Lyon v. Charleston & Western Carolina Ry.

The opinion of the Court was delivered by Mr. Justice Woods. This action for personal injuries received by the plaintiff, while in the service of the defendant as flagman, rests on the allegation that because of the negligence of the defendant, he was thrown from a flat car attached to a moving freight train, and was run over by a cattle car which he had just uncoupled in obedience to an order of the conductor. On the first trial of the cause the plaintiff recovered judgment, but on appeal this Court held that the Circuit Court should have granted a nonsuit, because the evidence, adduced on the trial by the plaintiff, clearly showed that the negligence of the plaintiff, if not the sole cause, was at least a contributing proximate cause of the accident and the resulting injury. Accordingly, the judgment of the Circuit Court was reversed, and the cause remanded for a new trial. The cause then came on for' a hearing before Judge Gage and resulted in a mistrial. It was afterwards tried for a second time before Judge Memminger and resulted in "a judgment for the plaintiff, from which the defendant appeals. 1 The original complaint contained an allegation that the plaintiff undertook to get upon and uncouple the moving cars in obedience to the negligent and reckless order of the conductor of the train, and it contained also this allegation as paragraph nine: “That immediately after giving the instructions, directions, and order aforesaid, the conductor left the said train and went into the depot of the said defendant and absented himself from the said train.” After the cause was remanded for a new trial, amendments were allowed, striking out paragraph nine and inserting as paragraph fifteen this allegation: “That the said defendant was further negligent, careless and reckless in that the said conductor, who was in charge of the train, whose duty it was to see that the same was properly, safely and securely operated, left the same and did not remain to *386 see that the trainmen and engineer carried out his instructions and orders and the duty assigned to them with due care, and to see that the speed of the said train was not increased suddenly and violently until the plaintiff had safely gotten down and off the said flat car, which negligence, carelessness and recklessness was a direot and proximate oause of said injuries.” The first exception charging error in allowing the amendments cannot be sustained; because the allowance or refusal of amendments was within the discretion of the Circuit Judge, and there is nothing to indicate an abuse of discretion: Taylor v. A. C. L., 81 S. C., 574, 62 S. E., 1113; German-Am. Ins. Co. v. So. Ry., 83 S. C., 1. 3 The next position taken by appellant is, that the Circuit Court should have granted a nonsuit, because the evidence of the plaintiff on the last trial showed that he was injured while doing the very thing which this Court had held to be negligence contributing to his injury as a proximate cause, and without which it would not have been received; and that the evidence on the issues of negligence and contributory negligence was substantially the same as on the first trial. The proposition admits of no doubt that when this Court orders a new trial, holding that a plaintiff should have been nonsuited; and on the second trial he adduces substantially the same evidence as on the first, the matter is res judicaia, and a nonsuit must result. The principle was considered and stated in Jones v. Ry. Co., 65 S. C., 410, 43 S. E., 884. But a physical act accompanied by some circumstances might show negligence beyond dispute, when the same act under other circumstances might well admit the inference that it was taken with due care. The inquiry then is, whether the plaintiff on the last trial made out a substantially different case from that presented to .the Court on the former appeal. The substance of the evidence on the former trial, which the Court held would prevent a recovery, was this: *387 The train was at Hampton and the conductor, being in haste to get away, signalled the engineer to move, and while the train was going three or four miles an hour, ordered plaintiff and New, a colored brakeman, to cut a flat car loose, let the rear of the train trail 'behind and roll clear off the siding, put the flat car on the sidetrack and come back to' the main line, get on the train and go to Brunson to meet No. él, a passenger train. Plaintiff got on the flat car, not intending to uncouple, but with the purpose either to leap to the ground and then on the cattle car following, or to .jump or step from the flat car to the cattle car after New had uncoupled. New, the brakeman, made an unsuccessful effort from the ground to use 'the lever on his side of the car. The plaintiff then, without giving a signal to stop the train or attempting to use the lever from the other side, or reporting to the conductor, or giving notice to anyone in control of the motion of the train, knelt on the edge of the flat car and uncoupled the lever with his hand. ■ While in this position, by a sudden jerk of the train, he was thrown between .the cars and injured. The plaintiff testified that one walking on the ground could have used the lever provided at the side without going between the cars, and there was no evidence that such use of the lever was attended with any risk whatever, either from the nature of the ground or otherwise. It being perfectly evident, unless the most familiar physical laws were to be ignored, that the method of uncoupling used by the plaintiff was dangerous; and he himself testifying that he could have uncoupled from the ground 'by the use of a lever intended to be so used without going between the cars, and there being not a particle of evidence that there was danger in that method, -the Court could not avoid the conclusion that the plaintiff used an obviously dangerous method, when a reasonabfy safe method was at hand. But the evidence was far from the same on the last trial. The plaintiff’s own testimony is widely different in a num *388 ber of particulars. He testified the last time that because of the arm of the lever not being flush with the side of the car, but eighteen or twenty inches from the side, it could not be used from the ground without going between the cars, and that for this reason it was more dangerous to use the lever from the ground than in the way he adopted. In this last statement, he was corroborated by witnesses who had had experience in the operation of cars. The general import of the evidence for the plaintiff was that it was dangerous to uncouple moving cars in any manner, that the method used by the plaintiff is less dangerous than to uncouple from the ground, unless the ground is even and the ann of the lever flush with the end of the car, so that there would be no necessity to go between the cars. From this statement it is manifest that, on the first trial the evidence of plaintiff himself admitted of no other inference than that he had the choice between what seemed a safe way of uncoupling and what was manifestly a dangerous way, and chose the dangerous way; while on the last trial there was evidence of facts tending to show that the method of uncoupling, which on the first trial appeared to be safe, was more dangerous than that used by the plaintiff. Hence, there is no ground for the Court to hold, as a matter of law, that on the issue of contributory negligence the evidence now before it admits of but one inference. The fact that some of the plaintiff’s testimony is inconsistent with that given by him at the other trials was a matter for the consideration of the jury in weighing its credibility and for the Circuit Court in considering the motion for a new trial. There are also important differences on other points. On the first trial there was nothing to indicate that the jerk which threw plaintiff from the car was any greater than the jerks usually incidental to the operation of a freight train, and there was nO' evidence that it was due to a signal of the conductor, or that the signal to increase the speed should not have been given by anyone except the plaintiff, unless *389 it was seen that he had safely made the uncoupling, or that an ordinary jerk would not have thrown off one in plaintiff’s position. On the last trial the evidence tended to show that but for a violent jerk the plaintiff could have uncoupled in the way he did with safety; that he had a right to give the signal for increased speed after he had uncoupled or at least to rely on the conductor not giving it until it was seen that he and New had safely accomplished the uncoupling. Further discussion of the facts would not be profitable. Enough has been said to show that there was evidence from which the jury could infer that the defendant, through its representative, the conductor, required of the plaintiff in the course of his employment the performance of a dangerous service, that it had provided no safer way for performance of the service than that which was adopted by the plaintiff, that the service required might have been performed in safety but for the negligent act of the conductor in signalling for increased speed before seeing that the uncoupling had been made safely. It follows that the Court could not say, as a matter of law, that the defendant was not guilty of actionable negligence or that the plaintiff was guilty of contributory negligence. 3 There was no evidence tending .to show negligence on the part of the engineer as a fellow-servant of the plaintiff. As already shown, if the accident was due to a violent jerk caused 'by a sudden increase in the speed of the train, the engineer was in no wise responsible, for the testimony of the conductor shows the increase of speed was in response to a signal given by him. The engineer having no notice of the peril of the plaintiff was bound to obey the signal, and was in no way responsible for the consequences. The defendant next assigns error in the instruction to the jury: “If you come to consider contributory negligence, as I shall explain to you hereafter, you consider that in the light of the principle that, of course, contributory negli- *390 4 gence necessarily implies an admission of negligence on the part of the defendant.” This was not an incorrect statement of the law. Cooper v. So. Ry. Co., 56 S. C., 91, 34 S. E., 16; Charping v. Toxaway Mills, 70 S. C., 470, 50 S. E., 186. If, however, the instruction above quoted had been given without qualification and explanation it would no doubt have misled the jury in a case like this, where the defendant denied all negligence and set up the defense of contributory negligence. In such a case, the defendant really means to say to the Court by its answer that it was not negligent at all, as alleged in the complaint, but if the Court should find that it was mistaken as to that, yet even then it would not be liable, because the plaintiff had been guilty of contributory negligence. This being the real meaning of the pleadings, it is better in charging the jury so to explain the plea of contributory negligence. But we do not think the jury was misled in this instance, because the presiding Judge had charged in the same connection that the defendant denied any negligence, and had given the instruction before that the plaintiff could not, recover unless he had established by a preponderance of the evidence that the defendant was guilty of negligence in some one of the particulars stated in the complaint, and that such negligence was the proximate cause of 'the injury. It is true that the Circuit Judge charged the following request of the plaintiff without referring to the defense that the plaintiff was injured by the negligence of a fellow-servant : “The plaintiff is required h> make out his case by a preponderance of the testimony, and if he satisfies you by a preponderance of testimony that he was injured and that his injury was the result of the negligence of the defendant, in any one or more of the particular acts of negligence alleged in his complaint, as a proximate cause, then he is entitled to a verdict at your hands, unless it is also shown that he contributed tO his injury by his own negligence as a proximate cause thereof.” But the only fellow-servant *391 involved was the engineer, and in another portion of the charge the instruction was expressly given that the plaintiff could not recover if his injury was due to the negligence of the engineer. 5 The next exception seems to have been taken under a misapprehension. Had the Court adopted the following request of the plaintiff without qualification, as the exception seems to allege he did, it would have been error: “The conductor is the representative of the master, and if the servant’s work is done in his presence, and under his immediate direction and instructions, that is equivalent to an assurance by the master that the servant may safely proceed to do the work required by him, and he is, therefore, not bound in such case to search for danger. He may safely rely for his safety upon the conduct of the conductor.” But the correct modification was clearly stated in connection with the request, and still more explicitly in the general charge in this language: “Was the order of such an obviously dangerous character, the execution of which involved such a plain and obvious danger as that a man of ordinary prudence and caution would not have attempted to execute it; would have refused to execute it; would have told the conductor that he could not execute it, and would not have attempted to execute it at all? Now, if -the order was of that character, gentlemen, if it involved that obvious danger, and the plaintiff went on, nevertheless, and attempted to carry it out, and from the standpoint of a man of reasonable caution and prudence you would say he was careless in doing it, that he should not have done it, then he would not be entitled to seek or claim the protection of the order as against his carrying it out in a negligent manner.” Carson v. So. Ry. Co., 68 S. C., 55, 46 S. E., 525; Wilson v. So. Ry. Co., 73 S. C., 481, 53 S. E., 968; Stephens v. So. Ry. Co., 82 S. C., 542. *392 6 *391 The defendant requested this instruction: “If the jury find from the evidence that in doing any work committed to *392 him by his superior officer he adopted a dangerous method of doing such work, when there was a safer method which he could 'have adopted, and the adoption of the more dangerous method contributed.proximately to his injuries, then he cannot recover and the verdict must be for the defendant railway company.” A servant in carrying out the orders of the master is not bound to choose at his peril under all circumstances the safest method which could possibly be adopted. In discriminating between safe and unsafe methods and instrumentalities, the servant is bound to exercise due care, that is, the care to be expected of a man of ordinary prudence and presence of mind. Green v. So. Ry. Co., 72 S. C., 401, 52 S. E., 45; Hall v. N. W. R. R. Co., 81 S. C., 530, 62 S. E., 848. The modification of the request was in accordance with this principle. The evidence on the former trial admitted of no other inference than that a comparatively safe method was at hand, and that there was no room for any reasonable man to doubt that the method adopted was dangerous On this trial, as we have already shown, the evidence was different and justified the Court in submitting to the jury the issue of due care in selecting the means of uncoupling. 7 After critical examination, we are impressed with the general excellence of the charge under review, except so much of it as admits of the construction that it contrasts unfavorably the law of this State in contributory negligence with that prevailing in the maritime courts, and that established by the federal statute, known as the' Employers’ Liability Act. It was forcibly argued by appellant’s counsel that it is of the utmost importance that juries should be stimulated to find verdicts according to the law as it is, and that remarks coming from the bench to the jury box, which could be construed as unfavorable criticism of existing laws, are unfortunate and tend to bring about unjust verdicts. The Circuit Judge did speak with some particularity of the law in other jurisdictions on *393 the subject of contributory negligence, and indicated the variance therefrom of the law of this State. We think it would have been better had the Circuit Judge made no reference to these differences; and the point is not free from difficulty. But when the instruction is regarded in its entirety, it states the law of this State so explicitly, and so directly requires the jury to follow it that this Court cannot say the jury was misled. The grounds upon which error is assigned in refusing a new trial have been considered in the discussion of the motion for a nonsuit. The judgment of this Court is, that the judgment of the Circuit Court be affirmed.