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in the orders of such conductors is a fellow

servant of the engineers. Ed. Note—For cases in point; see Cent. Dig.

rol. 34, Master and Servant, $$ 493–514.]

3. SAME-NEGLIGENCE—PRoxiMATE CAUSE. Where failure of a railroad company to have the cars equipped with air brakes operated from the engine, as required by act of Congress, was not the proximate cause of the injuries to a flagman, such failure cannot be assigned as negligence on the part of the railroad. |Ed. Note—For cases in o see Cent. Dig. vol. 34, Master and Servant, §§ 162, 257-203.)

4. APPEAL–REview—NEW TRIAL. It is the duty of the court, on appeal, to reverse a judgment against a master for injuries to an employé and grant a new trial, where the evidence in its opinion admits of no other inference than that plaintiff's own negligence contributed to his injury as a matter of law.

5. MASTER AND SERVANT—INJURIES TO SERVANT—ASSUMPTION OF RISK. Where a flagman was injured while uncoupling cars under the order of the conductor, which duty was within his employment, he assumed the risk. |Ed. Note—For cases in point, see Cent. Dig. vol. 34, Master and Servant, $$ 550, 648–651.)

Gary, A. J., dissenting

Appeal from Common Pleas Circuit Court of Greenwood County.

Action by A. B. Lyon against the Charleston & Western Carolina Railway. Judgment for plaintiff, and defendant appeals. Reversed.

See 56 S. E. 18.

S. J. Simpson and McGhee & Richardson, for appellant. Grier & Park, for respondent.

W00DS, J. The vital question in this Case is whether the circuit judge erred in refusing a motion for a nonsuit and for new trial.

The plaintiff, a flagman on defendant's freight train, while attempting to uncouple a moving car, fell on the track and had his leg crushed. He brought this action for damages and recovered judgment, alleging the Accident was due to the defendant's negligence. Without taking up the exceptions in detail, we consider whether there is evidence to support any one of the several charges of negligence as a proximate cause of the injury. The case depends principally on the testimony of the plaintiff, who gave this account of the accident on his direct exam|nation: “What did you do? We went and unloaded all of the freight that was for Hampton, and the conductor got out of the tar and signed the engineer ahead, and the train rolled or at the rate of about three or or miles an hour. He ordered Stephen New, the brakeman, and myself, to cut the flat car loose, and let the rear of the train trail behind and roll clear of the siding, put the flat car in the side track, and come back to the main line and get the train and go on to Brunson to meet 41, a passenger train. Stephen New went and caught hold of the

the flat. The lever was hard to work, and it seemed like it was impossible for him to cut the car, and I knew I could not, and I crossed over to the corner of the flat car and pulled the lever, and a jerk from the car threw me under the rolling train behind. There was no air on the train. What happened when you fell under there? The front trucks of the cattle car rolled over me, broke iny leg, fractured my hip and ankle, broke my collar bone, and bruised my shoulder, and cut a gash in my head.” On cross-examination he says: “Just state again how it happened; where were you and what were you undertaking to do, to carry out the conductor's orders. Just tell what you were doing. Stephen New, when we got orders, he went over and caught hold of the lever on on the outside, without going in between the lever on the cattle car so that you could stand on the outside, without going in between the cars and uncouple it, one of those iron automatic levers? Yes, sir; it don't set outside the car, it sets in between. You can stand outside of the car without going in between them? Yes, sir. And you intended to turn that lever over and raise the peg up and uncouple the car? That was Steve New's idea, and it seemed he could not work his lever, When Steve New caught hold of that lever, where were you? On the flat car. Why did you get on the flat car? I was going down with the train, and when it got near the siding I was going to get on the top of the cattle car and apply the brakes, as ordered to do. How were you going to get across the gap between the flat car and the cattle car? Several ways. I could have got down on the ground and got up, or I could have reached over and got the ladder. You knew that Steve New was going to separate them as soon as he could? He was getting pretty close to the clear post, and he had not got them loose, and I just pulled the lever on the flat car. When Steve New first caught hold of the lever, where were you? I was on the flat car. You got on the flat car? I was al. ready on the flat car. I just got up to ride on down. There was not any need of my trotting beside it. You got on the flat car the first thing you did, before Steve New caught hold of the lever? That is true, is it not? I don't recollect about that. You knew tha. as soon as Steve New worked that lever, if it worked all right, the cars would separate? Yes, sir; but as I cut the car I was expect. ing to give my own signals, but it was done before I could do it. I thought you said that Steve New was going to cut the car off 2 I said he was trying to pull it up and it looked like he could not get the lever to work, and I pulled the lever on the flat car. But, when you went on the flat car, you did not intend to have anything to do with the lever? I was going to carry out the orders of the condu, tor. Didn't you, when you got on the flat

lever on the cattle car to cut it loose from

car, think that Steve New would operate the lever so as to separate the cars? I knew that was his intention, sir. And at that time you did not intend to have anything to do with uncoupling the cars? I was going to carry out the orders of the conductor, and I could not have done it otherwise. But, when you got on the flat car, your intention was that Steve New should do the uncoupling, and then you were to get over on the other car and put on brakes? Yes, sir; but, when he could not do it, there was but one lever on his side, and I was compelled to pull the lever. And, when he had difficulty in uncoupling, you undertook to help him? Yes, Sir.” 1. Negligence as a proximate cause of the injury is charged against the conductor, in that he “ordered, required, and directed this plaintiff to get upon and uncouple the said cars while in motion, and get upon and apply the brakes to the trailing cars while in motion, and in leaving the train without seeing that his orders were carried out and the train operated with due care, without a sudden increase of the speed of the train.” The plaintiff's own account shows clearly the accident was due to his act of leaning over the corner of the moving car and uncoupling it by pulling a lever at the side; but there is no evidence whatever that the conductor ordered the plaintiff to get upon the moving car and uncouple it from that position, or even saw him when he did it. There is evidence of an order from the conductor to uncouple the moving car, but a lever was provided on each side of the car as a means of uncoupling from the ground. That the plaintiff, as well as New, understood the order to mean that the lever should be used from the ground, is conclusively shown by his evidence that they went about the uncoupling in that manner; New handling the lever and the plaintiff mounting the car in order to leap over on another car and put on the brakes as New uncoupled. New, the brakeman, made an unsuccessful effort to use the lever on his side from the ground, and then the plaintiff, without giving any signal to stop the train or attempting to use the lever on the other side from the ground, or even reporting to the conductor or receiving any order from him, of his own volition, without even giving notice to any one in control of the motion of the train of his intention, attempted the perilous feat, of stooping over from the moving car and pulling the lever below him. There is no ground for saying the order of the conductor required or contemplated such peril. Without doubt, when an order is given, it is the duty of the servant to take the safe way of carrying it out, if one is provided ; and, if that fails, he cannot, except, perhaps, in cases of emergency arising from the fault of the master, charge the master with the result of usÍng a dangerous method not in the purview of the order. If the order of the conductor could in any reasonable view be regarded as

suggesting to the plaintiff to stand on the flat car and uncouple from that position, then there might be ground for saying that the defendant could not escape liability for a condition of things produced by its order to him, in which on a sudden impulse he took a dangerous course, resulting in his injury. But it would be beyond all reason to say the order contemplated mounting a flat car as the plaintiff did, with the intention of stepping or leaping from that to the following car, in order to apply the brakes to that car, or the attempt to use the lever while stooping from the end of the flat car. Here, then, was a general order from the conductor to uncouple, and there was a lever provided for the

purpose to be used from the ground, and, if

it had been used as intended by the defendant, the plaintiff could not have been injured by falling from the car. This distinguishes the case from Carson v. Railway, 68 S. C. 55, 68, 46 S. E. 525, 529; for in that case the court said: “It was shown, or rather there was testimony offered tending to show, that the conductor ordered this servant, the plaintiff, to couple those cars; that such conductor in this matter represented the master; that the servant called to such conductor to hold fast the train until he signaled; that this servant did not signal the conductor to move the train; that it was under these circumstances the train was moved so that the two CarS bumped against each other, thus causing his injuries; that, when the cotter pin was out of its place, it would be necessary for a servant to go between the cars to arrange it; that it was necessary to go between the cars to open the instrument by which the coupling was made.” The conductor's position at the time of the accident does not appear from the evidence, and therefore there could be no finding of negligence on the ground that he was not present to direct the details of the uncoupling and the movements of the train. The plaintiff's testimony shows that he clearly understood the manner in which the lever was to be used, without any instruction or direction. That the master is not liable for any injury which results from the use of a safe appliance in an unsafe and dangerous manner not contemplated by him seems too obvious to require a particular citation of authority. The cases will be found collected in 20 Am. & Eng. Ency. 141. No authority has been cited, and we think there is no foundation in reason, for the proposition that, though the plaintiff knew fully the safe and proper way to use this safe appliance, it was nevertheless the duty of the conductor to stand by him and see that, whenever ordered to uncouple cars, the plaintiff should use with due care the safe means provided, and should not take the peril of an improper use of such means. The evidence of the plaintiff shows beyond doubt that he knew the safe way, and chose the dangerous.

2. The plaintiff further charged “that the sald defendant was further negligent, careless, and reckless in the said engineer in charge of the said engine, who was a superior officer and agent to the said plaintiff, and who had the right to direct the Services of the said plaintiff, and who was in charge of the said train in the absence of the said conductor, gave the said train a sudden and violent lurch and start forward, without warning to the said plaintiff or signal from him, and while the said plaintiff was engaged in carrying out the directions and orders of the said defendant, and was in a dangerous position, which negligence, carelessness, and recklessness was a direct and proximate cause of the said injuries.” The general rule in this state and elsewhere is that an engineer is not ordinarily the representative of the master, but is the fellow servant of the train hands; all being under the Orders of the conductor as the representative of the master. The plaintiff in this Instance testified, however, that at the time Of his employment as a flagman he was told by the train master that he must obey the Orders of the conductor or the engineer, and that accordingly he did obey, to use his own words, “the conductor when he needed my Services and the engineer when he needed my services." The Constitution provides: "Every employee of any railroad corporation shall have the same rights and remedies for any injury suffered by him from the acts or 0missions of said corporation or its employees as are allowed by the law to other Persons by law who are not employees, when the injury results from the negligence of a superior agent or officer, or a person having a right to direct or control the services of a party injured, and also when the injury results from negligence of a fellow-servant engaged in another department of labor from that of the party injured, or of a fellowservant on another train of cars, or one engaged about another piece of work.” Under this constitutional provision, in view of the plaintiff's evidence as to obeying the orders of the engineer, the question arises whether in this case the engineer was a superior agent or officer, or person having the right to control or direct the services of the plaintit. Under a constitutional provision identical with ours, the Supreme Court of Missistippi held an engineer not to be a person having the right to control or direct the services of a brakeman. Evans v. Railway, 12 So. 581, 70 Miss. 527. In this state the rule adopted is thus clearly stated in Brabham v. Tel. Co., 71 S. C. 56, 50 S. E. 716, and is quoted and approved in Martin v. Royster Guano Co., 72 S.C. 237, 243, 51 S. E. 680, 682: "In determining who are fellow servants, the test or rule in this state is not whether the servants are of different trade, rank, or authority, one of them having the power to control and direct the *rvices of the other, but the test is in the

character of the act being performed by the offending servant, whether it was the performance of some duty the master owed to the injured servant, the performance of which duty the master had intrusted to the offending servant. In the case under consideration there was no duty resting upon the defendant to give notice to the plaintiff, as the danger was not hidden or unusual, and the plaintiff had knowledge thereof.” Assuming that the engineer was the offending servant, through whose negligence the plaintiff was injured, the whole evidence shows that, in accordance with the wellunderstood custom, the master had intrusted to the conductor, and not the engineer, the duty of giving orders for the shifting and coupling of cars, and there was no evidence that the conductor was absent and the train in the charge of the engineer. Therefore, in carrying out the conductor's orders, the plaintiff was not at the time under the engineer, as a person having the right to direct or control his services, but was under the conductor, and hence was a fellow servant of the engineer on the same train. But, in addition to this, we do not see how negligence can be imputed to the engineer as the proximate cause of the injury. The plaintiff, it is true, testified he fell on account of a sudden jerk of the train, but jerks are inevitable and are to be expected in movements of freight trains (Steele V. Railroad Co., 55 S. C. 389, 33 S. E. 509, 74 Am. St. Rep. 756); and there is nothing in the evidence indicating the engineer had any reason to suspect the plaintiff was attempting to uncouple the cars while stooping over the corner of a moving car, or in any other position of danger. If the plaintiff had been on the side of the train uncoupling the car by the use of the lever from the ground, it would have been impossible for a sudden jerk to have precipitated him from the car under the Wheels. 3. Another specification of negligence alleged as a proximate cause of the injury was a failure to have a sufficient number of cars “equipped with power driving wheel brakes and appliances, commonly known as air brakes, as is required by law, and have air properly working for the operation of said brakes on said cars.” The sections of the federal statute (Act March 2, 1893, c. 196, $$ 1, 2, 8, 27 Stat. 531, 532 [U. S. Comp. St. 1901, pp. 3174, 3176]), relating to interstate trains on which this allegation of negligence rests are as follows: “Section 1. That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power-driving wheel brake and

appliances for operating the train brake sys. tem, or to run any train in such trastic after said date that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring the brakeman to use the common hand-brake for that purpose. “Sec. 2. That on and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the cars.” “Sec. 8. That any employee of such common carrier who may be injured by any locomotive, car, or train in use contrary to the provisions of this act, shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.” This statute was amended by Act March 2, 1903, c. 976, 32 Stat. 943 [U. S. Comp. St. Supp. 1905, p. 603), section 2 of the amendment being: “That whenever as provided in said act any train is provided with power air-brakes, not less than fifty per centum of the cars in such train shall have their brakes used and operated by the engineer of the locomotive drawing such train; and all powerbraked cars in such train which are associated together with said fifty per centum shall have their brakes so used and operated ; and to more fully carry into effect the objects of the said act, the Interstate Commerce Commission may, from time to time after full hearing, increase the minimum percentage of cars in any train required to be operated with power or trainbrakes which must have their brakes used and operated as aforesaid; and the failure to comply with any such requirement of the said Interstate Commission shall be subject to the like penalty as failure to comply with any requirement of this section.” This last section is the one most important to this discussion. Construing the original statute and the amendment together, it seems manifest under the amendment that Congress meant to establish the rule that railroads would comply with the provision of section 1 of the original act requiring the train to be under the control of the air brakes operated by the engineer of the locomotive, and would not be liable under this act if they had 50 per cent. of the cars equipped with power brakes used in operating by the engineer from the locomotive and all other cars on the same train and associated with these cars which might have neen equipped with power brakes also under like control of the engineer. The statute does not require all cars which may be equip

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such cars, but it does require all that may have been equipped with power brakes and actually associated with 50 per cent. to be controlled by the engineer from the locomotive. The statute contemplates and allows that there may be cars in the train equipped with air brakes and not associated with the 50 per cent. operated from the engine. The word “associated,” as here used, manifestly means the cars immediately connected with the 50 per cent. equipped with power brakes and operated from the engine; and those associated cars are also required to be operated from the engine. But the terms of the statute not only fail to require all cars of

the train to be equipped with air brakes

operated from the engine, but impliedly excludes such requirement, by expressing the requirement that such cars when associated with the minimum number of cars shall be so equipped. The number of deaths and physical injuries of railroad employés in this country had become so appalling as to shock the sensibilities of all civilized people, and the object of this legislation was to require the railroads to use the means prescribed in the statute as a reasonable precaution against such casualties; and as has been shown with great force by Chief Justice Fuller, in Johnson v. Southern Pacific Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363, courts should give the statutes a broad interpretation, having in view the beneficent object of the legislation. Nevertheless the statute fixes 50 per cent. as the proportion of the cars required to be equipped with air brakes operated from the engine, and in the face of this provision the court would be going very far to hold it to be evidence of negligence under the statute not to have all the cars so equipped. On this train there was a dummy—that is, a car not equipped with brakes—somewhere near the middle of the train, and the evidence made an issue of fact as to whether 50 per cent. of the cars of this train were so associated together as to have their brakes operated from the engine, as required by the statute. If we assume, however, the defendant had not complied with the law, and 50 per cent. of the cars of the train were not so associated as to have the brakes Ollerated from the engine, this omission to have 50 per cent, of the cars so operated had no connection with the plaintiff's fall and injury, for the train consisted of from 14 to 16 cars, and all but 5 of these were between the engine and the flat car from which plaintiff fell, so that, if the brakes of the 8 cars connected together immediately behind the engine had all been operated from the engine, the car which ran over plaintiff's leg would not have been included in the number. Hence the plaintiff's evidence that, if the car which he uncoupled had been equipped with air

ped with power brakes to be coupled or as brakes working from the engine, it would sociated together but only fifty per cent. of have been stopped from running on him after

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he fell by the automatic action of the brakes the instant it was uncoupled, cannot avail him. The statute did not require this car to be operated from the engine because it was not associated with the 50 per cent. required to be so operated, and the failure to have the 8 associated cars next to the engine so Operated had no connection with the accident. The presence of air brakes operated from the engine could not have prevented the accident, and the absence of such equipment on these cars could haye contributed nothing to it. This case is entirely different from Schlemmet W. Buffalo, etc., R. R. Co., 27 Sup. Ct. 47, 51 L. Ed. 681, where the deceased was ordered by his superior to do the precise act in the doing of which he lost his life. The inadvertent placing his head above the coupling and its being caught were results likely to occur from the peril the deceased was required by the master's representative to take contrary to law. In the present case, as we have pointed out, the servant was injured in doing a negligent act not demanded or called for by the conductor, and which he well knew was not intended by the order he had received. This was therefore clearly contributory negligence as distinguished from assumption of risk. Bodie v. Railway Co., 61 S. C. 4"S, 30 S. E. 715; Barksdale v. Railway Co., 65 S. C. 211, 44 S. E. 743; Schlemmer v. Railway Co., supra. We express no opinion as to the constitutionality of the federal statute, as that point is not made in the exception. Aside from the statute, however, there was evldence that the safe and proper place for a dummy was at the rear of the train next to the cab, and that, if it had been so placed, the air brakes on the car uncoupled by the plaintiff would have worked automatically, so as to bring it to an almost instant stop, and thus probably would have prevented it from running over plaintiff when he uncoupled it and fell. If full credence and force be given to this evidence as tending to show that there was negligence on the part Of the defendant in the management and arrangement of its cars and that such negligence was a proximate cause of the injury, the facts as stated by the plaintiff himself admit of no other inference than that his own negligence contributed to the injury as a proximate cause, without which it could not have been received. Knowing the cars to be arranged as they were, that hardly anything short of a miracle could save him from injury if he fell between the moving cars, that it would be impossible for him to be so injured if he uncoupled by using the lever from the ground, he balanced himself in a St00ping or kneeling posture on the corner of the moving flat car, and uncoupled by reaching down to the lever. No reasonable """ could fall to see the extreme peril, or "oubt that it was extreme negligence to 58 S.E.-2

take it; and it is too plain for difference of opinion that this negligence contributed to the injury as a proximate cause, and that without it the injury would not have been received. Taking the view of the evidence most favorable to the plaintiff, it cannot be doubted the facts conclusively show contributory negligence, and therefore, under the principles laid down in Jarrell v. Railway, 58 S. C. 491, 36 S. E. 910, the plaintiff could Inot recover. 4. The general rule that it is the province of the jury to determine whether the evidence shows negligence on the part of the defendant or contributory negligence on the part of the plaintiff is universally recognized. Issues of negligence and contributory negligence are not different in this respect from other issues of fact between litigants. The rule is that all issues of fact in law cases are for the jury. Yet the rule is no less familiar and no less generally recognized that, where there is a total failure of evidence on the part of the plaintiff to establish his case or full establishment of a complete defense by plaintiff's evidence, there is no longer an issue of fact, and it becomes the duty of the court to adjudicate the matter as on issue of law by granting a nonsult or directing a verdict or ordering a new trial. To illustrate: If A. sues B. on a contract for the payment of money and makes proof of existence of the obligation, but introduces evidence which admits of no other inference than that the obligation had been discharged, could the proposition be entertained for a moment that the court would not have the power to dispose of the cause by nonsuit just as if the plaintiff had failed completely to offer evidence tending to prove that an obligation ever existed? In Hutchison v. Noland, 1 Hill, 222, the court says: “The general rule certainly is that the plaintiff is not to be nonsuited on what constitutes the defendant's defense, but the rule applies only where the decision goes on the defendant's evidence. In Such case the jury alone can decide. But, if the defendant's defense be established by the plaintiff's witness, then the objection does not apply.” Pool v. Railroad Co., 23 S. C. 289; Slater v. Railroad Co., 29 S. C. 100, 6 S. E. 936, The principle is the same in issues of negligence. This court has never hesitated to hold a nonsuit proper where the plaintiff failed completely to offer evidence tending to prove negligence as a proximate cause of alleged injury. Carrier v. Dorrance, 19 S. C. 32: IIale v. Railway Co., 34 S. C. 292, 13 S. E. 537; Glenn v. Railroad Co., 21 S. C. 470; Davis v. Railroad Co., 21 S. C. 103; Pickens v. Railroad Co., 54 S. C. 509, 32 S. E. 567. In Hooper v. Railroad Co., 21 S. C. 548,1 this language is quoted with approval: “The judge has to say whether any facts have been established by evidence from which negligence may be reasonably

inferred; the jurors have to say whether, 53 Am. Rep. 691.

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