Calvo v. Charlotte, C. & A. R. Co.

• Decision Date: 27 October 1885
• Parties: CALVO v. CHARLOTTE, COLUMBIA & AUGUSTA R. R. CO.
• Court: South Carolina Supreme Court

23 S.C. 526

CALVO v. CHARLOTTE, COLUMBIA & AUGUSTA R. R. CO.

Supreme Court of South Carolina.

October 27, 1885

1. A locomotive engineer and a section-master of track-workers are not fellow-servants in the sense that the railroad company employing them would not be liable to one for damages resulting to him from the negligence of the other.

2. Where an engine is thrown from the track and the engineer injured through the negligent violation of the rules of the company by a section-master, the company is liable to the engineer, the section-master being a representative of the company.

Before WALLACE, J., Richland, November, 1884.

This was an action by Horace E. Calvo for damages, commenced in February, 1884. The opinion states the case.

Mr. J M. McMaster , for appellant, upon the point decided by the court, cited 18 S.C. 271, 275; 78 Va. 745; 112 U.S 377; 93 Ill. 302; 6 Heisk. , 347; 110 Mass. 240; 48 Me. , 113; 38 Wis. 298; 45 Ill. 197; 58 Id. , 272; 77 Id. , 391; 2 Duval , 114; 37 Mich. 205; 52 Ill. 401; 62 Mo. , 326; 63 Id. , 397; 9 Heisk. , 27, 866; 64 N Y. , 12; 49 Id. , 521; 3 Fost. & F. , 622; 11 R. I. , 152; 78 Pa. St. , 25; 2 Thomp. Negl. , 985; Pierce R. R. , 376; Shear. & Redf. Negl. , §§ 100, 102; Whart. Negl. , § 222.

Mr. J. H. Rion , contra, cited 15 Rich. , 204; 117 E. C. L. R. , 579; 2 H. & C. Exch. , 109; 109 U.S. 483; Wood M. & S. , § 425; Shear. & Redf. Negl. , 109; 2 Rorer Rail. , 1193; 18 Reporter , 814, 831, 114; 19 Id. , 95; 86 Pa. St. , 432; 10 Cush. , 228; 31 Ohio St. , 196; 17 Id. , 197; 5 Am. & Eng. R. R. Cas. , 516; 2 Id. , 97; 70 Me. , 60; 129 Mass. 268.

OPINION

MR JUSTICE MCIVER.

The plaintiff, who is a locomotive engineer, brings this action to recover damages for an injury sustained while serving the defendant in that capacity. It seems that on March 22, 1881, the defendant was directed to take an extra freight train from Columbia to Charlotte, which train was to be run under the signals of a passenger train which preceded him. On reaching a point between Cornwall and Chester plaintiff's engine was thrown from the track, whereby he received the injuries complained of. It appears that one Wooten, a section-master and supervisor of the track-laying force, had taken up the track at that point for the purpose of repairs, and that this was the cause of the disaster.

The testimony tended to show that Wooten disregarded the signal carried by the preceding passenger train, which indicated that it was followed by another train, and did not wait for the passage of such train, as required by the rules of the company, before taking up the track; and also neglected to place the proper signal to warn an approaching train that the track was not in condition to be used, as required by another rule of the company.

At the close of the testimony, the defendant's counsel submitted a motion for a non-suit, " on the ground that the defendant was not liable for the injury, for it was the result of the negligence of a fellow-servant, viz., that the plaintiff, Calvo, was a fellow servant with Wooten, the section-master." The motion was granted, though upon what ground is not stated in the order granting the motion, but as there was certainly some evidence of the negligence of Wooten, we will assume that it was upon the ground that the plaintiff and Wooten were fellow-servants and that, therefore, the company was not liable, as this seems to be assumed in the argument.

So that the only question for us to determine, is whether a locomotive engineer and a section-master are fellow-servants in the sense that the company would not be liable to one for the negligence of the other. The question as to who are fellow-servants in this sense has given rise to no little conflict of opinion, and the decisions elsewhere are conflicting. The only cases in this State where this question has been distinctly considered are Gunter v. Graniteville Manufacturing Co. (18 S.C. 262), followed by Lasure v. Graniteville Manufacturing Co. (Ibid. , 275), and recognized in Couch v. Charlotte, Columbia & Augusta R. R. Co. (22 S.C. 557). It is there determined that in order to ascertain whether a given employee is the representative of the master, or a fellow-servant with other employees, " the true test is whether the person in question is employed to do any of the duties of the master; if so, then he cannot be regarded as a fellow servant or co-laborer with the operatives, but is the representative of the master, and any negligence on his part in the performance of the duty of the master thus delegated to him, must be regarded as the negligence of the master."

So that the practical inquiry in this case is, whether Wooten, the section-master, was the representative of the defendant. Was he employed to do any of the duties of the company? If so, then the company is liable to the plaintiff for any injuries he may have sustained by reason of the negligence of Wooten. But if not, then the company would not be liable. As we understand it, the main duty of the section-master is to keep the track in order so as to insure, as far as practicable, the safety of the trains continually passing over it. Now, it is well settled that it is the duty of the master, not only to provide his servants, in the first instance, with suitable and safe machinery and other appliances to do the work for which they are employed, but also to keep the same in proper repair, and any negligence in the performance of such duty, whether done by the master in person, or by subordinate agents selected by him for the purpose, would render the master liable for any injury sustained by one of his servants by reason of such negligence.

In the case of corporations this duty, as well as all others, must necessarily be committed to subordinate agents, and the fact that these subordinate agents, as in the present case, are subjected, in the performance of such duty, to the supervision of other and higher officers, cannot affect the question. The fact that the section-master is under the supervision of the road-master, and he, in turn, is under the supervision of the general superintendent, does not alter the nature of the duty which he is employed to do. The question is as to the nature of the duty, not as to the rank or grade of the person employed to perform it. Is it a duty which the master owes to his servants? Under the well settled rule above mentioned, we think that nothing can be clearer than that it is the duty of a...