Rutherford v. Southern Ry. Co.

• Decision Date: 03 March 1900
• Parties: RUTHERFORD v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

35 S.E. 136

56 S.C. 446

RUTHERFORD v. SOUTHERN RY. CO.

Supreme Court of South Carolina

March 3, 1900

Appeal from common pleas circuit court of Cherokee county; Ernest Gary, Judge.

Action for injuries by Amos Rutherford against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The trial court charged the jury as follows: "This is a suit on the part of the plaintiff, Amos Rutherford, against the Southern Railway Company, for damages which it is alleged occurred to the plaintiff which he was serving the defendant railway company in the capacity of an employé; and it is alleged that the damages--that the injuries rather--complained of were occasioned or caused through the negligent act of a co-employé or co-laborer. The defendant takes issue with him as to his damages, and sets up as an affirmative defense that, if he was injured, the injury was due to his own negligent act,--in other words, that he contributed to the injury himself; and for that reason the defendant contends it is not liable. Now, those are the issues upon which the parties have differed, and for the settlement of those issues you and I are here now to settle the difference. You will understand that the gist of the action is negligence on the part of the railroad company, or in other words, on the part of a co-employé or servant of the railroad company; the plaintiff contending that by reason of that injury the company is liable to compensate him in damages for the injury received through the negligence of one of its servants, a co-employé with the plaintiff. Upon that the defendant denies the injury, and denies its liability and sets up as an affirmative defense that, if he is injured he contributed to that injury himself by his own carelessness and negligent act, and thereby the company is absolved from any liability. Now, the law with reference to injuries was passed, or was enacted in the constitution of this state, in 1895. That constitution adopted the following as one of its provisions, which I will read to you 'Every employee of any railroad corporation shall have the same rights and remedies for any injury suffered by him from the acts or omissions of said corporation or its employees as are allowed by law to other persons not employees, when the injury results from the negligence of a superior agent or officer or of a person having a right to control or direct the services of a party injured, and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, or of a fellow servant on another train of cars or one engaged about a different piece of work. Knowledge by an employee injured of the defective or unsafe character or condition of any machinery, ways or appliances shall be no defense to an action for injury caused thereby except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them.' Const. art. 9, § 15. Until the constitution was adopted, the liability of a corporation for the negligent act of its emploýs was on a different basis from this constitution. Formerly the party complaining of an injury caused by the negligent act of a co-laborer or employé working with him would have to show that the company was negligent in employing this co-laborer; but the constitution of our state modified or so changed the law as I have instructed you. So the law now is that, if one is so injured through the negligent act of a co-employé, the railroad company is liable for the consequences of such damage or injury, provided the party injured did not contribute to his own injury. Now, you will see that the charge of negligence is set out specifically in the complaint; that the work of loading rails was being done under the direction and supervision of the defendant's agents, Thomas Sumner and Lune Walker; that said agents carelessly and negligently gave an order to lift a certain rail, and throw it on board, without first seeing that this could be safely done, and carelessly and negligently revoked said order just as plaintiff and others were engaged in throwing said rail on the car, the result of which was that the end of the rail upon which plaintiff stood was thrown upon the car, while the other end was not so thrown, and the rail fell off the car upon the plaintiff, and bruised his body and limbs, and broke his leg. Now, you will see the gist of the action is negligence. The plaintiff charges that the company was negligent by reason of the fact that one of its servants gave a command to this plaintiff, and countermanded that order, and the order countermanding the command to throw the rail upon the car was too late for it to be obeyed; and by reason of that it is contended on the part of the plaintiff that the servant of the railroad company who gave the order was negligent, and through that negligent or careless act caused the injury to the plaintiff. Now, that is denied by the defendant. Then it becomes a question of evidence. Negligence is a question of fact for the jury. Under the constitution of this state our labors are divided. The law imposes upon the court the duty of charging juries with reference to any question of law that might arise in a case that is pertinent to the issue. Then it imposes upon them the duty of passing upon any facts in the case. Now, I charge you that the gist of this case is negligence. Now, it is for you to tell, under the facts of this case, whether it was through the negligence or careless act of the company. If so, I charge you it would be competent to compensate the plaintiff in whatever amount of damages you find he has suffered. If you find, on the contrary, that it was not through the negligent act of the company, or it was through the negligent act of the company, and he, by not obeying proper caution, contributed to the injury himself, why then, under those circumstances, he couldn't complain of the company. You have heard the facts detailed how the injury occurred. If it was through the negligent or careless act of the company or its servant that he was injured, and the plaintiff didn't contribute to that injury through his carelessness himself, I charge you the company would be liable to compensate him for whatever damages he has sustained. On the contrary, if he contributed to the injury himself, the company would not be liable under those circumstances. If you come to the conclusion that the company was negligent, and he was injured through that negligence, and has not contributed to the injury himself, you will estimate the amount of damages; and in estimating the damages take into consideration the length of time he has lost, the actual injury he has received, and any pain or suffering he has undergone. You are at liberty to compensate him for that. The facts are for you. Was it through the negligent act of the company, or did he bring about the injury himself through his negligence or carelessness? Take the record and find a verdict. You cannot find a greater amount than they claim,--$1,900; but you are to say what amount of damages he has sustained. You fix the...