August 13, 1907. The opinion of the Court was delivered by
This is the second appeal in this case (73 S.C. 557, 54 S.E., 231).
The facts are as follows: On the night of October the 9th, 1903, a large fire took place in Tirzah, a station on defendant's road in York County. The fire had done much damage and was threatening to destroy several freight cars standing on a side-track between the fire and defendants' depot. In order to save the cars and the station, which would necessarily have caught had the cars been burned, S.M. Carothers, defendants' agent at Tirzah, sought to roll the cars down the track. In pursuance of this plan he called to Will Roach and George Wilson to help him and he himself got upon the cars to work the brakes. Will Roach having failed to respond to his request and George Wilson being unable to move the cars, Carothers called one or more persons to his aid, among whom was the plaintiff, W.F. Jackson, Jr. To facilitate moving the cars he ordered George Wilson to uncouple them.
Jackson, according to his own testimony, believing that Wilson had carried out the order, got between the cars and was pushing when the car behind caught his right foot, crushed his ankle and bruised his right leg considerably. Plaintiff alleged negligence on the part of the defendants in not furnishing him, through their representative, S.M. Carothers, a safe place to work; reasonably safe and suitable appliances with which to work; a competent servant to uncouple the cars; and a sufficient and competent force to move them. The defendants deny any negligence on their part and allege that plaintiff's injury was due to an unavoidable accident and that the injuries were caused by the acts of fellow-servants, therefore, they are not liable. The case came on for trial at the May, 1906, term of Court for York County. At the conclusion of the plaintiff's testimony defendants moved for a nonsuit. Judge J.C. Klugh, the presiding Judge, refused the motion and allowed the case to go to the jury. The result was a verdict for six thousand
dollars for the plaintiff. The motion for a new trial having been refused, defendants appeal to this Court.
The first exception raises the point that the motion for a nonsuit should have been granted as to the defendant, Southern Railway — Carolina Division, as there was a total failure of proof tending to show negligence on its part. It was admitted on all sides that the defendants occupied the relation to each other of lessor and lessee. Under our law the defendant, southern Railway, is agent of its lessor and the lessor is responsible for all acts of negligence on the part of the Southern Railway's officers and agents.Smalley v. Railway, 73 S.C. 572, 53 S.E., 1000; Franklin
v. Railway, 74 S.C. 332; Reed v. Railway, 75 S.C. 170. Therefore, unless the nonsuit could have been granted as to the Southern Railway, no error was committed in refusing it as to the Southern Railway — Carolina Division. Let us consider then if the motion should have been granted as to the lessee.
The motion was made on the grounds that there was no evidence tending to show negligence on the part of the defendants, and that plaintiff's injuries, if he were injured, were due solely to the acts of fellow-servants. These grounds resolve themselves into the question whether Carothers was the representative of the master and a superior servant having a right to control and direct the services of the plaintiff. On the former appeal, it was held that there was testimony going to establish this relation and the nonsuit was properly refused. On this trial the evidence is equally strong, if not stronger. Carothers himself testified that he had control of defendants' property at Tirzah. Several witnesses testified to the same effect. The property being in danger, he called upon the plaintiff to aid in protecting it and the plaintiff responded. Under these circumstances we think the question was properly submitted to the jury to say whether he was a superior or a fellow-servant. The nonsuit, therefore, was properly refused.
The next question raised by the defendants' exception, is that the Circuit Judge charged the jury that in order to constitute the relation of fellow-servants, there must be equality in the matter of doing work. This exception misconstrues the charge. Throughout Judge Klugh seemed anxious to impress upon the jury that difference of rank did not necessarily prevent persons from being fellow-servants. After charging defendants' request to this effect, he added these words: "That makes clear the distinction that I have been seeking to bring to your attention all along between the relation of fellow-servants and the relation between the superior servant representing the master and the under servant, and I so charge you." It is impossible that the jury could have been misled by the words objected to. Therefore, we overrule the objection.
The circuit Judge charged the jury in effect that if the master fails to employ competent servants and an employee is injured by reason of the incompetency or incapacity of his fellow-servants then the master is liable. The defendants object to this charge on the ground that it renders the master absolutely liable if injury results from the employment of incompetent servants. This contention must be sustained. It is true that one entering service does not assume the risk arising from the negligent selection of incompetent servants, and it is also true that evidence of incompetency of a servant raises a prima facie
presumption of negligence in the master selecting him, in the absence evidence of due care in selection. But it was error to charge the jury that if the master fails to employ competent servants and an employee is injured by reason of incompetency or incapacity of his fellow-servant, then the master is liable, for the master is liable only for due care in the selection of his servants. It is true the Circuit Judge did charge: "Now, after the employer has exercised reasonable care in selecting employees, he is not bound to compensate a fellow-servant for the negligence of his fellow-servants, as I
have already instructed you," but he immediately followed it with this inconsistent and erroneous instruction: "But if he fails to employ competent fellow-servants and an employee is injured by reason of the incompetency or incapacity of the fellow-servants to do the work they are employed to do, that is a risk the employee does not assume, but the employer is bound to compensate him if he was injured by the incompetence of his fellow-servants, just as much as he is bound to compensate him if he is injured by reason of the unsafe or unsuitable appliances that might be necessary for the doing of the work and that are furnished by the employer."
The defendants' fifteenth request to charge was: "The law is that when one enters into the employ of another he assumes the natural and ordinary risk of such employment, which includes the negligence of a fellow-servant, if the master has selected such fellow-servant with due care.
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August 13, 1907. The opinion of the Court was delivered by
This is the second appeal in this case (73 S.C. 557, 54 S.E., 231).
The facts are as follows: On the night of October the 9th, 1903, a large fire took place in Tirzah, a station on defendant's road in York County. The fire had done much damage and was threatening to destroy several freight cars standing on a side-track between the fire and defendants' depot. In order to save the cars and the station, which would necessarily have caught had the cars been burned, S.M. Carothers, defendants' agent at Tirzah, sought to roll the cars down the track. In pursuance of this plan he called to Will Roach and George Wilson to help him and he himself got upon the cars to work the brakes. Will Roach having failed to respond to his request and George Wilson being unable to move the cars, Carothers called one or more persons to his aid, among whom was the plaintiff, W.F. Jackson, Jr. To facilitate moving the cars he ordered George Wilson to uncouple them.
Jackson, according to his own testimony, believing that Wilson had carried out the order, got between the cars and was pushing when the car behind caught his right foot, crushed his ankle and bruised his right leg considerably. Plaintiff alleged negligence on the part of the defendants in not furnishing him, through their representative, S.M. Carothers, a safe place to work; reasonably safe and suitable appliances with which to work; a competent servant to uncouple the cars; and a sufficient and competent force to move them. The defendants deny any negligence on their part and allege that plaintiff's injury was due to an unavoidable accident and that the injuries were caused by the acts of fellow-servants, therefore, they are not liable. The case came on for trial at the May, 1906, term of Court for York County. At the conclusion of the plaintiff's testimony defendants moved for a nonsuit. Judge J.C. Klugh, the presiding Judge, refused the motion and allowed the case to go to the jury. The result was a verdict for six thousand
dollars for the plaintiff. The motion for a new trial having been refused, defendants appeal to this Court.
The first exception raises the point that the motion for a nonsuit should have been granted as to the defendant, Southern Railway — Carolina Division, as there was a total failure of proof tending to show negligence on its part. It was admitted on all sides that the defendants occupied the relation to each other of lessor and lessee. Under our law the defendant, southern Railway, is agent of its lessor and the lessor is responsible for all acts of negligence on the part of the Southern Railway's officers and agents.Smalley v. Railway, 73 S.C. 572, 53 S.E., 1000; Franklin
v. Railway, 74 S.C. 332; Reed v. Railway, 75 S.C. 170. Therefore, unless the nonsuit could have been granted as to the Southern Railway, no error was committed in refusing it as to the Southern Railway — Carolina Division. Let us consider then if the motion should have been granted as to the lessee.
The motion was made on the grounds that there was no evidence tending to show negligence on the part of the defendants, and that plaintiff's injuries, if he were injured, were due solely to the acts of fellow-servants. These grounds resolve themselves into the question whether Carothers was the representative of the master and a superior servant having a right to control and direct the services of the plaintiff. On the former appeal, it was held that there was testimony going to establish this relation and the nonsuit was properly refused. On this trial the evidence is equally strong, if not stronger. Carothers himself testified that he had control of defendants' property at Tirzah. Several witnesses testified to the same effect. The property being in danger, he called upon the plaintiff to aid in protecting it and the plaintiff responded. Under these circumstances we think the question was properly submitted to the jury to say whether he was a superior or a fellow-servant. The nonsuit, therefore, was properly refused.
The next question raised by the defendants' exception, is that the Circuit Judge charged the jury that in order to constitute the relation of fellow-servants, there must be equality in the matter of doing work. This exception misconstrues the charge. Throughout Judge Klugh seemed anxious to impress upon the jury that difference of rank did not necessarily prevent persons from being fellow-servants. After charging defendants' request to this effect, he added these words: "That makes clear the distinction that I have been seeking to bring to your attention all along between the relation of fellow-servants and the relation between the superior servant representing the master and the under servant, and I so charge you." It is impossible that the jury could have been misled by the words objected to. Therefore, we overrule the objection.
The circuit Judge charged the jury in effect that if the master fails to employ competent servants and an employee is injured by reason of the incompetency or incapacity of his fellow-servants then the master is liable. The defendants object to this charge on the ground that it renders the master absolutely liable if injury results from the employment of incompetent servants. This contention must be sustained. It is true that one entering service does not assume the risk arising from the negligent selection of incompetent servants, and it is also true that evidence of incompetency of a servant raises a prima facie
presumption of negligence in the master selecting him, in the absence evidence of due care in selection. But it was error to charge the jury that if the master fails to employ competent servants and an employee is injured by reason of incompetency or incapacity of his fellow-servant, then the master is liable, for the master is liable only for due care in the selection of his servants. It is true the Circuit Judge did charge: "Now, after the employer has exercised reasonable care in selecting employees, he is not bound to compensate a fellow-servant for the negligence of his fellow-servants, as I
have already instructed you," but he immediately followed it with this inconsistent and erroneous instruction: "But if he fails to employ competent fellow-servants and an employee is injured by reason of the incompetency or incapacity of the fellow-servants to do the work they are employed to do, that is a risk the employee does not assume, but the employer is bound to compensate him if he was injured by the incompetence of his fellow-servants, just as much as he is bound to compensate him if he is injured by reason of the unsafe or unsuitable appliances that might be necessary for the doing of the work and that are furnished by the employer."
The defendants' fifteenth request to charge was: "The law is that when one enters into the employ of another he assumes the natural and ordinary risk of such employment, which includes the negligence of a fellow-servant, if the master has selected such fellow-servant with due care. If the jury should find that Carothers had authority to direct and control those who were working under him, and if they should find further that he gave orders and directions, but that such orders and directions were not obeyed or carried out, that that was the proximate cause of the plaintiff's alleged injury, then the plaintiff cannot recover and the verdict must be for the defendant." In commenting on this request the Circuit Judge again emphasized the error in these words: "That is, if you should find that those orders were not carried out because of the negligence of the fellow-servant to whom they were given. If you should find that they were not carried out because of the inefficiency or incompetency of a fellow-servant, the defendant would be liable because you must bear in mind the difference between the liability of the employer for the negligence of his fellow-servants and his liability for inefficiency and incompetency. He is not liable for the negligence. He is liable if he has selected incompetent or inefficient fellow-servants just the same as he would be liable for a defect in any other appliance which he furnishes that would be necessary to do the
work, and so I charge you." This, in effect, makes the master a guarantor of the competency of his servant, whereas all that the law imposes upon the master is the exercise of due care in selecting his servants. The question of due care under all the circumstances should have been submitted to the jury.
The last alleged error is failure of the Circuit Judge to grant a new trial on the ground of insufficiency of evidence to sustain the verdict. There was testimony on all the material issues in the cause. The jury heard the case and rendered a verdict for the plaintiff. The Circuit Judge on the motion for a new trial, we must take for granted, carefully considered the testimony and his conclusion was that the verdict was proper. Under the well settled law this Court cannot review the evidence. Miller v. Railway,69 S.C. 116, 48 S.E., 99; Jones v. Hiers, 57 S.C. 427,35 S.E., 748; Wilson v. Assurance Co., 51 S.C. 549,29 S.E., 245.
It is the judgment of this Court that the judgment of the Circuit Court be reversed and the case remanded for a new trial.