Stephens v. Southern R. Co.

• Decision Date: 11 May 1909
• Citation: 64 S.E. 601,82 S.C. 542
• Parties: STEPHENS v. SOUTHERN RY. CO.
• Court: South Carolina Supreme Court

64 S.E. 601

82 S.C. 542

STEPHENS v. SOUTHERN RY. CO.

Supreme Court of South Carolina

May 11, 1909

Appeal from Common Pleas Circuit Court of Dorchester County; R. W Menninger, Judge.

Action by Thomas Stephens against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

E. J Dennis and J. P. K. Bryan, for appellant.

J. W Barnwell, for respondent.

WOODS J.

This action was brought for one damages on account of personal injuries suffered by the plaintiff while in defendant's employment as a fireman. The appeal is from an order of nonsuit made on the ground that the evidence admitted of no other inference than that the injury was due to plaintiff's own negligence, or that his negligence contributed to it as a proximate cause. The facts may be shortly stated: Charles Alphonse was engineer, and the plaintiff fireman, on defendant's freight train which left Columbia about 7 o'clock on the morning of August 11, 1904. The claim of the plaintiff is that his injury resulted from the negligence of the engineer in requiring him to jump from a moving train. His account of the order of the engineer and his own conduct and the resulting injury is best given in his own language: "A. Just before we got to the block, and while the train was running, he told me 'Stephens, I am not going to eat any breakfast this morning, but I want you to get down and go back to the cab and get me a cup of coffee.' Q.

Where was the cab? A. That was back behind the engine. There was 19 freight cars and the cab back behind the engine. When we were first rolling up to the block station, I at first denied him. When he told me to go for the coffee, we were running between six and seven miles an hour. I told him now directly I would go for him as soon as I fixed my fires. I grabbed my chain and shovel and gave her three shovels of coal and eased the blower on. He said: 'I want you to get my coffee. I don't want to lose any schedule on this train. I was a little late coming in yesterday.' I told him to wait till she stopped. He said 'No, I want it now.' So I took the cup he handed me in my left hand, and started back on the fireman's side, and caught the hand rod on the tender with my right hand and the cup in my left hand, with my feet on the step. As I was swinging out, he put on his brake to the emergency, and it threw me over on the connecting rod, and I must have fallen under the engine. *** I know that the engineer told me to jump off three times. He told me the third time to jump off three times before I did it. *** Q. What did you tell Mr. Alphonse when he told you to get off the train? A. I denied him until the third time. I told him I would get off when the train stopped. Q. Was the train going too fast? A. I can't tell whether it was going too fast or not. Q. You did not want to get off the train because you were afraid it might have done what it did to you? A. Of course. Q. You told Mr. Alphonse that you did not want to get off the train because it was going too fast? A. Yes, sir. Q. The engineer told you that you must get off? A. Yes, sir; he told me to get off and get the coffee for him."

These rules were introduced:

"Rule 574. In all matters pertaining to the transportation department, firemen will report to and receive instructions from the superintendent and train master: In all matters pertaining to the motive power department, they will report to and receive instructions from the master mechanic and road foreman of engines. Within shop and engine-house limits they must obey the orders of the foreman. When with an engine they must obey the orders of the engineman."

"Rule 11. Every employé must exercise the utmost caution to avoid injury to himself or to his fellows, especially in the switching of cars and in all movements of trains, in which work each employé must look after and be responsible for his own safety. Jumping on or off trains or engines in motion, getting between cars in motion to couple or uncouple them, and all similar imprudences are dangerous, and in violation of duty. All employés are warned that if they commit these imprudences it will be at their own peril and risk.

"Rule 12. Every employé is hereby warned that before exposing himself in being on the track and grounds of the company, or in working with or being in any manner on or with its cars, engines, machinery or tools, he must examine for his own safety the condition of all machinery, tools, tracks, cars, engines or whatever he may undertake to work upon or with before he makes use of or exposes himself on or with the, same, so as to ascertain as far as he reasonably can, their condition and soundness; and he is required to promptly report either to the superintendent or to the agent who may he his immediate superior officer, any defect in any track, machinery, tools or property of the company, affecting the safety of any one in using or operating upon or with the same. The object of this rule is to protect employés from suffering personal injury from any cause, while the company will be responsible to each one for the discharge of all its duties and obligations to him, and for any fault and neglect of its own or of its; board of directors or general officers which are the approximate cause of the injury, yet it will not be responsible to him for the consequences of his own fault or neglect, or that of any other employés of the company, whether they, or any of them, are superior to him in authority as conductors, foremen, or otherwise; it being the right and duty of every employé, under all circumstances, to take sufficient time, before exposing himself, to make such examinations as are here required, and refuse to obey any order which will expose him to danger. Every case of personal injury must be promptly reported."

We inquire, first, whether there was any negligence on the part of the engineer imputable to the defendants as a proximate cause of the injury. The engineer had the right to direct or control the services of the fireman under the rules of the company, and therefore the railroad company would be liable for injury to the plaintiff, resulting from, his negligence. Pagan v. So. Ry. Co., 78 S.C. 413, 59 S.E. 32. It cannot be said, as a matter of law, that it is not negligence for the engineer to order a fireman to jump, from an engine running at the rate of six or seven miles an hour. The most that could have been claimed by the defendant as to that issue of fact would be that it should be submitted to the jury. The defendant contends however, that, if the negligence of the engineer be assumed, such negligence was not chargeable to his principal, the railroad company, because the order was not given in the course of his employment, but, on the contrary, was given as a means of supplying his own personal wants and purposes. From this proposition the defendant would draw the conclusion that the plaintiff had no right to regard the order of Alphonse as an order issued in his capacity of engineer, and hence he cannot hold the defendant responsible for the resulting injury. An exact line of demarcation between that which is within and that which is without the scope of a servant's duty and authority cannot be drawn accurately by the courts when the rules of the master require in general terms that one servant shall command and another obey. There is a twilight region, and when a case falls within it the jury must say whether the command of one servant and the obedience of the other was within the scope of their employment.

In Redding v. South Carolina R. R. Co., 3 S.C. 1, 16 Am. Rep. 681, the court quoted with approval the saying of Lord Cranworth in Marshall v. Stewart, 33 Eng. L. & Eq. 7: "We must take a great latitude in saying what is being engaged in his employment." The case of Redding v. Railroad Co., 3 S.C. 1, 16 Am. Rep. 681 is cited with approval in Polatty v. Railroad Co., 67 S.C. 391, 45 S.E. 932, 100 Am. St. Rep. 750. It is true in all these cases the court had under consideration the scope of the servant's agency in dealing with the outside public, not with his coemployés; but the reason for applying the rule stated by Lord Cranworth is equally strong in a case like this. The engineer, by the direction of...