Pagan v. Southern R. Co.

• Decision Date: 26 October 1907
• Parties: PAGAN v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

59 S.E. 32

78 S.C. 413

PAGAN v. SOUTHERN RY. CO.

Supreme Court of South Carolina

October 26, 1907

Appeal from Common Pleas Circuit Court of Richland County; Geo. W Gage, Judge.

Action by Norman P. Pagan against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Logan & Edmunds and Nelson & Nelson, for appellant.

E. M Thomson, for respondent.

WOODS J.

This appeal from an order of nonsuit depends on whether a railroad company is liable to the plaintiff, who was a brakeman, for an injury received from being thrown from a freight train by the negligence of the engineer in suddenly and without warning checking the speed of the train. The general rule in this state as to the negligence of fellow servants is thus stated in Brabham v. Telegraph Co., 71 S.C. 56, 50 S.E. 717: "When one takes employment under another, he assumes the natural and ordinary risk of such employment which includes the negligence of a fellow servant whom the employer has selected with due care. In determining who are fellow servants, the test or rule in this state is not whether the servants are of different grade, rank, or authority, one of them having the authority to control and direct the services of another; but the test is in the character of the act being performed by the offending servant, whether it was the performance of some duty the master owed to the injured servant, the performance of which duty the master had intrusted to the offending servant." The duties imposed by law on the master are: "(1) To furnish safe and suitable appliances, and to see that they are kept in proper repair; (2) to provide a safe place to work; (3) to employ a sufficient number of servants to perform the labors of their employment; (4) to select competent servants." Until the adoption of the Constitution of 1895 these general rules in their full force applied to railroads, and exempted them from all liability to an employé for the negligence of a fellow servant; and under these rules an engineer and a brakeman were held to be fellow servants. Boatwright v. Railroad Co., 25 S.C. 128; Evans v. Chamberlain, 40 S.C. 104; ^[1] Lyon v. C. & W. C. Ry. Co., 77 S.C. 336, 58 S.E. 12. By article 9, § 15, of the Constitution of 1895, employés of railroads are given the same right of recovery as a person not an employé (1) where the injury results from the negligence of a superior officer or agent; (2) where it results from the negligence of a superior having the right to control or direct the services of the party injured.

The conductor is the officer and representative of the railroad company in charge of the train; and the entire train crew, including the engineer, is subject to his orders. The railroad rules introduced provide that the conductor shall have charge of the train to which he is assigned, and the direction and control of all persons employed thereon. The plaintiff relies mainly on the following rules to show that the engineer is the superior of the brakeman, and that the brakeman is under his control or direction:

"Rule 502. As to Enginemen. They are jointly responsible with the conductor for the movement and protection of their train in accordance with the rules; and while they must obey all proper orders by the conductor or others, as provided by the rules, they are individually responsible for the observance of the rules relative to their duties, and must decline to obey any order by the conductor or any other person which involves the violation of such rules, or peril to persons or property."

"Rule 516. *** They must maintain, as far as practicable, regular and uniform speed, and must avoid sudden increase or checking of speed, except when necessary to prevent accident. They must avoid excessive speed on downgrades, and run with due caution where the track is under repair, and at all points where there is reason to apprehend danger."

"Rule 545. *** They must see that brakemen who are riding on their engines promptly return to their positions on the train whenever it is necessary."

The engineer is in charge of the engine, and, though subject to the orders of the conductor, it is essential that he should exercise a degree of discretion in the management of his engine. He has no authority over the brakemen, except to require them to leave the engines and return to their positions on top of the train; and it is to be observed, under the rules, the brakeman is never on the engine in the discharge of a duty, but only in taking temporary refuge in extremely cold or stormy weather. On the other hand, the brakemen are in charge of the brakes on freight trains, and, though subject to the orders of the conductor, they also are required to exercise a degree of discretion in the discharge of the duty imposed on them, as appears by the following rules and others introduced in evidence. The portions of these rules we have italicized shows this discretion in some circumstances extends to complete control of the train:

"Rule 663. As to Brakemen. When their trains are running they must ride on top of them,

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