Temple v. Atlantic Coast Line R.R. Co. , 165 S.C. 201 ( 1931 )

This is an action for damages alleged to have resulted from the wrongful death of the plaintiff's intestate, Joseph R. Temple, who at the time of his death was employed by the defendant company as the locomotive engineer of a passenger train being operated between Augusta, Ga., and Sumter, S.C. on May 20, 1921. At a point about four miles south of Augusta and about 2,500 yards north of a station on the Charleston Western Carolina Railway, called Beach Island, the train was derailed, the engine was overturned, and the engineer was killed. Under an arrangement between the Coast Line and the Charleston Western Carolina Railway Company, the train was being operated upon the track of the latter, between Augusta and Robbins, in Barnwell County; thence it ran upon its own track to Sumter and beyond. The negligence alleged in the complaint, as the cause of the derailment, is that the employees of the Charleston Western Carolina Railway Company had failed to spike and bolt one of the rails and keep the same spiked and bolted, causing the rail to spread and the engine to turn over.

The case was tried before his Honor, Judge Ramage, and a jury at Aiken in November, 1928; the trial resulted in a verdict for the plaintiff of $20,000.00 actual damages. Motions for nonsuit, direction of verdict and new trial were made by the defendant and overruled. From the judgment entered upon the verdict the defendant has appealed.

I propose to discuss only the motion of the defendant for a directed verdict in its favor upon the ground that there was not sufficient evidence of negligence on the part of the defendant, or of those for whom it was responsible, to require or justify a submission of that issue to the jury.

It is conceded on all sides, in fact it is so alleged in the complaint, that the case is one under the Federal Employers' Liability Act. In the case of Shiver v. R. Co., 155 S.C. 531,152 S.E., 717, 720, this Court quotes with approval from the case of Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34,49 S.Ct., 210, 73 L.Ed., 601, as follows: "It is unquestioned that the case is controlled by the Federal Employers' Liability Act, under which it was prosecuted. 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 or amount to warrant a finding that the negligence of the Railroad Company was the cause of the death, the judgment must be reversed."

The effect of this ruling is to annul, in cases arising under the Federal Employers' Liability Act, the rule applied by this Court, known as the scintilla rule, and to impose upon the State Courts, in such cases, the duty of examining the evidence and determining whether there was sufficient evidence of negligence to have justified the finding of the jury that such negligence was established; and, if not, the duty becomes imperative to direct a verdict in favor of the defendant.

In the latest case upon the subject, Gunning v. Cooley,281 U.S. 90, 50 S.Ct., 231, 233, 74 L.Ed., 720, the Court said: "A mere scintilla of evidence is not enough to require the submission of an issue to the jury. The decisions establish a more reasonable rule `that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'" Citing cases.

Again: "Where the evidence on any issue is all on one side, or so overwhelmingly on one side as to leave no room to doubt what the fact is, the Court should give a peremptory instruction to the jury. [Citing cases.] `When a plaintiff produces evidence that is consistent with a hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither.' [Citing cases.] The burden was on plaintiff to establish the negligence and injury alleged; and, if the evidence failed adequately to support either element, defendant's motion should have been granted."

The plaintiff offered only two witnesses, a man named Dobson, who conducted business in a store at the Beach Island station and a gravel bed not far from the wreck, and a farmer named Randall, who lived near the station.

Dobson visited the scene of the wreck the next morning about 6:30; he testified that the indications were that the rail had been tampered with by some evil disposed person; that the rail was torn up; that the spikes holding the rail to the cross-ties had been pulled out and were lying loose on the cross-ties; that the bolts holding the angle bars in place at the joint of two rails had been unscrewed and removed, and were likewise lying upon the cross-ties; that, after the rail spikes had been drawn and the angle bars removed, one end of the rail had been bent over toward the center of the track and spiked down to the cross-ties, making a derailment inevitable; that there was a dent about the middle of the rail indicating that the rail had been pushed in towards the center of the tract; that later in the day he was at the wreck and remarked that "it looked like it had been wrecked, and there might be some tools"; that he followed tracks leading from the point of derailment to a gravel pit some 50 feet away. and there found among the bushes a crowbar used for pulling spikes and a wrench used for removing nuts from bolts; both tools were marked as the property of the Southern Railway Company whose line was some five or six miles away; that the spikes holding rails to the cross-ties had been removed, pulled out, not mashed out, from three cross-ties, and at the points from which they were drawn were indications of abrasions from the "heel" of the crowbar, evidently caused as the spikes were withdrawn.

The other witness for the plaintiff, one Randall, testified that on the afternoon before the wreck he had seen hands working on the railroad, apparently fixing a rail, at a point between Beach Island station and the gravel pit; that he was at the crossing at Beach Island station, looking toward Augusta; he could not say just where they were or what they were doing. The blueprint in evidence shows that it is exactly a mile from the crossing at the station to a curve in the track toward Augusta, and half a mile from the curve to the point of the wreck. It is impossible, therefore, for the witness Randall to have seen the point of the wreck from the crossing at Beach Island, even if it could be considered that there was anything in his testimony indicating that the track was disrupted by the section force that he saw at work.

It seems impossible to conclude that there was the slightest evidence from this testimony tending to show that the derailment was caused by an act of the Charleston Western Carolina Railway Company; much less does it show that there was sufficient evidence upon the issue to justify submission to the jury. On the contrary, considering the evidence alone produced by the plaintiff, the conclusion is irresistible that the derailment was caused by an outsider.

The testimony of witnesses for the defendant exonerates the Charleston Western Carolina Railway Company beyond the shadow of a doubt.

The section foreman testified that he had not worked on the track at the place of the wreck for sixty days; on going to the wreck the day after, he found that dents where spikes were removed which held the rails to the cross-ties were freshly made by the "heel" of the crowbar.

The roadmaster upon going to the wreck with other officials that morning found that a rail had been taken out and the spikes pulled out of the ties and not mashed; that the bolts had been taken from the angle bars and the rail shoved out of position; that there were dents in the ties where the spikes had been pulled by the crowbar; that the rail fastenings were lying on the ground or upon the cross-ties with the spikes scattered along.

Davies, a planter, who lived at Beach Island and saw the wreck that morning, testified that one end of the rail going from Augusta was set in, and the angle bars had been removed; that the bolts and nuts were on the track near this end of the rail and the spikes had been drawn so as to set the rail in; that the rail had been unbolted and set in and was spiked down to the cross-ties; that a car wheel had hit the end of the other rail toward Augusta; that the rail had been pulled in out of line from one to three inches and spiked down; that the angle bars connecting this and the other rail had been entirely removed.

The general roadmaster of the defendant company, who arrived at the wreck about 9:30 a.m., found that the rail had been removed, the bolts and angle bars taken off and were lying on the ground; that the spikes had been pulled clean and clear from the cross-ties with a crowbar, and the rail pushed out of its original position; that the outside spikes of the removed rail were lying between the ties.

The engineer of maintenance of way of the Charleston Western Carolina Railway Company, who arrived at the wreck about 5:30 a. m., found conditions with respect to the rail being removed and the bolts and spikes drawn, as testified to by the other witnesses; that the bolts and nuts were in a pile at the end of the rail and the spikes were lying between the ties near the original position of the rail; that section foremen in pulling spikes pull clear and do not bend them, and are instructed to gather them up and take them to the section house.

The wrecking foreman, who arrived about 5:30 a. m., found one rail was ripped up with the spikes drawn, leaving a clean hole, not mashed out, and the rail shoved out of line; that when spikes are mashed out by a wreck the spikes will be crooked and the holes larger; that about eight spikes had been pulled from the inside of the rail; that you could see the "heel" print from the crowbar where they had been drawn; that a section master will break the bolts with a hammer in removing angle bars, and carry away the scrap; that the angle bars were pulled and were lying near the joint.

The conductor of the wrecked train found a rail disconnected, the angle bars off with the bolts out and the nuts first screwed off; that the spikes, nuts, bolts, and angle bars were lying on the ground.

The flagman found about the same condition as to bolts and angle bars.

The vice-president and general manager of the Charleston Western Carolina Railway Company arrived between 6:00 and 8:00 o'clock a. m., and found that the rail had been removed with the angle bars loose on either side of it, the spikes on one side of the rail removed and the rail pushed forward; that all the bolts and spikes were taken out of the rail.

A passenger on the wrecked train, who was also an inspector and special investigator for the Interstate Commerce Commission with large experience, examined the track immediately after the wreck and testified that one rail was out of place and that the angle bars had been removed; that the angle bars, bolts, and nuts which were lying close by indicated that they had been removed by some one intentionally; the condition of the bolts showed that they had not been stripped in any way, and that the track was in nearly perfect condition as to line and gauge; that the spikes from the ties had been pulled directly upward; that there would have been a slanting pull or a splintered tie if they had been crushed out.

The evidence further showed that the track at the place of the wreck had been newly timbered, bolted up, and serviced about two months or less before the wreck and was practically built over; new cross-ties put in and the track had had time to settle.

Seven engineers who operated trains over the place of the wreck, some of which passed the point the afternoon and evening before the wreck, and up to about 1:35 a. m., about an hour and a half before the wreck, testified that they noticed nothing unusual in passing over this point and no defect in the track; that the ties were new, the track in good condition, and the rails and appliances were of proper strength.

The roadmaster had inspected the track as late as 5:30 p. m., on the day before the wreck.

The engineer of maintenance of way had been over the track on Tuesday prior to Friday, the day of the wreck.

Seven trains, both freight and passenger, passed over the place of the wreck in both directions between the afternoon and the time of the wreck.

The section foreman of the Southern Railway Company, whose section house was about four miles from the place of the wreck, testified that his section toolhouse had been entered at some time during the afternoon or night preceding the wreck and a crowbar and a wrench taken therefrom; he identified the tools found near the wreck as those stolen from his toolhouse.

The evidence tending to sustain the allegation that the derailment was caused by the negligence of the section force of the Charleston Western Carolina Railway Company is of the weakest possible character. Reliance is placed upon the testimony of the witness Randall who stated that he saw a section force working on the track as if they were adjusting a rail, at some time in the afternoon. He was unable to definately locate them or to tell what they were doing. This is absolutely the only evidence tending in the remotest degree to connect the Charleston Western Carolina Railway Company with the derailment.

Against any inference that the section force was connected with the derailment is the conceded fact that Randall could not have seen the force working near the place of the wreck; he must have seen them within the mile between the road crossing and the curve in the track. Against it also is the fact that seven trains passed over the track between evening and the wreck, one of which passed after 1 o'clock a. m., long after, it must be assumed, the section force "knocked off," an impossibility if the force had left the track in the condition which caused the derailment. Against it also is the extreme improbability that the section foreman, or any of the force, would in broad daylight commit such an act.

It appears to me that the case is controlled by the doctrine declared in Patton v. R. Co., 179 U.S. 658, 21 S.Ct., 275,277, 45 L.Ed., 361: "The fact of accident carries with it no presumption of negligence on the part of the employer; and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence.Texas P.R. Co. v. Barrett, 166 U.S. 617,41 L.Ed., 1136, 17 S.Ct., 707. Second, That in the latter case it is not sufficient for the employee to show that the employer may have been guilty of negligence; the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion. If the employee is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony; and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs." See, also, Atlantic Coast Line R. Co. v. Driggers, 279 U.S. 787,49 S.Ct., 490, 73 L.Ed., 957; Atlantic Coast Line R. Co. v.Tyner, 278 U.S. 565, 49 S.Ct., 35, 73 L.Ed., 508; AtlanticCoast Line R. Co. v. Powe, 282 U.S. 836,51 S.Ct., 212, 75 L.Ed., 743; Norfolk W.R. Co. v. Gillespie (C. C.A.), 224 F., 316; Savitz v. R. Co., 199 Pa., 218,48 A., 987.

For these reasons I think that the judgment of the Circuit Court should be reversed, and the case remanded to that Court for the entry of judgment in favor of the defendant under Rule 27.