Campbell v. Southern Railway , 90 S.C. 312 ( 1912 )

January 8, 1912. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained, on account of the death of Charles L. Campbell, a conductor on a work train of the Southern Railway Company, at Piedmont, S.C. on the 21st of October, 1908.

The allegations of the complaint, material to the questions under consideration, are as follows:

"That while in the discharge of his duty, and while carrying out the orders and instructions of the defendant, Southern Railway Company, the said Chas. L. Campbell met his death on said date, by reason of the joint and concurrent negligence of the defendants, in that, while the engine and tender were being backed on a sidetrack at the said station of Piedmont, the said Chas. L. Campbell had occasion to use the steps, provided by the defendant, Southern Railway Company, on said tender for those having occasion to go from the ground to the back of the tender, or from the back of said tender to the ground, and one of the treads of said steps, consisted of the top of a box, extending across the rear of said tender, which box was used by the defendant, for the purpose of keeping and storing away tools and appliances, and, while in discharge of his duty he was using said steps, the defendant carelessly and negligently left the top of said box, which top constituted one of the treads, partly open at an angle of about forty-five degrees, and when intestate's foot hit the top of said step, he slipped and was thrown underneath the engine and tender, and his body was horribly crushed and mangled, which resulted in his death. That it was the duty of defendants, and especially of the defendants, Paul Odom and Rudolph Sammons, to see that the lid of said box was down and securely fastened, for the use of such persons, as might have occasion to go to, and from the rear of said tender, and said defendants negligently, on this occasion, failed to perform their duty, and left said lid partly open as set forth, thereby rendering the use of the appliance which was furnished the intestate for the discharge of his duty, unsafe, defective and dangerous; and defendants, through their joint and concurrent negligence, failed to furnish said intestate with a safe place to do the work required of him, and safe and suitable appliances to perform the duty expected of him, which negligence on the part of defendants, combined and concurred as the proximate cause of intestate's death."

The defendants denied the allegations of negligence, and set up the defenses of assumption of risk, contributory negligence and negligence of a fellow servant.

At the close of the plaintiff's testimony, the defendants made a motion for a nonsuit, which was refused.

The jury rendered a verdict in favor of the plaintiff, for fifteen hundred dollars.

The defendants appealed upon the ground, that his Honor erred in overruling the motion for the nonsuit, in that there was no testimony, tending to sustain the plaintiff's allegations of negligence, and, on the further ground, that the testimony sustained the defenses upon which the defendants relied. The particular acts, upon which the defendants relied, to sustain their defense that the deceased was guilty of contributory negligence, are as follows:

"First. The tender and engine were moving backwards, and the deceased was sitting on the top of the cab of the engine, and jumped down therefrom upon the floor of the tender, immediately opposite which on each side, were facilities for alighting; he passed through the tender to the rear thereof, at each corner of which and on the side, were facilities for alighting; he attempted to alight at the most dangerous place he could have selected, namely, at the extreme rear end of the tender, in the center thereof, where there were no facilities for alighting, and immediately in the path of the tender and engine. That it was not at all necessary to alight from the engine and tender, until it stopped. Second. The deceased adopted the dangerous method of alighting, when there were perfectly safe ways for alighting."

They also relied upon these facts, and upon the additional fact that the deceased had knowledge of the danger, to sustain the defense or assumption of risk.

The first question that will be considered is, whether there was any testimony, tending to sustain the allegations of negligence.

There was testimony tending to sustain, every material allegation of the complaint, upon which the plaintiff relied to show negligence, on the part of the defendants. The only instances in which the Court will sustain a nonsuit, when there is testimony sustaining the plaintiff's allegations are, when the complaint is subject to a demurrer. Austin v. Manufacturing Co., 67 S.C. 122. In the case now before the Court, the complaint is not demurrable, as it alleges that the deceased was killed by reason of the failure of the defendant, Southern Railway Company, to furnish the deceased a safe place to work, which is a primary and nondelegable duty.

Even conceding that there was testimony, tending to sustain the defenses upon which the defendants relied, it was not of such a nature, that only one inference could be drawn from it.

We do not deem it necessary to set out, in detail, such portions of the testimony as induce us to reach these conclusions.

Appeal dismissed.

CHIEF JUSTICE JONES concurs.