Richey v. Southern Ry. Co. *
Citation | 69 S C. 387,48 S.E. 285 |
Parties | RICHEY v. SOUTHERN RY. CO. et al.* |
Decision Date | 24 June 1904 |
Court | United States State Supreme Court of South Carolina |
INJURY TO RAILROAD EMPLOYE—PLEADING AND PROOF—DEFECTIVE TRACK—NEGLIGENCE OF MASTER—INSTRUCTIONS.
1. In an action by an engineer against a railroad company for personal injuries, where the plaintiff alleged negligence on the part of the conductor, and also on the part of the railroad company, he could recover on proof of the negligence of servants other than the conductor.
2. Where an engine was derailed by the failure of a brakeman to properly set a switch, and the engineer was injured, the accident resulted from the failure of the master to provide a safe track, the responsibility for which could not be
*Rehearing denied July 13, 1904.assigned by the master to the servant. By divided court.
3. An instruction that it is the duty of a railroad company to keep its roadbed and appliances in proper and safe condition for the safety of its employes is proper.
4. An instruction based on a principle of law not applicable to the pleadings is properly refused.
Appeal from Common Pleas Circuit Court of Abbeville County; Dantgler, Judge.
Action by R. A. Richey against the Southern Railway Company, the Columbia & Greenville Railway Company, and Les Moore. Prom a judgment for plaintiff, defendants appeal. Affirmed.
T. P. Cothran, for appellants.
Wm. N. Graydon, for respondent.
GARY, A. J. This is an action for damages on account of injuries sustained through the alleged negligence of the defendants. The jury rendered a verdict against the defendants for $12,500.
As some of the questions presented by the exceptions arise under the pleadings, it is deemed advisable to set out certain parts of them. The first, second, and third paragraphs of the complaint contain merely formal allegations, and the fourth paragraph alleges that the defendant Les Moore was a conductor in charge of the train of cars at the time hereinafter mentioned. The other allegations thereof are as follows:
"(10) That plaintiff was an experienced engineer, and was making at the time he was injured from $125 to $130 per month, but, owing to the careless, negligent, wrongful, and unlawful conduct of the defendant, hereinabove set forth, the plaintiff has been seriously and permanently injured, " etc.
The defendants denied the material allegations of the complaint, and alleged that the injury was caused by the plaintiff's negligence.
In considering the questions raised by the exceptions, we will follow the arrangement adopted by the appellant's attorney in his argument. We will first dispose of those numbered 1 and 2, which are as follows: By reference to paragraphs 8 and 9 of the complaint, it will be seen that plaintiff not only alleges negligence on the part of Les Moore, the conductor, but likewise on the part of the Southern Railway Company. This disposes of both the said questions.
The third question argued by the appellants' attorney is as follows: "(3) If the plaintiff could rely upon the negligence of Latimer, the brakeman, was Latimer's failure to set the switch the act of a fellow servant, or a breach of one of the master's nonassignable duties?" In the case of Coleman v. R. R., 25 S. C. 446, 60 Am. Rep. 516, it appeared that Coleman was a laborer on a material train of which Griffin was the conductor; that, after their day's work, the train was run to the station at Eastover, and, arriving there a little after sundown, theconductor, Griffin, had the switch turned so as to connect with a side track at that place, and ran the train on said side track in order to spend the night. The laborers remained in the shanty of the material train. About two hours thereafter, the regular passenger train, in passing, ran on the side track, and into collision with the material train, by which one man was killed and the plaintiff was injured. The negligence alleged was in allowing the switch to remain in connection with the turn-out, instead of the main line. In that case the court uses this language: The court then quotes with approval the following language from the case of Calvo v. R. R. Co., to wit: Proceeding in the Coleman Case, just mentioned, the court says: ...
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