Gardner v. Southern Ry. Co.

• Decision Date: 17 March 1903
• Citation: 43 S.E. 816,65 S.C. 341
• Parties: GARDNER v. SOUTHERN RY. CO. et al.
• Court: South Carolina Supreme Court

43 S.E. 816

65 S.C. 341

GARDNER v. SOUTHERN RY. CO. et al.

Supreme Court of South Carolina

March 17, 1903

Appeal from Common Pleas Circuit Court of Sumter County; Dantzler Judge.

Action by Samuel Gardner against the Southern Railway Company and Morgan B. Pierson. Judgment for defendants, and plaintiff appeals. Reversed.

Lee & Moise, Moise & Clifton, and H. Harby, Jr., for appellant. Joseph W. Barnwell, B. L. Abney, and E. C. Haynesworth, for respondents.

JONES J.

This was an action against the Southern Railway Company and its engineer, Pierson, for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of the Sumter Compress Company, and engaged in loading a freight car of the defendant company with compressed bales of cotton as the result of a violent collision of defendant's locomotive engine, operated by Pierson, against said freight car, causing the bales of cotton to be thrown against plaintiff while in said car, and breaking one of his legs. The jury found a verdict for the defendants, and from the judgment entered thereon the plaintiff appeals upon one exception, assigning error as follows: "The plaintiff excepts to the charge of his honor to the jury in said case because his honor concluded his charge as follows: 'It is alleged here, gentlemen, that the defendant company, the Southern Railway Co., and its codefendant, M. B. Pierson, its agent and servant, were negligent. If its codefendant, M. B Pierson, its agent and servant, was its agent and servant and as its agent and servant was not guilty of negligence, there must be a verdict for the defendants.' This charge, it is respectfully submitted, was erroneous: First. Because the charge ignored the first cause of action of the plaintiff, and eliminated any right to recover thereunder. Second. Because the charge denied the plaintiff the right to recover against the defendant company, unless its servant, M. B. Pierson, was also guilty of negligence; whereas, the servant might have been entirely guiltless of all negligence in carrying out the instructions of the principal, but the principal might have been guilty of negligence or of willful tort by reason of the acts complained of, although such acts were done through a servant who was not himself guilty of negligence or of willful tort." The charge complained of was made in response to defendant's request to charge as follows: "That in the present complaint the negligence alleged in both causes of action is alleged to have been done 'by and through the defendant Morgan B. Pierson'; and, unless the jury find from the evidence that the negligence alleged was done by and through him, the plaintiff can recover nothing from the defendants."

The complaint alleged two causes of action, the first charging a willful tort, and the second charging negligence. The third fourth, and fifth paragraphs in the first...