APPEAL—REVIEW—HARMLESS ERROR—OBJECTIONS TO EVIDENCE—EVIDENCE—NOTICE TO MASTER—INFORMATION TO SERVANT—EXPERT TESTIMONY—ASSUMPTION OF RISK— FELLOW SERVANTS.
1. Questions not raised in the trial court on motion for. nonsuit will not be considered on appeal.
2. Where refusal of a nonsuit was erroneous, but evidence offered by defendant entitled plaintiff to have the jury pass on the case, the refusal will not be set aside.
3. A general objection to evidence on the trial will not be sustained on appeal on grounds not presented to the trial court.
4. Where certain allegations are improperly allowed to remain in a pleading without objection, evidence responsive thereto is properly admitted.
5. Where information is given to a servant, and is communicated by him to his master, it is binding on the master, though not within the scope of his duties.
6. Admission of irrelevant testimony is harmless, where it is not shown to have been material.
7. The competency of an engineer cannot be shewn by the opinion of a nonexpert witness, without the statement of the facts on which his opinion is based.
8. The book of entries of a car inspector is not evidence, and can be used only to refresh the memory of the inspector.
9. Employment by a master of an incompetent servant is negligence, the danger of which is not assumed by a fellow servant.
10. A conductor on a train is a fellow servant of a flagman on another train, but not of a flagman on his own train.
11. A request not applicable to the evidence is properly refused.
On rehearing. Affirmed.
For former opinions, see 38 S. E. 725, 866.
GARY, A. J. This is an action to recover damages for personal injury sustained by the plaintiff on the 5th of November, 1895, by reason of alleged negligence on the part of the defendant while in its employment as brake-man, and doing duty as flagman. The complaint alleges that the plaintiff, after flagging the train, boarded it, and, just as he did so, a sudden jerk was made, which snatched his foot off the step, and caused it to be run over
by the wheels of the car. He alleges negligence on the part of the defendant in the following particulars: (1) In suddenly jerking the train, when the plaintiff had just boarded it, and when it was aware of his position; (2) in its failure to provide medical attention at Batesburg, and requiring him to wait till he was carried to Columbia before he was treated; (3) in employing an incompetent engineer and conductor for the duties each was to perform on that occasion; and (4) in the use of defective machinery.
After denying the material allegations of the complaint, the defendant set up the following defense: "Defendant further says it was not the duty of the plaintiff to board, or attempt to board, passenger train No. 37, on, the 5th of November, 1896, in the way and at the time he attempted to do so, and that the injury he complains of was caused by his failing to remain on the ground and perform his duty in flagging a train which was following passenger train No. 37, and by his carelessness in attempting to get on board of a moving train at a time when it was not necessary to do so, under circumstances that rendered it dangerous, or else by the act of a fellow servant, for which defendant is not responsible."
The appellant's attorney states that the following facts are not in dispute: "The plaintiff, Coleman Hicks, was a flagman on a freight train en route from Augusta to Columbia on November 5, 1895. The train was a long one, —some thirty-five cars, besides engine and caboose. One Blanton was conductor. When the train reached Batesburg it was found that the side track was too short to contain the whole train, and it was headed in on a side track; the engine and a number of cars resting on a side track, and a number of cars and the caboose resting on the main line. Being very nearly on ihe time of the west-bound passenger train No. 37, and, in the manner described, obstructing the passage of the passenger train, the conductor sent the plaintiff forward almost half a mile to flag the passenger train, and inform the engineer and conductor of that train that the freight train was 'swinging' at Batesburg. This term, in railroad parlance, expresses the position at the time occupied by the freight train. The purpose was to allow the passenger train to pull down on the main line near the west switch, stop and allow the freight train to proceed out of the east switch, then shift the switch at the west end, and allow the passenger train to proceed. The plaintiff obeyed his instructions. He ran down to the blow post, about half a mile, signaled the engineer that the freight train was 'swinging.' and as the passenger train slowed up in obedience to the signal, and was passing the plaintiff, he ran alongside of it for a short distance, and made an effort to board it for the purpose of riding back to Batesburg. According to his statement, the passenger train was then going at the rate of about six oreight miles an hour—the rate at which the employes were in the habit of boarding trains. Plaintiff had his flag in his right hand, and was much exhausted by his run. He was on the right side of the train approaching Batesburg. He caught the hand railing at the front platform of the Pullman car with his right hand, and, in the effort to board it, in some way slipped, and his left foot, resting on the rail, was crushed by the wheels. He threw himself away from the train, and fell into the ditch, where he stayed for half an hour, until an extra freight train came along and carried him to Batesburg, where his foot received some attention, and thence he was carried to the hospital in Columbia. There his foot was amputated." The jury rendered a verdict in favor of the plaintiff for $2,350.
The defendant appealed upon exceptions, the first of which is as follows:
"(1) The Motion for Nonsuit. The presiding judge erred in not granting defendant's motion for nonsuit upon the ground that there was no evidence of negligence on the part of the defendant, as charged in the complaint, (a) The alleged negligence in suddenly jerking the train, when defendant was aware of plaintiff's position, was, if any, the negligence either of the conductor or the engineer of the passenger train, both of whom were fellow servants of the plaintiff, for which the defendant was not liable. (b) There is no evidence that the servants of the defendants were aware of the dangerous position of the plaintiff, or of his intended effort to board the passenger train, (c) There is no evidence that the jerk in the train was an act of negligence, or anything more than the ordinary and incidental movement of the train, (d) There is no evidence that the engineer of the passenger train was an incompetent officer, or that the injury to plaintiff was the result of such incompetency, or that the company was negligent either in employing him, or retaining him after it knew, or had reason to know, of his incompetency, (e) There is no evidence that the conductor of the passenger train was an incompetent officer, or that the injury to plaintiff was the result of such incompetency, or that the company was negligent either in employing him or retaining him after it knew, or had reason to know, of his incompetency, (f) There is no evidence that any of the appliances, attachments, and running gear of the passenger train were unsafe, unsound, and unreliable, or that the plaintiff's injury was caused thereby, or that the defendant knew, or had reason to know, of such condition, (g) There is no evidence that the defendant failed in its duty to furnish medical attention to the plaintiff, or that his injury was either caused or Increased thereby. Section 1690, Rev. St., requiring notice to be given to a physician, has no application to an action for damages resulting from a personal injury such as this is."
The grounds upon which the defendant made a motion for a nonsuit are thus stated in the record, together with the reasons for refusing it: "Mr. Sanders: We move for a nonsuit on the ground that there is not sufficient evidence of the allegations in the complaint to go to the jury. The allegations are, briefly, that the engineer and conductor were careless and incompetent, that the machinery and appliances were out of order, and that the railroad company was negligent in that respect, and that by reason of the negligence of the railroad company in having an incompetent engineer and conductor there, or by having this machinery out of order, this man, when he undertook to board the train, the train gave a sudden jerk, and his foot slipped and was crushed. Taking the first proposition in this case, the plaintiff and employes of the train were fellow servants, and the plaintiff must show that the master was negligent in the employment of the conductor and engineer at first, or negligent in retaining such in the service. By the Court: I cannot say there is no scintilla of evidence here. There is testimony as to an instance of alleged incompetency before the accident occurred, which, if believed, may be some evidence of negligence or carelessness, and there are one or two instances after it occurred from which the jury might presume that the servant was the same kind of man that he was before. Isn't that a presumption for the jury? I don't think I ought to take the case from the jury." The exception presents some questions upon which the circuit judge was not requested to rule, and these cannot be considered. One of the provisions of rule 18 is that "a motion for a nonsuit must be reduced to writing by the moving counsel or by the stenographer under the direction of the court, stating the grounds of the motion." His honor the circuit judge understood the defendant's motion to be made on the ground that there was no testimony tending to show that the defendant was negligent in the selection of...
