Boatwright v. Northeastern R. Co.

• Decision Date: 22 June 1886
• Citation: 25 S.C. 128
• Parties: BOATWRIGHT v. NORTHEASTERN RAILROAD COMPANY.
• Court: South Carolina Supreme Court

25 S.C. 128

BOATWRIGHT v. NORTHEASTERN RAILROAD COMPANY.

Supreme Court of South Carolina.

June 22, 1886

1. In action by a car coupler against a railroad company for injuries received by him while coupling cars, there being some testimony as to the failure of defendant to furnish proper couplers, and that the conductor of the train had ordered the coupling to be done with improper couplers, a non-suit should not be granted.

2. The question of contributory negligence involves an issue of fact that must be submitted to the jury.

3. Whether the injury in this case resulted from a risk incident to plaintiff's employment was a question of fact that could not be passed upon by the judge on a motion for non-suit.

4. The conductor of a train is the representative of the company and not a fellow-servant with other employes operating the same train, under his orders.

5. The doctrine of the case of Murray v. South Carolina Railroad Company (1 McMull. , 385)-that a master is not liable to his servant for an injury caused by the negligence of his fellow-servant-has not been modified by subsequent decisions in this State, but is still recognized law.

6. The Circuit Judge erred in charging the jury that " the employe does not take the risk of accident happening from the incompetency, ignorance, or culpable misconduct of his co-laborer."

7. The engineer and coupler of a freight train are fellow-servants and for injury to one caused by the other's negligence the master is not liable. MR. JUSTICE MCGOWAN concurred in the result.

Before ALDRICH, J., Sumter, October, 1885.

This was an action by Sam Boatwright against the Wilmington, Columbia & Augusta Railroad Company and the Northeastern Railroad Company, lessees of the Central Railroad Company, for an injury done to him by a train of freight cars on the Central Railroad at Sumter while he was coupling two cars. The plaintiff was a brakeman and car coupler of the train. The accident occurred on the night of September 29, 1883, and this action was commenced September 10, 1885. Other matters are stated in the opinion of the court.

Mr. J. H. Rion , for appellants.

Messrs. Moises & Lee , contra.

OPINION

MR JUSTICE MCIVER.

The plaintiff brings this action to recover damages for an injury sustained by him while in discharge of his duty as car coupler on the Central Railroad of South Carolina, a road under a lease to, and operated by, the defendant companies. The allegation in the complaint substantially was that by reason of negligence in running the cars on said road, and by reason of the failure of defendants to supply him with proper appliances for the performance of his duties as car coupler, he sustained the injury complained of.

The plaintiff offered testimony tending to show that two kinds of couplers were used on the road, one a straight link, proper to be used when the cars to be coupled were of the same height, and another, a crooked link, called a goose-neck, to be used in coupling cars of different heights, as safer than the straight link; that upon the occasion when the injury was sustained the plaintiff had applied for and failed to obtain goose-neck couplers for the train upon which he was employed, and that when directed by the conductor to couple some cars at Sumter, finding that they were of unequal heights, he said to the conductor, " I don't think I can make this coupling. I'll go back and see if I can find a goose-neck anyhow, because it's a high and low car, and I don't think I can make the coupling." The conductor replied: " Be in a hurry." Failing to find a goose-neck coupler, he reported the fact to the conductor, and said: " I don't know what to do." To which the conductor replied: " Sam, you had better go in and make that coupling anyhow." Plaintiff said: " I don't like to do it," but he said: " I'll make them come back slow." Whereupon plaintiff replied: " All right, Cap; sign them back slow." The plaintiff then went in to make the coupling, and had his hand so crushed as to necessitate amputation just above the wrist.

At the close of the plaintiff's testimony, defendants' counsel moved for a non-suit upon two grounds: I. Because the evidence had disclosed the fact that the injury resulted from the negligence of the conductor, who was a fellow-servant of the plaintiff. II. Because the evidence disclosed the fact that the injury resulted from plaintiff's own negligence, and from the hazards incident to his employment.

The motion was refused and the defendants introduced testimony tending to show that the plaintiff's account of the matter was not correct; that the conductor did not insist upon plaintiff's making the coupling against his will; that the plaintiff had not used the proper efforts to obtain the required kind of coupler; and that if he had, he could have obtained it, and that there was really no more danger in making the coupling with a straight link than with a goose-neck, although there was always some danger in making a coupling with either kind of coupler. The defendants also introduced testimony tending to show that plaintiff, very soon after the injury was received, attributed the disaster to the fact that the engineer of the train moved it back too quickly and caught his hand.

The jury having rendered a verdict in favor of the plaintiff, defendants appeal upon the following grounds:

1. Because the judge refused to charge: " That if the jury believe that the injury to the plaintiff was caused by the negligence of the engineer, or co-employee of the plaintiff, the defendants are not liable."

2. Because he refused to charge: " If the jury believe that it was the duty of the conductor to see that his train was furnished with all necessary and suitable appliances and instruments, and that all such appliances and instruments were kept constantly on hand by the defendants, at a convenient place, subject to the order of the conductor, and that on the occasion of the plaintiff's injury the conductor failed or neglected to procure, call for, or order the said appliances or instruments, and that such injury resulted from the use of an unsafe or unsuitable appliance, then the plaintiff cannot recover."

3. For refusing to charge: " That the plaintiff and conductor were fellow-servants."

4. For error in charging the jury: " The employee does not take the risk of accident happening from the incompetency, ignorance, or culpable misconduct of his co-laborer. When railroads were in their infancy very large franchises were granted in their charters by the legislature, and very liberal constructions were ruled by the courts. Hence, in Murray's case a stringent rule was laid down by the court, which was generally adopted in this country and England. That rule did not give the employee protection against the corporation if the injury resulted from the carelessness, incompetency, or culpable neglect of his co-laborer. But in the course of time, as these corporations increased in number, wealth, and power, developing the immense resources of the country, and engaged in their service an army of employees-engineers, firemen, conductors, & c.-it became not only apparent, but eminently just, that this multitude of workers and breadwinners should be protected against the recklessness and incompetency of those engaged in the same service. Hence that rule has been modified, and I now charge you that the railroad corporation is not only bound to provide the necessary machinery and materials to run their trains, due regard being had to the safety of their employees, but it is also responsible to the employee if he is injured by the want of these, or by the incompetency and criminal negligence of the officers of the road, whose orders he is bound to obey."

5. For error in charging: " That the employee does not take the risk of accident happening from the incompetency, ignorance, or culpable misconduct of his co-laborer."

6. For error in charging: " That the rule laid down in Mur ray v. So. Ca. R. R. Co. (1 McMull. , 385) has been modified in this State."

7. For error in refusing the motion for non-suit on the grounds stated above.

Let ...