Driggers v. A.C.L. Ry. Co.

Full title: DRIGGERS v. ATLANTIC COAST LINE R. CO. ET AL

Court: Supreme Court of South Carolina

Date published: Mar 28, 1928

151 S.C. 164 (S.C. 1928)

148 S.E. 889

Opinion

12414

March 28, 1928.

Before DeVORE, J., Charleston, November, 1925. Affirmed. Reversed by the Supreme Court of the United States in 49 S.Ct., 490.

Action by Marcella Driggers, as administratrix of the estate of William A. Driggers, deceased, against the Atlantic Coast Line Railroad Company and another. Judgment for plaintiff, and defendants appeal.

The complaint, omitting the caption, was as follows:

"COMPLAINT

"The plaintiff, complaining of the defendants, alleges:

"1. That the defendant, Atlantic Coast Line Railroad Company, is a foreign corporation organized and existing under the laws of some state unknown to this plaintiff, but at the times hereinafter mentioned was and is operating, maintaining and controlling a railroad passing through the County of Charleston, state aforesaid, where it had and now has agents and offices for the transaction of its business, which defendant is hereinafter referred to as the defendant company.

"2. That at the times hereinafter mentioned, the above-named defendant, M.H. Brandt, was employed by the defendant company as an engineer, and was the engineer on and was operating the train which killed the plaintiff's intestate, as is hereinafter set forth.

"3. Upon information and belief that heretofore and on or about June 4, 1924, the plaintiff's intestate was employed by the above-named defendant company as a brakeman, and was working on engine No. 164, which engine was controlled and operated by the defendant company, and was at that time operated on the main line at Etiwan Lead, in the County of Charleston, State aforesaid: that as the said engine No. 164 was approaching the southbound track of the defendant company, at or near the place known as Etiwan Lead, in the County of Charleston, State aforesaid, at a point which had been constantly used for switching purposes, and at which point freight trains were being switched at all hours of the day, making it necessary for the brakeman and other employees of the defendant company to step on and off the trains which were being operated by them at that point for the purpose of locking and unlocking the switches located there, and for the purpose of performing such other duties as they were required to perform by the defendant company, its agents and servants, the presence of which employees at that point was well known or should have been known to the defendant company, its agents and servants who were operating the defendant company's trains — the plaintiff's intestate, in the performance of his duties, stepped off the said engine No. 164, at or near the main line of the defendant company, located at or near Etiwan Lead, in the County of Charleston, State aforesaid; that while he was so doing, the defendants, their agents and servants negligently, carelessly, recklessly and wantonly operated one of the trains of the defendant company (which under the schedule fixed by the defendant company was not due or expected at that time at that point) without blowing any whistle or giving any warning of the approach of the said train, and running at an excessive and dangerous rate of speed, and caused the same to run upon, strike, mash, bruise, mangle, and kill the plaintiff's intestate.

"4. Upon information and belief that the death of the said plaintiff's intestate was caused by the negligence, carelessness, recklessness and wantonness of the defendants, their agents and servants in the following particulars, to wit:

"(a) In causing and allowing the said train to run down and upon the said intestate.

"(b) In operating the said train at a high and dangerous rate of speed, and at a rate of speed greatly in excess of that allowed by the rules and regulations of the defendant company, and greatly in excess of the speed at which trains are allowed to be operated by the defendant company within its yards.

"(c) In operating the said train at such an excessive rate of speed as to prevent the plaintiff's intestate from getting out of the way of the said train, and to avoid being run over by it.

"(d) In failing and omitting to give a timely or sufficient warning or signal of the approach of the said train by blowing the whistle or ringing a bell, or otherwise, so as to enable the plaintiff's intestate to save himself from being run over by the said train, although the said train was behind its schedule and the defendants, their agents and servants knew or should have known that the approach thereof was not expected by the plaintiff's intestate at that time.

"(e) In causing and allowing the said train to cross a well-traveled place known to the defendants, their agents and servants to be so well traveled without giving the signal or warning required to be given in such cases by the laws of the State of South Carolina.

"(f) In failing and omitting to cause the said train to slow down and to slacken the speed thereof within the yard limits of the defendant company while approaching and passing places along where persons and employees of the defendant company were accustomed to travel.

"(g) In failing and omitting to keep a proper lookout on the said train so as to be able to see plaintiff's intestate in time to avoid running him down and killing him.

"(h) In failing and omitting to take the proper precaution for the safety of the employees of the defendant company at a point where switching was known by the defendants, their agents and servants to be going on practically all the day.

"(i) In failing and omitting to furnish plaintiff's intestate with a reasonably safe place to work at, and in failing and omitting to provide sufficient space between the defendant company's tracks to enable its employees to safely board and alight from its trains while in the performance of their duties.

"(j) In failing and omitting to adopt proper rules and regulations for the protection of the employees of the defendant company at the place hereinabove set forth, and to provide them with a safe place to work at, and in not adopting proper measures to safeguard and protect the defendant company's employees, although the defendant company, its agents and servants had been duly warned of the danger and unsafe place at which the plaintiff's intestate was required to work, and at which point he was killed, and although the defendants, their agents and servants had known of the danger of such place, a number of other employees having been injured at or near the same point where the plaintiff's intestate was killed while performing their duties for the defendant company in the course of their employment.

"(k) In failing and omitting to have the road bed at or about the place where plaintiff's intestate was killed properly and sufficiently ballasted so as to provide a firm and secure footing for employees alighting from the trains of the defendant company in the performance of their duties.

"(l) In installing and maintaining a switch close to a curve of the defendant company's tracks at a point where the plaintiff's intestate was killed, causing the plaintiff's intestate to be thrown against the said switch after being run over by the aforesaid train.

"(m) In causing and permitting defendant company's right of way between the Etiwan Lead and the main track to be obstructed and screened by billboards, weeds, bushes, and shrubbery, so as to deprive the defendant's employees working on trains operating at that point of a clear and unobstructed vision.

"(n) In failing and omitting to cause the land between defendant's main tracks and an important and frequently used spur track to be kept clear and free of billboards and shrubbery and other obstructions, so as to enable the employees of the defendant on a train approaching the main tracks along such spur track to see an approaching southbound train on the main track.

"(o) In failing and omitting to ring a bell or sound a whistle while approaching and crossing a public highway near the place at which plaintiff's intestate was struck and killed by the said train.

"5. That the above-named intestate left him surviving his wife, Marcella Driggers, and a posthumous son, Leslie Allen Driggers, and a son William A. Driggers, Jr., who were deprived, by the death of plaintiff's intestate, of care, counsel, support and maintenance, and as to said minor sons, of training and education also, for all of which the said wife and sons were wholly dependent upon plaintiff's intestate.

"(6) That the plaintiff, Marcella Driggers, was duly appointed administratrix of the estate of William A. Driggers, deceased, and as such brings this action for the benefit of those entitled to recover thereunder.

"7. That all the said acts and omissions on the part of the defendants were negligently, carelessly, recklessly and wantonly done, and were in utter disregard of the safety of the said Driggers and those similarly situated with him, and they jointly and concurrently, caused the said injury and death of the said William A. Driggers, the said defendant company having owned, maintained and controlled the said train, and the said defendant, M.H. Brandt, having operated the same; all to the damage of the plaintiff in the sum of one hundred thousand ($100,000.00) dollars.

"8. That at the aforesaid times and places, the abovenamed defendants and the plaintiff's intestate were engaged in interstate commerce.

"Wherefore the plaintiff herein prays judgment against the defendants in the sum of one hundred thousand ($100,000.00) dollars, besides the costs of this action."

The answer of the defendants was as follows, omitting caption:

"ANSWER OF DEFENDANTS

"The defendant, Atlantic Coast Line Railroad Company, subject to motion heretofore noticed to strike certain portions of the complaint and to make more definite and certain other portions thereof, and not waiving any of its rights under the said notice, but saving and reserving the same, answering the complaint herein says:

"(1) It admits that it is a corporation duly organized and existing under the laws of the State of Virginia.

"(2) It admits the allegations contained in the second paragraph of the complaint.

"(3) It admits so much of the third paragraph as alleges that at the time and place mentioned, plaintiff's intestate was in the employ of the defendant as a switchman, and that at said time and place he was injured in a collision between himself and passenger train Number 79 of the defendant and that he thereafter died.

"(4) Upon information and belief this defendant denies each and every allegation contained in the fourth paragraph and the various subdivisions thereof, and this defendant says that on the day and at the place mentioned in the complaint that plaintiff's intestate stepped off the step of an engine of the defendant standing upon a side-track near its main track on or in dangerous proximity to the main line track of the defendant, directly in front of the said passenger train of the defendant coming towards him on said track, which he saw, or could have seen by the exercise of due and proper care and precaution, too near said train for it to stop in time to avoid striking him, and defendant further says that it was without fault and that the negligence, carelessness and recklessness if any which caused the injury was that of the plaintiff's intestate.

"(5) It has no knowledge or information sufficient to form a belief as to the allegations contained in the fifth and sixth paragraphs.

"(6) It denies the allegation contained in the seventh paragraph.

"(7) It admits the allegation contained in the eighth paragraph.

"(8) Further answering said complaint and for a further defense to said action, defendant alleges that the injuries to and death of plaintiff's intestate were due to and caused by the willfulness, recklessness, carelessness and negligence of plaintiff's intestate, combining with and concurring with the alleged carelessness, recklessness, willfulness, wantonness and negligence of the defendant, its agents and servants, and contributed to the death of the plaintiff's intestate as a proximate cause thereof, without which the same would not have happened, in that

"(a) Plaintiff's intestate negligently, carelessly, recklessly and willfully stood upon the step or foot board of the engine upon the right side thereof, contrary to the custom of the employees of the defendant and to his instructions and the rule of the defendant;

"(b) Plaintiff's intestate stepped from the side step or foot board to the ground in close and dangerous proximity to the rails of the main line of the defendant company, upon which there was approaching towards him a passenger train of the defendant, which was in plain view from the place where plaintiff's intestate was standing upon the said step or foot board of the engine, and could have been seen before so alighting therefrom by the plaintiff's intestate by the exercise of due and proper care and precaution in time to have prevented his collision with said train;

"(c) Plaintiff's intestate failed and omitted to heed the approach of the said passenger train, notwithstanding signals were given by whistle and bell of its approach.

"(d) In failing to look up the said main line track before alighting thereon or in close and dangerous proximity thereto.

"(e) In alighting on or in dangerous proximity to the main line track without any precaution for his safety and so close in front of the train that approached thereon that there was no time for said train to be stopped.

"(9) Further answering said complaint and for a further defense to said action, defendant alleges that the injury to and death of plaintiff's intestate were due to and caused by one of the risks of his business or employment assumed by the plaintiff's intestate in entering the service of defendant, i. e., to say the risk of coming in collision with a train upon a track when stepping from the engine upon which he was riding towards and upon said track, and that said risk was obvious and was so assumed by plaintiff's intestate as aforesaid.

"And having fully answered said complaint, defendant prays that the same may be dismissed with costs."

The defendants moved the Court for a directed verdict in their favor on the following grounds, to wit:

"1. That there is no sufficient evidence in the case to prove any actionable negligence on the part of the defendant Atlantic Coast Line Railroad Company or the engineer, Brandt, or either.

"2. That the whole of the evidence shows that the death of the deceased was due to an unavoidable accident, and due to the fault or negligence of neither of the defendants.

"3. That the injury and death of the deceased was due to and caused solely by the negligence of the deceased in stepping too near to and into a moving train.

"4. That the injury and death of the deceased were due to and caused by a risk of his employment assumed by said deceased, that is to say, the risk of coming into collision with the train upon the track in this case when stepping from the engine upon which he was riding towards and upon said track, and that said risk was obvious, or in the exercise of due care and prudence by deceased, would have been obvious and was so assumed by him."

The presiding Judge overruled the motion for a directed verdict. Thereupon counsel for plaintiff and defendants submitted the following requests to charge:

"DEFENDANTS' REQUESTS TO CHARGE

"1. I charge you that the whole of the evidence in this case shows that the shrubbery, trees, billboards, and other obstructions to the view of the deceased alleged by the plaintiff in this case, even if a basis for finding the defendant Atlantic Coast Line Railroad Company negligent, were not as a matter of law the proximate cause of the accident to, and death of the plaintiff's intestate, Mr. Driggers, and in passing on this case you cannot find a verdict in favor of the plaintiff based solely upon such alleged negligence.

"2. I charge you that under the Federal Employers' Liability Act the measure of damage recoverable is limited to such loss as results because the dependent relatives have been deprived of a reasonable expectation of pecuniary benefits by the wrongful death of the injured employee. The damage is limited strictly to the financial loss sustained, and is always the present cash value of the future benefits of which the beneficiaries were deprived by the death, making adequate allowance according to the circumstances for the earning power of money. The excess earnings of the deceased over the amount reasonably to be expected to be contributed to the beneficiaries cannot be reduced to a cash value and assessed as an element of damage.

"If you find a verdict for the plaintiff in this case, the verdict should be computed strictly in accordance with these instructions, and the plaintiff is only entitled to a verdict for the present cash value of what the deceased might reasonably have been expected to give to his wife and children had he lived.

"3. I charge you that no recovery can be had for damages which the deceased might have recovered if he had survived, and I further charge you that no recovery can be had for the amount of money, as such, which the deceased might or would have made during his life. The measure of damage is only the present cash value of the future benefits which his dependents might reasonably have expected to have received from the deceased had he lived.

"4. I charge you in this connection that the legal rate of interest in this State is seven (7%) per cent., and the earning power of money must be measured by this standard, rather than by any lesser standard of the same. In computing the earning power of money at law, this legal standard of 7% must be adopted, and not the savings bank standard of 4%.

"5. I charge you that an employee may assume the risk of injury from dangers and hazards which are ordinarily incident to his employment, or which arise in the progress of the work. Some employments are necessarily dangerous and fraught with danger to the workman, danger that must be and is confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in the contract of employment. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. Risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work, and so forth. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. If, however, he does actually know and appreciate the danger or risk, or by the exercise of proper care and caution should have known and appreciated the danger or risk, then he is held to have assumed such risk, and cannot recover.

"I charge you that if the accident involved in this case, and the death of the deceased, were caused solely by his own carelessness and negligence, then I charge you that the plaintiff cannot recover."

The Judge charged the jury as follows:

"CHARGE

"After arguments of counsel, the presiding Judge charged the jury as follows:

"Mr. Foreman and gentlemen of the jury, the sum and substance of the plaintiff's cause of action as set forth in his complaint is as follows: the plaintiff says that heretofore, to wit, on the 4th day of June, 1924, the plaintiff's intestate was employed as a brakeman on a switching engine of the defendant company. (Reads paragraphs 3rd, 5th, 6th and 7th of the complaint.)

"Then they set out the acts of negligence with which they charge the defendant, which I shall read to you hereafter. That is in sum and substance the plaintiff's cause of action.

"Now the answer of the defendant Atlantic Coast Line Railroad Company denies the material allegations of the complaint and sets up the defense of contributory negligence on the part of the plaintiff, and also the defense of assumption of risk, and also that the plaintiff's negligence and carelessness was the sole cause of his injury.

"Now I understand the attorneys for the defendant to state that the answer of the engineer Brandt was about the same.

"Mr. Hyde: Yes, your Honor.

"Court: The answer of the engineer Brandt is the same as the defendant Atlantic Coast Line Railroad Company.

"Now the plaintiff sets up specifications as to several acts of negligence which the plaintiff alleges caused the death of the deceased. In the fourth paragraph of the complaint this allegation is found:

"`Upon information and belief that the death of the said plaintiff's intestate was caused by the negligence, carelessness, recklessness and wantonness of the defendants, their agents and servants in the following particulars, to wit:'

"Now the first act of negligence charged against the defendant by the plaintiff is this subdivision (a):

"`In causing and allowing the said train to run down and upon the intestate.'

"Now that is a question of fact for you to answer from the evidence, whether the defendant caused the train to run down and upon the deceased. If the defendant did that, and did it negligently and carelessly, and that was the direct and proximate cause of the death of the deceased, the plaintiff would be entitled to recover. But whether the defendant did that or not I don't know. That is for you to find out from the evidence.

"`The next specification is (b):

"`In operating the said train at a high and dangerous rate of speed, and at a rate of speed greatly in excess of that allowed by the rules and regulations of the defendant company, and greatly in excess of the speed at which trains are allowed to be operated by the defendant company within its yards.'

"Well, it would be a violation of law for a railroad company to operate its train at a high and dangerous rate of speed, and in excess of that allowed by law, and it would be a violation of law to operate in excess of the rate of speed allowed in the yard. All that may be negligence and carelessness in the defendant, and if that was the direct and proximate cause of the injury to the plaintiff, the plaintiff would be entitled to recover on that act of negligence.

"The next specification is subdivision (c):

"`In operating the said train at such an excessive rate of speed as to prevent the plaintiff's intestate from getting out of the way of the said train, and so to avoid being run over by it.'

"Well, if they did that, that was a violation of law, but whether or not they did that is a question for you to answer from this evidence. If the defendant did that, and that was negligence and carelessness and that negligence and carelessness was the direct and proximate cause of the plaintiff's injury and death, the plaintiff in this case would be entitled to recover on that act of negligence.

"I may state to you here what the definition of negligence is, so that you may keep it in your minds all the way through the case, so that you may be able to ascertain whether or not the defendant was negligent or careless.

"Negligence is the doing of something which a person of ordinary prudence and care would not have done under the same or similar circumstances — that would be an act of commission — or the failure to do something that a person of ordinary prudence and care would have done under the same or similar circumstances — that would be an act of omission. In that connection, I charge you that a person or corporation may be guilty of negligence and no one would be entitled to recover. To illustrate, suppose a man drove up in front of the Court house and left his horse without hitching it. That might be negligence, but if no one was hurt no one could recover. So you must ascertain whether that negligence was the direct and proximate cause of the injury charged.

"The next act of negligence charged is (d):

"`In failing and omitting to give a timely or sufficient warning or signal of the approach of the said train by blowing the whistle or ringing a bell, or otherwise, so as to enable the plaintiff's intestate to save himself from being run over by the said train, although the said train was behind its schedule and the defendants, their agents and servants knew or should have known that the approach thereof was not expected by the plaintiff's intestate at that time.'

"Well, if under the circumstances surrounding and connected with this inquiry, this unfortunate affair, if it was negligence for the defendant not to give the signal by blowing the whistle or ringing the bell, if it was necessary for him to do that in order to absolve himself from negligence he should do it. But suppose he failed to do that and that was negligence and carelessness on the part of the railroad company it would not necessarily follow that the plaintiff would be entitled to recover. That negligence would have to be the direct and proximate cause of the injury to plaintiff. If that be so, plaintiff would be entitled to recover. Otherwise he would not be entitled to recover.

"Specification (e) has been stricken out. The next is (f):

"`In failing and omitting to cause the said train to slow down and to slacken the speed thereof within the yard limits of the defendant company while approaching and passing places along where persons and employees of the defendant company were accustomed to travel.'

"Well, if it was necessary to absolve themselves from negligence it was their duty to slow down or slacken the speed of the train. But suppose you conclude they did not do that and that was negligence in the defendant not slowing down, it would not necessarily follow that the plaintiff would be entitled to recover. But you would have to ascertain whether that negligence was the direct and proximate cause of the injury, and if that be so, the plaintiff would be entitled to recover on that act of negligence.

"The next specification is (g):

"`In failing and omitting to keep a proper lookout on the said train so as to be able to see plaintiff's intestate in time to avoid running him down and killing him.'

"Well, it was the duty of the defendant, its agents and servants, to keep a proper lookout to keep from injuring or damaging people on the line of track; to keep a reasonable and proper lookout. But whether the defendant kept a proper lookout is a question for you to answer from the evidence. But suppose you conclude that they did not keep a proper lookout and that was negligence. You would have to go further and find out if that was the direct and proximate cause of the death of the deceased. If that be so, he would be entitled to recover, and if that was not so, he would not be entitled to recover.

"The next specification is (h):

"`In failing and omitting to take the proper precaution for the safety of the employees of the defendant company at a point where switching was known by the defendants, their agents and servants to be going on practically all day.'

"Well, it was the duty of the railroad company to take such precautions as a person of ordinary prudence and care would have taken under the same or similar circumstances to avoid injury to employees or for the safety of their employees, and if they did not do that they violated the law. But suppose you conclude that they did not. The plaintiff would not be entitled to recover even then unless you conclude that was the direct and proximate cause of the death of the deceased. If that be so, the plaintiff would be entitled to recover; otherwise he would not be entitled to recover.

"The next specification is as to furnishing a safe place to work, specification (i):

"`In failing and omitting to furnish plaintiff's intestate with a reasonably safe place to work at, and in failing and omitting to provide sufficient space between the defendant company's tracks to enable its employees to safely board and alight from its trains while in the performance of their duties.'

"That whole specification has reference to their failure to furnish a safe place for plaintiff to work in. Now the law as to that is, that the master — and when I say master, I mean the Railroad Company, and when I say servant, I mean the brakeman — it is the duty of the master to furnish, not an absolutely safe place to work, it is the duty of the master to furnish a reasonably safe place for the servant to work. And there is a corresponding duty on the servant. The servant has a right to assume that the master has furnished him a reasonably safe place to work, and he does not have to make any minute inspection, or any investigation. He may assume that the master has performed his duty. But if the place is dangerous, obviously dangerous, and can be seen by the servant, and he goes on and performs his duty after knowing that, why he assumes that risk. He takes the risk on himself, and if he is injured on account of that, he could not hold the master for that. Suppose you were employed by a railroad to work at a certain place. You would have a right to assume that the place was reasonably safe. But if the place was not reasonably safe, was dangerous, the danger was obvious to you, you could see it and knew it, and you undertook to work in that place and you got hurt, it would be your fault. Whether that happened in this case I don't know. You have to ascertain that from the evidence. That is about the law that covers that specification.

"The next specification of negligence is (j):

"`In failing and omitting to adopt proper rules and regulations for the protection of the employees of the defendant company at the place hereinabove set forth, and to provide them with a safe place to work at, and in not adopting proper measures to safeguard and protect the defendant company's employees, although the defendant company, its agents and servants, had been duly warned of the danger and unsafe place at which the plaintiff's intestate was required to work, and at which point he was killed, and although the defendants, their agents and servants, had known of the danger of such place.'

"Well, now, the regulations with regard to proper rules and regulations, I refuse to charge anything about that because they have not introduced any rules and regulations about that place, and I can't tell you whether they were proper rules and regulations. You could not say they were proper rules and regulations because they have not been introduced here, so I refuse to charge you anything about proper rules and regulations. Under that specification I charge you that it was the duty of the railroad company to take proper measures to safeguard the employees, not only at that place but anywhere along the line, and especially would that be so if the railroad company knew of the danger of such place and had been warned about the danger. If that be so, the railroad company would be bound to take proper precautions, and if they failed to do so, on that occasion, and that was negligence, and that was the direct and proximate cause of the death of the deceased, the plaintiff would be entitled to recover.

"Specifications (k) and (1) are stricken out. The next specification is (m):

"`In causing and permitting defendant company's right of way between the Etiwan Lead and the main track to be obstructed and screened by billboards, weeds, bushes and shrubbery, so as to deprive the defendant's employees working on trains operating at that point of a clear and unobstructed vision.'

"Well, if the railroad company allowed that to be done as charged in this complaint, that was a violation of law. It was their duty to keep that place unobstructed so as to enable its employees to see trains coming down the railroad track to protect themselves. I don't know if there were any billboards or shrubs there, and if I knew I could not express my opinion to you. You are the ones to say whether they were there, and if they were there did they deprive the deceased of the opportunity of seeing the train and protecting himself. That is a question you have to answer; were those shrubs there, and were they in such a place as to prevent the deceased from seeing the train? If they were there and that was negligence and carelessness in preventing the deceased from seeing the train, and that was the direct and proximate cause of the death of the deceased, he could recover; otherwise he could not.

"The next specification as to billboards:

"`(n) In failing and omitting to cause the land between defendant's main tracks and an important and frequently used spur track to be kept clear and free of billboards and shrubbery and other obstructions, so as to enable the employees of the defendant on a train approaching the main tracks along such spur track to see an approaching southbound train on the main track.'

"What I have said to you with reference to specification (m) applies to that. They both apply to the same specification of negligence. In that connection, I charge you, and this applies to the defendant as well as the plaintiff, because the plaintiff charges certain allegations of negligence in the complaint that does not necessarily mean that the plaintiff is entitled to recover. He has to prove them. That specification about billboards, the plaintiff has to prove that. And so when the defendant alleges an act of negligence on the part of the plaintiff. They have to prove that. Those are the specifications of negligence you have to consider in the plaintiff's cause of action.

"I may state that the plaintiff must recover, if he recovers at all, on one or more or all of these acts of negligence charged against the defendant. If the deceased was killed in any other way except a negligent way charged in this complaint, he could not recover. You will have this complaint, and you will see on the margin where I have marked out certain specifications of negligence, and you need not consider those at all. They have nothing to do with the case, but those not marked out, you may consider all of them.

"Now the answer of the defendant Atlantic Coast Line Railroad Company denies the material allegations of the complaint, and sets up the defense of contributory negligence on the part of the plaintiff, and also assumption of risk on the part of the plaintiff.

"In the eighth paragraph of the answer they allege that the death of the plaintiff's intestate was caused, etc. (Reads same.)

"Well, now, contributory negligence occurs in this way. Suppose you conclude that the defendant was negligence in the particulars charged against it, and you conclude that the plaintiff was also negligent, and that the plaintiff's negligence combined and concurred with the negligence of the defendant and contributed as a direct and proximate cause of his injury and without the negligence of the plaintiff his death would not have occurred. That would be contributory negligence. Now this answer says that the plaintiff was guilty of contributory negligence by getting up on the foot board of the engine on the right side contrary to the custom of the employees and the rules of the company. Now as to the rules, I don't propose to charge you about that because no rule has been introduced here. Now if he got up on the foot board on the right side and that was contrary to the custom of the employees, I don't know whether it was or not, if he got up there and that was negligence in him doing so, and that negligence and carelessness was the cause of his injury, then the defense of contributory negligence is made out. But that would not prevent the plaintiff from recovering. I will explain that to you later on. Under the Federal Act contributory negligence would not prevent the plaintiff from recovering.

"Now the next act of negligence charged by the defendant against the plaintiff, he says the plaintiff was negligent in stepping from the foot board or side step to the ground in close and dangerous proximity to the rails of the main line of the defendant company, upon which there was approaching towards him a passenger train of the defendant, which was in plain view from the place where plaintiff's intestate was standing upon the said step or foot board of the engine, and could have been seen before so alighting therefrom by the plaintiff's intestate by the exercise of due and proper care and precaution in time to have prevented his collision with said train.

"Well, in that connection I charge you that an employee of a railroad company must use ordinary care to prevent being killed. He has to use ordinary care for his own safety. Now this specification says that he was negligent in not using his sense of sight to see whether or not the train was anywhere near him before he made the step off. That is what they charge. Now you take the evidence in this case and see what the circumstances surrounding that act were and then you say what a person of reasonable prudence and care would have done under the same or similar circumstances, and whatever a person of ordinary care would have done the law says the plaintiff must do. And you ascertain what a person of ordinary reason, prudence and care, situated and surrounded as the plaintiff was in this specification of negligence. Whatever such a person would have done, the law says the plaintiff must do. But if the plaintiff failed to do it, and that was negligence on his part, and contributed to his injury, that would not deprive the plaintiff of a right to recover as I shall explain to you hereafter. But if that failure was the sole cause of the injury, unaccompanied by any negligence or carelessness on the part of the railroad company, why the plaintiff could not recover.

"Specification (c) in the answer is as follows:

"`Plaintiff's intestate failed and omitted to heed the approach of the said passenger train, notwithstanding signals were given by whistle and bell of its approach.'

"I don't know whether any signals were given by the whistle or bell. You have heard the evidence and you must ascertain that from the evidence. But it is the duty of a person to use his senses of hearing and seeing, and if he fails to do that, and that was negligence on his part, and that was the sole direct proximate cause of the injury, the plaintiff could not recover. The plaintiff has to use ordinary care for his own safety, such care as a person of ordinary prudence and care would have used under the same or similar circumstances. That is the care the law says the plaintiff must use, and if he fails to use that, and that was negligence, and that was the sole cause of the injury, unaccompanied by any negligence on the part of the defendant, the plaintiff could not recover. But if it was contributory negligence on his part, combining and concurring with the negligence of the defendant as the proximate cause of the injury, that would not prevent him from recovering. I will explain that to you a little later on.

"`(d) In failing to look up the said main line track before alighting thereon, or in close and dangerous proximity thereto.'

"Well, did he fail to look up the track and did he alight in close and dangerous proximity to the train? I don't know whether he did or not. But under that act of negligence, I can only repeat that the plaintiff was required to use such care as a person of ordinary care and prudence would have used under the same or similar circumstances. The law says he must do under those circumstances what a person of ordinary care and prudence would have done, and if he failed to, and that was negligence and that was the sole direct cause of the injury, the plaintiff could not recover. But if it was negligence and contributed to the injury as the direct and proximate cause, that would not prevent him from recovering. Under those circumstances, he was required to use such care as a person of ordinary prudence and care would have used under the same or similar circumstances. Now did he alight so close that the train could not be stopped? I don't know. You have heard the evidence, and you must answer that from the evidence. But if he did that and failed to observe due care and that was the sole cause of the injury, he could not recover.

"Now the ninth paragraph sets up assumption of risk, and the law in regard to that is this: whenever a master employs a servant — and when I say master, I mean the Railroad Company, and when I say servant, I mean the deceased — whenever a master employs a servant, the servant assumes all the risks ordinarily incident to the work that he is employed to do. That is just as binding on the servant as a written contract. He assumes all ordinary risks. He does not assume any extraordinary hazards or risks, just those risks connected with his work. And if the death of the deceased was caused by an ordinary risk, he assumed that. If that was the cause of his death he assumed that.

"Now that is about the law as I see it that covers this case, except to say to you that under this Federal Act under which this case is being tried, and about which there is no dispute, contributory negligence on the part of the plaintiff would not prevent the plaintiff from recovering. Under our State law that would prevent him from recovering, but under this Federal Act it does not. But the law says that the jury must apportion the negligence. That is to say, suppose you were to conclude from the evidence in this case that the plaintiff was entitled to recover nine hundred dollars damages, and you were to conclude that the plaintiff was guilty of as much negligence as the defendant, half and half. Then you would have to apportion that nine hundred dollars, and say the plaintiff would be entitled to four hundred and fifty dollars. If the plaintiff was guilty of one-third of the negligence and the defendant two-thirds, the plaintiff would be entitled to recover two-thirds of nine hundred dollars. So under this Federal Law you have to apportion the negligence. You first say how much damages the plaintiff should receive; suppose you say nine hundred dollars; and if the plaintiff was guilty of as much negligence as the defendant, the plaintiff would be entitled to four hundred and fifty dollars.

"Now there is only one of two ways that the plaintiff can be deprived of his right to recover in a case like this and one of those ways is this. Where the negligence of the plaintiff was the sole cause of the injury, or in this case his death; if the death of the deceased was caused by his own negligence unaccompanied by any negligence on the part of the defendant the plaintiff could not recover. And neither could the plaintiff recover if his death was due to one of the risks that are ordinarily incident to the work he was hired to do because he assumes such risks. Those are the only two ways that the plaintiff can be deprived of his right to recover. That is about the law as I see it that covers the whole case. I may say to you cannot give anything but actual damages in this case. Under this act you cannot give punitive damages at all.

"Now I have been requested to charge you.

"1. I refuse to charge you the defendants' first request to charge.

"The second I will talk to you about later, and the fourth I will talk to you about later. The fifth I refuse to charge.

"Now gentlemen, in estimating the damages, if you conclude that the plaintiff is entitled to anything it would be wrong for you to take into consideration the question of sympathy. The wife and children were here in Court, and that may have made a wrong impression on you. It would be contrary to law for you to take into consideration sympathy in estimating damages and you can see the reason for that very easily. It would be wrong for you to make somebody else pay for your sympathy. You might be willing to put out two or three hundred dollars to pay for your sympathy but it would be wrong to make some one else pay for it. This is just a cold business proposition. You shut your eyes to everything you have heard except the testimony and the law as I have given it to you. Whenever people can't settle their difficulties outside of the Court, the law has prescribed this tribunal to settle them. On one side is the Judge who handles the law, and on the other side is the jury who handles the facts, the Judge and the jury must settle it.

"A mortuary table has been introduced in evidence and that means this: you take the age of the person at the time of his death and that table tells you how many more years he is expected to live had he not died. But you are not bound by that table. You give it such weight as you think it is entitled to. Under that table a person of the age of 28 is expected to live so many more years before he dies; that is not binding on you. You give that such weight as you think it is entitled to. Use your good common sense and judgment about it. And in consideration of that it would be your duty to take into consideration if the deceased had lived, if he would have made six dollars and some cents the balance of his life. You take into consideration whether the man would have lived, and if he would have a job every day at six dollars and some odd cents a day, as the testimony shows. You have to use your senses about that. That table is not binding on you. You give it such weight as you think it is entitled to, that is all.

"Now I have been requested to charge you several requests by the defendant. The first I refuse.

"2. I charge you that.

"3. I charge you that. That means very nearly this: what was the commercial value of the deceased to his family, what was he worth to them?

"4. I charge you that.

"5. I refuse to charge you that.

"6. I charge you that.

"That is about the law as I see it that covers this whole case, except to tell you that the plaintiff must prove her case by the greater weight or preponderance of the evidence, that is to say, if the testimony in support of the plaintiff's cause of action is an even balance with that opposed to it, the plaintiff could not recover, because the law says his testimony must outweigh, go down, be heavier than that opposed to it. And that same rule applies to the defendant on the question of contributory negligence and assumption of risk. Both of these defenses must be proved by the greater weight or preponderance of the evidence. The evidence in support of contributory negligence and assumption of risk must preponderate over that opposed to it, if that be so those two defenses would be made out and the plaintiff could not recover as to assumption of risk. But he could recover as to contributory negligence because I told you that there were only two ways by which the plaintiff could be deprived of his right to recover, by showing that his death was caused by his sole negligence unaccompanied by any negligence on the part of the defendant, or that his death was caused by one of the risks ordinarily incident to the work he was employed to do. I believe that I stated to you that you cannot bring in any punitive damages or any damages for pain and suffering.

"Mr. Meyer: The plaintiff could not recover unless they prove their case by the greater weight of the evidence.

"Court: I have told the jury that.

"If you conclude that the plaintiff is entitled to recover, say `We find for the plaintiff' so many dollars, writing it out in words and not in figures, and sign your name as foreman. If you conclude that the plaintiff is not entitled to recover, say `We find for the defendant' and sign your name as foreman. All you want to do is what is right and just under the law and the evidence. Whenever you have done that, you have done your duty.

"Mr. Figg: I would like to call your Honor's attention to the fact that there is no evidence that any speed rules or regulations were violated by the defendant in this case. In connection with the second specification your Honor charged that might be negligence.

"Court: It does not make any difference whether there are any speed rules, the railroad company had no right to run its train at a high and reckless rate of speed. What specification of negligence is that, the second? I told them I was not going to charge them anything about the rules and regulations because there were no rules introduced.

"Mr. Figg: I ask your Honor to charge that there is no evidence to support that specification.

"Court: I won't charge them about the rules, I charge them it is wrong to run at a high and dangerous rate of speed, rule or no rule. I won't say a word about rules, no rules have been introduced here. If you listen to the charge, you will see I have covered it pretty closely.

"What I have said about the Coast Line applies to the engineer Brandt because his answer is the same as the Coast Line, so there is no use to charge you all over again.

"Write your verdict on the back of this paper I have made a mark on.

"The Foreman: Your Honor, do we have to find against one or both of the defendants?

"Court: You have it in your power to bring in a verdict against one or both of them."

"EXCEPTIONS

"1. The presiding Judge erred in refusing defendants' motion for a non-suit made at the close of the plaintiff's testimony on the ground that there is no sufficient evidence in the case to prove any actionable negligence on the part of the defendant Atlantic Coast Line Railroad Company, or the engineer, Brandt, or either.

"2. The presiding Judge erred in refusing defendants' motion for a non-suit made at the close of the plaintiff's testimony on the ground that the whole of the evidence shows that the death of the deceased was due to an unavoidable accident, and due to the fault or negligence of neither of the defendants.

"3. The presiding Judge erred in refusing defendants' motion for a non-suit made at the close of the plaintiff's testimony upon the ground that the injury and death of the deceased were due to and caused solely by the negligence of the deceased in stepping too near to and into the moving train.

"4. The presiding Judge erred in refusing defendants' motion for a non-suit made at the close of the plaintiff's testimony upon the ground that the injury and death of the deceased were due to and caused by a risk of his employment assumed by said deceased, that is to say, the risk of coming into collision with the train upon the track in this case when stepping from the engine upon which he was riding towards and upon said track, and that said risk was obvious, or in the exercise of due care and prudence would have been obvious, and was so assumed by him.

"5. The presiding Judge erred in refusing defendants' motion for the direction of verdict in favor of defendants made at the close of the testimony in the case on the ground that there is no sufficient evidence in the case to prove any actionable negligence on the part of the defendant Atlantic Coast Line Railroad Company, or the engineer, Brandt, or either.

"6. The presiding Judge erred in refusing defendants motion for the direction of verdict in favor of defendants made at the close of the testimony in the case on the ground that the whole of the evidence shows that the injury and death of the deceased were due to an unavoidable accident, and due to the fault or negligence of neither of the defendants.

"7. The presiding Judge erred in refusing defendants' motion for the direction of verdict in favor of defendants made at the close of the testimony in the case on the ground that the injury and death of the deceased were due to and caused solely by the negligence of the deceased in stepping too near to and into the moving train.

"8. The presiding Judge erred in refusing defendants' motion for the direction of verdict in favor of the defendants made at the close of all the testimony upon the ground that the injury and death of the deceased were due to and caused by a risk of his employment assumed by said deceased, that is to say, the risk of coming into collision with the train upon the track in this case, when stepping from the engine upon which he was riding towards and upon said track, and that said risk was obvious or in the exercise of due care and prudence by deceased would have been obvious, and was so assumed by him.

"9. The presiding Judge erred in refusing to strike from the complaint herein upon defendants' motion the allegations of paragraph 4, subdivision (n), made upon the ground that the said allegations charged defendant railroad company with negligence in respect to the presence of billboards and shrubbery not on defendant company's land or right-of-way; the error assigned being, that the Atlantic Coast Line Railroad Company is not under the legal duty of removing billboards and shrubbery not upon its right-of-way, and cannot be charged with negligence for allowing such obstructions to be on lands not belonging to it or not a part of its right-of-way.

"10. The presiding Judge erred in permitting the plaintiff's witness, J.J. Mansfield, to testify, over objection by defendants' counsel, as follows:

"`Q. What was the condition of the body? A. Head pretty well decomposed, arm broken, part of his brains out on the ground.

"`Mr. Figg: We object. This suit is not for any pain and suffering. It is simply for the loss of pecuniary benefits.

"`Court: Overrule the objection.

"`Q. Describe the condition of the body? A. Ground up laying between the Coast Line tracks; head pretty badly decomposed.

"`Q. What part of the body was broken?

"`Mr. Figg: I object to all testimony along this line, and move to strike it out, as irrelevant.

"`Court: I overrule the objection.

"`Q. All right, answer the question.

"`A. His head was pretty well ground up, arm broken, also his leg.

"`Q. Could you tell which arm was broken? A. I think the left, I am not positive, I noticed part of his brains lying close to the end of the cross ties.'

"The error assigned being, that this testimony was irrelevant to the issues in this case, and was highly prejudicial to defendants' rights, and should have been excluded and stricken out on motion of defendants' counsel.

"11. The presiding Judge erred in overruling motion to strike out the testimony of J.J. Mansfield, plaintiff's witness, as to the gruesome condition, and the mutilation and decomposition of the body of deceased, the error assigned being that said testimony was irrelevant to the issues in this case, and was highly prejudicial to defendants' rights.

"12. The presiding Judge erred in overruling defendants' motion that the jury be sent to inspect and examine the scene and location of the accident, the error assigned being that the testimony of plaintiff's witness, McDonald, showed that the photographs in evidence, or one or several of them, did not portray a true representation of the spot and the billboards, shrubbery, etc., and in this case, the exact physical location of the accident, and the arrangement of the tracks, alleged obstructions, etc., were highly important to defendants' case, and defendants were entitled to have the jury see the scene of the accident.

"13. The presiding Judge erred and committed abuse of discretion in overruling defendants' motion that the jury be sent to examine the scene and location of the accident in this case, in that, in view of the importance to defendants' case of the actual physical situation at the point of the accident, and the great bearing which this had on the peculiar issues in this case, the defendants were entitled to have the jury examine the scene of the accident, and the presiding Judge should have directed that they go.

"14. The presiding Judge erred in refusing defendants' first request to charge, as follows, to wit:

"1. I charge you that the whole of the evidence in this case shows that the shrubbery, trees, billboards and other obstructions to the view of the deceased alleged by the plaintiff in this case, even if a basis for finding the defendant Atlantic Coast Line Railroad Company negligent, were not as a matter of law the proximate cause of the accident to, and death of the plaintiff's intestate, Mr. Driggers, and in passing on this case you cannot find a verdict in favor of the plaintiff based solely upon such alleged negligence.

"The error assigned being, that the whole of the evidence showed that the statement of the issues therein contained was correct and proper, and the presiding Judge should have so charged.

"15. The presiding Judge erred in refusing to charge defendants' fifth request to charge, as follows, to wit:

"5. I charge you that an employee may assume the risk of injury from dangers and hazards which are ordinarily incident to his employment, or which arise in the progress of their work. Some employments are necessarily dangerous and fraught with danger to the workman, danger that must be and is confronted in the line of his duty. Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in the contract of employment. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. Risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work, and so forth. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. If, however, he does actually know and appreciate the danger or risk, or by the exercise of proper care and caution should have known and appreciated the danger or risk, then he is held to have assumed such risk, and cannot recover.

"The error assigned being, that the said request contained a correct proposition of law, relevant to the defendants' defense of assumption or risk, and not charged elsewhere by the presiding Judge, and defendant was entitled to have said request charged, and was prejudiced by the refusal so to charge.

"16. The presiding Judge erred in charging the jury as follows, to wit:

"`The next specification is (b):

"`"In operating the said train at a high and dangerous rate of speed, and at a rate of speed greatly in excess of that allowed by the rules and regulations of the defendant company, and greatly in excess of the speed at which trains are allowed to be operated by the defendant company within its yards."

"`Well, it would be a violation of law for a railroad company to operate its train at a high and dangerous rate of speed, and in excess of that allowed by law, and it would be a violation of law to operate in excess of the rate of speed allowed in the yard; all that may be negligence and carelessness in the defendant, and if that was the direct and proximate cause of the injury to the plaintiff, the plaintiff would be entitled to recover on that act of negligence.'

"The error assigned being

"(a) It is not a violation of law to run trains at any particular speed at the point of the accident;

"(b) There is proved a speed regulation of 50 miles per hour, and there is no testimony that the train was exceeding this regulation;

"(c) It is no violation of law on the part of defendant Atlantic Coast Line Railroad Company to run at a speed greater than that prescribed in the defendant's alleged rules; and the presiding Judge erred in charging to the contrary.

"17. The presiding Judge erred in charging the jury as follows, to wit:

"`The next specification is (b):

"`"In operating the said train at a high and dangerous rate of speed, and at a rate of speed greatly in excess of that allowed by the rules and regulations of the defendant company, and greatly in excess of the speed at which trains are allowed to be operated by the defendant company within its yards."

"`Well, it would be a violation of law for a railroad company to operate its train at a high and dangerous rate of speed, and in excess of that allowed by law, and it would be a violation of law to operate in excess of the rate of speed allowed in the yard; all that may be negligence and carelessness in the defendant, and if that was the direct and proximate cause of the injury to the plaintiff, the plaintiff would be entitled to recover on that act of negligence.'

"The error assigned being, that the presiding Judge should have left it to the jury to say whether the things alleged in said specification of alleged negligence constituted under all the circumstances negligence, and in charging as above set forth, he invaded the province of the jury and charged on the facts, contrary to Article V, Section 26 of the S.C. Constitution.

"18. The presiding Judge erred in charging the jury as follows, to wit:

"`The next specification is subdivision (c):

"`"In operating the said train at such an excessive rate of speed as to prevent the plaintiff's intestate from getting out of the way of the said train, and so to avoid being run over by it."

"`Well, if they did that, that was a violation of law. But whether or not they did that is a question for you to answer from this evidence. If the defendant did that and that was negligence and carelessness and that negligence and carelessness was the direct and proximate cause of the plaintiff's injury and death, the plaintiff in this case would be entitled to recover on that act of negligence.'

"The error assigned being, that the charge is erroneous in stating to the jury that if defendant did as charged in said subdivision (c) of paragraph 4 of the complaint, that was a violation of law.

"20. The presiding Judge erred in charging the jury as follows, to wit:

"`The next specification is subdivision (c):

"`"In operating the said train at such an excessive rate of speed as to prevent the plaintiff's intestate from getting out of the way of said train, and so to avoid being run over by it."

"`Well, if they did that, that was a violation of law, but whether or not they did that is a question for you to answer from this evidence. If the defendant did that and that was negligence and carelessness and that negligence and carelessness was the direct and proximate cause of the plaintiff's injury and death, the plaintiff in this case would be entitled to recovery on that act of negligence.'

"The error assigned being, that the presiding Judge, in stating to the jury that the railroad company would be violating the law in doing as charged in the portion of the complaint referred to, invaded the province of the jury, and charged on the facts, contrary to the S.C. Constitution, Article V, Section 26.

"21. The presiding Judge erred in charging the jury on proximate cause, as follows, to wit:

"`In that connection, I charge you that a person or corporation may be guilty of negligence, and no one would be entitled to recover. To illustrate, suppose a man drove up in front of the Court House and left his horse without hitching it, that might be negligence; but if no one was hurt, no one could recover. So you must ascertain whether that negligence was the direct and proximate cause of the injury charged.'

"The error assigned being, that the definition and illustration of proximate cause, the only one given in the charge, is incorrect and erroneous in making the test whether an injury results from the negligence, rather than instructing the jury on the necessary direct causal connection which must exist, where an injury can be traced back to the negligence charged.

"22. The presiding Judge erred in charging the jury as follows, to wit:

"`Specification (m):

"`"In causing and permitting defendant company's right-of-way between the Etiwan Lead and the main track to be obstructed and screened by billboards, weeds, bushes and shrubbery, so as to deprive the defendant's employees working on trains operating at that point of a clear and unobstructed vision."

"`Well, if the railroad company allowed that to be done as charged in this complaint, that was a violation of law. It was their duty to keep that place unobstructed so as to enable its employees to see trains coming down the railroad track to protect themselves. I don't know if there were any billboards or shrubs there, and if I knew I couldn't express my opinion to you. You are the ones to say whether they were there, and if they were there, did they deprive the deceased of the opportunity of seeing the train and of protecting himself? That is a question you have to answer. Were those shrubs there; and were they in such a place as to prevent the deceased from seeing the train? If they were there and that was negligence and carelessness in preventing the deceased from seeing the train, and that was the direct and proximate cause of the death of the deceased, he could recover; otherwise he could not. Next specification as to billboards (n):

"`"In failing and omitting to cause the land between the defendant's main tracks and an important and frequently used spur track to be kept clear and free of billboards and shrubbery and other obstructions, so as to enable the employees of the defendant on a train approaching the main tracks along such spur track to see an approaching southbound train on the main track."

"`What I have said to you with reference to specification (m) applies to that. They both apply to the same specification of negligence.'

"The error assigned being, that in charging the jury that it was the duty of the railroad company to keep `that place unobstructed so as to enable employees to see trains coming down the railroad track to protect themselves,' and in charging that it was a violation of law for the railroad company to do as it is charged with doing in specifications (m) and (n) of paragraph 4 of the complaint, the presiding Judge invaded the province of the jury and charged on the facts, contrary to the provisions of Article V, Section 26, of the Constitution of South Carolina.

"23. The presiding Judge erred in charging the jury as follows, to wit:

"`Specification (m):

"`"In causing and permitting defendant company's right-of-way between the Etiwan Lead and the main track to be obstructed and screened by billboards, weeds, bushes and shrubbery, so as to deprive the defendant's employees working on trains operating at that point of a clear and unobstructed vision."

"`Well, if the railroad company allowed that to be done as charged in this complaint, that was a violation of law. It was their duty to keep that place unobstructed so as to enable its employees to see trains coming down the railroad track to protect themselves. I don't know if there were any billboard or shrubs there, and if I knew I couldn't express my opinion to you. You are the ones to say whether they were there, and if they were there, did they deprive the deceased of the opportunity of seeing the train and of protcting himself. That is a question you have to answer. Were those shrubs there; and were they in such a place as to prevent the deceased from seeing the train? If they were and that was negligence and carelessness in preventing the deceased from seeing the train, and that was the direct and proximate cause of the death of the deceased, he could recover; otherwise he could not.'

"`Next specification as to billboards (n):

"`"In failing and omitting to cause the land between the defendant's main tracks and an important and frequently used spur track to be kept clear and free of billboards and shrubbery and other obstructions, so as to enable the employees of the defendant on a train approaching the main tracks along such spur track to see an approaching southbound train on the main track."

"`What I have said to you with reference to specification (m) applies to that. They both apply to the same specification of negligence.'

"The error assigned being, that the said charge with reference to specification (n) puts on the defendant railroad company the legal duty of keeping clear all lands between a side or spur track and the main line track, whether on or off the defendant's right of way, or on or off defendant's lands, and charges defendant railroad company with negligence in not clearing off the lands of others than the railroad company, whereas the law is that the railroad company can only, in any event, be charged with negligence in respect to the alleged obstructions on its own right-of-way, and lands.

"24. The presiding Judge erred in charging the jury as follows, to wit:

"`Specification (m):

"`"In causing and permitting defendant company's right-of-way between the Etiwan Lead and the main track to be obstructed and screened by billboards, weeds, bushes and shrubbery, so as to deprive the defendant's employees working on trains operating at that point of a clear and unobstructed vision."

"`Well, if the railroad company allowed that to be done as charged in this complaint, that was a violation of law. It was their duty to keep that place unobstructed so as to enable its employees to see trains coming down the railroad track to protect themselves.'

"The error assigned being, that it was error of law to charge that the failure and omission to cause the land between the spur track and the main line track to be kept free from billboards and shrubbery, etc., was a violation of law on the part of the railroad company, and said charge was highly prejudicial.

"25. The presiding Judge erred in charging the jury as follows, to wit:

"`Now the 9th paragraph sets up assumption of risk and the law in regard to that is this: whenever a master employs a servant, and when I say master, I mean railroad company, and when I say servant, I mean the deceased, whenever a master employs a servant, the servant assumes all the risks ordinarily incident to the work that he is employed to do. That is just as binding on the servant as a written contract. He assumes all ordinary risks; he does not assume any extraordinary hazards or risks, just those risks connected with his work, and if the death of the deceased was caused by an ordinary risk he assumed that; if that was the cause of his death he assumed that.'

"The error assigned being, that the charge is erroneous in stating that the servant never assumes extraordinary risks and hazards, in the course of his employment, whereas the law is, and the presiding Judge should have charged, that the servant assumes not only risks ordinarily incident to his employment, but in addition thereto, extraordinary risks and hazards which may or do arise in the progress of the work, where he actually knows and becomes aware of the risk and danger, or an ordinarily prudent person would have known and appreciated the risk and danger.

"26. The presiding Judge erred in refusing to correct his statement of the issues in the case as requested by defendants' counsel, as follows, to wit:

"`Mr. Figg: I would like to call your Honor's attention to the fact that there is no evidence that any speed rules or regulations were violated by the defendant in this case. In connection with the second specification of negligence, your Honor charged that might be negligence.

"`Court: It does not make any difference whether there are any speed rules, the railroad company had no right to run its train at a high and reckless rate of speed. What specification of negligence is that, the second? I told them I was not going to charge them anything about the rules and regulations because there were no rules introduced.

"`Mr. Figg: I ask your Honor to charge that there is no evidence to support that specification.

"`Court: I won't charge them about the rules. I charge them it is wrong to run at a high and dangerous rate of speed, rule or no rule. I won't say a word about rules, no rules have been introduced here. If you listen to the charge, you will see that I have covered it pretty closely.'

"The error assigned being, that there was no evidence that the train was exceeding 50 miles an hour, there was proved by plaintiff a regulation of 50 miles an hour at the point of the accident, and the presiding Judge erred in stating that there was no rule proved as to speed, and in refusing to charge the jury that there was no evidence that the train was exceeding any speed regulations, at the time of the accident.

"27. The presiding Judge erred in charging the jury that it was wrong for the defendant railroad company to run its trains at a high and dangerous rate of speed, the error assigned being that railroad companies have the right to run at a high and often dangerous rate of speed, and it is for the jury to say whether under the circumstances of any case the railroad company was wanting in due care in regard to the rate of speed at which its train was running.

"28. The presiding Judge erred in instructing to the jury that the defendant company had no right to run its train at a high and dangerous rate of speed, the error assigned being that it is for the jury to say whether running at a high and dangerous rate of speed was negligence in any particular case, and in so charging the presiding Judge charged on the facts.

"29. The presiding Judge erred in stating to the jury at the close of his charge the following, to wit:

"`Mr. Figg: I ask your Honor to charge that there is no evidence to support that specification.

"`Court: I won't charge them about the rules. I charge them that it is wrong to run at a high and dangerous rate of speed, rule or no rule. I won't say a word to them about rules, no rules have been introduced here. If you listen to the charge, you will see that I have covered it pretty closely.'

"The error assigned being, that it appeared by testimony and by the rules introduced by plaintiff in the instructions to the train crew contained in the schedules that there was a speed regulation of 50 miles an hour, and defendants were entitled to the instruction asked, and the presiding Judge erred in stating the evidence to the contrary.

"30. The presiding Judge erred in stating to the jury at the close of his charge the following, to wit:

"`Mr. Figg: I ask your Honor to charge that there is no evidence to support that specification.

"`Court: I won't charge them about the rules. I charge them that it is wrong to run at a high and dangerous rate of speed, rule or no rule. I won't say a word about rules, no rules have been introduced here. If you listen to the charge, you will see that I have covered it pretty closely.'

"The error assigned being, that in not leaving to the jury the question whether it was wrong for the defendant company to run its trains at a high rate of speed, the presiding Judge invaded the province of the jury and charged on the facts, contrary to Article V, Section 26, of the S.C. Constitution.

"31. The presiding Judge erred in overruling defendants' motion to set aside the verdict herein and grant defendants a new trial, made upon the following grounds, to wit:

"1. That the verdict was against the weight of the evidence, in that,

"(a) Weight of evidence shows that defendants, or either of them, were not negligent, etc.

"(b) Weight of evidence shows that deceased assumed risk by stepping in front of, or into, train without looking.

"(c) Only negligence, if any, shown in testimony was that of deceased.

"2. That the verdict was excessive.

"(a) even if defendants were negligent, and deceased not contributorily negligent.

"(b) Because deceased was guilty of gross contributory negligence, and yet jury allowed a full recovery, whereas in any event, considerable diminution should have been made for contributory negligence of deceased.

"3. That there was error in not granting defendants' motions for non-suit.

"4. That there was error in not granting defendants' motions for directed verdict.

"5. That there was error in charging a connection with plaintiff's specification of negligence lettered (b); in substance:

"That it was a violation of law to run the train at a rate of speed in excess of the speed rules and regulations in the yard limits, because

"(a) The rules and regulations proved showed the limit of 50 miles an hour, and the testimony fixed the maximum speed of the train at 50 miles an hour.

"(b) Defendants' counsel moved to correct the Court's statement of this issue, which motion was refused by the Court.

"(c) The Court charged the jury that there were no rules and regulations in evidence as to speeds, whereas the plaintiff put in evidence the defendant railroad company's intructions to its employees, showing the maximum rule as 50 miles an hour.

"6. There was error in the charge, in that the Court charged the jury that it might be negligence for the defendant railroad company to allow shrubbery and billboards, etc., to remain on its right-of-way so as to obstruct the view of deceased toward the train, and then charged further that the same charge would apply to plaintiff's specification lettered (n) if the billboards and shrubbery were not on the right-of-way or land of the defendant but on the lands of another; and

"Further because there was no evidence that there were any billboards and shrubbery on the defendant railroad company's right-of-way, but as far as the evidence showed, the billboards and shrubbery were, or could have been, wholly on lands of another.

"7. That there was error in refusing defendants' motion to strike specification lettered (n) in plaintiff's complaint paragraph 4, made upon the following ground and in the following language (see notice of motion to strike):

"`Court: I overrule the motion to strike that out.

"`Mr. Figg: We submit that we have nothing to do with obstructions that are not on our land and we therefore ask that that be stricken out.

"`Court: I overrule the motion to strike it out'.

"8. That there was error in the Court's charge on the question of assumption of risk, in that the same failed to charge on, or include, risks arising in the progress of the work, which was the kind of risk relied upon by the defendants, to wit:

"`The risk of coming into collision with a train upon a track when stepping from the engine upon which he was riding, towards and upon said track, and that said risk was so assumed by plaintiff's intestate as aforesaid.'

"9. That there was error in refusing to charge defendants' first request to charge.

"10. That there was error in refusing defendants' request to charge on the question of assumption of risk numbered ____, when the same covered the question of a risk arising in the progress of the work, and also of extraordinary risks, which were not covered by the general charge of the Court on that question.

"11. That the Court erred in charging that the deceased did not assume `extraordinary hazards or risks,' whereas the law is that a servant assumes such extraordinary hazards and risks arising in the course or progress of the work when he knows of the risk or danger, or by the exercise of due care and precaution he should have known of the risk in which latter case he assumes it as though he had known it. See case of Seaboard Air Line R. v. Horton, 233 U.S. 492, especially pages 503-505, 34 S.Ct., 635, 58 L.Ed., 1062, L.R.A., 1915-C, 1, Ann. Cas., 1915-B, 475.

"12. That there was error in the Court's frequent use of the phrase `violation of law' in connection with the specifications of negligence alleged against defendants, whereas there were neither alleged nor proved any violations of law by defendants, and the issues were simply the use of due care on the part of the defendants."

Messrs. Hyde, Mann Figg, for appellants, cite: As to proximate cause: 241 U.S. 333; 115 S.C. 390. No actionable negligence here: 115 S.C. 390; 241 U.S. 333; 73 S.C. 57; 271 U.S. 472; Id., 218; 273 U.S. 673; 145 U.S. 418; 201 Fed., 54; 285 Fed., 342; 8 F.2d 332. Assumption of risk: 72 S.C. 237; 110 S.C. 153; 115 S.C. 390; 128 S.C. 47; 136 S.E., 234; 145 U.S. 418; 233 U.S. 492; 241 U.S. 229; Id., 333; 245 U.S. 441; 273 U.S. 218; 201 Fed., 54; 285 Fed., 342; 4 F.2d 963; 8 F.2d 332; Id., 30. Negligence: 22 R.C.L., 995; 10 Ann. Cas., 485. Nonsuit proper here: 99 S.C. 417; 104 S.C. 16; 245 U.S. 637; 238 U.S. 606. Burden on plaintiff to show negligence: 271 U.S. 472; 70 L.Ed., 550, 273, 673.

Messrs. Shimel Rittenberg, Thos. P. Stoney, A.R. McGowan, and J.D.E. Meyer, for respondent, cite: Question of negligence for jury: 138 S.C. 241; 128 S.C. 47; 264 U.S. 594; 99 S.C. 363; 236 U.S. 668; 109 S.C. 400; 98 S.C. 348; 104 S.C. 16; 245 U.S. 637; 58 S.E., 770; 93 S.E., 264; 94 U.S. 469; 76 S.C. 202; 78 S.C. 384; 130 S.C. 458; 266 U.S. 632; 123 S.C. 488; 102 S.C. 276; 243 U.S. 572; 114 S.C. 78; 94 S.C. 150; 81 S.C. 522. Liability of master for dangerous conditions created by third persons: 218 Fed., 625; 86 N.W., 524; 62 N.E., 514; 111 N.E., 742; 137 S.W. 577. As to assumption of risk: 101 S.C. 483; 112 S.C. 177; 138 S.C. 241. Evidence: 66 S.C. 302; 81 S.C. 255.

March 28, 1928. The opinion of the Court was delivered by

MR. CHIEF JUSTICE WATTS.

"The judgment from which this appeal is taken is one entered upon the verdict of a jury rendered in the Court of Common Pleas for Charleston County on November 12, 1925, in the amount of Twenty-five Thousand ($25,000.00) Dollars and costs.

"STATEMENT

"This is an action for damages in the amount of One Hundred Thousand ($100,000.00) Dollars, brought in the Court of Common Pleas for Charleston County, under the Federal Employers' Liability Act, as amended (U.S. Comp. St., §§ 8657-8665 [45 USCA, §§ 51-59]), by the plaintiff as administratix of William A. Driggers, deceased, for the benefit of herself as the widow of the said William A. Driggers, and of her two children. The action is against the defendants, Atlantic Coast Line Railroad Company and M.H. Brandt, and in the pleadings and at the trial it was admitted by both plaintiff and defendants that at the time of the accident to, and injuries and death of the deceased, both the deceased and the defendants were engaged in Interstate Commerce, and that action was brought and maintained under the Federal Employers' Liability Act, as amended, as aforesaid."

The appellant states the questions involved as follows:

"(1) There was no evidence of actionable negligence on the part of the defendants which was a proximate cause of the death of plaintiff's intestate.

"(2) Plaintiff's intestate assumed, as a matter of law, the risk of injury by coming into collision with a train on the main line track when he stepped toward or upon said track, the risk and danger being obvious and apparent, or would have been to an ordinarily prudent person under the circumstances.

"(3) Refusal to strike an allegation in the complaint charging the defendant railroad company with negligence in respect to the presence of billboards and shrubbery not on defendant company's land or right-of-way in charging the jury that the railroad company owed a duty to keep such places unobstructed and that the jury might find negligence in that respect.

"(4) Refusal to charge that under the evidence the presence of alleged obstructions to the view of the deceased, even if negligence, could not, as a matter of law, be the proximate cause of the death of the plaintiff's intestate.

"(5) Refusal to charge a proper request on assumption of risk.

"(6) Error in charging that a servant does not assume any extraordinary hazards or risks.

"(7) Refusal to send the jury to the scene of the accident and abuse of discretion in overruling defendant's motion that the jury be so sent.

"(8) Error in charging that the defendants would be guilty of a violation of law in running their trains at a high and dangerous rate of speed.

"(9) Error in charging that the defendants would be guilty of a violation of law in running a train at an excessive rate of speed.

"(10) Error in charging that it was a violation of law to allow billboards and shrubbery to obstruct the view of the main line tracks.

"(11) Error in charging that it was wrong to run a train at a high or dangerous rate of speed, rule or no rule.

"(12) Error in charging on the facts with reference to the rate of speed of trains.

"(13) Error in charging on the facts with reference to the presence of alleged obstructions near the track.

"(14) Error in refusing to hold the verdict was against the weight of the evidence, and was excessive."

The exceptions raising the question that the Court was in error in not granting a nonsuit or directing a verdict as asked for by the defendants, made on the ground that there was no actionable negligence on the part of the defendants, which was the proximate cause of the death of plaintiff's intestate, we think there was plenty of evidence in the case to justify his Honor's rulings.

The rule for the direction of a verdict in South Carolina has been repeatedly announced as follows: "Under the well-settled rule, if there was any evidence tending to support the defense interposed by defendant, the trial Judge could not properly have directed a verdict. Under the equally well-settled rule, on such motion defendant was entitled to have the evidence considered and construed most strongly in his favor." Brooks v. Floyd, 121 S.C. 356, 113 S.E., 490. See also Wilson v. A.C.L. Railway Co., 134 S.C. 31, 131 S.E., 777; Miller v. A.C.L. Railway, 140 S.C. 123, 138 S.E., 675.

This has been again stated in the case of Lower Main Street Bank v. Caledonian Insurance Co., 135 S.C. 155, 159, 133 S.E., 553, at page 555: "The well-established rule in this State is that if there is any testimony whatever to go to the jury on an issue involved in a cause, or even if more than one inference can be drawn from the testimony, then it is the duty of the Judge to submit the cause to the jury. This is true, even if witnesses for plaintiff contradict each other, or if a witness himself in his testimony makes conflicting statements."

These exceptions are overruled. It was properly submitted to the jury whether the defendants furnished the deceased a safe place to work.

"On a track where his vision was obstructed by billboards, shrubbery and bushes, and the failure on the part of the engineer to slacken his speed, blow his whistle, keep a proper lookout or to take any precaution to keep his train under control at a place where he knew constant switching was going on, and his failure to take such precaution in the face of the signal he could have seen Conductor McDonald giving to plaintiff's intestate, were acts of negligence, and, certainly, were questions to be submitted to a jury to determine whether or not they constituted negligence." Mann v. Seaboard Air Line Railway Co., 138 S.C. 241, 136 S.E., 234; Kirkland v. Southern Railway Co., 128 S.C. 47, 121 S.E., 594, Certiorari denied, 264 U.S. 594, 44 S.Ct., 453, 68 L.Ed., 866; Padgett v. Seaboard Air Line Railway Co., 99 S.C. 364, 83 S.E., 633, affirmed by United States Supreme Court, 236 U.S. 668, 35 S.Ct., 481, 59 L.Ed., 777; Squire v. Southern Railway Co., 109 S.C. 400, 96 S.E., 152; Thornton v. Seaboard Air Line Railway Co., 98 S.C. 348, 82 S.E., 433; Dutton v. Atlantic Coast Line Railroad Co., 104 S.C. 16, 88 S.E., 263, affirmed by United States Supreme Court, 245 U.S. 637, 38 S.Ct., 191, 62 L.Ed., 525.

In the Dutton case, supra, affirmed by the United States Supreme Court, this Court held that the "scintilla of evidence" rule is applicable to cases brought under the Employers' Liability Act, and that the same rule of procedure applies to the administration of that Act in the state Court as it does to the administration of state laws. Free v. Southern Railway Co., 78 S.C. 57, 58 S.E., 952.

In the case of Free v. Southern Railway Co., supra, this Court said, through Mr. Justice Woods: "As Free was returning across the tracks with water, his attention attracted by an approaching freight train, he was struck and killed by a switch engine coming from the opposite direction on another track. Witnesses variously estimated the speed of the switch engine at from twenty to thirty-five miles an hour, and they all testified there was no watchman on its pilot, and no warning of his approach by bell or whistle. From this evidence the jury might well infer the defendant was negligent in running its switch engine at such a rate of speed in a yard where there were several tracks and the confusion of other moving trains, without a guard on the pilot and without signals; and that in these circumstances, the unfortunate boy in crossing the track in the discharge of the duty assigned to him was not guilty of contributory negligence in not seeing the engine and getting out of its way."

As to failure to apprehend danger when train is not running on schedule time, see Wrightsville T.R. Co. v. Gornto, 129 Ga. 204, 58 S.E., 770; Seaboard Air-Line Railway Co. v. Hollis, 20 Ga. App. 555, 93 S.E. 264, 267.

The question whether or not these acts, if they constituted negligence, individually or jointly and concurrently, were the proximate cause of the death of plaintiff's intestate, presented questions of fact for the jury to determine, and the Court properly submitted these questions of fact for their determination, and they resolved them in favor of the plaintiff. Milwaukee St. P. Railway Co. v. Kellogg, 94 U.S. 469, 24 L.Ed., 256; Cooper v. Richland County, 76 S.C. 202, 56 S.E., 958, 10 L.R.A. (N.S.), 799, 121 Am. St. Rep., 946; Thompson v. Seaboard Air Line Railway Co., 78 S.C. 384, 58 S.E., 1094.

In the Milwaukee St. P.R. Co. v. Kellogg case, supra, the Court said: "The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances * * * attending it."

In the Thompson case, supra, our Supreme Court, through Chief Justice Pope, says: "Suffice it to say here that the question of proximate cause is one peculiarly within the province of the jury."

We think that the assumption by the deceased was properly submitted to the jury under the cases of McAlister v. Southern Railway Co., 130 S.C. 458, 126 S.E., 627, certiorari denied, 266 U.S. 632, 45 S.Ct., 225, 69 L.Ed., 478; Hudson v. Atlantic Coast Line Railroad Co., 123 S.C. 488, 124 S.E., 584; Lorick v. Seaboard Air Line Railway Co., 102 S.C. 276, 86 S.E., 675, Ann. Cas., 1917-D, 920, affirmed by the United States Supreme Court, 243 U.S. 572, 37 S.Ct., 440, 61 L.Ed., 907; Pendergrass v. Southern Railway Co., 114 S.C. 78, 113 S.E., 150; Hankinson v. Charleston W.C. Ry. Co., 94 S.C. 150, 77 S.E., 863; Hall v. Northwestern R. Co. of S.C., 81 S.C. 522, 62 S.E., 848.

His Honor was not in error in refusing to strike out that part of the complaint charging the defendant company with negligently permitting the presence of billboards, shrubbery, and bushes. That was a question for the jury whether on railroad property or elsewhere. If they were there, whether on the company's property or elsewhere, and obstructed the view, and the company knew it, it was properly submitted whether under all the facts of the case the company was negligent operating its trains at that particular point so as not to endanger anyone. Wideman v. Hines, 117 S.C. 516, 109 S.E., 123.

It was a question for the jury whether it was negligent on the part of the defendants to require Driggers to work on a railroad track where his vision would be obstructed by billboards, shrubbery, and bushes, regardless of the fact that the company might have no control over the land on which they were located, because whether or not the company had control over that land, it was its duty to furnish Driggers with a place at which he could safely work, and which was not obstructed by billboards, shrubbery, and bushes.

The language quoted by the defendants from Ruling Case Law under this point (22 R.C.L., 995) is found under a section which discusses the rights between the railroad company and travelers at crossings, and does not in any way cover the question when these obstructions make unsafe the place at which the company's employees are required to work. On the other hand, the principle of the master's liability for dangerous conditions created by third persons near the place of work, as a breach of the duty to provide a reasonably safe place to work, is well established by a number of decisions in the several states. Boston M.R. R. v. Brown (C.C.A.), 218 F., 625; Doyle v. Toledo, S. M. Ry. Co., 127 Mich., 94, 86 N.W., 524, 54 L.R.A., 461, 89 Am. St. Rep., 456; Pittsburgh, etc., Railway Co. v. Parish, 28 Ind. App. 189, 62 N.E. 514, 91 Am. St. Rep., 120; Devine v. Delano, 272 Ill., 166, 111 N.E., 742, Ann. Cas. 1918-A, 689; Clark v. Union Iron Foundry Co., 234 Mo., 436, 137 S.W. 577, 45 L.R.A. (N.S.), 295.

In Boston M.R.R. v. Brown, supra, the Court of Appeals of the First Circuit, reviewing a case in which a brakeman was knocked off the top of a moving freight car by a bridge near Lawrence, Mass., said: "Although, according to the evidence, this bridge was unusually low, and maintained, not by the defendant the railroad, but by the City of Lawrence, this did not entitle the defendant to the requested instructions that the railroad could not be held negligent with respect to its height. If the passage beneath it was not reasonably safe under all the circumstances, the railroad might still be negligent in continuing to permit the passage of trains beneath it while in such condition."

In Doyle v. Toledo, S. M. Ry. Co., supra, it was held that it is the duty of a railway company to see that a building over its switch track is reasonably safe for employees whose duties call them thereunder, though the building belongs to third persons. In that case the building was the shed of a lean-to, a brick kiln near the railroad's switch track. The railroad had no control over it. The Court based its holding squarely on the doctrine that the railroad owed a duty to provide a reasonably safe place to work and reversed the trial Court, which had directed a verdict for defendant.

In Devine v. Delano, supra, the principle was applied to an obstruction alongside the track of the railroad on the premises of a manufacturing plant, the Court saying that if the railroad company had no such control as to be able to remove such dangerous conditions itself, it had to make some arrangements with the owners to change the conditions or had to stop switching at that point.

In Clark v. Union Iron Foundry Co., supra, the Missouri Supreme Court held that one who contracts to erect a building in close proximity to wires carrying a heavy electrical current owes his employees the duty of determining whether or not the insulation is safe, although his contract gives him no authority over the poles or wires or the space by them. The Court says: "The test is not that the place within itself is reasonably safe, but it must be reasonably safe from all internal and external dangers which are liable to do injury to the servant."

His Honor properly submitted to the jury, on all the facts and circumstances, whether or not there was actionable negligence on the part of appellants, and whether or not that was the proximate cause of the death of plaintiff's intestate.

On the question of assumption of risk the Court charged as follows: "And there is a corresponding duty on the servant. The servant has a right to assume that the master has furnished him a reasonably safe place to work, and he does not have to make any minute inspection, or any investigation. He may assume that the master has performed his duty. But if the place is dangerous — obviously dangerous, and can be seen by the servant, and he goes on and performs his duty after knowing that, why he assumes that risk. He takes the risk on himself, and if he is injured on account of that, he could not hold the master for that. Suppose you were employed by a railroad to work at a certain place. You would have a right to assume that the place was reasonably safe. But if the place was not reasonably safe, was dangerous, the danger was obvious to you, you could see it and knew it, and you undertook to work in that place and you got hurt it would be your fault. Whether that happened in this case I don't know."

In the light of the full instructions given on this point, there was no likelihood of the jury's being misled.

His Honor, the trial Judge, instructed the jury that a servant could not hold the master liable if the place was obviously dangerous and he undertook to work there, and that it was a risk which he assumed, and could not recover as a result of any injuries sustained by him by reason of the assumption of such risk. Booth v. J.G. White Engineering Co., 101 S.C. 483, 86 S.E., 32; Harrell v. Columbia Mills, 112 S.C. 177, 98 S.E., 324; Mann v. Seaboard Air Line Railway Co., 138 S.C. 241, 136 S.E., 234.

The Court properly refused to send the jury to the place where Driggers was killed, and properly exercised its discretion in not requiring the jurors to go there after the jurors advised his Honor that they did not care to go. Bodie v. Charleston W.C. Ry. Co., 66 S.C. 302, 44 S.E., 943; Parrott v. Barrett, 81 S.C. 255, 62 S.E., 241.

In the Bodie case, supra, this Court said: "The jury informed his Honor, the presiding Judge, that they had decided that it would be of no benefit to them to visit the place where the accident occurred. It was wholly within the discretion of the presiding Judge whether he would send the jury to view the place where the injury occurred, and under the circumstances, his discretion was properly exercised."

His Honor's language as complained of in charging that certain conduct alleged was in violation of law has given me some trouble, but a careful reading of his charge as a whole convinces me that it was a slip of the tongue and not prejudicial.

His Honor instructed the jury that the specifications of negligence, as charged in the complaint not complied with, were a non-observance of the law, and if the jury believed that plaintiff could recover. It was unfortunate that he used the words in violation of law, but taking his charge as a whole, it was eminently fair and not prejudicial, because the jury could not have inferred from it that appellant was guilty of violating any criminal law or statute.

"They charged that the law required the defendants to do certain things, as specified therein, and that they failed to comply with the same, and that they, therefore, became liable for whatever damages the plaintiff sustained as a result of the failure on their part to comply with these requirements. But the Court jealously guarded the rights of the defendants in so charging and repeatedly told the jury that it was for them to decide whether or not the defendants complied with the law as charged by it, and, if they did not comply therewith, whether or not that constituted negligence, and that even then the plaintiff could not recover unless such negligence was the proximate cause of the injury."

The matter of a new trial was within the discretion of his Honor, and his refusal to grant it will not be disturbed.

All exceptions are overruled, and judgment affirmed.

MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur:

MR. JUSTICE COTHRAN (dissenting):

I think that the motion of the defendants for a directed verdict should have been granted; and, at the least, that serious errors in the charge of the presiding Judge required the reversal of the judgment, and the ordering of a new trial. I therefore respectfully dissent from the affirmance of the judgment indicated in the opinion of the Chief Justice, for the reasons which follow.

The action is by the administratrix of William A. Driggers, deceased, for damages resulting from the wrongful death of the intestate, a brakeman employed upon a switching train by the defendant railroad company, due as alleged to the negligence of the defendants in certain specified particulars.

The case was tried before his Honor, Judge De Vore, November term, 1925, resulting in a jury verdict of $25,000.00 in favor of the plaintiff.

The defendants have appealed upon numerous exceptions, assigning error in the refusal of their motions for a nonsuit and a directed verdict; in the charge of the presiding Judge; in his refusal to allow certain requests to charge; and in other particulars.

The deceased brakeman was killed by collision with the engine of a passenger train, passing on the south-bound main line, as he jumped from a switch engine entering the north-bound main line from a spur track, pulling a string of 12 or 13 cars.

It is extremely important, in my opinion, to have a clear conception of the locus of the unfortunate occurrence, which resulted in the death of the brake man; this I will endeavor to present.

At the point of the accident about 3 miles north of Charleston, the double tracks of the Coast Line and Southern Railroads are parallel and quite near each other; they run practically due north and south, and for a distance of 2,000 feet toward the north are perfectly straight, with no intervening obstructions to the view; the double track of the Southern lies to the west of that of the Coast Line. (The Southern Railway Company is not involved in this controversy and no further reference need be made to it.) The eastern line of the double track of the Coast Line is used and known as the north-bound main line; the western, as the south-bound.

To one standing south of the point of accident, between the north-bound and the south-bound main lines, facing the north, with his back toward the city of Charleston, the situation is this: Upon his right is the north-bound main line, and upon his left, the south-bound; these lines measuring from the center of each are 12 feet apart; leading from the north-bound main line, from a switch controlled by a lever on the east side of that line, in a northeasterly course and on a curve to the right, is a spur track, crossing Meeting Street Road (which is parallel with the railroad), and running to a coal yard, known as the "Etiwan Lead track."

Meeting Street Road, where the Etiwan Lead track crosses it, is following the curve of that track, some 200 feet from the switch at the north-bound main line; between those points there were, at the time of the accident, at a point about halfway, a billboard and some shrubbery, which obstructed the view by one at any point between the crossing and the halfway point, of a train approaching the switch from the north; but between the halfway point and the switch, a distance of about 100 feet, there was nothing to obstruct the view, toward the north, for a distance of nearly three-quarters of a mile, the track as stated being straight.

On the day in question, one McDonald, yardmaster of the Coast Line (who is commonly spoken of in the record as "conductor"), with an engine and no cars attached, left the Charleston Yard for the purpose of transferring certain cars which were standing on the Etiwan Lead track, to the Seaboard Railway, at a connection point some distance north of the point of accident. His crew consisted of himself, one Yarborough, engineer (since deceased), a fireman, and the plaintiff's intestate, Driggers, brake man. The "light" engine (that is, an engine with no cars attached) was running backward. When it reached the switch leading into the Etiwan Lead track, into which it was proposed to enter for the cars to be transferred, the conductor stopped the engine, alighted, and turned the switch, standing on the east side of the north-bound main line. The engine was then backed into the Etiwan Lead track to bring out the 12 or 13 cars which were to be transferred.

It appears that the conductor did not accompany Yarborough and Driggers into the Etiwan Lead track, but after turning the switch, and leaving it open, sent them on to do the work; he then crossed the double tracks of both railroads, toward the west, and took a position beyond the Southern's double track and near it, "to look for a train" that might be coming from the south on the north-bound main line. Driggers, on the Etiwan Lead track, was in his view, for he states that he saw him shifting the cars to be transferred, flagging the Meeting Street Road crossing, and mounting the footboard on the front of the switch engine.

After Driggers had "cut out" a car in the string of cars on the Etiwan Lead track, coupled, coupled up to the cars to be transferred, flagged the crossing, and mounted the footboard of the engine, which then was moving front foremost, pulling the cars, the switching train proceeded toward the switch at the north-bound main line (not the south-bound, as stated in paragraph 3 of the complaint).

The contemplated train movement of the switching train was to enter again the north-bound main line, by the switch which the conductor had left open, pass south of the switch until the last car attached to the switch engine had passed the switch, stop, turn the switch to the north-bound main line, and shove the train of cars up that line to the Seaboard Air Line Railway connection, some distance north of the switch.

Driggers was riding upon the footboard in front of the engine, which was in front of the string of cars; to retain that position until the last car had passed the switch and the engine had stopped meant a walk back the distance of 12 or 13 car lengths, to the switch that had to be turned again. Evidently to avoid this exercise, as the engine was about to enter the north-bound main line at the switch, Driggers was in the act of alighting from it on the right-hand side — the switch was on the left — between the two main lines. The conductor, who was at the position assumed by him "to look for a train," called as a witness for the plaintiff, testified: "I heard 79 (the train that struck the brake man), blow at the Riverside Iron Works, and I wanted to be sure he saw 79. I wanted to give him a signal, and I pointed at the train; he was looking at me; I tried to call his attention to the train. * * * I pointed at the train, told him to stay on the footboard. * * * That same signal would mean we were going to shove to the Seaboard Air Line railroad * * * 79 was coming down the south-bound track; as he stepped off right at this place he stepped into 79 there. * * * As he stepped off the footboard, I could see an object dangling in the driving-wheel of the engine * * * he swung into it, the pilot sill of the engine."

As he jumped he ran into the pilot beam of the passenger engine, which is back of the pilot (cowcatcher), was caught by the driving-wheel, and horribly mangled.

In reference to the matter of Driggers' opportunity to observe the approach of the south-bound train that struck him, the same witness for the plaintiff, McDonald, testified that after Driggers had passed a point half-way between the Meeting Street Road crossing and the switch, he would have been clear of the billboard and shrubbery and could have seen a train coming down on the south-bound main line a good deal further up than where the camera for the photograph was placed, 1,000 feet from the switch. This photograph shows that men standing on the Etiwan Lead track, 270 feet from the switch, can be seen from where the camera was placed. The witness (McDonald) testified that if the men shown on the photograph had been standing further up the Etiwan Lead track, they could have been seen, and of course could have seen a train where the camera was placed. From the position occupied by McDonald, he saw the coming train three-quarters of a mile away.

I do not suppose that in the thousands of railroad accidents, a parallel can be found to the extraordinary circumstances which attended the death of the unfortunate brake man in this case.

The circumstances mainly relied upon, to attribute his death to the negligence of the railroad company, cluster around the operation of the passenger train by the engineer, his conduct in that regard. It is alleged that he was running his train at an excessive and dangerous rate of speed; that he failed to keep a lookout; that he failed to give a signal, a warning of the approach of his train, in view of the prevalence of the custom of switching cars at that point.

The charges against the company are that it failed to furnish the intestate with a safe place to work; in which is included its failure to provide sufficient space between the main lines (north-bound and south-bound) to enable the employees to safely board and alight from trains in the performance of their duties, in permitting the right-of-way of the Etiwan Lead track to be obstructed and screened by billboards and shrubbery.

I. First as to the charges of misconduct on the part of the engineer:

The charges should not be entertained unless the evidence at least tends to show that there was a reasonable ground for him to apprehend danger to a brake man at that point, under the circumstances.

The plat offered in evidence by the plaintiff shows that about 10 feet south of the switch for the Etiwan track, there is a switch for a cross-over track from the north-bound main line to the south-bound; but for the intervening 10 feet of north-bound main line track, between the switches, it is a continuation of the Etiwan track.

When the switch for the Etiwan track is turned, a red signal is displayed at a tower south of the switch, which warns a train from approaching the switch on the north-bound main line; and when the other switch, connecting the cross-over track with the south-bound main line, is turned, a similar signal is displayed at a tower north of that switch, for south-bound main line trains.

Upon this occasion the switch connecting the cross-over track with the south-bound main line was not turned; in fact, the cross-over track was not needed in the train movement then in progress. Consequently no signal was displayed for south-bound trains; the engineer had of right, a clear track.

So far he was unquestionably within his rights. The red signal for the north-bound main line was away south of the switch; it was not visible to him; and if it had been it would not have applied to him; he would have been chargeable with notice that the north-bound main line was in use, which of course would have no effect upon his use of the south-bound main line, upon which he had a clear track.

But if it can be said that the Etiwan track, in connection with the north-bound main line, was constantly being used as a switching ground, to such an extent as to charge him with notice that some brake man would likely be at that locality, in reason he could not have suspected that in the discharge of his switching duties a brake man would alight between the two main lines, on the west side of the north-bound main line, when the switch that he was expected to turn was ten feet away on the east side.

The engineer testified that some distance from the switch he saw the switch train coming out of the Etiwan track "for the north-bound track." He had the right to assume, in the absence of a red signal against his use of the south-bound line, that the activities of the switching train would be confined to the north-bound main line. As a conceded fact, the train movement of the switching train, as contemplated, was to be confined to that line.

Is it just to charge him with the prescience that a brake man upon the footboard of a switch engine, whose position was unknown to him, would make use of the south-bound main line, or of the space between the two lines, in the discharge of a duty which called him upon the other side of the line, and run into his train? I do not think so. Would the engineer under these circumstances be in the slightest danger of a conviction of manslaughter? If his negligence was sufficient to impose a pecuniary liability upon the railroad company, he could not escape from such criminal liability.

Upon the question of the alleged excessive and dangerous rate of speed, I do not think there is a particle of evidence. The point of the accident is not shown to have been within the Charleston Yard, and, if it was, no rule has been admitted in evidence (as the Circuit Judge held) fixing the rate of speed therein. It is shown by uncontradicted evidence that the engineer had the right, in this locality, to run 40 to 50 miles an hour.

But if it had been shown that the engineer was exceeding the speed limit, it has not been shown that it was the proximate cause of the collision.

The question appears to be concluded by the case of Patterson v. Director General of Railroads, 115 S.C. 390, 105 S.E., 746, where this appears in the opinion: "Plaintiff testified that No. 48 came into the yard at a speed of thirty or thirty-five miles an hour, in violation of the rule and city ordinance referred to in the complaint. But he said that the engine and tender of No. 48 had passed the junction of the side track with the main line, so that his engine collided with the first or second car in that train."

Referring to the question of proximate cause, the Court said: "Limiting the fourth ground, as suggested, to the speed of No. 48, we concur in the view that it was not the proximate cause of the injury, because that train did not run into plaintiff's engine, but his engine ran into the train, after its engine [of No. 48], had passed the junction of the switch with the main line. The speed and position of No. 48 was, therefore, only a remote cause of the injury."

II. Next as to the charge of misconduct on the part of the company:

The gravamen of this charge is that the company did not provide a safe place for the brake man to perform the service required of him. In that blanket charge there are specifications:

(a) That the space between the two main lines was insufficient to enable the employees to safely board and alight from the trains;

(b) In permitting the view from the Etiwan track, for trains coming from the north, to be obstructed by billboards and shrubbery, upon the right-of-way between that track and the main line.

(a) As to insufficient space: The authorities universally hold that the place as to which complaint is made must have been a place provided by the master for the service. It cannot be assumed, simply from the fact that a servant was injured at a particular place, which the result shows to have been a place of danger, that that was the place provided by the master for him to work; particularly in view of the positive evidence in the case that there were other places perfectly safe.

In Broadway Co. v. Render (Ky.), 119 S.W. 198, it is said: "The duty of the master to furnish a reasonably safe place applies only to the place which the employee is required to use for the purpose of performing his duty."

In Harper v. R. Co., 131 Ky., 225, 115 S.W. 198, it is said: "But the duty of furnishing reasonably safe appliances and reasonably safe places and premises is confined to the appliances and places and premises with which the servant is required to work, or in which his duties require him to be."

In Smith v. Trimble, 111 Ky., 861, 64 S.W. 915, the Court said: "And when appellant, without invitation or knowledge of the owner, went into or upon other parts of the premises, not necessary for the performance of his labor, he assumed all the risks of doing so. He was neither required, expected nor allured to be at the place where he was injured, and consequently appellee was under no duty to him to provide there a place of safety."

In Albert v. McKay Co., 174 Cal., 451, 163 P., 666, the Court said: "The negligence charged in the first count is the failure to comply with the employer's duty to furnish his employee with a reasonably safe place to work. The duty is limited to `the premises where the employee is required, for the purpose of his employment to be.'"

In Harris v. Det Farenede Dampskibselsbab Aktie Selskab, 75 N.J. Law, 861, 70 A., 155, the Court said: "A master's duty in respect to furnishing his servants a safe place in which to work, extends to such parts of his premises only as he has prepared for their occupancy while doing his work, and to such other parts as he knows or ought to know they are accustomed to use while doing it."

"The duty of a master to furnish a safe and suitable place for his servants to do their work in extends only to such portions of the premises as he has prepared and designed for their occupancy while doing his work, and to such other parts as he knows, or ought to know, they are accustomed to use while doing it." Morrison v. Burgess Sulphite Fibre Co., 70 N.H. 406, 47 A., 412, 85 Am. St. Rep., 634.

"A master's duty to furnish his servant with a safe place in which to work, extends to such parts of his premises only as he has prepared for their occupancy while doing their work, and to such parts as he knows or ought to know they are accustomed to using while doing it." Triangle, Lumber Co. v. Acree, 112 Ark. 534, 166 S.W. 958, Ann. Cas., 1916-B, 773.

"A master's duty in respect to furnishing his servant with a safe place in which to work, extends to such parts of his premises only as he has prepared for their occupancy while doing their work, and to such parts as he knows or ought to know they are accustomed to using while doing it." La Batt (1st Ed.), § 1558b.

"The employer is not an insurer of the employee's safety. He is liable for the consequences of his negligence but not of the dangers of the employment." 39 C.J., 260.

It appears to me therefore that the railroad company assumed no obligation whatever to the deceased in the matter of his voluntary effort in attempting to alight between the main lines. The foundation of the plaintiff's claim is that because Driggers selected the place to alight, the railroad company must be assumed also to have selected it and required him to work there.

The fact, if it be a fact, that the deceased may not properly be charged with negligence in not crossing over to the left footboard, where he could have alighted upon the side where the switch was, does not by any means establish the fact that the company provided or expected him to use the space between the lines for alighting; this is the gist of negligence in this respect.

(b) As to the billboards and shrubbery: Giving the plaintiff the benefit of the shortest distance testified to, between the Meeting Street Road crossing and the connecting switch at the north-bound main line, 200 feet, the evidence is overwhelming from the plaintiff's witnesses that the obstruction of vision did not extend further than halfway to the switch, and that for the remainder of the distance, 100 feet, a person at any point on the Etiwan track could have had an unobstructed vision of the south-bound main line for a distance of nearly three-quarters of a mile.

The plaintiff offered in evidence, and it is a part of the record for appeal, a photograph taken from a point on the south-bound main line, 1,000 feet from the switch in question. In that photograph three men appear standing on the Etiwan track 270 feet from the switch, who can be seen, of course, if they are in the picture, from the point where the camera rested. If they can be seen at that point by the eye of the camera, it is indisputable that they could see an engine as it reached the point where the camera rested.

III. I have discussed the case from the standpoint of the negligence of the engineer and of the company; I shall discuss it now from the standpoint of the brakeman's negligence. Whether his conduct may be considered negligent or not, I think that the sole proximate cause of the fatal occurrence was the act of the brake man.

The rule in the Federal Court, the final arbiter in cases involving the Employers' Liability Act, is thus stated in the case of Pheasant v. Director General of Railroads (C.C. A.), 285 F., 342: "While such negligence is contributory, and evidence of it is admitted under the Federal Employers' Liability Act ordinarily in diminution of damages, it is, nevertheless, a bar to recovery when it is clear that it was the proximate cause of the injury, or, stating it, perhaps, more accurately, when it appears that the decedent's death was caused solely by his own carelessness" — citing a number of cases including Linkous v. R. Co., 242 U.S. 630, 37 S.Ct., 15, 61 L.Ed., 537.

It appears beyond dispute that the brake man flagged the Meeting Street Road crossing and mounted the right-hand front footboard of the switch engine which was then moving forward toward the switch — the most favorable position that he could have selected for observation. After he had passed the midway point between the road crossing and the switch, for a distance of at least 100 feet he had a wholly unobstructed view of the south-bound main line as straight as a gun barrel, for not less than 1,000 feet; and the evidence for the plaintiff by the photographer and the conductor of the switch train is to the effect that the point where the camera was placed, 1,000 feet from the switch, could have been seen by a man standing on the Etiwan track 270 feet from the switch. The evidence of the conductor is that standing 15 or 20 feet across the two double tracks, on the west, he could see the coming passenger train for three-quarters of a mile. He heard the whistle of the train away up north of the switch at the Riverside Iron Works.

It seems impossible to conclude otherwise than that Driggers could have both seen and heard the coming train if he had exercised the least degree of care to ascertain whether it was coming or not.

Most probably he concluded that as his work did not naturally call him to the south-bound main line, he had nothing to fear from a train upon that track; if so, was the engineer not entitled to draw the same conclusion? As a matter of fact, his use of the south-bound main line was purely accidental, caused doubtless by the momentum of his own body as he alighted from the moving switch engine. The conductor significantly testified: "He did not step on the south-bound track; he stepped between the tracks and turned; he had to get his balance." Evidently the switch engine was moving more rapidly than he calculated, and after he alighted between the tracks his momentum carried him into the engine on the south-bound track — an accident pure and simple. Could the engineer be charged with the probability of such an improbable occurrence?

We may never know whether the brake man saw the coming train or not; it is very sure that his duty did not call him into that death trap; he would have been perfectly safe upon the footboard if he had retained his position there or had waited until the train passed; it is not improbable that a stumble carried him into the engine; as a matter of fact, he was not charged with the duty of turning switches; the conductor testified that it was entirely optional with him. The conductor had turned the switch for the entry into the Etiwan track, and was only 15 or 20 feet from the switch when the train entered the north-bound main line; there was no necessity therefore for the brake man to take the risk he ran.

IV. But assuming that the accident was not due solely to the conduct of the brake man, and that it could only be urged by the defendants as contributory negligence, in diminution of the damages, the risk that he ran was either a risk ordinarily incident to his employment, or an extraordinary risk due to the negligence of the defendants.

If an ordinary risk, he must be held to have assumed it, under the principles announced in Chesapeake O.R. Co. v. Nixon, 271 U.S. 218, 46 S.Ct., 495, 70 L.Ed., 914: "If the accident had happened an hour later when the deceased was inspecting the track, we think that there is no doubt that he would be held to have assumed the risk, and to have understood, as he instructed his men, that he must rely upon his own watchfulness and keep out of the way. The Railroad Company was entitled to expect that self-protection from its employees" — citing authorities.

I think that the truth of the matter is that he knew of the train's approach (or certainly, what is the same thing in law, he should have known of it), and anticipated no danger from it on the south-bound main line; that what happened was a contingency which he could not reasonably have anticipated, an accident pure and simple, with the anticipation of which the engineer of the passenger train was not more chargeable than the brake man was.

If the risk was an extraordinary one, due to the negligence of the defendants, the brake man must be held alike to have assumed it with the knowledge he had, or should by the exercise of ordinary care have had, of the alleged negligence of the defendants and of the danger thereby created in the attempt which he made.

V. I think that the presiding Judge erred in refusing the motion of the defendant railway company to strike from the complaint subdivision (n) of paragraph 4.

The presence of buildings or other obstructions to vision alongside of a railroad track, upon the land of others, may have a bearing upon the duty of a railroad company to exercise care commensurate with that situation, and upon the opposite party to the controversy as well; but I know of no law which forbids a man from putting up such structures upon his own land as he pleases, or which requires a railroad company to have them removed for the protection of those with whom it may come in contact.

VI. Under the undisputed facts of the case, the defendant railway company was entitled to have its first request to charge presented to the jury.

VII. The fifth request to charge clearly and correctly declared the law of assumption of risk, and should not have been refused.

VIII. The sixteenth, eighteenth, and twenty-second exceptions assign error in charging that the delicts therein referred to constitute violations of law. They may have been evidence of negligence without being violations of law. The vice in the charge was classing them with specific statutory regulations, the violation of which constitutes negligence per se.

IX. The twenty-fifth exception points out a palpable error. It is so well settled, as to require no authorities, that assumption of risk is of two kinds: (1) The assumption of such risks, not due to any negligence on the part of the master, as are ordinarily incident to the work in which the servant may be engaged; and (2) extraordinary risks, risks due to some failure of duty on the part of the master (negligence), which are known or should be by the exercise of ordinary care, to the servant, and the dangers of which are appreciated by him. In either case the servant is held to have assumed the risk. The charge of the presiding Judge specifically limited the defense to the first class.

There are other errors in the conduct of the trial of which "the time would fail me to tell," but these suffice.

ORDER

The mandate of the Supreme Court of the United States, 49 S.Ct., 490, 73 L.Ed., — , having been filed in the above-stated case reversing the judgment of this Court and remanding the case thereto,

It is ordered that the above-stated case be remanded to the Court of Common Pleas for Charleston County, with direction to enter judgment in favor of the defendants under Rule 27 of this Court.

By order of the Court:

R.C. WATTS, Chief Justice.

T.P. COTHRAN, EUGENE S. BLEASE, JOHN G. STABLER, JESSE F. CARTER, Associate Justices.