Opinion
8981
November 18, 1914.
Before SPAIN, J., Lexington, February, 1914. Affirmed.
Action by Clara V. Padgett, as administratrix of the estate of Lewis H. Padgett, deceased, against Seaboard Air Line Railway. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion.
The exception to the charge on the defense of assumption of risks was as follows:
XII. That his Honor erred in charging plaintiff's requests, numbered six and eleven, as follows:
"6. The servant by virtue of his employment assumes all the ordinary risks and hazards of his employment, and as this case is governed by the Federal Employers' Liability Act, which relates to common carriers or railroads engaged in interstate commerce, the servant does not assume the risks or hazards incident to the negligence of any of the officers, agents or employees of any such common carrier."
"11. In a case where the relationship of master and servant exists, the servant owes certain duties to the master and the master owes certain duties to the servant. The servant assumes all of the ordinary risks incident to his employment, but he does not assume an extraordinary risk incident to such employment. He does not assume the risks arising from the negligence of the master. The master is required under the law to furnish the servant a reasonably safe place, instrumentalities, machinery, tools, and the like, with which, in which, and by which he is to perform his duties as a servant. If the master fails to do this and injury results as the direct and proximate cause of such failure, the master would be liable in damages to the servant so injured."
The error being:
(a) That according to the rule of assumption of risks applicable under the Federal Employers' Liability Act, the servant does assume the risks or hazards incident to the negligence of the officers, agents or employees of the common carrier employed under certain circumstances, and in the case at bar, if plaintiff's intestate knew, or if having a reasonable opportunity to inform himself, he ought to have known, as a man of ordinary intelligence, of the alleged defects in the roundhouse; that is, that it was unlighted, incomplete, and contained dangerous pits, all of which and the risks and dangers thereof being obvious to the senses, and yet he voluntarily remained in the service without complaint, objection or promise to him to correct, and exposed himself thereto, then he waived the duty owed him by his master to this extent and assumed the risks of such defects, notwithstanding that they may have been due to the negligence of defendant. And his Honor, in charging these requests, deprived defendant of this defense which the evidence strongly, if not conclusively, established.
(b) The said requests, together with his Honor's comments thereon, were inconsistent with, and repugnant to, defendant's request numbered eight and one-half, as follows:
"8 1/2. If Padgett, before the injury, had knowledge of the alleged defects in the roundhouse, or, if having a reasonable opportunity to inform himself, he ought to have known of such defects, he is presumed, by remaining in the company's service, to have assumed the risks if he voluntarily exposed himself to the dangers of such defects, and his beneficiaries cannot recover for his injury or death resulting therefrom, and his knowledge has the same effect, whether the defendant was informed or ignorant of such defects. This rule applies with special force if the defects or dangers were obvious to the senses." And by charging these inconsistent and irreconcilable propositions upon this fundamental and material issue his Honor misled and confused the jury and deprived defendant of its right to have the jury consider the evidence tending to establish this defense under proper instructions."
Messrs. C.M. Efird and Lyles Lyles, for appellant, submit: Padgett did not come to his death while engaged in interstate commerce: 223 U.S. 1; 56 L.Ed. 327; 225 U.S. 477; 56 L.Ed. 1171; Ill. Central R. Co. v. Behrens, U.S. Sup. Ct. No. 241, April 27, 1914. Plaintiff bound by construction of complaint acquiesced in by him: 16 S.C. 14. Padgett was not in the roundhouse in performance of any duty imposed upon him as a locomotive engineer: 3 Elliott on Railroads (2d ed.), sec. 1303; S.A.L. Ry. v. Horton, U.S. Sup. Ct., Apl. 27, 1914; 104 Fed. 119; 44 C.C.A. 484; 155 Fed. 22; 83 C.C.A. 618; 144 Fed. 806; 75 C.C. 369 A. 536; Law Reports 1904, 1 K.B. 242; N.C.R.R. Co. v. Zachary, U.S. Sup. Ct., Feb. 2, 1914; 231 U.S. 112-119; 34 Sup. Ct. 26; 223 U.S. 48; 56 L.Ed. 345. Federal rule as to submission of issues to jury: 179 U.S. 658; 45 L.Ed. 651. Plaintiff can recover only by proving the depicts alleged in complaint: 33 S.C. 198; 45 S.C. 278; 55 S.C. 489; 57 S.C. 435; 76 S.C. 557; 89 S.C. 378. Verdicts cannot rest on mere surmise: 81 S.C. 31. No inference can be drawn from the evidence that Padgett was within the relation of master and servant at time of his death: 112 Ga. 237; 37 S.E. 439; 96 Ga. 769; 22 S.E. 273; 69 N.H. 634; 41 A. 268; 90 Tenn. 546; 18 S.W. 255; 4 Tex. Civ. App. 661; 23 S.W. 1001; 52 Iowa 329; 35 Am. Rep. 275. Error to refuse new trial: 16 S.C. 14. No evidence to show negligence on part of defendant proximately causing the death of plaintiffs intestate; safe place: S.A.L. Ry. v. Horton, supra, also 179 U.S. 658; 45 L.Ed. 651; 72 S.C. 398; 82 S.C. 542; 59 S.C. 535. Assumption of risk: S. A.L. Ry. v. Horton, supra. Inconsistent instructions: 11 Enc. Pl. Prac. 145-149. Messrs. W. Boyd Evans, Thurmond, Timmerman Callison, W.H. Sharpe, Melton Sturkie, James H. Fanning and A.D. Martin, for respondent.
Mr. Evans cites: As to employment in interstate commerce: N.C. Ry. Co. v. Zachary, U.S. Sup. Ct., filed March 1, 1914; also 231 U.S. 112, 119; 34 Sup. Ct. Rep. 26; 196 Fed. 336-338; 116 C.C.A. 156; Richey Fed. Em. Liability Act, pp. 78, 79. Assumption of risks: S.A.L. Ry. v. Horton, U.S. Sup. Ct., Apl. 27, 1914.
November 18, 1914. The opinion of the Court was delivered by
Lewis H. Padgett was an engineer on the Seaboard Air Line Railway. He had been running a freight train, but in the first part of January, 1913, he was promoted to the passenger service, and was given a run between Columbia, S.C. and Savannah, Ga., and so was engaged in interstate commerce When the train reached Columbia, the engine was detached and carried to the yard at Cayce, a station near Columbia. The engineer ran his engine into the yard near the roundhouse and left it upon a siding in the yard. He left his engine about 10:30 p. m., on the 11th day of January, 1913, Mr. Padgett's regular run would have required him to leave Columbia at 6:10 a. m. on the morning of the 12th. He was detained in the yard for a while so that he might take out another train, if necessary. It was not necessary and he was notified that he would make his regular run. The company had built a small boarding house at Cayce for the convenience of its trainmen, but let out the management of the house to a private party. When Mr. Padgett was notified that he would be required to make his regular run he went to the boarding house and found it full. He then went back on the yard, into the roundhouse and into an engine and went to sleep. At about 4:30 o'clock on the morning of the 12th the engine in which Mr. Padgett was asleep was run out of the roundhouse down to the coal chute, to be supplied with coal, water, etc., for its trip. At the coal chute Mr. Padgett waked and got off the engine. He inquired where his engine was and was told it was in the roundhouse on track No. 3. The last seen of Mr. Padgett alive, he was going in the direction of the roundhouse. When it came time to call him he could not be found, and the engine went off without him. A little later he was found in an open, uncovered pit in the roundhouse dead. His engine had been standing with the step over the pit. The pit was a little over eight feet deep. There were no lights in the roundhouse.
Suit was brought in the behalf of his widow and dependent children for negligence under the Federal Employers' Liability Act. The defendant answered denying negligence. It denied that the deceased was engaged in interstate commerce at the time of his death. It pleaded that the deceased was a trespasser in the roundhouse, contributory negligence and assumption of risk. The judgment was for the plaintiff, and the defendant appealed on numerous exceptions, but argues three propositions.
"Padgett did not come to his death while employed in interstate commerce."
The defendant claimed that the rules required the engineer to leave his engine in the yard, that he was then to go into the machinery room and "write off" and leave a memorandum as to repairs. That he had no duty that called him into the roundhouse. That a "hostler" then took charge of the engine, and if any repairs were to be made the hostler took it into the roundhouse where the machinists made the repairs and the hostler went to the roundhouse for the engine, took it out and carried it off for coal, water, etc., and put it back on the sidetrack. That the engineer then inspected it and if it was found to be in proper condition he took charge of it and went out on his run. That Mr. Padgett ended his service at 10:30 o'clock on the night of the 11th, and was not required to go to work until about 5:30 on the morning of the 12th, and he was killed between those hours, hence he was not engaged in the service of the railway when killed.
The defendant asked for a direction of verdict on the ground that there was no evidence that the deceased was engaged in interstate commerce at the time of his death. This was refused. The exact question is, for what purpose did Padgett go into the roundhouse? If he went there for any purpose of his own, or there is an utter failure of evidence to prove any circumstances from which his purpose can be inferred, then the verdict ought to have been directed.
There was evidence to show that when the engine came into the yard that night, it had a hot box and needed repair. That the rule required the engineer to inspect his engine only about a half hour before the leaving time. There was no intimation that he was forbidden to inspect it before. There was evidence that if the inspection was made at the required hour and it was found that the repairs had not been made or improperly made, then the engine would have to be returned to the roundhouse to have the repairs properly made. That the repairs would take time and the time necessary would have to be taken even if it delayed the departure of his train. The evidence is circumstantial, but conclusions may be drawn from circumstances. On the trial appellant took the position that the purpose must be inferred from the circumstances.
The plaintiff offered to prove Mr. Padgett's declaration, but, on appellant's motion, the statements were ruled out, because his Honor said the purpose must be inferred from circumstances. In this ruling the appellant acquiesced, and of it there is no complaint. So the question is, are there circumstances from which his purpose can be inferred? It is not altogether fair to try a case on one theory and dismiss it on another. Mr. Padgett had recently been promoted to a passenger run. Repairs had to be made. He was already awake and dressed a few minutes before he was to be called. He was on the yard with his personal preparations made. He asked where his engine was placed and was told by the hostler in charge that it was on track No. 3 in the roundhouse, and started in that direction. Of course, he had the right, under the rules, to loaf around until the exact minute that the rule required him to take his engine, and if error had occurred in the mechanical department, he had the right to send his engine back and delay the train and say to his superiors, the rule does not require any more and I am not going to do any more than the strict rule requires. Would a faithful servant be likely to do that? That was question for the jury. Would a man recently promoted stand upon the strict letter of the rule? That was a question for the jury. There is a suggestion that Mr. Padgett went to his engine to sleep. The time at his disposal was short. He did not leave in the office a note as to where he could be found. He went to sleep on an engine that left earlier than he was required to be called. He was found and waked early. The saying, "the engines belong to the company, but the runs belong to the men," is much relied upon to show that engines might be changed. The statement, however, is made that while a change could be made, yet the general practice was to allow the use of the same engine. The jury were told of the time that would elapse between the time Mr. Padgett was waked and the time of his regular call. Was it probable that he could use that time in sleep or in inspecting the engine to see that there was no unnecessary delay in doing his work? These were questions for the jury.
If they inferred from the circumstances that Mr. Padgett was doing the work that was required of him, not at the time it was required, but at a time when it was not forbidden, then they could conclude that he was engaged in interstate commerce, and under the protection of the Federal statute his Honor could not have directed a verdict on the ground that there was no evidence from which it could be inferred that Mr. Padgett was engaged at the time of his death in interstate commerce.
"No evidence tending to show negligence on the part of the defendant proximately causing the death of plaintiff's intestate."
There was an open pit over eight feet deep in the unlighted roundhouse. The step of this engine was over the open pit. "Hostlers" and their helpers were required to go in and get on this engine over the pit. The only lights available were torches. Mr. Padgett's unlighted torch was in his engine. Was this negligence? It was a question for the jury.
Did Mr. Padgett assume the risk? In Seaboard Air Line Railway v. Horton, 233 U.S. 492, 34 Sup. Ct. 635, that Court says:
"Such dangers as are normally and necessary incident to the occupation are presumably taken into account in fixing the rate of wages, and a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risk of another sort not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them."
Mr. Padgett's run brought him into Cayce at night and he left early in the morning. His usual duties did not require him to go, and there is no reasonable inference from the testimony that he knew of the open pit or of the danger of open pits in roundhouse where some men were required to go and others might have occasion to go.
Appellant further says that the charge was inconsistent in that the plaintiff's 6th and 11th requests to charge were inconsistent with the defendant's 8 1/2 and his Honor charged the three. The rule that a Judge shall not charge inconsistent propositions is a good one, but that it is always reversible error, is not true. It must appear that the jury may have been misled to appellant's injury. The 6th and 11th requests of the plaintiff were based upon a finding of negligence by the jury. When his Honor charged appellant's request numbered 8 1/2, he left it to the jury to say whether Mr. Padgett knew or ought to have known of the open pit. There was no word of testimony to show that Mr. Padgett knew or ought to have known of the open pit. If his Honor erred, it was in favor of the appellant, and it can not complain of an error favorable to itself.
Judgment affirmed.
MR. JUSTICE WATTS concurs in the opinion of the Court.
MR. CHIEF JUSTICE GARY concurs in the result.
MESSRS. JUSTICES HYDRICK and GAGE dissent.
I have a settled conviction against the truth of the verdict herein. There is no sufficient testimony upon which to rest it.
I therefore dissent from the majority opinion.
It is true "the exact question is, for what purpose did Padgett go into the roundhouse?
If he went there for any purpose of his own, or there is an utter failure of evidence to prove any circumstances from which his purpose can be inferred, then the verdict ought to have been directed."
That is to say, the engineer, Padgett, must be brought within the terms of the Federal statute; there must be testimony tending to establish the fact that the engineer went into the roundhouse on the company's business.
A careful review of the plaintiff's testimony satisfies me that it does not tend to prove that conclusion, but the contrary, that the engineer went into the roundhouse upon his own business, out of the hours, against the rules and the practice, and to unwarrantably sleep in his engine.
The company is, therefore, not liable for his death.