Upon the former trial of the case, the defendant moved for a directed verdict upon the ground that the evidence as to the cause of decedent's death was wholly speculative and insufficient to show the proximate cause of his death.
In overruling the exceptions raising this issue, the Court in the opinion reported in 149 S.C. 89, 146 S.E., 663, 672, made the following observations, in which I have italicized the evidence which appeared in that trial and which did notappear in this:
"We have already called attention to some of the evidence given in this case; we do not deem it necessary to review the entire testimony. Much of the evidence was circumstantial, but, taken as a whole, it was amply sufficient to carry the case to the jury. As stated, the evidence tended to show thatthe brakes on one of the cars were defective, a condition sufficiently dangerous to have caused a wreck; that this conditionwas discovered by the switchman, Marshall, who calledthe conductor's attention to it; that the train was stopped,and these two men attempted to rectify this defective condition;that the conductor did rectify same, as he thought,and went back to a place of safety; that the switchman didnot return at once to the top of the car where he generally *Page 143 rode, but, inferentially, remained on the ladder attached tothe side of the box car for the purpose of further watchingand nothing whether the brakes would work properly or continueto `stick'; and that the train of cars, running at a rate of from 20 to 25 miles per hour, which caused a sway of the empty box cars from 8 to 20 inches, passed the signaldevice located on the roadbed of the appellant while Marshallwas on the ladder, and that thus he came in contact with the semaphore and was knocked from the ladder and killed. * * *
"As we have already pointed out, the conductor testifiedthat the last time he saw Marshall, which was before thesemaphore was reached, he was going up the ladder, and that he was found dead some feet from the semaphore. The testimony further tended to show that the dew had been brushed from the base of the semaphore, apparently through contact with some object. We think that the testimony, when considered as a whole, amply justified the jury in drawing the inference contended for by the respondent, that the decedent came to his death by reason of his being knocked from the ladder by the semaphore, and in drawing the further inference that, as the switchman knew of the danger arisingfrom the `sticking' of the brakes, he had remained on theladder for a few moments after the cars started in order tosee whether the defective condition had been remedied, andwhether the defective condition had been remedied, andwhether there was any further danger from this cause, andthat in so doing he was acting within the scope of his duties."
An examination of the record will show that not one of the facts above italicized, upon which this Court relied in its opinion, was presented upon the trial, from the result of which this appeal comes.
The plaintiff, however, did present the testimony of C.C. Tyner, a brother-in-law of the deceased, to the effect that about 1:30 p. m. of the day of the accident (it having occurred in the early hours of the morning of that day, before daylight), upon an examination of the semaphore, he discovered *Page 144 about four feet from the base that something had apparently wiped the smoke and soot from the semaphore and that about six or seven inches higher up there were apparently blood stains on the north side of the semaphore casing; that he examined the body of the deceased and found a pad on the back of the head and two blood clots on each of the pads; that the head was crushed in and soft.
The plaintiff, a physician, also testified that he assisted in exhuming the body between the two trials, presented the skull in evidence and testified that the back of the head was crushed in as if from a severe blow.
These witnesses were not produced and examined at the first trial; and it is contended that their testimony, complementary to the circumstances above indicated in italics, made it an issue of fact for the jury whether the death of the deceased was caused in the manner alleged. The vice in this contention is that the circumstances referred to were not inevidence upon the second trial.
The theory of the plaintiff's case, as indicated by the allegations of the complaint and by the argument of counsel, is as follows:
1. That the brakes on a certain car were defective.
2. That the train was stopped to repair the defect.
3. That as the train moved off the deceased mounted a ladder on the side of a box car to see that the brakes had been properly repaired.
4. That as the train passed the semaphore the deceased came in contact with the semaphore and was killed.
As to the first three elements of the theory there is not a particle of evidence; as to the fourth, there is none other than the facts that the body of the switchman was found alongside of the track, some twenty-five feet south of the semaphore, the back of his head crushed in as from a severe blow; that there were apparently (discovered some twelve hours in the day) blood stains upon the north side of the semaphore casing, about four and one-half feet from the *Page 145 base; and that the dew, dust, or soot had been wiped off bysomething at a point four feet from the base.
It does not clearly appear that the spots upon the semaphore were blood stains; in fact, it is inconceivable that if, as theorized, the deceased, as the train moved off, climbed upon the ladder of a box car to watch the brakes which were defective and had been repaired, and was struck in the back of the head by the semaphore, blood would so quickly have spurted out and stained the semaphore; the removal of the dew, dust, or soot can mean nothing.
There is not a particle of evidence that he was on a train or car at or shortly before the time he was killed, or was on the top or side of a moving car, or on a ladder or in any other position, moving or standing, where he could have been struck by the semaphore.
In connection with this phase of the case it is interesting to note the case of Chicago, M. St. P.R. Co. v. Coogan,271 U.S. 472, 46 S.Ct., 564, 70 L.Ed., 1041, one of the cases cited by the Supreme Court of the United States upon the authority of which the judgment of this Court was reversed. The Court must have cited it in sustaining the defendant's position that there was not sufficient evidence that the deceased met his death by means of some instrumentality of the railroad company, as that was the main point decided in the Coogan case.
In that case, quoting from the opinion: "At the close of all the evidence, petitioner moved the Court to direct a verdict in its favor on the ground, among others, that respondent had failed to prove any actionable negligence on the part of petitioner, and that any verdict for respondent would be based upon speculation and conjecture."
The motion was denied; a verdict for the plaintiff followed which was affirmed by the Supreme Court of Minnesota (160 Minn., 411, 200 N.W., 477), and upon certiorari was reversed by the Supreme Court of the United States upon the ground taken by the railroad company, that *Page 146 "the evidence is not sufficient to sustain a finding that any negligence on its part caused or contributed to cause the death"; the Court holding: "The kind or amount of evidence required to establish it is not subject to the control of the several states. This Court will examine the record, and if it is found that, as a matter of law, the evidence is not sufficient to sustain a finding that the carrier's negligence was a cause of the death, judgment against the carrier will be reversed"; a rule recognized by this Court in the case of Shiverv. R. Co., 155 S.C. 531, 152 S.E., 717, 721, opinion filed April 3, 1930, and in which the Court said: "The evidence as to his death, and as to the cause of it, was speculative, and it was not sufficient to show the proximate cause thereof."
The facts of the Coogan case are sufficiently detailed in the opinion of Mr. Justice Graydon and I need not repeat them. In fine, the Court held that there was a hiatus in the proof, in that it did not appear that the foot of the deceased was caught in the admittedly defective pipe line, the Court saying: "As there is no direct evidence, it is necessary to determine whether the circumstances are sufficient to warrant a finding of that fact. Whenever circumstantial evidence is relied on to prove a fact, the circumstances must be proved and not themselves presumed."
To sustain the plaintiff's theory that the deceased came in contact with the semaphore, the circumstances, of which there is not a particle of evidence, must be presumed; that the brakes were defective; that the train was stopped to repair them; that the deceased climbed the ladder and was leaning out in his investigation of the brakes after the train started. Even with some if not all of these circumstances appearing before the Supreme Court of the United States, it cited the Coogan case in support of its reversal. With how much more reason would it do so in the absence, upon the present trial, of every circumstance except that the deceased might have received his wound under the circumstances *Page 147 stated which only exist by unsupported presumption or assumption?
In Northern R. Co. v. Page, 274 U.S. 65, 47 S.Ct., 491,493, 71 L.Ed., 929, the Court held: "Under familiar rules, plaintiff was entitled to prevail if the evidence and the inferences that a jury might legitimately draw from it were fairly and reasonably sufficient to warrant a finding in his favor. Otherwise the judgment must be for defendant. (Citing the Coogan case.) The verdict cannot be sustained if essential facts are left in the realm of conjecture and speculation." Citing St. Louis-San Francisco R. Co. v. Mills,271 U.S. 347, 46 S.Ct., 520, 70 L.Ed., 979.
It is insisted on behalf of the plaintiff, however, that the seventh paragraph of the defendant's answer, in which its plea of contributory negligence was amplified, and which was admitted in evidence by the presiding Judge over the defendant's objection, contains specific allegations to the effect that the deceased was ordered by the conductor to ascend the ladder on the side of the car and take a position upon the roof; that instead of doing so he remained upon the ladder and leant outward from it so far as to bring his body in contact with the semaphore, which was erected even a greater distance from the track than is required by the regulations of the state railroad commission; and that these allegations supplied the hiatus in the evidence which the defendant now asserts to exist.
It is conceded in the opinion of Mr. Justice Graydon that where the defendant sets up a general denial to the allegations of the complaint and follows it with an affirmative defense containing allegations of fact inconsistent with the general denial, in the nature of admissions of facts stated in the complaint, such allegations of fact are not admissible in evidence on behalf of the plaintiff to sustain the allegations of the complaint; he insists, however, that where the denial is qualified as he claims it to be in the present case, such allegations of facts are admissible for the purpose stated. *Page 148
In support of this proposition the learned justice cites two South Carolina cases which I do not think at all sustain the proposition, namely, McJimpsey v. Southern Ry., 89 S.C. 122,71 S.E., 42, and Blake v. Southern Ry., 126 S.C. 407,120 S.E., 360.
In the McJimpsey case the action was against a certain railroad company which had leased its property to another company upon a cause of action which arose in North Carolina, based upon the negligence of the lessee company toward a passenger. The lessor company, the defendant in the case, moved for a nonsuit upon the ground that there was no evidence tending to show any delict upon its part and the alleged injury having occurred in North Carolina it did not appear that under the laws of that State the lessor company was liable for the delicts of the lessee company. But in the answer of the lessor company containing allegations intended to show that the injury was due solely to the negligence of the passenger, it was admitted that the passenger at the time of his injury was on a train of the lessor company. This allegation had followed a paragraph in the answer which denied "every material allegation of the complaint." The Court held it was doubtful whether this constituted a good general denial because of the qualification leaving it uncertain what the defendant considered material; but passing that by as no motion to make the answer definite was made, the allegation in the answer that the occurrence was upon a car of the defendant was considered an admission on the part of the defendant.
It is apparent that the admission in the answer was not made in the statement of an affirmative defense.
In the Blake case the situation was entirely different as appears from the syllabus which correctly reflects the conclusion of the Court. It is there stated that where in an action under the Federal Employers' Liability Act (45 U.S.C.A., §§ 51-59) the plaintiff alleged the interstate employment of the plaintiff and the defendant's general denial *Page 149 was limited to such allegations as may not thereinafter be admitted, and the defendant's second defense specifically stated that the plaintiff was employed by the defendant in interstate commerce, the interstate employment was an admitted fact.
In Bliss on Code Pleading (3d Ed.), § 331, it is stated that while there is criticism of an answer which denies each and every allegation of the complaint not expressly admitted or denied, the defect does not exclude evidence supporting the denial, but that the remedy of the plaintiff is to require the answer made more definite. The author further states that there can be no valid objection to an admission of certain facts and a general denial of all others, provided it distinctly appears what facts are admitted and what denied.
In Bessemer Co. v. Woolley, 32 Colo., 437, 76 P., 1053, 105 Am. St. Rep., 91, a denial of each and every allegation of the complaint not theretofore specifically admitted was held good as a general denial.
So in Comes v. R. Co., 78 Iowa, 391, 43 N.W., 235, where the denial was of each and every other allegation contained in said petition not hereinbefore admitted.
So in Calhoun v. Hallen, 25 Hun. (N.Y.), 155, where the denial was of each and every allegation set forth in the complaint except as herein admitted, qualified or explained.
So in Reuscher v. Hudson, 4 Ohio Dec., 291, where the denial was of each and every other allegation and averment in said cross petition contained except as hereinbefore expressly admitted or denied.
So in Pittenger v. Association, 15 App. Div., 26, 44 N Y S., 124, where the denial was of each and every allegation in said complaint contained not hereinbefore or hereinafter admitted, denied, or controverted.
So in Lueddemann v. Rudolf, 79 Or., 249, 154 P., 116, 155 P., 172, where the denial was except as hereinafter admitted, stated or qualified the defendant denies each and *Page 150 every allegation within the amended complaint of the plaintiffs contained.
So in Childers v. Bank, 147 Ind. 430, 46 N.E., 825, where the paragraph of an answer denied every allegation of the complaint not admitted in such paragraph.
Under these authorities I do not think that there can be a question but that the denial in the present case was a general denial, subject perhaps to a motion by the plaintiff to make it more definite and certain, in the absence of which it will prevent the admission of the defendant in his affirmative defense being used against him in support of the plaintiff's case. This seems to be the rule in Stanley v. Shoolbred,25 S.C. 181; Brock v. Nelson, 29 S.C. 49, 6 S.E., 899;Gilreath v. Furman, 57 S.C. 289, 35 S.E., 516; Charpingv. Toxaway, 70 S.C. 470, 50 S.E., 186; Hickson v. Early,62 S.C. 42, 39 S.E., 782; Glenn v. Summer, 132 U.S. 152,10 S.Ct., 41, 33 L.Ed., 301.
In the case of Glenn v. Summer, 132 U.S. 152,10 S. Ct., 41, 33 L.Ed., 301, the Court said: "This explicit finding cannot be controlled by statements of fact in those parts of the answer which set up as independent defenses matters in avoidance, or in a bill of exceptions relating to one of those defenses only. Such statements, made for the purpose of presenting the issue to which they relate, are not evidence upon any other issue in the same record. As held by Chief Justice Marshall, sitting in the Circuit Court for the district of North Carolina, where the law authorizes a defendant to plead several pleas, he may use each plea in his defense, and the admissions unavoidably contained in one cannot be used against him in another."
In Hickson v. Early, 62 S.C. 42, 39 S.E., 782, 785, the Court citing the Glenn v. Summer case said: "The same principle would, of course, apply to a case in which separate and distinct defenses are set up in the answer, and there is a demurrer to two or more of the several defenses, which is the case here, see Stanley v. Shoolbred, 25 S.C. 181, where *Page 151 it was held that where the defendant pleads a general denial, and a further defense by way of confession and avoidance, the admissions made in the latter defense cannot be used by plaintiff to establish the issues raised by the general denial."
In Lee Line Steamers v. Robinson (C.C.A.), 218 F., 559, 562, L.R.A., 1916-C, 358, the Court, also citing Glennv. Summer, said: "It is true that, where the law authorizes a defendant to set up several pleas, he may use each plea in his defense, and the admissions unavoidably contained in one cannot be used against him in another."
In Smith v. Gale, 144 U.S. 509, 12 S.Ct., 674, 678,36 L.Ed., 521, the Court, also citing Glenn v. Summer, said: "It is true that when a general denial is pleaded in connection with a special defense of new matter, or two inconsistent defenses are set up, the admissions in the one cannot be used to destroy the effect of the other."
In Wyoming Co. v. Buffalo Co., 25 Wyo., 158,166 P., 391, 392, it was held, quoting syllabus: "Admissions contained in a defense of new matter requisite for the introduction of such new matter in defense are not inconsistent with a denial pleaded in a separate defense in the same answer, and cannot be used to defeat such denial; hence a defendant may both deny and avoid, although the avoidance is a tacit admission of what is denied."
In Rudd v. Dewey, 121 Iowa, 454, 96 N.W., 973, 974, the Court said: "But even in states where inconsistent defenses are not allowed, the remedy is by motion to strike or to require an election; and, if the two defenses are allowed to stand, the colorable confession in one division, which is introduced or implied in order to support matter in avoidance, does not waive the general denial pleaded in another."
In 2 Enc. Law Practice it is said: "While there is some conflict on the question, the great weight of authority, both at common law and under the statutes, favors the doctrine that, where several inconsistent pleas are filed, the admissions in one are not competent as evidence to rebut a repugnant *Page 152 averment in another." The authorities upon which the author arrives at this conclusion are cited in the notes.
In 1 Elliott on Evidence, § 236, it is stated: "There is much reason in support of the view that where the law authorizes a party to plead in his way, as, for instance, where it authorizes him to set up independent and even inconsistent defenses in different paragraphs of answer, the statements in a particular paragraph are made for the purpose of presenting the issue to which they relate, and no other, and to permit them to be used against the pleader on another issue would deprive him of his denials or at least make it dangerous for him to do what the law authorizes him to do. He may, for instance, plead by way of denial in one paragraph and by way of confession and avoidance in another, and it would seem unjust to permit his unavoidable and, in a sense, conditional admissions in the latter paragraph to be taken as admissions upon the issue raised by the denial. This seems to be the view taken by most of the Courts by which the question has been expressly decided."
In Pomeroy's Code Remedies (3d Ed.), § 724, the rule is stated: "When a denial is pleaded in connection with a defense of new matter, or two defenses of new matter are set up, the admission in the one can never be used to destroy the effect of the other. The concessions of a defense by way of confession and avoidance do not obviate the necessity of proving the averments contradicted by the denial. This rule is universal. Even in those states where inconsistent defenses are not permitted to stand, the remedy is by striking out, or by compelling an election, and not by using the admissions of one to destroy the issues raised by the other."
See extended note 14 A.L.R., 80.
I think therefore that the admission in the defense of contributory negligence can add nothing to supply the fatal hiatus in the evidence, and that clearly the presiding Judge was in error in admitting the seventh paragraph of the answer in evidence. In passing, it appears anomalous to *Page 153 practically strike the defense of contributory negligence from the answer and allow the use of a part of it as an admission of a material fact which the plaintiff was obliged to prove.
But assuming for the moment that the evidence shows that the train was equipped with a defective brake in one of the cars; that before reaching the semaphore the train was stopped and the brake repaired; that the deceased was not entirely satisfied with the efficiency of the repairs and mounted the ladder to observe the action of the brake after the train started; that while engaged in that duty he leant over far enough to come in contact with the semaphore and was killed — I think, that his death cannot be charged to the railroad company.
It is conceded that the semaphore was constructed at a greater distance from the nearest rail than four feet, the minimum distance fixed by the order of the railroad commission which had jurisdiction of such a regulation.
It has been consistently and properly held by this Court that the failure of a railroad company to comply with a regulatory statute in the operation of its trains, the signaling statute for instance, is negligence per se and in the McBridecase, 140 S.C. 260, 138 S.E., 803, it was decided, not only this, but that it created a presumption that the failure was the proximate cause (a conclusion with which I did not agree in that case). It would appear logical and just therefore that when the railroad company complied with the statute or authorized regulation, it should be entitled to a similar presumption of due care.
I do not contend that the railroad company, in every instance, is absolved by showing compliance with such a regulation; circumstances may be presented which call for additional precautions, and I think that such has been the holding of this Court. At any rate, such circumstances must be made to appear.
It is declared in the opinion of Mr. Justice Graydon that there was evidence from which the jury would have *Page 154 been justified in concluding that the semaphore was placed "within an unsafe distance of a moving train." This declaration is based upon the theory that the clearance between the side of a car standing at rest upon the track opposite the semaphore was thirty inches; that this clearance was reduced by the thickness of the ladder, two and one-half inches, leaving twenty-seven and one-half inches; and that it was further reduced by the swaying of a car from side to side, in a train running at the rate of twenty-five miles an hour from eight to twenty inches; that if the swaying was eight inches, the clearance would have been nineteen and one-half inches; if twenty, seven and one-half inches; and that considering the thickness of a man's body, the semaphore was placed too close to the track.
As applied to this particular case, the theory is based upon several assumptions, none of which appear in the evidence; that the deceased was upon the ladder; that the train was running twenty-five miles an hour; and that the sway of the passing car was so many inches.
There is no evidence how far the train stopped north of the semaphore, if it stopped at all; there is no evidence where the deceased mounted the ladder, if indeed he mounted it at all; there is no evidence that between the assumed stopping and the assumed mounting, the speed of the train had reached 25 miles an hour; there is no evidence as to how great the swaying of the car was or that the swaying, alternately as it appears, was toward the semaphore. It is all speculation and conjecture.
It is difficult if not impossible to differentiate the facts and conclusions which I think should be drawn in this case, from those in the case of Davis v. R. Co., 21 S.C. 93, which has been cited in many cases with approval by this Court, mainly upon other points. There the deceased was upon top of a car with a lantern flagging an approaching train; the cup of his lantern dropped out and he descended into the caboose to get another lantern; supplying himself *Page 155 with it he attempted by means of a ladder on the side of the caboose to return to his post on top; as he was ascending the ladder he was struck by the timbers of a water tank and killed. There was evidence tending to show that the timbers were too close to the track, but that a person might ascend it, hand over hand, with safety. A nonsuit was ordered on circuit and affirmed by the Supreme Court. The nonsuit was sustainable and was sustained upon this ground:
"Now in this case the deceased was knocked from the train and killed while he was upon the ladder on the outside of the car when the train was passing this structure, and, it is true, that such an accident could not have happened had the tank not been located as it was. But whether the danger of such an accident happening at that point and in that way was of such a character as to have required the company to locate this tank a few inches back, was a material fact in determining whether due care had been exercised, and consequently a material fact on the question of negligence. In locating this tank, did ordinary or reasonable care or foresight demand that the company should foreknow, or even apprehend, that it was probable, remote or otherwise, that the lantern of a brakeman who was posted on the top of the conductor's cab, and required by the rules of the company to remain there, would go out just as the train was approaching this point, and at the moment that it swept by, that this brakeman, after descending to the cab for a second lantern, would be on the ladder returning to his position?
"It seems to us that these facts, or at least some facts showing the character of care that should have been bestowed, and that it was absent, the danger to be apprehended, and that it was not provided against, or something of that kind, were material facts on the question of negligence before that question could be properly submitted to a jury. But we find no testimony in the record directed to these points. The substance of the entire testimony is, that the tank was close enough to the track to strike one who happened to be *Page 156 on the outside of the car when the train was passing that point; that the deceased was on the outside at this precise moment and was killed; but there was no testimony that in locating this tank so near, the company, in view of such a conjuncture of circumstances, or of any danger resulting therefrom, failed to exercise reasonable care, such care as men ordinarily exercise in the conduct of business. In the absence of such testimony the non-suit was not without authority of law."
If it had appeared in that case that there was reasonable ground for the company to have apprehended that the deceased would make use of the ladder under such extraordinary circumstances, doubtless the non-suit would not have been sustained. The facts in the case at bar parallel the conditions presented in the Davis case. Assuming what I do not think there is a particle of evidence of, that the train stopped, that the switchman mounted the ladder and was knocked off, it is inconceivable that the company could reasonably have apprehended that the conditions which are claimed to have caused the accident would have existed at that particular time and place. It is not contended that the switchman was using the ladder for the purpose for which it manifestly was intended, to ascend to the top of the car, but that he was using it for an inspection of the brakes upon a moving train. To hold the company liable it seems to me that the Court must hold that it must have anticipated that the train would stop to repair a defective brake; that after it had been repaired the switchman would mount the ladder, hold on to it and lean over to inspect the repaired brake, and that just at the moment that the particular car would reach the semaphore, the car, alternately swaying from side to side would sway toward the semaphore. It is conceded that for the purpose of ascending the ladder under normal conditions, there was abundant clearance between the track and the semaphore.
In Philadelphia R.R. Co. v. Thirouin (C.C.A.),9 F.2d 856, 857, it was claimed that decedent was crushed *Page 157 between the girder of a bridge and a train on which he was riding at night, which had only eleven and one-half inches clearance above the train. Thirouin went back on the train before reaching the bridge to investigate sparks which were flying from the train and it was plaintiff's theory (just as it is plaintiff's theory in the present case) that he was leaning out looking for sparks and was struck by the bridge. The Court reversing a judgment for the plaintiff said: "It follows that the clearance was sufficient for the purpose for which it was provided and insufficient and highly dangerous for personal use. Against the dangers of personal use, however, the railroad company was required to afford protection only to those of its servants whose duties called them there. * * * We have not found, nor has our attention been directed to, any testimony in the record showing or intimating that Thirouin's duties required him to go within the clearance, or to the end of the girder, or upon the bridge. It is argued that in searching for the trouble he may have leaned out beyond the car just as it came to the end of the bridge and that he may have leaned so far out that he was struck and swept off the train by the center girder. That may be true, but there is no evidence to prove it. Blood on one end of a girder and a foot at the other end of the same girder and the body on the opposite side of the track against another girder open a wide field for speculation as to how the accident happened and leave nothing certain except the fact of injury and death."
See also Reading Co. v. Boyer (C.C.A.), 6 F.2d 185;Bennett v. Washington Terminal Co., 55 App. D.C., 111,2 F.2d 913; Atlantic Coast Line R. Co. v. Wimberley,273 U.S. 673, 47 S.Ct., 475, 71 L.Ed., 833.
The latter case involved the death of a brakeman who went out of the cab along the running board and down on the cow catcher to get off the train while it was slowly moving in the nighttime, to throw a switch. He was found dead under the train some distance before reaching the switch. *Page 158 The North Carolina Supreme Court (190 N.C. 444,130 S.E., 116), found ample evidence of liability, but its judgment was reversed by the United States Supreme Court on the authority of the Coogan case and other cases.
The case of Southern Pac. Co. v. Berkshire, 254 U.S. 415,41 S.Ct., 162, 65 L.Ed., 335, which also was among the cases upon the authority of which the former judgment of this Court in Tyner v. Atlantic Coast Line R. Co., 149 S.C. 89,146 S.E., 663, was reversed by the Supreme Court of the United States, can only be applicable to the case at bar by interpreting it as conclusive of the issues presented for the second time in the present appeal. In that case the deceased engineer, leaning out of the side window of his cab, in the discharge of his duty to see the condition of a hot driving-pin, was struck on the head by the end of the horizontally extended arm of a mail crane and instantly killed. The syllabus of the case is as follows: "The installation of railway mail cranes so close to the track that the arm of a crane when extended comes as near as 14 inches to the window of an engine cab, thus becoming a source of danger to the engineer while in performance of his duty, is not negligence upon the part of the railroad company as respects its employees, when such placing of the cranes is uniform along the railroad, and done by direction of the Post Office Department pursuant to a plan it found necessary in handling the mails."
The clearance in the case at bar, not deducting anything from the claimed swaying of the car, was twenty-seven and one-half inches while that in the Berkshire case was only fourteen.
The Berkshire case was reaffirmed in the case of Chesapeake O.R. Co. v. Leitch, 276 U.S. 429, 48 S.Ct., 336,72 L.Ed., 638, which also was among the cases upon the authority of which the former judgment of this Court was reversed by the Supreme Court of the United States. In it the clearance of the mail crane was 10 inches. *Page 159
It is mildly suggested that the fact that both the Berkshirecase and the Leitch case involved postal cranes and not semaphores creates a distinction between them and the case at bar. All three involve the same question of the erection and maintenance of structures near the track and it is not perceived whether the structure is a mail crane or a semaphore can make the least possible difference.
As both cases were cited as authority for reversal, it appears without doubt that the principles announced were intended to be applied to the case then under consideration.
The case of Toledo, St. L. W.R. Co. v. Allen, 276 U.S. 165,48 S.Ct., 215, 217, 72 L.Ed., 513, is pertinent. It involved injury to a yard employee who was struck and injured by a shunted car while between the tracks. One ground of negligence alleged and submitted was that the tracks were so close together that an employee between cars on the two tracks was in danger of being struck. On this question the United States Supreme Court said: "The rule of law which holds the employer to ordinary care to provide his employees a reasonably safe place in which to work did not impose upon defendant an obligation to adopt or maintain any particular standard for the spacing or construction of its tracks and yards. [Citing cases.] Carriers, like other employers, have much freedom of choice in providing facilities and places for the use of their employees. Courts will not prescribe the space to be maintained between tracks in switching yards, nor leave such engineering questions to the uncertain and varying opinions of juries. [Citing cases.] Having regard to plaintiff's knowledge of the situation, it is clear that the evidence when taken most favorably to him is not sufficient to warrant a finding that defendant failed in any duty owed him in respect of the space between the tracks. * * * The Court erred in submitting that question to the jury."
Upon the issue of assumption of risk the undisputed evidence shows that decedent, Marshall, was an experienced railroad man and had worked in the Charleston yard as a *Page 160 switchman three weeks at the time he was killed and for about three months before that time at the same place, and had also worked for appellant as switchman for about two years at Florence. Decedent, while working as a switchman, necessarily went out past these semaphores. There was testimony that all freight cars running at a speed of 20 to 25 miles an hour sway from side to side from ten to twenty inches, and further testimony that all railroad men know that freight cars sway from side to side in that way, and also know about semaphores being along the side of the track. Rule No. 706 of the railroad company, which was in force at the time decedent was killed, requires all employees to inform themselves respecting "the location of all structures orabstructions along the line which will not clear them when on the top or sides of cars."
In reversing the judgment of this Court and ordering a new trial, the United States Supreme Court cited, as one reason for its reversal, the case of Chesapeake O. R Co. v.Leitch, 276 U.S., page 429, 48 S.Ct., 336, 72 L.Ed., 638. This case, as heretofore pointed out, was a mail crane case and was decided both on the ground of assumed risk, as well as lack of negligence. The facts on the question of assumed risk are not materially different on the present appeal from the facts on the last appeal, and the decision of the United States Supreme Court in reversing the judgment on the prior trial, on the authority of the Leitch case is conclusive on the present appeal that the decedent assumed the risk of injury, as a matter of law. We quote from the decision in theLeitch case:
"Of course it is answered that these general considerations should not exonerate the railroads from using such care as they can within the conditions. But it seems to us unjust to let the risk of a danger that in any event is imminent vary upon disputed evidence that the danger was brought an inch or two nearer than it would have been if a blueprint adopted for the whole line had been followed with a more precisely *Page 161 mathematical accuracy. In the Berkshire case the testimony for the plaintiff left a distance of fourteen inches from the end of the crane to the car. Here the plaintiff's witness makes it ten.
"The witnesses for the petitioner with greater plausibility make it appreciably more. If there is to be a standard in these cases, and if, as decided, the general rule is that the engineer takes the risk, the railroad should not be made liable for this class of injury except where some unquestionable disregard of obvious precautions is shown."
The Berkshire case also was decided upon the issue of assumption of risk and, like the Leitch case, manifestly was intended to control the decision of the case.
For these reasons I think that the judgment should be reversed, and the case remanded for the entry of judgment for the defendant under Rule 27.