This is an action of law by the administrators of Thomas McElie Anderson, deceased, against the Southern Railway Company, a Virginia corporation, to recover dаmages for the death of Anderson. On the trial of the case, a motion for a directed verdict in favor of the defendant was granted by the judge below, and judgment renderеd for the defendant for the costs, to which judgment of the court this writ of error was sued out.
The defendant received, in the course of its business as a carrier, a flat cаr consigned and shipped by Georgia Creosoting Company, from Brunswick, in the state of Georgia, to Carolina Light & Power Company, at Aiken, S. C., loaded with 70 telegraph pоles, about SO feet in length, each weighing in the neighborhood of 800 pounds; total weight of the load on the ear being approximately 57,000 pounds. The ear was 40 feet lоng, and there was approximately 5 feet space between the poles and the end of the car at each end.
The poles were held in plaсe on the car by eight upright standards or stakes, the butts of which were fastened in sockets attached to the car for that purpose. These standards or stakes wеre braced by twisted wire lines, running from one side of the ear to the other, tying the stakes together. Each stake had two of these fastenings or braces, one about the middle of the load of poles, and another near ■the top of the stakes across the top of the load. These stakes were green pine saplings about 5 inches in diameter in the center, and cut at the butts so as to go into the sockets.
The ear in question was shipped from Brunswick, Ga., over another line of railroаd, and was owned by the Atlantic, Birmingham & Atlanta Railroad Company, but was accepted by the defendant company, transported over the defendant’s line of road to Aiken, S. C., and there placed on a side track for the purpose of being unloaded by the consignee, the Carolina Light & Power Company.
The ear was placed for unloading on the 6th day of July, 1925, and two days later, on the 8th, a gang of men in the employ of the Carolina Light & Power Company started to unload the ear. The deceased was fоreman of the unloading crew. Preparatory to the unloading, deceased and one of the men under his direction went on top of the load and procеeded to cut the wires running between the stakes across the car. As the wires were cut, the load began to settle, and when the last wire was cut the standards broke on bоth sides of *73 the car, and Thomas Anderson was thrown under some of the poles and so injured that he died.
The claim of the plaintiffs is that the four stakes used for holding the load in рlace were neither sufficient in number nor sufficiently strong, and that they should have been of hardwood or steel; that the use of an insufficient number of stakes of an inferior quаlity constituted a defect, amounting to a defect in the ear itself; that the car was improperly loaded, and that one of the stakes was mildewed and thereby wеakened.
It is undisputed that, in the loading of poles of the character of those in this instance, new and different stakes have to be used with each load; the stakes being destroyed with the unloading. Under these circumstances it could hardly be held that an insufficient number of stakes, or stakes inferior in quality, could constitute a defect in the еar itself. They were not parts of the ear, and the car could bo used for the purpose of hauling other classes of freight, with different stakes, or without any stakes whatever.
It is admitted that the car was loaded and the load secured in the manner required by the rules of the American Railway Association and as was customary at the plant of the consignor. That it was properly loaded seems to be conclusively proven by the fact that it carried safely until delivered at the point of unloading, and the evidence is uncontradicted that at the time of the beginning of the unloading, when the deceased and the fellow employee, Blackman, went on tоp of the load to cut the wires, the load was solid, and did not shake or move, and was secure until the deceased himself ordered the cutting of the last wire, which cutting destroyed the security of the load. It is uneontradieted that, as the wires were cut, the load began to shake and settle, and that just before the last wire was cut, while Blackman and the deceased were on top of the load, Blackman said to the deceased, “Tom, when I cut this wire, if these stakes break, what is to become of me and you?” Deceased said, “We will try to stay on the south side; go ahead and cut.” Black-man went around and cut the wire, and everything went; all the stakes giving way on both sides оf the car.
If there were an insufficient number of stakes, that fact was plainly to be seen by the deceased. He was warned by his coworker before the last wire was cut, and ordered it cut. No agent or employee of the defendant company was present at the time of the unloading. It was clearly the duty of the deceased, as foreman of the unloading crew, to see to it that the car was unloaded in a safe manner; a thing which could have undoubtedly been done in two or more ways. The stakes could have been braced from the ground on one side, so that the poles would only roll off on the sides where the skids had been set for them to roll off, or the last wire could have been cut by some long-handled instrument. Even if it were impossible to unload the car safely, the deceased, as foreman, should not havе permitted the unloading in a manner so hazardous and dangerous as was the course taken. A man has no right to be careless and reckless in the face of open and apparent danger, and if he proceeds under such circumstances he is guilty of contributory negligence to a degree that bars a recovery. The load was secure until the deceased himself destroyed the security. In this case the evidence establishes contributory negligence so clearly as to admit of no other' reasonable conclusion with regard thereto.
The rule in federal courts is that, where there is no conflict in the evidence, or where no materiаlly different inferences may be reasonably drawn from the evidence, a verdict in accordance with the law may be directed. Delk v. Railroad,
“The rule upon that subject is well settled by the authorities. It is that, ‘when the evidence given at the trial, with all inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plаintiff, so that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.’ ”
In Illinois Central Ry. Co. v. Skaggs,
“It may be taken for granted that the statute does not contemplate a recovery by an employee for the consequences of action exclusively his own; that is, where his injury does not result in whоle or in part from the negligence of any of the officers, agents, or employees, of the employing carrier, or by reason of any defect or insufficiency, due to its negligence, in its property or equipment. * * * j?
The evidence does not disclose any fault or negligence on the part of the defendant company or its employees, and it evidently had discharged its entire duty in connection with the transportation and delivery of the ear. The condition of the car was aрparent to any one who would look, and was easily to be seen by the deceased, who in a heedless and *74 reckless manner rushed into danger and thereby lost his lifе.
If the railroad company owed the duty of inspection as to the car in question, especially for the safety of its own employees while the ear was in transit, this duty seems to have been fully performed, as the car had been inspected eight times, and was delivered with its load intact and secure to the point of destination.
The evidence in this case being insufficient to support a verdict, for the plaintiff, the learned judge below properly directed a verdict for the defendant, and the judgment of the District Court is therefore affirmed.