Wilson v. Southern Ry.

• Decision Date: 15 March 1906
• Parties: WILSON v. SOUTHERN RY.
• Court: South Carolina Supreme Court

53 S.E. 968

73 S.C. 481

WILSON v. SOUTHERN RY.

Supreme Court of South Carolina

March 15, 1906

Appeal from Common Pleas Circuit Court of Abbeville County; Klugh Judge.

Action by W. A. Wilson against the Southern Railway. Judgment for plaintiff, and defendant appeals. Affirmed.

"Contributory negligence" is want of ordinary care on part of person injured by actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.

So much of the charge as pertains to the questions raised is "The defendant answers the complaint by denying, first of all, that it was negligent, and alleges that the injury to the plaintiff, if he suffered injury, was caused by his own negligence solely, and in addition to that alleges that whatever injury the plaintiff may have sustained was caused by acts of his of a negligent character, which, in connection with the facts that he alleges in his complaint as constituting the negligence of the defendant, contributing along with those alleged facts or acts of negligence, caused his injury. As an affirmative defense the defendant relies upon the doctrine or defense of contributory negligence. If the defendant was not negligent at all, then as a matter of course, the plaintiff would not be entitled to be compensated at the expense of the defendant. If the plaintiff suffered injury and it was the result solely of his own negligence or carelessness, as a matter of course he cannot claim compensation from the defendant for injury caused by such cause as that, his own negligence. Where two persons are in fault, and one suffers injury because of the joint fault of both, the law will not allow him to recover from the other in damages by reason of that injury, because that would amount to allowing a person to reap the benefit from his own wrong; and so that is the principle underlying the doctrine of contributory negligence. Where a person is negligent, and his negligence results in injury to another person, yet if that other person is also negligent at the same time, and his negligence concurs with the negligence of the person whose negligence causes injury, and, concurring with it, contributes to the injury, so that it becomes a proximate and immediate or direct cause of the injury, so that he would not have been injured if he had not himself been negligent, although the other party may also have been negligent, under those circumstances the law will not allow him to recover damages for his injury, from the other party. So that is what is meant by the doctrine of contributory negligence, the defense of contributory negligence. ***"

"Negligence scarcely needs a definition. It means the failure of a person to exercise due care or prudence. The absence of due care is the briefest, as well as perhaps the clearest, definition of negligence. Expressed more fully, it is the failure of a person to do that which a person of ordinary prudence would do under the circumstances, or the doing of that which under similar circumstances a person of ordinary prudence would not do. It is either positive or negative; the doing of a careless thing or the failing to do a careful thing or a prudent thing. In this case, if the plaintiff suffered injury, and if his injury was caused solely by the negligence of the defendant in the particulars set out in the complaint in reference to the running of this train and the giving of orders, the directions of the conductor as the agent of the defendant and the other particulars set out in the complaint; if he was injured by those acts of the defendant, and if those acts were the acts of the railroad company, which failed, under the circumstances of the situation, to exercise the care which an ordinarily prudent railroad company would exercise then the plaintiff is entitled, if he suffered injury from that negligence, to be compensated for it. If the plaintiff was not injured by any negligence of the defendant, or the defendant was not negligent in the particulars alleged in the complaint, then the plaintiff is not entitled to recover from the defendant, although he may have suffered injury. Or, on the other hand, if his injury was caused solely by his own negligence, which is another contention of the defendant, then he is not entitled to recover damages from the defendant for his own fault. And, in like manner, if the defendant was negligent, if the railroad company was negligent in the particulars alleged in the complaint, and if plaintiff was also negligent in the particulars in which the defendant in his answer alleges, and his negligence, along with the negligence of the defendant, both combining together, caused the injury, and if the injury would not have been caused to him, even by the negligence of the defendant, unless he also had been negligent, and his negligence contributed as a direct or proximate cause of the injury, then that would make a case of contributory negligence, where the plaintiff would not be entitled to recover damages from the defendant. ***

Both the defendant and the plaintiff have requested me to charge you certain propositions of law, and, in so far as they are sound and applicable to the case, I will give them to you, and it is my pleasure to do so. They are given to you, of course, as much a part of the instructions of the court as anything else.

First of all, on the part of the defendant, I am requested to charge you that, 'as a general rule, the conductor of a train is the representative of the master, the railroad company, and has control over the management of the train, and for his negligence the company is ordinarily responsible to an inferior servant injured thereby. This rule, however, does not apply where the company, by reasonable rules received by its employés and acted upon by them, has imposed a joint duty upon such conductor and such inferior servant, and the injury to the latter is caused by the concurrent negligence of both.' The first part of that proposition is a general rule of law, that is, that the conductor is in control of the train, and all of the other employés are subject to his directions, and that the company will be responsible for the injury to any of the other employés that results through the negligence of the conductor in giving orders, because the conductor is the immediate representative of the company itself, and orders from him are orders given by the company. If the company establishes a rule for its employés and acquaints them with the provisions of the rule, and that rule imposes upon the conductor and some other employé a joint duty, and they proceed in the discharge of that duty and are jointly negligent in the performance of the duty, as a matter of course, if one of them is injured he cannot recover because of the negligence of the conductor or the other party, provided his own negligence did contribute as a proximate cause of the injury, and that is the meaning of this instruction, and I so charge you. It is really a part of the general doctrine of contributory negligence.

(2) 'If the jury believe from the evidence that the plaintiff, at the time of his alleged injury, was acting under the rules herein set forth, and that such rules are reasonable, I charge you that the plaintiff as engineman, and the conductor of his train were jointly responsible for the movement of his train, and the defendant is not responsible for damages inflicted upon him as the result of the joint and concurrent negligence of the plaintiff and his conductor.' And then it sets out the rules upon which the defendant relies for that instruction, to wit: 'Rule 204. Train orders must be addressed to those who are to execute them, naming the place at which each is to receive his copy. Those for a train must be addressed

to the conductor and engineman, and also to any one who acts as his pilot. A copy for each person addressed must be supplied by the operator.' And then rule 502: 'They [enginemen] are jointly responsible with the conductor for the movement and protection of their trains 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 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.' And special rule L: 'Conductors and enginemen are required to consult with each other and have a thorough understanding as to their meeting points.' Under those rules the responsibility still rests upon the conductor to give orders for the movement of the train and the management of the train, and while the rule does impose upon any other employé and especially the engineman, the duty to decline to obey an order which involves the violation of the rules, or which apparently or palpably exposes either persons or property to peril, still the rule entails or imposes upon the engineer the duty of obeying the orders of the conductor, where the orders are proper orders, by the very terms of the rule. So that, after all, it becomes a question for you to determine, if the question arises in this case, as to whether the engineer obeyed the order of the conductor and was negligent in obeying it. Then you must determine whether such an order or direction by the conductor was proper or not, because it is not competent for the court to charge you, as a matter of fact, whether an order by the conductor is proper or not. That is a matter of fact for you to determine, the court being prohibited from instructing you as to the facts. So that if you should find that the conductor gave to the engineer

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