Hicks v. Southern Ry. Co.1

• Decision Date: 18 April 1901
• Citation: 38 S.E. 725
• Parties: HICKS . v. SOUTHERN RY. CO.1
• Court: South Carolina Supreme Court

38 S.E. 725

HICKS .

v.SOUTHERN RY. CO.¹

Supreme Court of South Carolina.

April 18, 1901.

MASTER AND SERVANT—INJURIES—EVIDENCE —ADMISSIBILITY—FELLOW SERVANTS

—INSTRUCTIONS—NONSUIT.

1. A railway company is not entitled to a nonsuit because there was no testimony that it was negligent in selecting a conductor and engineer, or in retaining them, where there were other acts of negligence stated in the complaint, and evidence to support them.

2. The supreme court will not sot aside ac order refusing a nonsuit, though erroneous, when made because of failure of evidence, where evidence to sustain the allegations of negligence was afterwards received.

3. Where objections stated in exceptions to the admission of evidence were not presented to the trial court, they cannot be considered on appeal.

4. A defendant cannot object to testimony which is responsive to an allegation which it has allowed to remain in the complaint by its nonaction.

5. The admission in evidence of a statement by an injured employe to a conductor after the injury, over objection that the conductor was not the proper person to whom the information should have been given, is not prejudicial error, where the conductor communicated it to the superintendent after receiving such information.

6. An exception to the admission of testimony that a witness never knew a railroad company to admit in a suit for damages that it had incompetent employes cannot be sustained on the ground of irrelevancy, as such evidence was not material.

7. Testimony as to whether an engineer in charge of a train which injured an employe was a careful engineer was properly refused, where there was no evidence showing the witness to be an expert or any facts on which he based his opinion.

8. A witness cannot give an opinion as to the competency of an engineer, when that is an issue presented by the pleadings.

9. A car inspector's book, showing original entries made by him as to the condition of cars by which an employe was injured, is not admissible as original evidence.

10. An instruction that where persons are engaged in the same department of work, and one is injured as the result of a fellow servant's negligence, he cannot recover, if it is done in the ordinary employment, is not prejudicial, in an action by an employe for injuries, as limiting the doctrine of fellow servants to servants engaged in the same department of work.

11. In a suit by an employe for injuries, an' instruction that the employer contracts that his employes are men of ordinary care and prudence is not prejudicial, where such charge also made the employer's liability dependent on its knowledge of the fellow servant's incompetency.

12. Negligence of a fellow servant being one of the risks incident to the employment which the servant assumes, it is error to charge, in an auction by an employe for injuries, that an employe does not take the risk of accident happening from the incompetency or misconduct of a co-laborer.

13. A requested instruction that a conductor on one train, while engaged in his ordinary duties, is a fellow servant of a flagman on another train, may be properly modified by the court adding that if one was placed above the other, so as to occupy towards the latter the relationship of master and servant for the moment, and for the time throwing aside the relationship, then the company would be responsible.

14. An instruction that a railroad company could not be liable to an employe for mistake of a doctor summoned to care for the injuries is properly refused, where there was no evidence showing such a mistake.

Gary, A. J., dissenting in part.

Appeal from common pleas circuit court of Newberry county; O. W. Buchanan, Judge.

Action by Coleman Hicks against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

T. P. Cothran, for appellant.

Johnstone & Welch, for respondent.

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 the employment as brakeman, 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 circum stances that rendered it dangerous, or else by the act of a fellow servant, for which de fendant 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 the side track; the engine and a number of cars resting on the side track, and a number of cars and the caboose resting on the main line. Being very nearly on the 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 that 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 obeyedinstructions. 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 or eight miles an hour, —the rate at which 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 $2,850.

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 is not liable, (b) There is no evidence that the servants of the defendant were aware of the dangerous position of the plaintiff, or 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...