Stevens v. Moore

• Decision Date: 20 January 1948
• Docket Number: 16033.
• Citation: 46 S.E.2d 73,211 S.C. 498
• Parties: STEVENS v. MOORE et al.
• Court: South Carolina Supreme Court

46 S.E.2d 73

211 S.C. 498

STEVENS v. MOORE et al.

No. 16033.

Supreme Court of South Carolina

January 20, 1948

Barnwell & Whaley, of Charleston, for appellant.

J. C. Long and Arthur Rittenberg, both of Charleston, for respondent.

STUKES Justice.

The respondent in this appeal was employed as a pipefitter at the Charleston Navy Yard and was en route therefrom to the City on the six-lane U. S. Highway No. 52, known locally as the Meeting Street Road, after five o'clock on the afternoon on June 9, 1944. He was riding his motorcycle and carrying a passenger on the 'buddie' seat behind him. The traffic was heavy and he collided with the rear of an automobile operated by the defendant Moore which, it was alleged, was stopped or slowed and turned to the left without warning or signal, in violation of the applicable statutes. The motorcycle was upset and the riders thrown to the pavement. Respondent was severely and permanently injured for which he brought this action for damages against Moore the automobile and Southern Railway--Carolina Division. The latter for convenience will be called the railroad company.

In the complaint it was alleged that Moore was an employee of the railroad company and was engaged in the performance of the duties of his employment and was in the scope of it at the time of the alleged tort. The answer of the company admitted that Moore was its employee but denied that he was at the time engaged in the performance of his duties, within the scope of his employment. Trial resulted in verdict and judgment against all of the defendants for $10,000, from which only the railroad company appealed.

It contended principally at the trial that Moore was using his privately owned and maintained automobile whereas the company furnished him a railroad hand-car for transportation about his duties, hence there was no liability upon it for tort committed in the operation of the automobile and moreover that the accident occurred after Moore had finished his duties for the day and therefore it did not occur in the performance of his duties or within the scope of his employment. Consideration of these contentions requires further statement of the relevant facts which were disclosed by the evidence.

Moore was track supervisor of appellant in the Charleston area, an engineering college graduate with several years' experience in his position. He said in testimony that his duties were to inspect all tracks, see what work was needed and what funds must be appropriated each month, and that his territory covered the Charleston area of the company, from Lane to that City, including main lines, branch lines and industrial tracks; that the foremen were under him except that in the case of a small job he would superintend it himself. On the day of the accident his duties took him to North Charleston, beyond the scene of the accident from the City of Charleston, where the company was building a spur track for West Virginia Pulp & Paper Company. He was there during the morning and until about one o'clock P.M when he returned to Ann Street in the City, using his automobile all the while in the discharge of the usual duties of his employment. The company maintained living quarters on Ann Street for its employees in need of them but Moore went there on this occasion to see about unloading some equipment expected from Atlanta which was to be used in the repair of the North Charleston Yard of the company, which was eight miles away. He stayed there for that purpose about an hour and a half and thence returned to North Charleston where the industrial spur track, which has been mentioned, was under construction. He testified that he would not be able to be there on the next day and that he wanted to see that all necessary equipment was on the ground. At Ann Street he talked to a Mr. Campbell who was employed in the electrical department of the company and told Moore that he wanted to go to Green Street where his superior, Mr. Way, and a Mr. Otterburg, also an employee of the electrical department, were engaged in their respective employments at the coal pier of the company at the end of Green Street, and Mr. Campbell wished to join them. Instead of leaving Campbell at the corner of Green Street and Meeting Street Road, Moore carried him in his automobile the additional mile and a half to the coal pier. Thence Moore drove on to the Paper Company's track under construction in North Charleston in furtherance of his duties there. Meanwhile he had told Messrs. Campbell, Way and Otterburg that he would return via the coal pier and take them back to the City. En route back there, between 5:30 and 5:45 P.M., he had the accident on Meeting Street Road as he turned left out of the line of heavy traffic toward the intersection of Green Street. The recital contained in this paragraph is largely drawn from the testimony of Moore.

Of importance upon the crucial issue of scope of employment was the testimony of respondent's witness, Wright, which was admitted over objection by the trial court as a part of the res gestae. He was a passenger in an automobile following that of Moore and, at the instant of the accident, also following respondent's motorcycle. He testified that he and the other occupants of his automobile got out of it and went to the aid of the injured men and unsuccessfully attempted to stop passing cars to send them to the hospital. Then he approached Moore who had driven on into Green Street, parked and was partly out of his car looking back at the scene of the collision. Wright inquired of Moore whether his car was damaged, to which he replied in the negative. Wright then asked him if he had intended to turn into Green Street. The testimony at that point is here quoted:

'Q. You asked the man what he was aiming to do? A. Yes, sir, he said he was going down to the railroad track; said he worked for the Southern Railway. I asked him if he would take the men to the hospital in his car. He said he didn't know whether he had time to do it, as he had some men working up where he come from and that he had to go down in here.

'Q. What did he point to when he said he had to go down in here? A. Had to go down to some job or something, down the railroad track.

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'Q. You said you asked him what he was aiming to do; what did he say? A. He said he was going down to a job; that he worked for the railroad. He said he had some men working back where he came from. I asked him about taking the men to the hospital, and he said he didn't know whether he had time, as he had to go to some job, seemed like; he said he had to go down there.

'Q. Where did he indicate he had to go? A. Down that road to the railroad.

'Q. Down Green Street? A. Green Street. I never did know the name of it.'

In the cross-examination, with reservation by appellant's counsel of his former objection, the following appears:

'Q. Mr. Wright, what was the conversation you had with Mr. Moore? A. I asked him what he was aiming to do. He said he was going down to the job; said he worked for the Southern Railroad.

'Q. Do you remember whether he said he was going to pick up three people? A. No sir, he said he had some men working back there.

'Q. And was going down to the dock? A. No, sir, he said he was going down to the railroad.'

The superintendent of the Charleston Division of the company testified that Moore was its track supervisor with supervision and maintenance of a portion of the Charleston Division which did not include the coal pier of the company at the end of Green Street which was within the jurisdiction of the Bridge Department, that Moore's duties consisted of the maintenance of tracks on land only. It is inferable therefrom that the company's track along or near Green Street to the coal pier was under the supervision of Moore, but not the pier itself. The superintendent further testified that Moore was instructed to use the hand-car, which he described as a small motor car, for transportation in his work and that he was never instructed to use his automobile; and that he had an expense account and could use a taxicab; and that if Moore were asked by the superintendent (and inferably a fellow-employee or a junior) to carry him any place to work in his automobile, should he do so 'it would be more as a personal favor.' He said that Way was from Greensboro and Otterburg from Charlotte and that they worked all over the company's different divisions and had no jurisdiction over Moore.

Reverting to Moore's testimony, he said that he had used his automobile in the company's business before, as he admittedly did all of the day of the accident. According to the witness, Wright, Moore first said after the accident that he did not have time to take the injured men to the hospital for he had to go on down to the pier, but he finally did Moore said in five or six minutes after the accident, and stayed at the hospital from thirty to forty-five minutes; then he went to Ann Street, picked up another employee who had just come in and was winding up his day's work, and returned to the scene of the collision to investigate the skid-marks, etc. During his stay at the hospital where he had carried the injured, he was interviewed by two police officers who had been called to the scene and thence promptly went to the hospital. They testified that Moore told them that at the time of the collision he had left one job and was going to another, one of the officers saying that the statement by Moore was that he was going down Green Street to check a job. The latter hearsay evidence was admitted upon the question of the credibility of the witness, Moore, and not as res gestae. Moore had previously been asked on cross-examination whether he had made these statements to the...