The opinion of the Court was delivered by
Mr. Justice Gary.
This is an action for damages alleged to have been sustained by the plaintiff through the negligence of the defendant. The complaint alleges that on the
9 th of October, 1903, at a station on the railroad of the defendant a disastrous fire occurred, burning several stores, and putting in imminent danger two freight cars; that with the hope of saving said cars, the defendant requested the plaintiff to assist in removing them beyond the reach of the
fire;
that the plaintiff responded to1 the request and while he was, rendering such assistance, the defendant negligently released the brakes of the cars without first uncoupling the same, thereby causing the rear car to be negligently run or pushed ag-ainst the plaintiff; that his foot was caught under the wheels of the rear car, and terrible injuries were inflicted upon him.
The defendant denied the allegations of negligence, and set up as a defense that the injuries were caused by an unavoidable accident due to the excitement and hurry of the plaintiff and other bystanders, attempting to get the cars away from the fire. It also set up as a defense that the injuries were caused' by the conduct of those who were engaged in the same work with the plaintiff in pushing away said cars, a© well as by the conduct of the plaintiff himself.
At the close of the plaintiff’s testimony the defendant made a motion for a nonsuit, which was refused. The defendant did not offer any testimony. The jury rendered a verdict in favor of the plaintiff for $5,000' and the defendant appealed upon numerous exceptions which will be set out in the report of the case, except the first and fourth, which are abandoned.
1
Second exception.
The cases of
Oliver
v.
Ry.,
65 S. C., 1,
43
S. E.,
307,
and
Roundtree
v.
Ry., 72
S. C., 474, show that this exception cannot be sustained.
2
Third exception.
Sec. 15, art. IX., of the Constitution, provides that “every employee of any railroad corporation shall have the same rights and remedies, for any injury suf- . fered by him, from the acts or omissions of said corporation or its employees', as are allowed by law to other persons not employees', when the injury results
from1 the negligence of a superior agent or officer, or of a person having a right to control or direct the services of a party injured.”
The plaintiff testified as follows: “Q. Were there any cars standing on the track at T'irzah at that time? A. Yes, sir. There was two or three. Q. What was the condition of these cars, Mr. Jackson? A. Well, they were blistering from the heat and about to catch. Q1. Who was trying to save the cars ? Who was on top' of them? A. Mr. Carothers was on top1 of one. Q. Mr. $. M. Carothers? A. Yes, sir. Q. That is the same gentleman you-have described as selling tickets and issuing bills, of lading for freight? A. Yes, sir. Q. He was on top of the cars? A. Yes, sir. Q. Were those cars loaded with freight or empty? A. One was loaded, that I know of — .loaded with cotton seed. Q. Mr. Carothers called to you from the top of those cars to> come help save those cars? A. Yes, sir. Q. Besides the call to you to come help move those cars, what else did you hear Mr. Carothers say? A. I heard him tell George Wilson to uncouple the cars. Q. Who was George Wilson? A. He was in the employ of the railroad there — he wias a section hand. Q. White or colored? A. Colored. Q. Mr. Jackson, what did you do when you got on the other side of the car, or the side where the car was burning, where it was smoking and blistering — who did you find there? A. Found Mr. .S. M. Carothers and George Wilson. Q. State the position of Mr. S. M. Carothers, and then George Wilson. A. He was up on the car taking the brake off. Q. Mr. Carothers was up at the brake turning the brake off? A. Yes, sir. Q. What was George Wilson doing? A. Well, when I got there he comía out and he got right down on the track over the rail on the left side and caught the wheel and commenced to push and I got back a little over him and commenced. Q. And those were the only two people you saw at the
time
you took hold? A. Yes, sir.
Q.
Or that were engaged in endeavoring to save those cars at that time, when you were called to assist?1 A. Yes, sir. Those were all. Q. Did you
get hurt on that occasion? A. Yes, sir. Q. How long were you there before you got hurt? Haw long were you pushing? A. We just had got it started. I don’t expect the wheel had revolved more than once when I got my foot caught. Q. Just describe how you were, Mr. Jackson? A. Well, I had my leg extended, pushing, my right leg above George, and the hind car wasn’t uncoupled. It caught me on the shoe here (indicating) and ran up on my foot and broke my ankle and threw me down on my face.”
Cross-examination': “Q. Mr. Jackson, what position did George Wilson occupy on the railroad? A. Section hand. Q. He was not an agent? A. No, sir. Q. Just a laborer? A. Yes, sir. Q. A laborer? A. Yesi, sir. Q. And he was helping to get these cars away when you were helping? A. Yes, sir.. Q. And he was the man to do the uncoupling ? A. Yes, sir. Q. And you think he didn’t do1 it? A. Yes, sir. Q. And you think that is why you were caught, owing to his not uncoupling? A. Yes, sir, I think that was the reason. Q. Because George Wilson, a laborer, a man who was helping you and Mr. Carothers to' move this car, didn’t do what Mr. Carothers told him to do? A. Yes, sir.”
There was testimony to show that S. M. Carothers, at the time of the injury, was discharging the duties of a superior agent or officer, having the right to control or direct the services of the plaintiff, whoi had assumed the relation of a servant, by undertaking, at the request of Carothers, to perform1 the dirty of assisting in the removal of the cars. One of the duties resting upon Carothers, as the representative of the defendant, was to provide a safe place for the plaintiff to work. This being one of the primary duties, could not be delegated to' a subordinate servant. If the place was rendered unsafe by the failure toi uncouple the care, then it was the duty of the defendant acting through its representative to see that they were uncoupled. As there was testimony tending to show this fact, and that the injury resulted therefrom1, the motion for nonsuit was properly refused.
The remaining exceptions, in different form, raise practically the same questions; they will, therefore, be considered together.
3
We will first consider the questions presented by the exceptions assigning error on the part of his Honor, the presiding Judge, in charging certain propositions of law inapplicable to any facts set forth in the pleadings, or appearing in .the testimony. In the case of
Richardson
v.
Ry.,
71 S.
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The opinion of the Court was delivered by
Mr. Justice Gary.
This is an action for damages alleged to have been sustained by the plaintiff through the negligence of the defendant. The complaint alleges that on the
9 th of October, 1903, at a station on the railroad of the defendant a disastrous fire occurred, burning several stores, and putting in imminent danger two freight cars; that with the hope of saving said cars, the defendant requested the plaintiff to assist in removing them beyond the reach of the
fire;
that the plaintiff responded to1 the request and while he was, rendering such assistance, the defendant negligently released the brakes of the cars without first uncoupling the same, thereby causing the rear car to be negligently run or pushed ag-ainst the plaintiff; that his foot was caught under the wheels of the rear car, and terrible injuries were inflicted upon him.
The defendant denied the allegations of negligence, and set up as a defense that the injuries were caused by an unavoidable accident due to the excitement and hurry of the plaintiff and other bystanders, attempting to get the cars away from the fire. It also set up as a defense that the injuries were caused' by the conduct of those who were engaged in the same work with the plaintiff in pushing away said cars, a© well as by the conduct of the plaintiff himself.
At the close of the plaintiff’s testimony the defendant made a motion for a nonsuit, which was refused. The defendant did not offer any testimony. The jury rendered a verdict in favor of the plaintiff for $5,000' and the defendant appealed upon numerous exceptions which will be set out in the report of the case, except the first and fourth, which are abandoned.
1
Second exception.
The cases of
Oliver
v.
Ry.,
65 S. C., 1,
43
S. E.,
307,
and
Roundtree
v.
Ry., 72
S. C., 474, show that this exception cannot be sustained.
2
Third exception.
Sec. 15, art. IX., of the Constitution, provides that “every employee of any railroad corporation shall have the same rights and remedies, for any injury suf- . fered by him, from the acts or omissions of said corporation or its employees', as are allowed by law to other persons not employees', when the injury results
from1 the negligence of a superior agent or officer, or of a person having a right to control or direct the services of a party injured.”
The plaintiff testified as follows: “Q. Were there any cars standing on the track at T'irzah at that time? A. Yes, sir. There was two or three. Q. What was the condition of these cars, Mr. Jackson? A. Well, they were blistering from the heat and about to catch. Q1. Who was trying to save the cars ? Who was on top' of them? A. Mr. Carothers was on top1 of one. Q. Mr. $. M. Carothers? A. Yes, sir. Q. That is the same gentleman you-have described as selling tickets and issuing bills, of lading for freight? A. Yes, sir. Q. He was on top of the cars? A. Yes, sir. Q. Were those cars loaded with freight or empty? A. One was loaded, that I know of — .loaded with cotton seed. Q. Mr. Carothers called to you from the top of those cars to> come help save those cars? A. Yes, sir. Q. Besides the call to you to come help move those cars, what else did you hear Mr. Carothers say? A. I heard him tell George Wilson to uncouple the cars. Q. Who was George Wilson? A. He was in the employ of the railroad there — he wias a section hand. Q. White or colored? A. Colored. Q. Mr. Jackson, what did you do when you got on the other side of the car, or the side where the car was burning, where it was smoking and blistering — who did you find there? A. Found Mr. .S. M. Carothers and George Wilson. Q. State the position of Mr. S. M. Carothers, and then George Wilson. A. He was up on the car taking the brake off. Q. Mr. Carothers was up at the brake turning the brake off? A. Yes, sir. Q. What was George Wilson doing? A. Well, when I got there he comía out and he got right down on the track over the rail on the left side and caught the wheel and commenced to push and I got back a little over him and commenced. Q. And those were the only two people you saw at the
time
you took hold? A. Yes, sir.
Q.
Or that were engaged in endeavoring to save those cars at that time, when you were called to assist?1 A. Yes, sir. Those were all. Q. Did you
get hurt on that occasion? A. Yes, sir. Q. How long were you there before you got hurt? Haw long were you pushing? A. We just had got it started. I don’t expect the wheel had revolved more than once when I got my foot caught. Q. Just describe how you were, Mr. Jackson? A. Well, I had my leg extended, pushing, my right leg above George, and the hind car wasn’t uncoupled. It caught me on the shoe here (indicating) and ran up on my foot and broke my ankle and threw me down on my face.”
Cross-examination': “Q. Mr. Jackson, what position did George Wilson occupy on the railroad? A. Section hand. Q. He was not an agent? A. No, sir. Q. Just a laborer? A. Yes, sir. Q. A laborer? A. Yesi, sir. Q. And he was helping to get these cars away when you were helping? A. Yes, sir.. Q. And he was the man to do the uncoupling ? A. Yes, sir. Q. And you think he didn’t do1 it? A. Yes, sir. Q. And you think that is why you were caught, owing to his not uncoupling? A. Yes, sir, I think that was the reason. Q. Because George Wilson, a laborer, a man who was helping you and Mr. Carothers to' move this car, didn’t do what Mr. Carothers told him to do? A. Yes, sir.”
There was testimony to show that S. M. Carothers, at the time of the injury, was discharging the duties of a superior agent or officer, having the right to control or direct the services of the plaintiff, whoi had assumed the relation of a servant, by undertaking, at the request of Carothers, to perform1 the dirty of assisting in the removal of the cars. One of the duties resting upon Carothers, as the representative of the defendant, was to provide a safe place for the plaintiff to work. This being one of the primary duties, could not be delegated to' a subordinate servant. If the place was rendered unsafe by the failure toi uncouple the care, then it was the duty of the defendant acting through its representative to see that they were uncoupled. As there was testimony tending to show this fact, and that the injury resulted therefrom1, the motion for nonsuit was properly refused.
The remaining exceptions, in different form, raise practically the same questions; they will, therefore, be considered together.
3
We will first consider the questions presented by the exceptions assigning error on the part of his Honor, the presiding Judge, in charging certain propositions of law inapplicable to any facts set forth in the pleadings, or appearing in .the testimony. In the case of
Richardson
v.
Ry.,
71 S. C., 444; the Court states the principles that “if the charge was- not relevant to any issue in the case nor premised upon any fact in the case, it does- not constitute reversible error, unless appellant could show, wherein it was thereby prejudiced!” No such showing has been made in this case.
4
The next question for consideration arises out of the charge relative to the negligence of the defendant’s servants. The presiding Judge charged the jury as follows-: “But if he was injured through the carelessness and negligence of an employee or servant of the defendant railroad company, and their carelessness and negligence was the direct and proximate cause of his injury, then he is entitled to recover such damages as you think he has sustained proportionate to the injury sustained.”
In charging the defendant’s eighth request, the presiding Judge said: “He cannot recover in any event unless he was injured through the carelessness and negligence of the servants of the defendant company, and their carelessness and negligence was the direct and proximate cause of his injury.”
In modifying the defendant’s twelfth request, he charged as follow's: “If I call upon you, Mr. Foreman, to do- a piece of work for me, * * ■ * -and if I am there bossing, and directing, and supervising that work, and you are injured through any carelessness or negligence of any fellow-servant of yours acting under my direction and obeying my orders, if I am the boss, and their negligence and carelessness is the direct and proximate cause of the injury, then
in that event the party injured would be entitled to recover, if the carelessness and1 negligence of the fellow-servant, acting under nay direction or obeying the boss- and having a light to direct at that time, and that negligence was the direct and proximate cause of the injury.” Other portions of the charge to the like effect, are set out in the exceptions.
,The charge must be construed with reference to the issues raised by the pleadings and in the light of the testimony. The only servants of the defendant except the plaintiff, who were engaged in moving the cars to a place of safety, were S. M. Carothers and George Wilson. The charge in so- far as it was applicable to Carothers. was free from error; George Wilson, however, occupied a relation quite different from that of Carothers. There was- no testimony tending to- show that George Wilson was a superior agent or officer, or that he had the right to control or direct the services of the plaintiff, who. was engaged with him-, in the same piece of work. They were, therefore, fello-w-servants, and one of the risks which they assumed was the negligence o-f a fellow-servant. The charge of the Circuit Judge was not in conformity with these principles.
It is- the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded to- that Co-urt for a new trial.