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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 been equipped with power brakes also under like control of the engineer. The statute does not require all cars which may be equipped with power brakes to be coupled or associated together but only fifty per cent. of

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 be come 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 operated 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 brakes working from the engine, it would have been stopped from running on him after

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 have contributed nothing to it.

This case is entirely different from Schlemmer v. Buffalo, etc., R. R. Co., 27 Sup. Ct. 407, 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. 478, 39 S. E. 715; Barksdale v. Railway Co., 66 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 evidence 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 stooping or kneeling posture on the corner of the moving flat car, and uncoupled by reaching down to the lever. No reasonable inan could fail to see the extreme peril, or doubt 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 not 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 nonsuit 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; Hale 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, 153 Am. Rep. 691.

from these facts, when submitted to them, negligence ought to be inferred. The relevancy of evidence, and whether any exists which tends to prove, or is capable of proving, negligence, is for the court."

We can see no possible ground on which the power and duty of the court to grant a nonsuit can be distinguished and denied where plaintiff proves the negligence of the defendant as a proximate cause and at the same time makes good the defense of contributory negligence by introducing evidence which admits of no other inference than that his own negligence contributed to the injury as a proximate cause. It is true in Carter v. Railroad Co., 19 S. C. 24, 45 Am. Rep. 754, the circuit court was held to be without power to grant a nonsuit on proof by plaintiff of contributory negligence, and the authority of this case is recognized in Darwin v. Railroad Co., 23 S. C. 537, 55 Am. Rep. 32; Petrie v. Railroad Co., 29 S. C. 322, 7 S. E. 515; Carter v. Oil Co., 34 S. C. 215, 13 S. E. 419, 27 Am. St. Rep. 815; Whaley v. Bartlett, 42 S. C. 468, 20 S. E. 745; Hankinson v. Railroad Co., 41 S. C. 19, 19 S. E. 206. A careful review of these cases suggests that the leading idea in the mind of the court was that the court could not under the Constitution hold a particular act or omission, such for instance as a failure to look and listen, to be under all circumstances proof of contributory negligence as a matter of law. Be that as it may, in the subsequent case of Jarrell v. Railroad Co., 58 S. C. 495, 36 S. E. 912, the court states the rule, applying the well-recognized general principles to contributory negligence: "We may also say that, while contributory negligence is ordinarily a matter of defense, yet if the complaint shows contributory negligence by plaintiff, that would render the complaint demurrable for insufficiency, since it contained allegations that would defeat the cause of action alleged, or prevent a recovery thereon." This case has been cited and approved in Elkins v. Railway Co., 64 S. C. 561, 43 S. E. 19; Creech v. Railway, 66 S. C. 533, 45 S. E. 86; Hunter v. Railway Co., 72 S. C. 337, 51 S. E. 860, 110 Am. St. Rep. 605. The question in the Jarrell Case arose on a demurrer, but on this point there is no ground for distinction between a demurrer and a motion for a nonsuit. It would not only be illogical, but inconceivable in any system of jurisprudence that a court should have power to dismiss an action on the grounds that plaintiff has stated no cause of action, or stating it had also stated as a verity and a complete defense to it, assuming all his allegations of fact to be true, and yet should be without power on proof of the truth of the same allegations to adjudge as a matter of law that proof by the plaintiff of the facts alleged constituted a complete defense to his actions. Cases in other jurisdictions laying down the principles which we have stated will be found collected in Shearman and Redfield on Negligence, § 114. There is no dif

ference in the application of the rule to the plaintiff and the defendant. If the defendant makes out the plaintiff's cause of action either in contract or tort by evidence which admits of no other inference than that the plaintiff is entitled to recover, it is the duty of the court to direct a verdict for the plaintiff, leaving it to the jury if the damages are unliquidated to fix the amount only. This is the principle applied to waiver in Hollings v. Bankers, 63 S. C. 193, 41 S. E. 90. There are strong reasons for the great caution which this court has always exercised in the use of its power to reverse a judgment of the circuit court refusing a nonsuit or a new trial, or the direction of a verdict, on the ground that the evidence admits no other inference than that there has been a complete failure of proof to make out the plaintiff's alleged cause of action, or that there had been complete proof by the plaintiff of a defense set up in the answer. But the court may not avoid the responsibility when a case like this arises calling for the exercise of this power. Juries try issues of fact. When the evidence makes no issue of fact, it is the duty of the court to announce the conclusion of law which the evidence requires.

5. Another ground on which responsibility for the injury was imputed to the defendant was set out in the twelfth paragraph of the complaint: "That the said duties and work assigned to the plaintiff on the occasion above described were not those plaintiff was ordinarily required to do in the scope of his employment as a flagman, but were unusual and outside of the ordinary duties of his employment, which, on the occasion in question, he was required to perform by the said defendant." The plaintiff testified he contracted to work as a flagman, his ordinary duties being to protect the rear of the train, to see that the lanterns and flags were placed, and the torpedoes and fusees were kept and used when needed, and to keep the cab clean; but he also testified that, when he was employed, he was charged by the train master to obey the conductor or the engineer, and he regarded it within the scope of his employment to perform other labor, such as unloading freight and uncoupling cars, when so directed by the conductor. It is clear from the evidence that in uncoupling cars the plaintiff was not acting within the scope of the duties he had contracted to perform without directions from the conductor, but it is also clear he was acting within the scope of duties he had undertaken when directed by the conductor to perform them. The general rule is well established that the servant does not take upon himself risks which he would not reasonably expect to encounter because not within the scope of his contract of hiring. But, in order for this rule to be available, it must be shown that the servant was transferred to essentially new duties and that the order under which he acted was negligent. This is the view presented in Labatt on Master and Serv

ants, §§ 465-468, and it will be found very difficult to state a more accurate test, for from the nature of the subject each case must be decided on its own facts, whether the service required was essentially new and whether the order given was negligent are ordinarily questions of fact to be decided by the jury. But there are cases, and we think this is one of them, where it cannot be said there was any testimony upon which a finding could rest that the duty of uncoupling a car was essentially new and not within the capacity of the plaintiff and not contemplated by his employment. The plaintiff had been employed on the freight train about three months and for some time before had been on the railroad bridge force; and his testimony already quoted shows that he had full knowledge of the purpose for which the lever was provided and that he used it in a way not contemplated by the company in placing it or by the conductor in giving his order, and the great and necessary danger of the method of use adopted by the plaintiff could not fail to be obvious to any reasonable

man.

The conclusion is irresistible that the plaintiff's injury was due, not solely to his own negligence, certainly to his contributory negligence, in taking unnecessary hazards to carry out the order of the conductor.

We do not deem it necessary to refer separately to the errors alleged in the charge and in the admission of the testimony, as the foregoing discussion practically disposes of all the material questions made in the case which arose either on the motion for nonsuit or for a new trial.

It is the judgment of this court that the judgment of the circuit court be reversed and the case remanded to that court for a new trial.

GARY, A. J. (dissenting). While there was testimony tending to show that the plaintiff was negligent, it likewise tended to prove negligence on the part of the defendant in several particulars. The testimony was susceptible of more than one inference. Therefore it cannot be said that the negligence of the plaintiff was the proximate cause of his injury, and the inference to be drawn from the testimony was properly submitted to the jury, especially when it appeared that the plaintiff did not have time for deliberation in executing the order to uncouple the cars. But there is even a stronger reason why the question of contributory negligence on the part of the plaintiff was properly submitted to the jury. This was an interstate commerce train, and the construction of the statute mentioned in the complaint involves a federal question, in which case this court is bound to follow the decisions of the United States Supreme Court. There is no difference in principle between the present case and that of Schlemmer v. Railroad, 27 Sup. Ct. 407,1 from which we quote at length, as 151 L. Ed. 681.

it is decisive of the question under consideration. The facts in that case were as follows: "This is an action for the death of the plaintiff's intestate, Adam M. Schlemmer, while trying to couple a shovel car to a caboose. A nonsuit was directed at the trial and the direction was sustained by the Supreme Court of the state. The shovel car was part of a train on its way through Pennsylvania from a point in New York, and it was not equipped with an automatic coupler, in accordance withe the act of March 2, 1893, c. 196, § 2, 27 Stat, 531 [U. S. Comp. St. 1901, p. 3174]. Instead of such a coupler, it had an iron drawbar fastened underneath the car by a pin, and projecting about a foot beyond the car. This drawbar weighed about 80 pounds, and its free end played up and down. On this end was an eye, and the coupling had to be done by lifting the free end possibly a foot, so that it should enter a slot in an automatic coupler on the caboose, and allow a pin to drop through the eye. Owing to the absence of buffers on the shovel car, and to its being so high that it would pass over those on the caboose, the car and caboose would crush any one between them if they came together, and the coupling failed to be made. Schlemmer was ordered to make the coupling as the train was slowly approaching the caboose. To do so he had to get between the cars, keeping below the level of the bottom of the shovel car. It was dusk, and in endeavoring to obey the order and to guide the drawbar he rose a very little too high, and, as he failed to hit the slot, the top of his head was crushed." In reversing the decision of the state court the United States Supreme Court used this language: "It is enacted by section 8 of the act that any employé injured by any car in use, contrary to the provisions of the act, shall be deemed to have assumed the risk thereby occasioned, although continuing in the employment of the carrier after the unlawful use had been brought to his knowledge. An early, if not the earliest, application of the phrase 'assumption of risk' was the establishment of the exception to the liability of a master, for the negligence of his servant, when the person injured was a fellow servant of the negligent man. Whether an actual assumption by contract was supposed on grounds of economic theory, or the assumption was imputed because of a conception of justice and convenience, does not matter for the present purpose. Both reasons are suggested in the well-known case of Farwell v. Boston & W. R. Corp., 4 Metc. 49, 57, 58, 38 Am. Dec. 339. But at the present time the motion is not confined to risks of such negligence. It is extended, as in this statute it plainly is extended, to dangerous conditions, as of machinery, premises, and the like, which the injured party understood and appreciated, when he submitted his person to them. In

this class of cases the risk is said to be assumed, because a person who frankly and voluntarily encounters it has only himself to thank if harm comes on a general principle of law. Probably the modification of this general principle by some judicial decisions and by statutes like section 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist. Assumption of risk in a broad sense obviously shades into negligence, as commonly understood. Negligence consists in conduct which common experience, or the special knowledge of the actor, shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, GS, 24 Sup. Ct. 24, 48 L. Ed. 96. Apart from the notion of contract, rather shadowy as applied to this broad form of the latter conception, the practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent. But the difference between the two is one of degree rather than of kind; and when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negligence still open to the master (a matter upon which we express no opinion), then, unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name. Especially is this true in Pennsylvania, where some cases, at least, seem to have treated assumption of risk and negligence as convertible terms. Patterson v. Pittsburg & C. R. Co., 76 Pa. 389, 18 Am. Rep. 412. We cannot help thinking that this has happened in the present case, as well as that the ruling upon Schlemmer's negligence, was so involved with and dependent upon erroneous views of the statute that if the judgment stood the statute would suffer a wound." This decision shows that the United States Supreme Court regards as "shadowy" the distinction between the assumption of risk, and contributory negligence, and that it will not allow the provisions of the statute to be abrogated by a mere change of name, in the designation of the defense. But, even if these defenses must be regarded as distinct, the same result should follow in this case. In critically reviewing the case of Schlemmer v. Railroad, supra, the Central Law Journal (May 3, 1907) thus clearly points out the distinction generally recognized, between assumption of risk and con

tributory negligence: "One has to do with the contract between master and servant, the other with the latter's own deliberate act and judgment independent of any contract requirement of the master. If a master tells a servant to do such and such a thing; and the servant sees the danger, or knows the defects of the appliances used, and the liability he is incurring, his undertaking to comply with his master's wishes is an assumption of the risks involved. It may be negligence on his part to do what he is doing, but it is negligence assumed by contract with his master, and of which his master has or ought to have knowledge. On the other hand, where a servant in the course of his employment does an act not demanded or called for by his master, and especially against the doing of which he is warned, and such act is clearly an act of negligence, the commission of such an act on his part amounts to contributory negligence, and is effective as a complete defense to a defendant in an action for damages."

Tested even by this distinction, the question whether the plaintiff assumed the risk, or was guilty of contributory negligence, was, in this case, proper for the jury. For these reasons I dissent.

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The sale of liquor is not "prohibited by law, high license, or otherwise," in Bartow county. Therefore, an indictment in that county for an alleged violation of the said section as amended was invalid, and a conviction thereon was contrary to law, and must be set aside. (Syllabus by the Court.)

Error from Superior Court, Bartow County; Fite, Judge.

Randolph Rose and the R. M. Rose Company were convicted of an illegal sale of liquors, and bring error. Reversed.

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