July 31, 1914. The opinion of the Court was delivered by This is an action for personal injury.
The plaintiff claimed that he was a switchman in the employ of the defendant. That he went to the switch on a switch engine and, after the engine and cars passed over the switch, he threw the switch. That the engine stopped very near the switch. That the rules permitted the engine to move only after he (plaintiff) had given the signal. That he could signal either the fireman or the engineer. That he was on the fireman's side and looked up, but did not see the fireman and gave no signal. That the train crew were in a hurry, and he started across the track to signal the engineer. That when he was on the track he saw the engine coming back rapidly and very close to him. That in order to save himself from being run over by the engine, he jumped at a footboard on the front of the tender (the engine was running backwards), and missed his footing on account of the defective condition of the footboard. The plaintiff was thrown under the engine and seriously injured. *Page 336
The defendant set up that the plaintiff himself gave the signal to come back and then went on the track in front of the moving engine. That it was a very dangerous place; denied the defective condition of the board. Pleaded assumption of risk and contributory negligence.
The plaintiff was engaged in making up an interstate train and the defendant claimed that the plaintiff's rights, if any, are under the federal statute. (Act of Congress, April 22, 1908, 35 U.S. Stat. 65, pt. 1, c. 149, U.S. Comp. St. Supp. 1911, p. 1322.)
The trial resulted in a verdict and judgment for the plaintiff, and the defendant appealed upon twelve exceptions. The appellant, however, condenses his exceptions into four propositions, which are as follows:
I. "The specific acts of negligence charged in the complaint are not breaches of any federal statute enacted for the safety of employees."
The point here is that the federal statute (Safety Appliance Act and amendments thereto) forbids the use of defective "running boards," and the board complained of is a "footboard," and a footboard is not within the provision of the federal statute. In the complaint the board in question is called a "footboard." In the answer of appellant the board is called, in the third paragraph, the "running board." In the fourth paragraph it is called the "footboard." In the cross-examination of plaintiff, he was three times asked by appellant about the "running board." In the trial of the cause the appellant used the terms "footboard" and "running board" interchangeably. If there was a difference it ought to have appeared in the evidence, and there was no evidence of a distinction between the two. The appellant requested his Honor, Judge Rice, to charge the jury that the plaintiff had not brought himself within the protection of the federal statute. This his Honor declined to do, and properly so. To illustrate — a man is charged with killing a partridge out of season. *Page 337 The Judge who tried the case could no more charge that the bird in question was a partridge than he could charge that the defendant had killed it. So here, his Honor could not charge that the board upon which the plaintiff attempted to stand was not a running board, particularly when the words had been used interchangeably by the appellant, and there was no evidence of a distinction in the testimony.
II. "The specific acts of negligence charged in the complaint not being breaches of any federal statute enacted for the safety of employees, the defense of assumption of risk, as at common law, is open to the defendant, unaffected by any constitutional or statutory enactment of South Carolina."
His Honor charged the jury in unmistakable terms, at appellant's request: "VII. This section is to be determined by the provisions of the Employers' Liability Act of Congress, which supersedes all State regulations of the subject."
"XI. Whatever in the Constitution of South Carolina which militates against the defense of assumption of risk is superseded by the Employers' Liability Act of Congress."
This proposition cannot be sustained.
III. "The error of the presiding Judge in construing the Employers' Liability Acts."
In discussing this proposition, appellant says:
"The effect of this charge is that where there is any defect in the appliance furnished by the master, irrespective of the vital inquiry whether the defect is a violation of a federal statute enacted for the safety of the employee or not, the defense of assumption of risk is eliminated. This, as we submit, under the Horton case (S.A.L. Ry v. Horton, 34 Sup. St. 635, 233 U.S. 492) is clearly a misconception of the effect of the liability acts. If the defect is not a breach of such a statute, the defense is open as at common law."
In the charge his Honor did make some remarks about the general law of assumption of risks, but he charged the jury in unmistakable terms that the Federal Employers' Liability *Page 338 Act alone governed this case, and it does seem that the jury could not have misunderstood him. In the particulars mentioned in the federal statute, assumption of risk is not a defense.
IV. "The errors of the presiding Judge in his declaration of the assumption of risk."
His Honor left it, properly, to the jury to say whether the board was a "running board." If it was a "running board," then the plaintiff was within the protection of the statute if it was defective. These were questions of fact. The Judge told the jury that the federal statute alone applied.
The judgment is affirmed.
This case has been carried to the United States Supreme Court upon writ of error.