McGOWAN
J.
This
action was brought by the plaintiff, an employe of the
defendant, for the recovery of damages sustained by him
through the negligence of the defendant company. The case
came on for trial before his honor, Judge Wallace, and the
defendant company interposed an oral demurrer that the
complaint did not state facts sufficient to constitute a
cause of action against the defendant. The judge, without
stating his reasons, sustained the demurrer, and dismissed
the complaint. From this order the plaintiff appeals to this
court upon one general ground,--that the judge erred in
sustaining the demurrer. Upon this state of the pleadings
the facts well alleged must be assumed to be true, and
therefore it is necessary to set out the important
allegations made. He complains substantially as follows
"That the plaintiff, John H. Jenkins, on March 3, 1890,
at the time of the committing of the grievances hereinafter
complained of, was in the employment of the defendant as an
assistant fireman upon a locomotive engine, No. 135, the
property of the said defendant, driven by steam upon its
road, and it was the duty of the defendant to provide an
unobstructed track for said engine running upon its track,
and to give warning of any obstructions thereon by placing
torpedoes on the track, and signaling said engine at a
distance therefrom remote enough to enable the engineer to
avoid a collision there with by the employment of the
appliances used in stopping engines, trains, etc. That on the
said March 3, 1890, while the plaintiff, in the performance
of his duty as aforesaid, on the locomotive engine No. 135,
was going north from Columbia over the defendant's road,
and at a point thereon about 2 1/2 miles from said city,
there were standing on defendant's track, on the line of
the Columbia & Greenville Railroad, several cars in charge of
the conductor of the train from which they had broken loose,
and which had preceded, by fifteen or twenty minutes, said
engine No. 135, in its progress up the road as aforesaid.
That the defendant, its agents and servants in charge of the
loose cars as aforesaid, not regarding their duty, conducted
themselves so carelessly, negligently and unskillfully that
they failed to make said obstruction known to those in charge
of the approaching engine No. 135, in time to stop the same,
either by placing torpedoes on the track, or by signaling the
engineer running said engine, at a point sufficiently removed
from said obstruction wherein it was possible to stop said
engine, as is required by the rules and regulations governing
the running of engines on the road of the above named
defendant. That for the want of due care and attention to the
duty devolving upon the said defendant, its agents and
servants, as aforesaid, at the time and place aforesaid, and
while the said loose cars were in the use and service of said
defendant, and in charge of one of its conductors, as
aforesaid, on the track of the said railroad, and while the
plaintiff was in the performance of his duty in the capacity
as aforesaid in the service of said defendant, by reason of
the carelessness, negligence, and recklessness of the said
defendant, its agents and servants, in failing to give proper
signals which would have stopped the approaching engine in
time to avoid all possibility of a collision, this plaintiff,
to save his life, was forced to leap from said engine while
it was running rapidly over said track, just before it
reached said obstruction whereby his arm was broken at the
wrist, causing a permanent injury, and he was for days and
weeks unable to work at all, and can never perform a
man's full share of manual labor, owing to said permanent
injury; and his sufferings both mental and physical were
intense, and
continued until his wound healed; all to his damage
$1,950.00."
The
principles upon which a railroad company is responsible to a
stranger or to passengers transported for a consideration are
reasonably well defined and understood by the profession. But
a corporation must of necessity act through agents, and the
relations between the ideal existence known as the
corporation and its own employes for him are not at all so
clear or well defined. On the contrary, there is some
confusion and much difference of opinion on the subject; so
much so that the doctrines as to "fellow servants"
and responsibility for their acts have been characterized by
a learned judge "as a perplexing and tangled
subject." Since the case of Murray v. Railroad Co.
1 McMul. 385, decided by our then court of errors in
1841,--the first of our cases on the subject, if not the
first on the American continent,--the general rule has been
considered as established on principle and policy "that
a railroad company is not liable to one of its agents for an
injury arising from the negligence of another competent
agent." And in one of the latest and fullest
publications which treats of the subject the principle is
stated thus: "The general rule, resulting from
considerations of justice as of policy, is that he who
engages in the employment of another for the performance of
specified duties and services for compensation takes upon
himself the natural and ordinary risks and perils incident to
the performance of such services. The perils arising from the
carelessness and negligence of those who are in the same
employment are no exception to this rule; and where a master
uses due diligence in the selection of competent and trusty
servants, and furnishes them with suitable means to perform
the services in which he employs them, he is not answerable
to one of them for an injury received by...
