Richey v. Southern Ry. Co. *

Citation69 S C. 387,48 S.E. 285
PartiesRICHEY v. SOUTHERN RY. CO. et al.*
Decision Date24 June 1904
CourtUnited 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.

Woods and Jones, JJ., dissenting.

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:

"(5) That on the 20th day of March, 1902, plaintiff was, and had been for several years, an engineer in the employment of the defendant Southern Railway Company, and on the 20th day of March, 1902, was engaged in running an engine on the Columbia & Greenville Railroad, and the conductor in charge of said train was the defendant Les Moore.

"(6) That the train run by the plaintiff was a freight train, and plaintiff was ordered by the conductor, Les Moore, to put some cars of coal on the coal-chute tracks, so that they could be unloaded into the coal bins, which coal chute was situated at Hodges, a station in Greenwood county, between Columbia and Greenville, on the Columbia & Greenville Railroad.

"(7) That, in order to get to the point where the said cars were to be placed, plaintiff had to run his engine and the car of coal he was ordered to place out on a side track or spur track leading up to said coal chute, and said side track or spur track was up a steep grade, and was known to the defendants to be dangerous to go up and down.

"(8) That on said 20th day of March, 1902, at about half past 8 o'clock p. m., the said defendant Southern Railwa'y Company and its conductor, Les Moore, carelessly and negligently, wrongfully, and unlawfully caused the 'monkey switch' to be unsecurely and improperly fastened, and left open and uncared for, in consequence of which said engine and tender coming down said side track or spur track from said coal chute or bins, by the negligence and carelessness of the defendants, as above stated, was derailed and turned over, and this plaintiff was permanently and seriously injured in his spine, and has been incapable of doing any work since, has suffered excruciating pains, and has had to spend a large amount for drugs and medical attention, all to his damage in the sum of $25,000.

"(9) That it was the special duty of the defendant Les Moore, who was conductor on said train, to have been with said train and looked after said track, and seen that it was in proper condition; but said conductor, in violation of his duty, and unmindful of the obligation resting on him, carelessly, negligently, wrongfully, and unlawfully left said train, and failed to go to the coal chute, but stayed at the depot a distance of six or eight hundred yards from said coal chute, and was there when said engine was derailed, and thus contributed to said wrong and injury, to the damage of the plaintiff $25,000.

"(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: "(1) Under the allegations of the complaint should the plaintiff have been allowed to recover upon proof of the negligence of any other servant of the company than Moore, the conductor? (2) If not, is there any evidence tending to show negligence on the part of Moore, the conductor?" 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: "In the view that Griffin, the conductor, may have left the switch open after using it, the argument was made that, although clear negligence on his part, it was the negligence of a fellow servant, for which the company is not responsible to the plaintiff; that, in reference to the special duty of the conductor to restore the switch to its place in connection with the main line, he was not a 'middleman, ' representing the company, but a mere 'switchman, ' doing the duty of 'a mere operative.' We do not see clearly the distinction suggested. Taking the rule to be as stated by Mr. Wood in his work on Master & Servant, § 438, it seems to us that the adjustment of the switches was an important duty resting on the company, no matter to whom the performance of that duty was delegated. Mr. Wood says: 'To formulate a rule from these cases, it would be as follows: Whenever the master delegates to another the performance of a duty to his servants, which the master has impliedly contracted to perform in person, or which rests upon him as an absolute duty, he is liable for the manner in which that duty is performed by the middleman whom he has selected as his agent, and, to the extent of the discharge of those duties by the middleman, he stands in the place of the master, but as to all other matters he Is a mere co-servant' In the late case of Calvo v. Railroad Company, 23 S. C. 528 , this court held that a locomotive engineer and a section master of track workers are not fellow servants, in the sense that the railroad company employing them would not be liable to one for damages resulting to him from the negligence of the other." The court then quotes with approval the following language from the case of Calvo v. R. R. Co., to wit: "Now, it is well settled that it is the duty of the master not only to provide his servants, in the first instance, with suitable and safe machinery and other appliances to do the work for which they are employed, but also to keep the same in proper repair; and any negligence in the performance of such duty, whether done by the master in person, or by subordinate agents selected by him for the purpose, would render the master liable for any injury sustained by one of his servants by reason of such negligence. The question is as to the nature of the duty, not as to the rank or grade of the person employed to per form it. Is it a duty which the master owes to his servants? Under the well-settled rule above mentioned, we think that nothing can be clearer than that it is the duty of a railroad company to provide a suitable and safe track over which its locomotive engineers and other servants of that class are required to run its trains, and that negligence on the part of those to whom it commits such duty is the negligence of the company." Proceeding in the Coleman Case, just mentioned, the court says: "If it is the duty of the company to provide a suitable and safe track, of which there is no doubt whatever, it is most assuredly no less its duty to keep in order and rightly placed the switches, which are...

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