In my opinion, the motion of the defendants for a directed verdict in their favor should have been granted; the judgment of the Circuit Court should therefore be reversed, and the case remanded to that Court for the entry of judgment in favor of the defendants under Rule 27.
The undisputed facts of the case, summarized, are substantially as follows:
The plaintiff's intestate, O.C. Cato, on December 6, 1929, was employed by the defendant Southern Railway Company as a car repairer in the railroad yard at Hayne, near Spartanburg (the Hayne yard must not be confused with theHayne shops, which were a mile and a half away). On December 4th, two days before the accident, a freight train from Columbia had placed and left upon track No. 10 (a switch track, not a repair track), a string of 52 cars, including a baggage car in bad order; the cars were all coupled together, the baggage car occupying the extreme west end of the string of 52 cars; the baggage car was destined to Hayneshops for repairs, as were also other cars in the string; a number of the cars were interstate cars, some of which were destined to the shops for repairs and others in good order were to be placed in trains to be made up and transported to their foreign destinations; the bad order cars, domestic and foreign, destined to the shops for repairs, were to be moved by a shops engine, entering track 10 at the west end.
It was discovered that the baggage car was in such bad order that it could not be moved to the shops until certain repairs had been made upon it as it stood on track No. 10, at the extreme west end, necessarily obstructing the movement *Page 164 of the bad order domestic and foreign cars and the good order foreign cars; the intestate, as a car repairer, was directed to make the necessary repairs on the baggage car, and went under the car for that purpose, omitting the precaution of placing a blue flag at the other end of the string for his protection; while he was so engaged, an engine entered the east end of track 10 for the purpose either of adding cars to the string or of moving certain ones (there being no signal indicating that workmen were under the car), coupled to and pushed the string of 52 cars to which the baggage car was attached, caught the intestate under the baggage car and so crushed him that he died later in the day.
I. Upon the former appeal in this case, the result of which was the reversal of a judgment in favor of the plaintiff and an order for a new trial, it was held in the opinion that certain paragraphs of the agreement between the railroad company and the Brotherhood of Railway Carmen, imposed upon the railroad company the duty of protecting the car upon which the intestate was at work, by the placing of a blue flag; and in the opinion submitted by the Chief Justice, it is proposed to be held that the principle, or policy rather, of what is known as the law of the case, compels the Court, upon this appeal, to accept without question the ruling upon the former appeal. I do not think that this at all necessarily follows. It must be borne in mind that the judgment rendered by this Court upon the former appeal was not a final judgment; it was in the nature of an interlocutory judgment, reversing the judgment of the Circuit Court and remanding the case to that Court for a new trial; it must be remembered, too, that the judgment of this Court was based upon adjudicated error in one single particular, the exclusion of testimony tending to show that there was a typographical error in Paragraph 157 of the agreement, which read as follows:
"Protection for Repairmen: Switches or repair tracks will be kept locked with special locks and men working on such *Page 165 tracks shall be notified before any switching is done. A competent person shall be regularly assigned to perform this duty and held responsible for seeing it is performed properly;" the contention of the defendants being that the italicized word "or" should have been "of." The Court held that testimony offered by the defendants tending to show that their contention was correct should have been received; else that the word "or" appearing "in the rule in place of the word `of' which was the correct word, had the effect of making Rule 157 not only ambiguous, but absurd and nonsensical."
That was the sole point upon which the judgment was reversed; upon the new trial ordered, the plaintiff specifically withdrew and abandoned reliance upon Rule 157. All that was decided, necessary to sustain the judgment of reversal, was the admissibility of testimony tending to establish the fact of a typographical error. In deciding that issue, the Court recognized the rule which is intensely applicable to the present issues: "It is a familiar canon of construction that, if contract is doubtful in meaning, the Court may look into the construction which the parties themselves have placed on it, to reach the true intention, which is the object of all judicial interpretation." (Syllabus) McGregor v. Hurst, 140 S.C. 464,138 S.E., 865.
It is true that in overruling certain exceptions of the defendants the Court, as I think, went out of its way to hold that the agreement of 1926, by Paragraphs 55, 158, and 175, superseded Rule 26 of the railway company, relating to protection by blue flag, and that the duty imposed by the last-named rule was no longer binding, but that that duty was imposed upon and assumed by the railway company.
The rule crystallized under the description of "the law of the case," is not like that of res adjudicata, a rule of substantive law, but is a rule of policy, enforceable in the interest of justice and judicial repose. It will not be enforced to perpetrate or perpetuate a judicial error unless it appears that the declared law was necessary to the rendition of the *Page 166 judgment. I concede that if it is shown to have been, the party against whose interest the declaration was made will be estopped from questioning it in a subsequent proceeding of the same case, notwithstanding it may later appear that the declaration was glaringly incorrect. If, however, the declaration may be shown to have been so incorrect, the Court should not follow it except under judicial compulsion; it will not, upon a side issue, employ the technical rule to deprive one of his property. The administrators of the law should, with a passion for the justice and righteousness of a pending issue, not feel themselves bound to follow an error except under the clearest and most imperative circumstances.
In discussing the much more rigid doctrine of res adjudicata, the Court, in Warren v. Raymond, 17 S.C. 163, said: "The principle of res adjudicata is one of the most important in the administration of justice; for the peace and order of society require that there should be an end of litigation. As was said by a distinguished English Judge: `Human life is not long enough to allow matters once disposed of being brought under discussion again; and for this reason it has always been considered a fundamental rule that when a matter has once become res adjudicata, there shall be an end of all question about it.' The principle is that the decision of aCourt of competent jurisdiction upon a point which was consideredor should have been considered as necessarily involved,is final and conclusive." (Emphasis added.)
In 4 C.J., 1093, it is said: "It is a rule of general application that the decision of an appellate Court in a case is the law of that case on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate Courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case, provided the facts and issues are substantially the same as those on which the first decision rested, and, according to some authorities, provided the decision is on the merits." *Page 167
At page 1105: "Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the Court, as the presumption is that all the facts in the case bearing on the points decided have received due consideration whether all or none of them are mentioned in the opinion. The records on a former appeal may be looked into for the purpose of ascertaining what facts and questions were then before the Court, so as to see to the correct application of the rule; and where the first judgment is a general reversal and remanding, on the second appeal the Court may look at the opinion rendered previously to ascertain the real ground of decision."
In Thompson v. Maxwell, 168 U.S. 451, 18 S.Ct., 121,123, 42 L.Ed., 539, the Court said: "We take judicial notice of our own opinions, and, although the judgment and the mandate express the decision of the Court, yet we may properly examine the opinion in order to determine what matters were considered, upon what grounds the judgmentwas entered and what has become settled for further disposition of the case."
In Kempner v. Huddleston, 90 Tex., 182,37 S.W., 1066, it was held, quoting syllabus: "Whether the appellate Court will reconsider, on a second appeal, what it has formerly decided in the same case, is a question addressed to the discretion of the Court, and to be determined according to the particular circumstances of such case; and hence a decision of a question on appeal is not a bar to a consideration of the same question on a second or other subsequent appeal of the same case." The opinion declares: "To the first question propounded we answer that the former decision of the Court in this case constitutes no bar to the further consideration of the same question upon a second appeal. Burnsv. Ledbetter, 56 Tex., 282; Railway Co. v. Faber,77 Tex., 153, 8 S.W. 64; Bomar v. Parker, 68 Tex., 435,4 S.W., 599. In Railway Co. v. Faber, cited above, the Court said: *Page 168 `Upon a second or other subsequent appeal this Court adheres to the former rulings, unless clearly erroneous.' The question as to whether the Court will reconsider, upon a second appeal, what it has formerly decided in the same case, must always be addressed to the discretion of the Court, and determined according to the particular circumstances of that case."
In Messinger v. Anderson, 225 U.S. 436, 32 S.Ct., 739,740, 56 L.Ed., 1152, the Court said: "In the absence of statute the phrase `law of the case,' as applied to the effect of previous orders on the later action of the Court rendering them in the same case, merely expresses the practice of Courts generally to refuse to reopen what has been decided,not a limit to their power."
In Gamble v. Keyes, 49 S.D., 39, 206 N.W., 477, it was held, quoting syllabus: "An earlier decision of Supreme Court in a case is conclusive on subsequent trials, but, although recognized as law of the case, it is not conclusive on subsequent appeals, if palpably erroneous, and may be corrected on urgent reasons."
In Illinois Cent. R. Co. v. Crail (C.C.A.),31 F.2d 111 (reversed upon another point in 281 U.S. 57,50 S. Ct., 180, 74 L.Ed., 699, 67 A.L.R., 1423), the Court said: "While it is within the power of the Courts to disregard the rule of `law of the case' in the interest of justice, it is the general practice of Courts to refuse `to reopen what has been decided.'"
In Reed v. Association (Mo.App.), 33 S.W.2d 986,988, the Court said: "This general rule is subject to the limitation, however, that the former decision may be reconsidered under exceptional circumstances, as where the opinion was out of harmony with other decisions; where incorrect principles of law were inadvertently declared; where mistake of fact was made; or where injustice to the rights of the parties would be done by an adherence to the first opinion. Murphy v. Barron, 286 Mo., 390, 228 S.W. 492; *Page 169 Mangold v. Bacon, 237 Mo., 496, 141 S.W. 650; Davidsonv. St. Louis S.F. Ry. Co. [301 Mo., 79, 256 S.W. 169],supra; Seibert v. Harden, 319 Mo., 1105,8 S.W.2d 905; Hogan v. Kansas City Public Service Co. [322 Mo., 1103], 19 S.W.2d 707, 65 A.L.R., 129; Wair v.American Car Foundry Co. [(Mo.App.),300 S.W., 1048], supra."
In Elmore County v. Tallapoosa County, 222 Ala., 147,131 So., 552, 554, the Court said: "The former decision is not decisive of the second appeal in the same case between the same parties if this Court is impressed with a contrary view. Louisville Nashville R.R. Co. v. Western UnionTel. Co., 195 Ala., 124, 126, 71 So., 118, Ann. Cas., 1917-B, 696; Louisville Nashville R.R. Co. v. Abernathy,197 Ala., 512, 534, 73 So., 103."
In Miller Cattle Co. v. Francis (Ariz.), 298 P., 631, 632, the Court said: "Whatever was said in our former opinion,if necessary to a decision of the questions before us, has become the law of the case and should be strictly adhered to in all further proceedings in the case."
In Hogan v. Kansas City Co., 322 Mo., 1103,19 S.W.2d 707, 65 A.L.R., 129, it was held, quoting syllabus: "The Court is not bound by the doctrine of stare decisis to adhere to a ruling upon a former appeal, where failure to correct the error would inflict serious injustice, and an important legal question is involved."
In Murphy v. Barron, 286 Mo., 390, 228 S.W. 492, it was held, quoting syllabus: "While the general rule is that matters decided on one appeal will not be considered on second appeal in the same case, the decision on the original appeal is not res judicata in the full sense, and in exceptional circumstances may be reviewed."
In Brewer v. Browning, 115 Miss., 358, 76 So., 267, 519, L.R.A., 1918-F, 1185, Ann. Cas., 1918-B, 1913, it was held, quoting syllabus: "The principle of res judicata does not prevent an appellate Court from changing its ruling on *Page 170 a second appeal, although former Judges have adhered to the rule of the law of the case."
In the opinion it is stated, referring to the rule of the "law of the case": "We do not think, however, that this rule is so fixed and binding upon the Court that it may not depart from its former decision on a subsequent appeal if the former decision, in its judgment, after mature consideration, is erroneous and wrongful and would lead to unjust results." See, also, Mangold v. Bacon, 237 Mo., 496,141 S.W., 650.
In Chase v. United States (C.C.A.), 261 F., 833, it was held, quoting syllabus: "An appellate Court by its decision does not preclude itself from doing justice between the parties, if on a subsequent appeal it should be convinced that its former decision was erroneous."
In the opinion, the Court said: "The appellate Court by such former decision did not preclude itself from doing justice between the parties, if it should be convinced that its former decision was erroneous. Messinger v. Anderson,225 U.S. 436, 444, 32 S.Ct., 739, 56 L.Ed., 1152, 1156;Lewers Cooke v. Atcherly, 222 U.S. 285, 295,32 S.Ct., 94, 56 L.Ed., 202, 205, 206; Hertz v. Woodman, 218 U.S. 205,30 S.Ct., 621, 54 L.Ed., 1001."
In Lewers v. Atcherly, 222 U.S. 285, 32 S.Ct., 94, 95,56 L.Ed., 202, the Court said: "If that case, instead of this, had been prosecuted to final decree, there was nothing in its former action to hinder the Supreme Court from adopting the principle now laid down, even though it thereby should overrule an interlocutory decision previously reached."
In Johnson v. Cadillac Co. (C.C.A.), 261 F., 878, 8 A.L.R., 1023, it was held, quoting syllabus: "Notwithstanding the rules as to stare decisis, and that a decision of an appellate Court becomes the law of the case on retrial, the Circuit Court of appeals may, where former decision in the same case was clearly erroneous and announced a wrong rule, which might well affect many persons adversely, reverse *Page 171 its earlier decision on writ of error after retrial; the rule as to the law of the case being largely one of convenience and policy."
In the opinion it is said: "There are other cases, some of them cited below, in which the Courts have declined on a second appeal or writ of error to be bound by a decision rendered upon the first appeal, and have declared that the rule is not inexorable and without exception that a decision on the first appeal is in all cases to be adhered to. Bomar v.Parker, 68 Tex., 435, 4 S.W. 599; Bird v. Sellers,122 Mo., 23, 26 S.W. 668; Chambers v. Smith, 30 Mo., 156,158; Barton v. Thompson, 56 Iowa, 571, 9 N.W., 899, 41 Am. Rep., 119. * * * [Referring to the rule of the law of the case, the Court said:] But the rule is not an inexorable one, and should not be adhered to in a case in which the Court has committed an error which results injustice, and at the same time lays down a principle of law for future guidance which is unsound and contrary to the interests of society." See, also, Notes 8 A.L.R., 1033, 1 A.L.R., 1267.
The question appears to me to be concluded by the decision of this Court in the case of Dwyer v. Ins. Co., 139 S.C. 377,137 S.E., 347, where the Court held that an erroneous decision on appeal was not binding and should be corrected upon a subsequent appeal.
II. The difficulty of demonstrating that the agreement of 1926 did not have the effect of annihilating the blue flag rule of the company is fully appreciated:
Paragraph 55 of the agreement provides: "Employees requiredto work under locomotives and cars. — No employee will be required to work under a locomotive or car without being protected by proper signals. Where the nature of the work to be done requires it, locomotives or cars will be placed over a pit, if available."
Rule 26 of the Company is: "A blue signal displayed at one or both ends of an engine, car or train, indicates that workmen are under or about it; when thus protected, it must *Page 172 not be coupled to or moved. Workmen will place the blue signals, and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track so as to intercept the view of the blue signals, without first notifying the workmen."
A proper construction of the agreement, in connection with the evidence held inadmissible by the trial Court, requires the rule of the railway company, in reference to the blue flag, to be read in connection with the agreement, and to impose upon the workmen engaged in repairing a car upon the switch track the duty of placing the protecting flag.
There is certainly nothing in Paragraph 55 which even tends to indicate that it superseded Rule 26. Its very plain meaning is that the company may not require an employee to work under a car without being protected by proper signals, the nature of which and the agencies of protection are covered by Rule 26.
Paragraph 158 of the agreement is: "Trains or cars, while being inspected or worked on by train-yard men, will be protected by a blue flag by day and blue light by night, which will not be removed except by men who place them."
The paragraph certainly contains nothing indicating that the company would supervise the placing of the protecting flag. The indication is strong that the man working or proposing to work under a car must see for his own protection that the blue flag was in position; no one else was permitted to remove it. In fact, the last phrase of the paragraph, "which will not be removed except by the men who place them" (referring to the blue flag or blue light), so far from indicating the imposition of the duty to place the flag or light upon the railroad company, indicates an intimate association with and control of the signals by the workmen whose protection was involved, naturally including both placing and removing. It is unreasonable to assume that the intention of the paragraph was to confide to an independent *Page 173 agency the removal of the signals, regardless of the position of danger occupied by the workman.
The most that can be said of the Paragraph (158), is that it is ambiguous, in not clearly indicating upon whom is imposed the duty of supplying the necessary protection; one can scarcely imagine a more necessary precaution which either the master or the servant should take under the circumstances. That being so, resort may be had to oral testimony showing the custom of operation, and the construction placed upon the rule by those most interested in its provisions.
The testimony along this line was substantially as follows:
The witness Moore testified that he was a car repairer and always relied upon himself to put up a flag while working under and repairing a car; that he never relied upon anybody else; that he put up a flag at each end of the line for his protection against being crippled or killed or losing his job; that a short time before the intestate was killed during the year 1926, frequent safety meetings were held with Watson, the foreman, which were attended by Cato; that the duty of putting up flags was stressed at those meetings, and that they must be put up by the man who was doing the job; that he had never known anybody else to perform this service; that it had been the universal practice ever since he had been employed and is now; that he warned Cato to be more careful and not go under cars without seeing that a flag was placed; that the men who did the work were designated to take the flags down and to put them up; that that has been the universal rule, without exception, during his service of many years; that there had been no modification of the practice by reason of the agreement of 1926; that the method of putting out the flags was the same after 1926 as it was before, the man doing the work putting them out; that he warned Cato in reference to the flags about two weeks before his death, that he said nothing, made no claim that some one else was expected to do that work. (It will be noted that *Page 174 the trial Judge allowed this testimony solely upon the issue of punitive damages, an erroneous ruling as I think.) The testimony of C.O. Deal, a car repairer, J.T. Gibbs, a car inspector, R.W. Watson, foreman of car repairers, and all of the other witnesses offered by the defendant is to the same effect; it was the universal and invariable practice, notwithstanding the present contention that the duty was imposed upon the railroad company, that the workman engaged in repairing a car was the only one who was expected to put up the flags and take them down.
The most conclusive evidence of the contemporaneous construction of the paragraph and rule is a letter from Watson, the foreman of car repairers, quoting a paragraph from the letter of W.W. Dyke, general chairman of carmen, dated April 1, 1926, after the agreement of March 1, 1926, became effective, as follows, addressed to car inspectors and repair men: "I wish to impress upon your minds the necessityof protecting yourselves with blue flags by day and blue lights by night. Not only do I stress the importance of this for the sake of saving lives, but also for your jobs, which you are about to sacrifice when you disregard the rules whichshould govern you, I am going to ask the local officers and members at each point to see that this is done. * * * (Impressing upon the parties addressed the existence of the rule requiring them to protect themselves with blue flags, he gave a record of fatalities among shopmen from October 1, 1925, to February 15, 1926. In each of the eight fatalities reported by him the cause of the death was said to be theabsence of blue flag protection.) I do not know whether there has been any more killed since this date or not, but will addif the men had been protecting themselves as outlined inRule 158, in current agreement, * * * the casualties probably would have been avoided. I trust that each officerand member will endeavor to see that this rule is carried outin the future." *Page 175
The man who signed this impressive warning was W.W. Dyke, general chairman of carmen, who signed the agreementof March 1, 1926, on behalf of the craft of which hewas the head. The letter contains as vivid an interpretation of Paragraph 158, to the effect that the personal duty wasimposed upon the workmen, as could well be conceived. This evidence was excluded by the trial Judge based largely upon what I consider an erroneous construction of Paragraph 158, contained in the former opinion in this case.
The quotation above set forth from the former opinion is apposite to the present issue: "It is a familiar canon of construction * * * that if a contract is doubtful in meaning, the Court may look into the construction which the parties themselves have placed on it, to reach the true intention, which is the object of all judicial interpretation."
It is also clear from the evidence that Cato himself was familiar with this construction of the paragraph and recognized the fact that it was his personal duty to protect himself with the flags; he was present at meetings of his lodge when the matter was discussed; he had been shown the warning circular letter of Dyke; and he had actually instructed new men in the imperative necessity under the rules to place the flags when about to repair cars. Every man connected with the repair work, put upon the stand, testified to a recognition of this duty. If there is anything in habit, custom, practice, instruction, and construction of the rules, there cannot be a doubt but that Rule 26 was not, and was not intended to be, affected by the indefinite terms of Paragraph 158.
III. It is declared in the opinion of the Chief Justice that there is no doubt but that the intestate, at the time of his death, was engaged in intrastate commerce, and that therefore the Federal Employers' Liability Act had no application to the case. I think that this conclusion is erroneous for two reasons: 1. It appears to be based upon the presumption that the intestate was engaged in intrastate commerce, and that the defendants had failed to overcome this prima facie *Page 176 presumption; 2. It loses sight of the fact that even if the baggage car had been withdrawn from interstate commerce, it was one of a connected string of cars, some of which were unquestionably engaged in interstate commerce, the movement of which was dependent upon the correction of an impairment in the baggage car.
The position as to the presumption referred to is met and overthrown by the case of Phila. Reading Ry. Co. v. Polk,256 U.S. 332, 41 S.Ct., 518, 519, 65 L.Ed., 958. In that case the question at issue was whether the plaintiff's intestate was engaged in interstate commerce at the time of his death. He was employed as a brakeman upon a "draft" (string) of freight cars being handled by an engine in the yard of the company, and was crushed between two cars; some of the cars were interstate and others intrastate. The Court said: "The referee did not find definitely as a fact that Polk was engaged in intrastate commerce at the time of his injury, but assumed that the fact might be so; therefore, regarded it as so, because in his opinion the burden of proving the contrary; that is, that Polk `was actually engaged in work incident to interstate commerce,' was upon the company and the company had `not met the burden required of it' and further, that the company `offered no testimony whatever to show what work John M. Polk was performing at the time he was injured. * * *' * * * Besides, we cannot accede to the view that there is a presumption that duties performed on a train constituted of interstate and intrastate commerce were performed in the latter commerce. The presumption, indeed, might be the other way. It is to be remembered that it is the declaration of the cases that if there is an element of interstate commerce in a traffic or employment it determines the remedy of the employee. * * * It would seem indisputable, therefore, if there be an assertion of the claim or remedy growing out of an occurrence in which there are constituents of interstate commerce the burden of explanation and avoidance is on him who asserts the claim *Page 177 or remedy, not on the railway company to which it is directed, and there is nothing in Osborne v. Gray, 241 U.S. 16,36 S.Ct., 486, 60 L.Ed., 865, in opposition."
Upon the second position taken, the undisputed facts are that the baggage car was at the west end of the string of 52 cars on track No. 10, which was not a repair, but a switch track; this string of connected cars consisted of bad order cars which had come in from other states, bound for Hayne shops, a mile and a half from the Hayne yard, the baggage car and some 35 or 40 cars awaiting being made up into trains bound for points outside of the State, all in good order; the cars on track 10 had to be moved out of the west end, which of course could not be accomplished until the disabled baggage car, blocking the way, had been sufficiently repaired to be coupled up to the string of cars and moved to the shops. I think that there can be no doubt but that the bad order cars in the string which had been brought from outside the State, destined to the shops for repair, were engaged in interstate commerce until they reached the shops; or that the good order cars which had been brought from outside the State, and were to be made up into trains bound for points beyond the State, were engaged in interstate commerce. The string of cars was therefore composed of both classes of interstate cars, and the baggage car which, it may be assumed, was an intrastate car. The point is that the baggage car was a part of a train composed of it, other intrastate, and interstate cars; the temporary repair of it, necessary to move the interstate cars, was work upon an integral element of a train composed in part of interstate cars, and necessarily the persons so engaged were employed in interstate commerce.
In Philadelphia, etc., v. Di Donato, 256 U.S. 327,41 S.Ct., 516, 65 L.Ed., 955, it was held, quoting syllabus: "A watchman employed on an interstate railroad at a public grade crossing to signal both interstate and intrastate trains and guard the tracks against disorder and obstruction, *Page 178 is employed in interstate commerce, irrespective of the interstate or intrastate character of the particular train he may be flagging when injured."
In New York, etc., R. Co. v. Carr, 238 U.S. 260,35 S. Ct., 780, 781, 59 L.Ed., 1298, the plaintiff was injured as a result of the negligence of a fellow servant under the circumstances to be detailed. Under the New York law, the defense of fellow servant would prevail; under the Federal Employers' Liability Act, it would not. (The contentions of the parties were the reverse of the contentions in the case at bar.) The plaintiff was a brakeman on a freight train running between two points in the State of New York; some of the cars in the train contained interstate freight; two of them were engaged in purely intrastate business; they were at the head of the train next to the engine, and were to be left at an intermediate point on the line; on arriving at that point, the two intrastate cars were disconnected from the cars behind them, and, still coupled to the engine, were pulled by it down the track and backed into a side track; it was the duty of another brakeman to uncouple the air hose from the engine, and of the plaintiff to set the hand brakes to prevent the two intrastate cars from rolling down on the main track; the other brakeman suddenly and negligently "broke" the air hose, the result being that the sudden escape of air, applied only in cases of emergency, violently turned the wheel handle attached to the brake which the plaintiff at the time was attempting to set; the wrench threw the plaintiff to the ground and injured him.
The railroad company insisted that, when the two cars were cut out of the train and backed into a siding, they lost their interstate character, so that the plaintiff, while working thereon, was engaged in intrastate commerce, and was not entitled to recover under the Federal Employers' Liability Act. The Court did not sustain the contention, holding: "The plaintiff was a brakeman on an interstate train. As such, it was a part of his duty to assist in the switching, *Page 179 backing, and uncoupling of the two cars so that they might be left on a siding in order that the interstate train might proceed on its journey. In performing this duty it was necessary to set the brake of the car still attached to the interstate engine, so that, when uncoupled, the latter might return to the interstate train and proceed with it, with Carr and the other interstate employees, on its interstate journey. * * * Under these principles the plaintiff is to be treated as having been employed in interstate commerce at the time of his injury, and the judgment in his favor must be affirmed."
In L. N.R. Co. v. Parker, 242 U.S. 13, 37 S.Ct., 4,5, 61 L.Ed., 119, the intestate was a fireman upon a switch engine moving upon a switch track, transferring an empty car from one switch track to another; a caboose stood upon the main line so near to where the engine moved that the intestate struck it and was killed. The Court held: "The business upon which the deceased was engaged at the moment was transferring an empty car from one switch track to another. This car was not moving in interstate commerce, and that fact was treated as conclusive by the Court of appeals. In this the Court was in error, for if, as there was strong evidence to show, and as the Court seemed to assume, this movement was simply for the purpose of reaching and moving an interstate car, the purpose would control and the business would be interstate."
In Erie R. Co. v. Welsh, 242 U.S. 303, 37 S.Ct., 116,118, 61 L.Ed., 319, the Court said: "The question remains whether he was performing an act so directly and immediately connected with his previous act of placing the interstate car in the `F.D. Yard' as to be a part of it or a necessary incident thereto. New York Central HudsonRiver R.R. Co. v. Carr, 238 U.S. 260, 264, 35 S.Ct., 780,59 L.Ed., 1298, 1300; Shanks v. Delaware, Lackawanna Western R.R. Co., 239 U.S. 556, 559, 36 S.Ct., 188,60 L.Ed., 436, 438, L.R.A., 1916-C, 797. And this depends upon whether the series of acts that he had last performed *Page 180 was properly to be regarded as a succession of separate tasks or as a single and indivisible task."
In Southern R. Co. v. Puckett, 244 U.S. 571,37 S.Ct., 703, 705, 61 L.Ed., 1321, Ann. Cas., 1918-B, 69, a collision occurred in the yard between two cars; several tracks were blocked by the wreckage; the plaintiff was directed to get a "jack" to assist in raising the wrecked car to extricate an employee who had been caught in the wreck and to clear the track of the wreckage; some of the cars which had not been placed in the train which was being made up were to have been hauled over the tracks obstructed by the wreck, destined from Atlanta to Birmingham; while the plaintiff, assisting in clearing the wreck, was carrying some blocks on his shoulder to be used in jacking up the wrecked car and replacing it upon the track, he stumbled over some clinkers and was injured. The Court said: "The Court [State Court (16 Ga. App. 551, 85 S.E. 809)] held that although plaintiff's primary object may have been to rescue his fellow employee, his act nevertheless was the first step in clearing the obstruction from the tracks, to the end that the remaining cars for train No. 75 might be hauled over them; that his work facilitated interstate transportation on the railroad, and that consequently he was engaged in interstate commerce when injured. We concur in this view. From the facts found, it is plain that the object of clearing the tracks entered inseparably into the purpose of jacking up the car, and gave to the operation the character of interstate commerce."
No mention is made, either in the United States Court or in the State Court, of the character of the car that had to be jacked up, that is, whether it was then engaged in interstate or intrastate commerce. I take it that the absence of any reference thereto is an indication of the insignificance of the issue; both Courts place the decision upon the ground that the instrumentality of interstate commerce, the railroad track, was obstructed, and that the plaintiff was engaged in an effort to remove the obstruction and leave the track open for the *Page 181 movement of interstate cars delayed by the wreckage. There cannot, I think, be suggested any difference between the obstruction of a track being made ready for interstate transportation by the wreckage of a car and the obstruction by the entire bulk of a car immovable by reason of an impairment in its equipment.
In Ill. Cent. R. Co. v. Behrens, 233 U.S. 473,34 S.Ct., 646, 647, 58 L.Ed., 1051, Ann. Cas., 1914-C, 163, the Court said: "* * * We entertain no doubt that the liability of the carrier for injuries suffered by a member of the crew in the course of its general work was subject to regulation by Congress, whether the particular service being performed at the time of the injury, isolatedly considered, was in interstate or intrastate commerce."
Applicable to the interstate cars in the string of cars on track 10, some of which were destined to the shops for repairs and others to be pulled out of track 10 by the west end and made up into trains, the following extract from the case of St. L., S.F., T.R. Co. v. Seale, 229 U.S. 156,33 S. Ct., 651, 653, 57 L.Ed., 1129, Ann. Cas., 1914-C, 156, appears pertinent: "In our opinion the evidence does not admit of any other view than that the case made by it was within the Federal Statute. The train from Oklahoma was not only an interstate train, but was engaged in the movement of interstate freight; and the duty which the deceased was performing was connected with that movement, not indirectly or remotely, but directly and immediately. The interstate transportation was not ended merely because that yard was a terminal for that train, nor even if the cars were not going to points beyond. Whether they were going further or were to stop at that station, it still was necessary that the train be broken up and the cars taken to the appropriate tracks for making up outgoing trains, or for unloading or delivering freight, and this was as much a part of the interstate transportation as was the movement across the State line." *Page 182
In Texas P.R. Co. v. White (Tex.Civ.App.),177 S.W., 1185, 1186, it was held that a section foreman, engaged in removing a hand car from the track to clear it for a freight train made up of interstate and intrastate cars, was engaged in interstate commerce. The Court said: "We are of the opinion, further, that the act of removing the hand car from the track out of the way of the coming train, being in the aid of the movement of interstate traffic, was sufficient of itself to bring the accident within the operation of the Federal Employers' Liability Act; in other words, that White, in removing the hand car for the purpose of giving a clear track to the train loaded in part with interstate freight, was engaged in interstate commerce within the meaning of the Act."
Suppose this situation had developed upon the main line instead of upon a switch track, the freight cars obstructing the track by reason of the coupling upon a local car coming out, and the car repairer had been injured while repairing the coupling so that the track could be cleared for an interstate train, could there be any question of the character of the car repairer's employment?
It may be suggested that it was not necessary that the interstate cars in the string of cars on track 10 should be moved out at the west end of the track; that may be true, but it is conceded that the actual movement intended was in that direction. In the Puckett case, supra, it appeared that the train for which the track was being cleared actually made a detour on account of the wreckage, and yet it was held that, as the plaintiff had been injured while endeavoring to clear the wreckage for that train, he was engaged in interstate commerce.
In Bamberger Electric R. Co. v. Winslow (C.C.A.),45 F.2d 499, 502, a section man who was injured in replacing a local gravel car derailed on a transfer track, to clear the track for waiting interstate cars, was held engaged in interstate commerce. The Court said: "Rerailing the gravel *Page 183 car enabled the construction work to proceed. It also cleared the old transfer track for use in interstate commerce. Since Winslow was employed in replacing a derailed gravel car on the transfer track, in order to clear the track for interstate commerce, he was engaged in interstate commerce at the time of the injury."
In L. N.R. Co. v. Jolly, 232 Ky., 702,23 S.W.2d 564, it was held, quoting syllabus: "Act of employee expediting, furthering, or facilitating movement in interstate commerce, or securing its safety, is in `interstate commerce'"Certiorari denied by Supreme Court, 282 U.S. 847,51 S.Ct., 26, 75 L.Ed., 751.
"Doing work having for immediate purpose furtherance of interstate commerce constitutes employment in `interstate commerce.'" Van Dusen v. Department, 158 Wn., 414,290 P., 803, 804. See, also, Penn. Co. v. Donat, 239 U.S. 50,36 S.Ct., 4, 60 L.Ed., 139; Seaboard A.L. v. Koennecke,239 U.S. 352, 36 S.Ct., 126, 60 L.Ed., 324;Southern R. Co. v. Lloyd, 239 U.S. 496, 36 S.Ct., 210,60 L.Ed., 402; Phila. R.R. Co. v. Hancock, 253 U.S. 284,40 S.Ct., 512, 64 L.Ed., 907.
I think it is clear, therefore, that the intestate was engaged in interstate commerce at the time of his injury; that the case is controlled by the declared law applicable to the Federal Employers' Liability Act, and that no recovery was permissible under the first cause of action.
IV. With reference to the first cause of action, I think that the motion of the defendants for a nonsuit, or a directed verdict, should have been granted upon any one or all of the following grounds: (a) That his injury and death were due to his sole negligence as the direct and proximate cause thereof; (b) that they were due to his negligence as a direct and proximate cause contributing thereto; (c) that they were due to his voluntary and conscious assumption of the risk of working under a car in violation of the obligation *Page 184 resting upon him, to protect himself by the placing of a blue flag at the eastern end of the string of cars on track 10.
As a matter of course, these suggested grounds need not be considered in the event that it should be concluded that the intestate, at the time of his injury, was engaged in interstate commerce, bringing the case within the law of the Federal Employers' Liability Act.
(a) I have endeavored to show that the holding of the Court upon the former appeal, that the working agreement of 1926 superseded Rule 26, which made it mandatory upon the intestate to place the protecting flag, is erroneous, and that the Court, upon this appeal, has the right to disregard it. If the argument upon these propositions be sound, there can be no escape from the conclusion that the conceded failure of the intestate to respond to this obligation was the sole, direct, and proximate cause of the disaster. The evidence unmistakably shows, according to the testimony of a cloud of witnesses and the acknowledgment of the general chairman who signed the agreement for the intestate and others, that Rule 26 was unaffected by Paragraph 158 of the agreement, and was considered and acted upon by all concerned as still binding; it shows that the intestate knew of this fact; that he had repeatedly been warned against a violation of it and made no complaint that the duty rested upon the company or any other employee.
(b) The duty of protecting himself by the placing of a flag resting upon the intestate, its absence was the inducing cause of the entry upon track 10 by the operators of the engine and cars which caused the movement of the baggage car; no negligence on their part could be charged against them, and there was nothing else upon which a charge of negligence against the company could be urged.
But assume that there was negligence on the part of these operators, there can be no question that the negligence of the intestate in disobeying Rule 26 was a direct, proximate, and contributing cause of the disaster. *Page 185
(c) The evidence is plenary that the intestate knew of the rule, was constantly and repeatedly warned of the danger, knew of the danger and voluntarily and consciously assumed a risk which was as clearly before his eyes as was the baggage car upon which, and under which, he was working.
The defendants proffered a request to charge No. 23 as follows: "While I charge and instruct you that the master must furnish his servant a safe place in which to work by posting a blue flag, nevertheless, the master may delegate this duty to the servant." In response, his Honor stated: "If that means Cato (the intestate), I refuse it." The refusal of this request is made the ground of Exceptions 6 and 23. I can see no reason why the request, appropriate to the facts of the case, should not have been granted. In 39 C.J., 324, it is said: "While a master may not delegate his positive duty to furnish his servant with reasonably safe instrumentalities wherewith and places wherein, to do his work, it is nevertheless competent for the master to impose on, and for the servant to accept, by contract or mutual understanding, the burden of inspection, examination, or even in some cases the maintenance, of the appliances or places he is required to use, such as he is competent to make. Thus the master may trust the servant to perform the intermediate, ordinary, and simple duties, incidental to the servant's employment and resting upon the servant's knowledge and skill, as, for instance, the keeping of simple tools in repair and making light repairs. Likewise, an employer may delegate to the servant the preparation for his own place in which to do his work, and the master may relieve himself of liability by intrusting to his servant the duty of inspection and care in respect of a place he is engaged in making safe or which by contract he is bound to make safe, or the duty of caring for the safety of a place or appliance where the work necessarily changes the character of the place or appliance, and although others participate in such work." *Page 186
This statement expresses the law in South Carolina, as is shown by the case of Cline v. Southern Railway Co., 101 S.C. 493,86 S.E., 17, 18 (1915). A bridge foreman was injured while assisting his gang to remove a bent from a trestle. His injury was caused by slipping on a piece of coal. Affirming a judgment for the defendant, the Court said: "The plaintiff went to a place used for hauling coal, and where coal might be expected to lie on the ground. It was his duty to have the place prepared for the work, and if it was necessary to remove the coal in order to make the place safe for the work, it was the plaintiff's fault that the coal was left there."
See, upon the infraction of the blue flag rule, Pinckney v.R. Co., 89 S.C. 525, 72 S.E., 394; Stephens v. R. Co., 82 S.C. 542,64 S.E., 601; Mills v. R. Co., 85 S.C. 471,67 S.E., 565; Stone v. R. Co., 96 S.C. 228, 80 S.E., 433;Owens v. R. Co., 141 S.C. 359, 139 S.E., 779.
V. With reference to the second cause of action, under the Federal Employers' Liability Act, I think that the motion for a nonsuit or a directed verdict should have been granted upon either or both of the grounds indicated above as (a) and (c). The ground (b) involving the defense of contributory negligence cannot, of course, be urged as a ground for nonsuit or directed verdict in actions under the Federal Employers' Liability Act. The other grounds (a) and (c), are sufficiently elaborated, I think, under Subdivision IV.
VI. I can see no possible objection to request to charge No. 12, which was as follows: "Because the presiding Judge erred in refusing to charge defendants' twelfth request, to this effect: `I charge and instruct you that if Cato was negligent in not putting up a blue flag to protect the car he was working on, and this negligence was the sole cause of Cato's death, then the plaintiff cannot recover, and your verdict must be for the defendant'; the error being that this is a sound proposition of law, applicable to the facts in this case, and under the evidence should have been so charged." *Page 187
Under the views I have expressed, if it was the duty of Cato to protect himself with a flag, under Rule 26, the refusal of the request was clearly error; if Cato was not bound by Rule 26, and yet, independently of it, was guilty of negligence in not protecting himself, and that negligence was the sole, proximate cause of his injury, the request was proper. His negligence might have consisted in failing to respond to the obligation deputed to him by the company even if Rule 26 had no application.