he alighted between the tracks his momentum carried him into the engine on the south-bound track — an accident pure and simple. Could the engineer be charged with the probability of such an improbable occurrence?
We may never know whether the brake man saw the coming train or not; it is very sure that his duty did not call him into that death trap; he would have been perfectly safe upon the footboard if he had retained his position there or had waited until the train passed; it is not improbable that a stumble carried him into the engine; as a matter of fact, he was not charged with the duty of turning switches; the conductor testified that it was entirely optional with him. The conductor had turned the switch for the entry into the Etiwan track, and was only 15 or 20 feet from the switch when the train entered the north-bound main line; there was no necessity therefore for the brake man to take the risk he ran.
IV. But assuming that the accident was not due solely to the conduct of the brake man, and that it could only be urged by the defendants as contributory negligence, in diminution of the damages, the risk that he ran was either a risk ordinarily incident to his employment, or an extraordinary risk due to the negligence of the defendants.
If an ordinary risk, he must be held to have assumed it, under the principles announced in Chesapeake O.R. Co.v. Nixon, 271 U.S. 218, 46 S.Ct., 495, 70 L.Ed., 914: "If the accident had happened an hour later when the deceased was inspecting the track, we think that there is no doubt that he would be held to have assumed the risk, and to have understood, as he instructed his men, that he must rely upon his own watchfulness and keep out of the way. The Railroad Company was entitled to expect that self-protection from its employees" — citing authorities. *Page 231
I think that the truth of the matter is that he knew of the train's approach (or certainly, what is the same thing in law, he should have known of it), and anticipated no danger from it on the south-bound main line; that what happened was a contingency which he could not reasonably have anticipated, an accident pure and simple, with the anticipation of which the engineer of the passenger train was not more chargeable than the brake man was.
If the risk was an extraordinary one, due to the negligence of the defendants, the brake man must be held alike to have assumed it with the knowledge he had, or should by the exercise of ordinary care have had, of the alleged negligence of the defendants and of the danger thereby created in the attempt which he made.
V. I think that the presiding Judge erred in refusing the motion of the defendant railway company to strike from the complaint subdivision (n) of paragraph 4.
The presence of buildings or other obstructions to vision alongside of a railroad track, upon the land of others, may have a bearing upon the duty of a railroad company to exercise care commensurate with that situation, and upon the opposite party to the controversy as well; but I know of no law which forbids a man from putting up such structures upon his own land as he pleases, or which requires a railroad company to have them removed for the protection of those with whom it may come in contact.
VI. Under the undisputed facts of the case, the defendant railway company was entitled to have its first request to charge presented to the jury.
VII. The fifth request to charge clearly and correctly declared the law of assumption of risk, and should not have been refused.
VIII. The sixteenth, eighteenth, and twenty-second exceptions assign error in charging that the delicts therein referred to constitute violations of law. They may have been *Page 232 evidence of negligence without being violations of law. The vice in the charge was classing them with specific statutory regulations, the violation of which constitutes negligenceper se.
IX. The twenty-fifth exception points out a palpable error. It is so well settled, as to require no authorities, that assumption of risk is of two kinds: (1) The assumption of such risks, not due to any negligence on the part of the master, as are ordinarily incident to the work in which the servant may be engaged; and (2) extraordinary risks, risks due to some failure of duty on the part of the master (negligence), which are known or should be by the exercise of ordinary care, to the servant, and the dangers of which are appreciated by him. In either case the servant is held to have assumed the risk. The charge of the presiding Judge specifically limited the defense to the first class.
There are other errors in the conduct of the trial of which "the time would fail me to tell," but these suffice.
ORDER The mandate of the Supreme Court of the United States,49 S.Ct., 490, 73 L.Ed., — , having been filed in the above-stated case reversing the judgment of this Court and remanding the case thereto,
It is ordered that the above-stated case be remanded to the Court of Common Pleas for Charleston County, with direction to enter judgment in favor of the defendants under Rule 27 of this Court.
By order of the Court:
*Page 233R.C. WATTS, Chief Justice.
T.P. COTHRAN, EUGENE S. BLEASE, JOHN G. STABLER, JESSE F. CARTER, Associate Justices.