Youngblood v. Southern Ry. Co. , 152 S.C. 265 ( 1929 )

I concur in the disposition made by Mr. Justice Stabler of exceptions 2, 3, 4 and 5, and agree that, under his conclusion which directs a new trial, it was not necessary to consider exception 6, which charges error in refusing the motion before the Circuit Judge for a new trial.

I do not concur in his disposition of exception 1, which assigns error in refusing the motion of the defendants for a directed verdict in their favor. On the contrary, I am convinced that the motion should have been granted, and the result announced now, which is inevitable after possibly two years of suspense, anxiety, waste of time and energy, and expense to the county and the litigants. In my opinion remanding the case for a new trial is but rolling empty barrels about, a profitless, wasteful enterprise.

It does not appear to be appreciated that, in cases involving the Federal Employers' Liability Act, not only, as admitted, are the federal statutes and decisions upon every phase of the matter controlling, but the Supreme Court of the United States has promulgated, and time after time acted upon, the principle that they will review the record of thecase, and, if they find that there is no substantial basis in law for the liability of the employer, a judgment against him will be reversed, contrary to the principle announced by this Court, in cases under the laws of this State, that, when there is any evidence tending to show liability, the judgment must stand, unless no other reasonable inference can be drawn from the evidence than that there is no liability.

In the case of Gulf R. Co. v. Wells, 275 U.S. 455,48 S.Ct., 151, 152, 72 L.Ed., 370, decided in January, 1928, the Court said: "Hence, if it appears from the record that under the applicable principles of law, as interpreted by the Federal Courts, the evidence was not sufficient, in kind oramount, to warrant a finding that the negligence of the engineer was the cause of the injury, the judgment must be reversed."

And in Chicago, M. St. P.R. Co. v. Coogan,271 U.S. 472, 46 S.Ct., 564, 565, 70 L.Ed., 1041: "This Court will examine the record, and if it is found that, as a matter of law, the evidence is not sufficient to sustain a finding that the carrier's negligence was a cause of the death, judgment against the carrier will be reversed" — citing R.Co. v. McWhirter, 229 U.S. 265, 33 S.Ct., 858,57 L.Ed., 1179; R. Co. v. Harris, 247 U.S. 367, 38 S.Ct., 535,62 L.Ed., 1167; R. Co. v. Scarlet, 249 U.S. 528,39 S. Ct., 369, 63 L.Ed., 752. See, also, R. Co. v. Padgett,236 U.S. 668, 35 S.Ct., 481, 59 L.Ed., 777.

I do not deem it necessary to repeat the observations made by me in the former appeal in this case (137 S.C. 47,134 S.E., 660), in an unsuccessful effort to demonstrate the correctness of Judge Townsend's order directing a verdict for the defendants. But some decisions have been rendered since that appeal was decided, or not referred to in my opinion, to which I shall direct attention.

The case of Sigmon v. Railroad Co., 186 N.C. 519,120 S.E., 56, was one in the North Carolina State Court under the Federal Employers' Liability Act, brought by the administrator of the engineer who was killed in a head-on collision with another train. The collision was due to the failure of the engineer to observe an order which had been delivered to him to meet and pass the other train at a certain station. He ran by the station and collided with the other train. The Supreme Court of North Carolina affirmed a judgment in favor of the plaintiff, holding that, while the negligence of the engineer was patent, there was evidence tending to show that the collision would not have occurred, but for the negligence of the other members of the train crew. Upon certiorari the Supreme Court of the United States, in a memorandum decision (267 U.S. 577,45 S. Ct., 230, 69 L.Ed., 796), reversed the judgment, under authority of the cases of Davis v. Kennedy, 266 U.S. 147,45 S.Ct., 33, 69 L.Ed., 212, and Frese v. Railroad Co.,263 U.S. 1, 44 S.Ct., 1, 68 L.Ed., 131, both of which are referred to in my opinion upon the former appeal of this case.

In McDonald v. R. Co., 166 Minn., 87, 207 N.W., 194,198, the engineer, McDonald, was killed in a head-on collision. He and the conductor, McCabe, had both received a meet order. Before the train which they were to meet at a certain station had arrived, the engineer signaled the conductor that he was ready to proceed. Both had forgotten their orders. The plaintiff sought to come within the protection of the Federal Employers' Liability Act, by reliance upon the negligence of the conductor in signing the engineer ahead, as contributory "in part" to the disaster. The plaintiff had a verdict in the trial Court, and, upon appeal, the Supreme Court reversed the judgment of the trial Court, and directed judgment for the defendant, saying:

"Both the engineer and conductor had a duty, personal to himself, to see to it that order 56 was not violated. Its violation by McDonald, in the absence of some other intervening and efficient cause, was negligence which continued to the place of the collision and was the producing cause of the accident. The fact that McCabe was also guilty of negligence in his silent permission in allowing the engineer, who was the primary wrongdoer, to violate the order, will not permit plaintiff to recover upon the theory that McCabe's negligence was a contributing cause. To so hold would permit the anomaly of an employee violating orders proximately resulting in his own injury to recover upon the theory that ifsome other employee had done his duty and prevented theviolation the injury would not have occurred." (Italics added.)

The latest deliverance of the Supreme Court of the United States, that has come to my attention, is the case of UnadillaValley R. Co. v. Caldine, 278 U.S. 139, 49 S.Ct., 91, 73 L.Ed., ___, decided December 10, 1928. The facts were substantially these:

The defendant railroad company, engaged in interstate commerce, operates trains on a single track from Richfield Junction, through Bridgewater and River Forks, to New Berlin, in the State of New York. Printed orders were issued to all employees: "Train No. 2 will pass train No. 15 at Bridgewater yard," and "Train No. 15 will take turntable siding at Bridgewater to allow train No. 2 to pass." Unless countermanded in writing by the superintendent, these orders were permanent. They were not countermanded. Train No. 2 was a gasoline passenger car, of which plaintiff's intestate, Caldine, was conductor, and Dibble was motorman. Train No. 15 was a freight train of which Risley was conductor. They collided head-on a short distance south of Bridgewater yard, and Caldine was killed. Risley, the conductor of the freight train, was accustomed each morning to telephone from River Forks, two miles south of Bridgewater, to Dawson, the defendant's station agent at Bridgewater, informing him that the freight was on its way and asking him to hold the gas car at Bridgewater. The agent's habit was orally to deliver this message to Caldine, the conductor of the gasoline car. A few minutes prior to the collision, Risley, according to custom, telephoned to Dawson, but Dawson omitted to inform Caldine. Dawson asserted that he did tell Dibble, the motorman, but Dibble denied the assertion. At any rate, neither the station agent nor the motorman informed the conductor that the freight was approaching Bridgewater. Nevertheless, the conductor, in violation of printed orders, signaled the gasoline car to proceed to River Forks, and the motorman, also in violation of them, obeyed the signal and started the car in plain sight of the station agent.

The Court of Appeals of New York (246 N.Y., 365,159 N.E., 172), in affirming the judgment in favor of the plaintiff in the trial Court, said: "The conductor's negligence cannot be viewed as the sole proximate cause of the collision. The station agent could and should have prevented it; so could the motorman. All three were negligent. If Caldine had not signaled in violation of orders, the collision would not have occurred. Neither would it have happened if Dawson had communicated Risley's message to Caldine. * * * Dawson knew that the freight was approaching; Dibble ought to have known it and should have kept his car stationary. Negligence was not solely Caldine's. His death resulted in part from the negligence of Dawson and Dibble."

This judgment of the New York Court of Appeals was reversed by the Supreme Court of the United States in the following opinion:

"Harold E. Caldine, an employee on the petitioner's railroad, was killed in a collision and his administrator brought this action. The case is within the Federal Employers' Liability Act and the only question before us is whether the death resulted in whole or in part from the negligence of any of the employees of the carrier, within the meaning of the Act. Act April 22, 1908, c. 149, § 1, 35 Stat., 65 [U.S. ] Code, title 45, § 51 (45 U.S.C.A., § 51).

"Caldine was conductor of train No. 2 upon a single track that passed through Bridgewater. He had printed orders that his train was to pass train No. 15 in Bridgewater yard, and that train No. 15 was to take a siding there to allow No. 2 to pass. The order was permanent unless countermanded in writing by the superintendent. Its purpose to prevent a collision was obvious and there was no excuse for not obeying it. But this time, after reaching Bridgewater, instead of waiting there as his orders required him to do, Caldine directed his train to go on. The consequence was that at a short distance beyond the proper stopping place his train ran into train No. 15 rightly coming the other way, and he was killed. The facts relied upon to show that the collision was due in part to the negligence of other employees are these. The conductor of No. 15 generally, or when he was a little late in arriving at a station about two miles from Bridgewater would telephone to the station agent at Bridgewater that he was coming. He did so on the day of the collision. The station agent who received the message testified that he told the motorman of No. 2, but the motorman denied it. At all events the deceased, the conductor of No. 2, did not receive the notice. It is argued that the failure to inform the conductor, and the act of the motorman in obeying the conductor's order to start, if, as the jury might have found, he knew that train No. 15 was on the way, were negligence to which the injury was due at least in part. It is said that the motorman should have refused to obey the conductor and should have conformed to the rule, and that his act in physically starting the car was even more immediately connected with the collision than the order of the deceased.

"The phrase of the statute, `resulting in whole or in part,' admits of some latitude of interpretation and is likely to be given somewhat different meanings by different readers. Certainly the relation between the parties is to be taken into account. It seems to us that Caldine or one who stands in his shoes is not entitled as against the railroad company that employed him to say that the collision was due to any one but himself. He was in command. He expected to be obeyed and he was obeyed as mechanically as if his pulling the bell had itself started the train. In our opinion he cannot be heard to say that his subordinate ought not to have done what he ordered. He cannot hold the company liable for a disaster that followed disobedience of a rule intended to prevent it, when the disobedience was brought about and intended to be brought about by his own acts. See Davis v.Kennedy, 266 U.S. 147, 45 S.Ct., 33, 69 L.Ed., 212.

"Still considering the case as between the petitioner and Caldine, it seems to us even less possible to say that the collisionresulted in part from the failure to inform Caldine ofthe telephone from train No. 15. A failure to stop a manfrom doing what he knows that he ought not to do, hardlycan be called a cause of his act. Caldine had a plain duty andhe knew it. The message would only have given him anothermotive for obeying the rule that he was bound to obey. There was some intimation in the argument for the respondent that the rule had been abrogated. The Courts below assumed that it was in force, and we see no reason for doubting that their assumption was correct.

"We have dealt with the difficulties that led the Court of Appeals to a different conclusion, and are of opinion that the judgment must be reversed." (Italics added.)

In 31 F.2d 239, the Circuit Court of Appeals of the Second Circuit decided the case of Unadilla Valley R. Co.v. Dibble. The plaintiff was the motorman of the car of which Caldine, in the case last cited, was the conductor, and brought suit for damages on account of injuries received in the same collision. Upon the authority of theCaldine case, Davis v. Kennedy, 266 U.S. 147,45 S.Ct., 33, 69 L.Ed., 212, and Railway Co. v. Wiles, 240 U.S. 444,36 S.Ct., 406, 60 L.Ed., 732, the Circuit Court of Appeals reversed a judgment in favor of Dibble, holding (quoting syllabus):

"As against the employer railroad company, its motorman, who in violation of rule that his train should not pass a certain station till arrival of another train, except on written order, a copy of which should be delivered to him as well as the conductor, started the train by the station, on signal from the conductor, when no written order therefor had been given, was primarily responsible for the injury which befell him from the collision with the other train, so that notwithstanding the negligence of the conductor in giving the signal he cannot recover under Federal Employers' Liability Act (45 U.S.C.A., §§ 51-59), imposing liability on a common carrier engaged in interstate commerce for injury to an employee resulting in part from negligence of any of its officers, agents, or employees."

I think, therefore, that the judgment should be reversed, and the case remanded for judgment in favor of the defendants, under Rule 27.