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 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 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 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 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 or
eight miles an hour,--the rate at which the employés 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 employés 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 the
conductor and engineer, or in retaining them in its service
the defendant contending that they were fellow servants with
the plaintiff. Even if there was no testimony whatever to sustain the allegation of negligence in this
particular, it does not follow that the defendant was
entitled to an order of nonsuit. There were four specific
acts of negligence set forth in the complaint, and, as there
was testimony in support of each of them, a nonsuit would not
have been proper, even if it should be held that the grounds
of the motion were applicable to each specification of
negligence. But if there was a failure of evidence to sustain
the allegations of negligence at the time the motion for a
nonsuit was made, and afterwards, when other testimony was
introduced, it made a case proper for the consideration of
the jury, the supreme court would not set aside an order
refusing a motion
for nonsuit, although erroneous when made. Scates v.
Henderson, 44 S.C. 554, 22 S.E. 724. In the case of
Martin v. Ranlett, 5 Rich. Law, 546, 57 Am. Dec.
770, the court uses this language: "It was said in the
case of Thomas v. Jeter, 1 Hill, 382, as follows:
'Even if the presiding judge had erroneously refused the
nonsuit, and the defendants in their defense had supplied the
proof necessary to make out the plaintiffs' case, a...
