Caldwell v. Seabd. Air Line Ry

• Decision Date: 15 March 1906
• Citation: 73 s. c. 443,53 S.E. 746
• Parties: CALDWELL. v. SEABOARD AIR LINE RY.
• Court: South Carolina Supreme Court

53 S.E. 746

73 s. c. 443

CALDWELL.

v.SEABOARD AIR LINE RY.

Supreme Court of South Carolina.

March 15, 1906.

1. Master and Servant—Injury to Servant—Instructions.

Where, in an action for injuries to a railroad employe, the evidence was conflicting as to whether the contract of employment was made in South Carolina or in another state and whether the law of South Carolina or that of the other state governed the contract, so as to determine which law would govern as to what constituted fellow servants, it was proper for the court, in its instructions, to define "fellow servant" and "common undertaking, " and the laws of both states applicable thereto, and to submit to the jury whether a brakeman, an engineer, and a yard conductor were fellow servants.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 1134.]

2. Same—Contract of Employment—Question fob Jury.

In an action by a servant for personal injuries, where he entered into an oral contract in the state to work as brakeman in another state, and in such state was promoted to yard conductor, and was injured while in such employment, it was a question for the jury whether he was working under the contract made in the state or in the foreign state.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 1004.]

3. Appeal—Instructions—Failure to Follow.

Where a jury fails or refuses to obey the law as laid down by the trial court, the Supreme Court will correct such error.

[Ed. Note.—For cases in point, see vol. 8, Cent. Dig. Appeal and Error, § 3402.]

4. New Trial—Overruling Motion.

In overruling a motion for new trial, the court has a right to state the effect of the testimony on his own mind.

Appeal from Common Pleas Circuit Court of York County; Gage, Judge.

Action by Joseph H. Caldwell against the Seaboard Air Line Railway. Judgment for plaintiff. Defendant appeals. Affirmed.

The following is the judge's charge: "Before I proceed to charge you the law in this case as I see it, I will take up the requests to charge, and that means the law as. it is seen by the counsel for the parties. The plaintiff in the case, Mr. Caldwell, makes no written requests. The defendant, the railroad company, makes these requests, seven in number, Mr. Stenographer, all written, and all of which I charge: '(1) That plaintiff, in his complaint, charges and alleges that he was Injured by the negligence of the defendant railway company. It Is therefore incumbent upon him, before he can recover, or even make out prima facie case, to satisfy the jury, by the preponderance of the testimony, that he was injured, and that the said injury was the immediate and direct re-suit of the negligence and carelessness of the defendant railway company. The burden of the proof is upon him to make out his case by the greater weight of the testimony. It will not be presumed that the defendant was guilty of negligence. (2) If the plaintiff's injuries were the result of a pure accident, such as could not ordinarily be anticipated, and not the result of the negligence of either the plaintiff or the defendant, then the plaintiff cannot recover. He cannot recover at all unless his injuries were caused by the negligence of the defendant company or its employes. (3) Even if the plaintiff was injured by the negligence of the defendant company or Its employes, and he was also guilty of negligence, and his negligence contributed to his injuries as an immediate and proximate case, then he cannot recover. If the plaintiff was guilty of negligence, and his negligence concurred and combined with that of the defendant in bringing about his injuries, this will deprive him of the right to recover, although the defendant may have been guilty of negligence, and that negligence may have been the immediate and proximate cause of his injuries. [I change that to "one of the immediate and proximate causes."] The statute of North Carolina, in evidence in this case, In reference to the liability of the railroad for the negligence of its servants, does not deprive the railroad company of the defense of what Is commonly known as contributory negligence. Contributory negligence is the want of ordinary care on the part of the person injured by the actionable negligence of another, combining and concurring with that negligence and contributing to the injury as the proximate cause thereof, without which the injury would not have occurred. (6) The Supreme Court of South Carolina has placed acts of omission and commission on the same plane in adopting the following definition of contributory negligence, to wit: "Properly speaking, contributory negligence, as the very words import, arises when the plaintiff, as well as the defendant, has done some act negligently, or has omitted through negligence to do some act which it was their respective duty to do, and the combined negligence of the two parties has directly produced the injury." (7) If the testimony satisfies you that there were not a sufficient number of hands when this conductor of the yard at Monroe, N. C, started to make up the train at the time stated in the complaint, it was his duty at that time to refuse to make up the train described in the complaint with such inadequate help, but if you find from the testimony that the plaintiff nevertheless did make up the train with such inadequate help, he waived the obligation of the defendant to him, and made up the train at his own risk, and if you find that from the testimony that plaintiff was injured while making up the train with inade quate help, and from such cause, he cannot recover of defendant.'

"Now, gentlemen, in my own way I will try briefly to help you to a conclusion in this case, and it is always a matter of great pain to me, gentlemen, that it is such a difficult matter to state to a jury of men plainly, without technicalities, and in a way they can understand it, the principles of law by which they are guided. I will endeavor to do so In this case, and, if you follow the law, whether you think it is good law or bad law, and then if you apply that to the testimony of the witnesses on the stand, you are bound to reach a correct verdict, and you cannot reach a verdict which will be hurtful to anybody, because if I charge you the law wrongfully, gentlemen, there are four judges at Columbia, with great wisdom, to examine it more carefully, and to send it back to a jury to try it according to right law, if I charge you the wrong law. Now, so much. At the threshold of the case, gentlemen, and somewhat out of its regular order, but it seems to me in its logical order, lies this question of fellow servants, about which you heard so much talk. It is contended by the defendant company, the railroad company, that these three men working with that train on that night were fellow servants, to wit: Caldwell, the plaintiff, and the man Morrow, and the man Jackson—the yard master or ' yard conductor, ' as Caldwell is described, the plaintiff, and the two brake-men, Jackson and Morrow. Now, I say the contention of the railroad company is that they were fellow servants, and, if fellow servants, were governed and controlled by the law of fellow servants as understood in this state. Now, the law of fellow servants, gentlemen, rests upon the primary law, which means that when a man has a servant—and by servant I do not mean manual servant, as understood generally in this country, but I employ that when a man has a servant about a job, and that servant undertakes to do that job, if he wrongfully and negligently does a man injury in doing that job, he is not only liable, but his master is liable, too. I will illustrate it this way, gentlemen. You send a man in a yard to cut your wood. He is your servant. His business is to cut the wood, and the law puts it upon him, and puts it upon you that he shall cut that wood in a careful manner. If In the cutting of the wood, gentlemen, he is guilty of negligence by which another man is injured, why he is liable to that other man, and so are you, because, if you have employed a negligent man, and a negligent man in the performance of that duty has done harm to another person, he is liable, because he did it, and you are liable because you put him in your place to do it, and he has done it negligently. Now, you understand, Mr. Foreman. Well, now, that is the law of master and servant. Well, now, we will put another man in the yard, twomen to cut wood. Now, suppose one of these men cutting wood negligently hurts the other fellow. The question arises: Are you liable for that injury to the other fellow? These two men are called fellow servants—fellow servants to you, one principal—and if one hurts the other through negligence, then you are not liable to that other, because long ago our court settled that fact. It is not necessary now to inquire into the reason of it. It would confuse you to do it, but that is the settled law of this state—where two men are working as fellow servants for one principal, and one by negligence hurts the other, the master is not liable. Now, that is the law of fellow servants in this state.

"The law of fellow servants as laid down by our courts means this: They are fellow servants where they are employed in a common undertaking—you know what that means—and sustain towards each other the relation of fellow servant, of exercising only the ordinary duties of the employment, even when they cannot see each other, or are working apart, and not in conjunction. Now, in this case, I charge you, if these two men bore that relation to one another—and you are to say whether they did—were they employed in a common undertaking? If they were, according to the definition I have given you, then they were fellow servants. Now, the contention of the railroad company is, being fellow servants, that the the railroad was not liable for the negligence of one man towards the other. Well, now, here arises another difficulty in the case. That is this: It is...