May 21, 1918. The opinion of the Court was delivered by Action for tort to the person; verdict for the plaintiff for $1,000 actual damages; appeal by the defendant.
There are 11 exceptions, but the appellant has with great good sense reduced them in the brief to three issues. They are these: (1) The Court ought to have directed a verdict for the defendant, for the reason that there is no evidence as to how the deceased came to his death, and there is, therefore, no proof of negligence. (2) The defendant's liability was fixed by act of Congress, and not by statute of the legislature. (3) The Court should, therefore, have left it to the jury under proper instructions to find the fact whether at *Page 403 the instant of decedent's death he was engaged in interstate commerce; and the Court should then have applied the law of Congress or legislature according to the jury's finding of the fact. These are the circumstances of the case about which there is no dispute.
A negro named William Squire was a laborer for the Southern Railway. He was 25 or 26 years old. At the time in question he was on the night shift working at a coal chute in Branchville. At the instant time, around 6 o'clock p. m. in July, 1916, the deceased was opening the bottom of a flat bottom steel car loaded with coal to loose the coal from the car onto a platform some 14 feet below. The car was mounted on a trestle above the platform. In order to open the bottom of the car by turning a ratchet on the outside of the car the operator stands on a walkway 20 inches wide, built along the end of the ties and parallel to the rails, and that walkway had no rail around it. While engaged in that business the operator fell from the walkway down onto the platform some 14 feet below the walkway and suffered the fracture of his skull and the dislocation of his neck, which instantly killed him. An intelligent expert witness for the defendant thus described the method by which the car was unloaded:
"I am to some extent acquainted with the steel coal cars. These heavy steel cars carry 100,000 pounds. There is a shaft there that runs through the car. There is a latch that has a little lever on it. You knock that out. You hit it with a hammer or a bar and knock it loose, and that lets the doors drop, and the coal falls through the doors and hits between the rails. The tendency would be for it to drop right through between the stringers. The coal has to drop in between them. There are openings between the crossties so that the coal will not lodge there. If they were using hopper cars, the man who opened the doors could stand back *Page 404 behind the door on the gangway and the coal could not get to him."
We come now to appellant's first point before stated.
The evidence does not warrant a reasonable inference that the walkway — that is to say, the 20-inch way — itself was in such lack of repair as to suggest negligence by the defendant. A witness for the plaintiff testified "there was nothing wrong about the condition of the walkway; they were all right."
The testimony does, however, make these issues: (1) Was coal falling out of the bottom of the car and striking the ties on its way betwixt them to the platform below, likely to rebound onto the walkway and strike the operator? And (2) ought the walkway to have been protected by a rail or other device to secure the operators from the force of such probable rebounding coal and a consequent fall off the walkway? Several witnesses for the plaintiff testified that coal habitually rebounded onto the walkway. The master carpenter for the defendant, referring to the falling coal, testified:
"Most of it goes between the stringers. Some little portion might go out on the side; usually not much of it. If you were right there where it fell and it hit you, it might hurt you, but you don't have to be there."
Mr. Wassum, superintendent of the defendant, testified that the hopper bottomed cars, unloaded at the same place, may throw coal out on the walkway. Mr. Heaton, car inspector, referring to the falling coal, testified:
"A little bit of it would fall over the walkway; sometimes it hit the rails, and a little bit might fall outside. A little bit falls outside almost every time, but very little."
Richard Weeks, for the defendant, testified to the same effect. In the event coal did fall on the walkway, Heaton, *Page 405 for the defendant, testified, "the employees could hold on the ties." Mr. Maxwell, for the defendant, testified that:
"On the lower part of a steel car there is a portion of the girder that drops below the bottom with a little curve that comes under it that extends for the full length of the car."
The defendant, therefore, in the event of accident had contemplated a way of escape for the operator; that it to say, by holding to the ties, or by holding to the little curve handhold. Whether that was a reasonably sufficient way of escape makes an issue of fact.
It is true all the witnesses for the defendant testified without reserve that they had never seen in a wide experience hand rails on a walkway to protect an operator. Yet that is not conclusive of the defendant's duty.Sturdyvin v. Railroad, 98 S.C. 125, 82 S.E. 275.
Whether the respondent fell while undoing the ratchet, and because hit by falling coal, depended upon all the circumstances of the case. No witness saw him hit, and no witness saw him fall; but the circumstances were sufficient to go to the jury and help it to a conclusion thereabout. Thornton v. Seaboard, 98 S.C. 379,82 S.E. 433; Padgett v. Seaboard, 99 S.C. 364,83 S.E. 633.
The next point involves that often shadowy issue whether or not at the instant of his hurt the deceased was employed about interstate commerce. As before stated, the admitted fact is that Squire at the instant of his fall was unloading coal from a Tennessee car onto a platform in South Carolina for the future use by the engines of the defendant, some State and some interstate.
The appellant contends: (1) That in the act of unloading Squire was engaged in interstate commerce; and (2) that, furthermore, Squire's purpose was next and within a few hours to load the coal so felled on the platform onto interstate *Page 406 engines, and that such act of Squire in unloading was so closely related to his purpose to subsequently reload as to constitute his act done as a part of his act purposed to be done thereafter. On the second issue it is admitted by respondent's counsel that:
"Some time during the night of the 16th, if he had not been killed that afternoon, Squire would have used this coal to coal the many locomotives of the defendant which pass through Branchville. Two of these locomotives were engaged in interstate commerce."
We are of the opinion that the Court was not warranted to instruct the jury that the transaction was to be governed exclusively by the laws of the State. The rights of the parties are fixed by the laws of the State or by the laws of Congress, as depends upon which service Squire was in at the instant of his killing; and that issue of fact ought to have at least been submitted to the jury, and the jury ought then to have been charged about the differing duties and liabilities arising under the two laws. L. N.R.R. v.Parker, 242 U.S. 14, 37 Sup. Ct. 4, 61 L.Ed. 119; Cook v.So. R.R., 96 S.E. 148; Fayssoux v. S.A.L., 96 S.E. 150.
The judgment is reversed, and a new trial is ordered.