The opinion of the Court was delivered by
Mr. Chiee Justice Pope.
The action of William T. Webster against the Atlantic Coast Line Railroad Company by his complaint represented: That on> the 11th day of September, 1902, the defendant had placed upon its sidetrack a car laden with heavy machinery intended for the McColl Manufacturing Company, and such company had
placed three of its employees in said car to prepare said irons for delivery to the said McColl Manufacturing Company. Those employees had been engaged about a week and had removed all of said heavy machinery except three boxes of the same.
On the afternoon of the said 11th day of September, 1903, the defendant, through its agents, had caused an engine with several of its cars attached thereto, as alleged by plaintiff, to be driven against said car, knowingly, wilfully, recklessly and maliciously, and with violence, thereby causing one of the heavy boxes, said to contain between twelve hundred and two thousand pounds, to turn from its position and fall upon plaintiff, thereby inflicting upon him injuries about his hip and crushing him down against the side and upon the floor of said car, with such violence that his life was in imminent peril, and his back and hips and limbs were greatly bruised and crushed, causing him intense pain, so that he was unable for many weeks to work, and that he still suffers at the time of the filing of this complaint, and believes he will never recover from the injuries received, and which were the direct consequences of the unlawful, wilful, negligent, reckless and malicious act of the defendant, its servants and agents. The plaintiff alleges that the defendant, its agents and servants, were guilty of gross negligence and a wilful and malicious intent, through a spirit of recklessness and deviltry, to injure, harm, wound and cripple the plaintiff, while it owed to the plaintiff the duty and obligations to use reasonable care and ordinary diligence in the moving and manipulation of its engine and cars, to his damage five thousand dollars.
The answer of the defendant is as follows:
1. “That it denies each and every allegation of said complaint not hereinafter specifically admitted or explained.
3. “That it has no knowledge or information sufficient to form a belief as to the first and second allegations of said complaint, and therefore demands strict proof of same.
3. “That it denies so much of the third allegation of said
complaint as alleges that it is a corporation chartered under the laws of the State of South Carolina.
4. “That it admits that on or about the time stated in said complaint it hauled certain machinery for the McColl Manufacturing Company, at McColl, S. C., and placed said car, containing said machinery, on a sidetrack, but it specifically denies each and every other allegation contained therein.
“For a second defense:
1. “That the alleged injury was not caused by the fault or negligence of the defendant, its agents, servants or employees, but was caused by the fault, negligence and carelessness of the plaintiff himself.”
The case was heard by Judge Memminger and a jury. After the hearing of much testimony for both sides and the charge of his Honor, the jury returned a verdict for the defendant. After judgment, the plaintiff has appealed upon twenty-one grounds.
Now let those exceptions be reported.
We will consider those exceptions: 1. As to admissibility of testimony. 3. As to errors in the charge.
As to admissibility of testimony:
1
When John C. Webster was asked the question: “You stated awhile ago that you saw Deaver do something and heard him say something; what did he do?” By reference to the case it is ascertained, the objection was as to what Deaver said, not as to what he did; the pertinency as to what he said was left open by the Circuit Judge, for he stated that the objection would be sustained at this stage of the case. The orderly administration of justice must always be left to the wise discretion of the trial Judge, and this ruling especially applies to the administration as to admissibility of testimony, especially as to the time when the same may be admissible. We see no objection to this ruling, and we overrule the exception. It afterwards appeared that this witness was allowed to testify fully.
2
We will consider exceptions two, five, seven and eight jointly. John C. Webster was not allowed to answer the
question: “Regarding this pushing of engine in there, driving it in and the impact of that car, was it an ordinary lick?” The ivitness was properly refused permission to answer; the witness had no experience, and therefore his answer to this question was properly forbidden, while Coxe and York, men of experience, as engineer and conductor, were allowed to answer such questions, and the witness Purvis was to answer as he saw proper the question as to whether the impact was soft or hard' — ■ whether he would call it a severe jar or merely a shock — it was merely the fact that he was required to testify to. These exceptions are overruled.
3
Fourth. It seems that Mr. Deaver was an employee of the Marlboro Cotton Mills, while Mr. York was an employee of the railroad company; the railroad company had no authority over Mr. Deaver, but he was foreman of the yards, and York told him that he was going to move the car on the spur-track, and he called out to the men in the car to look out, the train was going to shift out that car of yarn, and look out for the oil bucket, as he expected it to be turned over. Mr. York spoke to him while in the employment of the railroad company; the conduct of these two men was legitimate when conveyed one to the other; and when Mr. Deaver conveyed it to the men in the cai', it was legitimate for them to answer the questions asked them, respectively; and while Mr. Deaver was not an employee of the • railroad company, still, as agent of the Marlboro Cotton Mills, he had received instructions from the railroad as to the movement of cars in which the Marlboro Mills were interested. This exception is overruled.
4
Third. So far as the third exception is" concerned, the Circuit Judge property overruled all efforts of the plaintiff to show the exact position of the car when struck. It had no proper reference to any matter set up in the pleadings, and any testimony as to it was property ruled out as not bearing directly or collaterally upon the question at issue, but being irrelevant. These matters are
properly left in the wise discretion of the Circuit Judge. This exception is overruled.
2
Sixth.
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The opinion of the Court was delivered by
Mr. Chiee Justice Pope.
The action of William T. Webster against the Atlantic Coast Line Railroad Company by his complaint represented: That on> the 11th day of September, 1902, the defendant had placed upon its sidetrack a car laden with heavy machinery intended for the McColl Manufacturing Company, and such company had
placed three of its employees in said car to prepare said irons for delivery to the said McColl Manufacturing Company. Those employees had been engaged about a week and had removed all of said heavy machinery except three boxes of the same.
On the afternoon of the said 11th day of September, 1903, the defendant, through its agents, had caused an engine with several of its cars attached thereto, as alleged by plaintiff, to be driven against said car, knowingly, wilfully, recklessly and maliciously, and with violence, thereby causing one of the heavy boxes, said to contain between twelve hundred and two thousand pounds, to turn from its position and fall upon plaintiff, thereby inflicting upon him injuries about his hip and crushing him down against the side and upon the floor of said car, with such violence that his life was in imminent peril, and his back and hips and limbs were greatly bruised and crushed, causing him intense pain, so that he was unable for many weeks to work, and that he still suffers at the time of the filing of this complaint, and believes he will never recover from the injuries received, and which were the direct consequences of the unlawful, wilful, negligent, reckless and malicious act of the defendant, its servants and agents. The plaintiff alleges that the defendant, its agents and servants, were guilty of gross negligence and a wilful and malicious intent, through a spirit of recklessness and deviltry, to injure, harm, wound and cripple the plaintiff, while it owed to the plaintiff the duty and obligations to use reasonable care and ordinary diligence in the moving and manipulation of its engine and cars, to his damage five thousand dollars.
The answer of the defendant is as follows:
1. “That it denies each and every allegation of said complaint not hereinafter specifically admitted or explained.
3. “That it has no knowledge or information sufficient to form a belief as to the first and second allegations of said complaint, and therefore demands strict proof of same.
3. “That it denies so much of the third allegation of said
complaint as alleges that it is a corporation chartered under the laws of the State of South Carolina.
4. “That it admits that on or about the time stated in said complaint it hauled certain machinery for the McColl Manufacturing Company, at McColl, S. C., and placed said car, containing said machinery, on a sidetrack, but it specifically denies each and every other allegation contained therein.
“For a second defense:
1. “That the alleged injury was not caused by the fault or negligence of the defendant, its agents, servants or employees, but was caused by the fault, negligence and carelessness of the plaintiff himself.”
The case was heard by Judge Memminger and a jury. After the hearing of much testimony for both sides and the charge of his Honor, the jury returned a verdict for the defendant. After judgment, the plaintiff has appealed upon twenty-one grounds.
Now let those exceptions be reported.
We will consider those exceptions: 1. As to admissibility of testimony. 3. As to errors in the charge.
As to admissibility of testimony:
1
When John C. Webster was asked the question: “You stated awhile ago that you saw Deaver do something and heard him say something; what did he do?” By reference to the case it is ascertained, the objection was as to what Deaver said, not as to what he did; the pertinency as to what he said was left open by the Circuit Judge, for he stated that the objection would be sustained at this stage of the case. The orderly administration of justice must always be left to the wise discretion of the trial Judge, and this ruling especially applies to the administration as to admissibility of testimony, especially as to the time when the same may be admissible. We see no objection to this ruling, and we overrule the exception. It afterwards appeared that this witness was allowed to testify fully.
2
We will consider exceptions two, five, seven and eight jointly. John C. Webster was not allowed to answer the
question: “Regarding this pushing of engine in there, driving it in and the impact of that car, was it an ordinary lick?” The ivitness was properly refused permission to answer; the witness had no experience, and therefore his answer to this question was properly forbidden, while Coxe and York, men of experience, as engineer and conductor, were allowed to answer such questions, and the witness Purvis was to answer as he saw proper the question as to whether the impact was soft or hard' — ■ whether he would call it a severe jar or merely a shock — it was merely the fact that he was required to testify to. These exceptions are overruled.
3
Fourth. It seems that Mr. Deaver was an employee of the Marlboro Cotton Mills, while Mr. York was an employee of the railroad company; the railroad company had no authority over Mr. Deaver, but he was foreman of the yards, and York told him that he was going to move the car on the spur-track, and he called out to the men in the car to look out, the train was going to shift out that car of yarn, and look out for the oil bucket, as he expected it to be turned over. Mr. York spoke to him while in the employment of the railroad company; the conduct of these two men was legitimate when conveyed one to the other; and when Mr. Deaver conveyed it to the men in the cai', it was legitimate for them to answer the questions asked them, respectively; and while Mr. Deaver was not an employee of the • railroad company, still, as agent of the Marlboro Cotton Mills, he had received instructions from the railroad as to the movement of cars in which the Marlboro Mills were interested. This exception is overruled.
4
Third. So far as the third exception is" concerned, the Circuit Judge property overruled all efforts of the plaintiff to show the exact position of the car when struck. It had no proper reference to any matter set up in the pleadings, and any testimony as to it was property ruled out as not bearing directly or collaterally upon the question at issue, but being irrelevant. These matters are
properly left in the wise discretion of the Circuit Judge. This exception is overruled.
2
Sixth. The sixth exception was made because York was allowed to testify as to how the doors of cars are operated; he spoke as an expert, and there was no exception to his testimony. This exception must be overruled.
As to error in the charge:
The ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, nineteenth, twentieth and twenty-first exceptions will be considered together.
5
These exceptions relate to the error of the Circuit Judge in charging the law of contributory negligence when it was not pleaded. This Court held, in
Cooper
v.
Ry. Co.,
56 S. C., 91,
34 S.
E., 16, that “Contributory negligence is the want of ordinary care on the part of the person injured by the 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.” In
Martin
v.
Ry. Co.,
51 S. C., 159, 28 S. E., 303, it was held that “Contributory negligence is a defense that niust be set up in the answer,” following the decision of this Court on that point in the case of
Wilson
v.
Ry. Co.,
51 S. C., 79, 28 S. E., 91. But while that is-true, and is upheld by this Court at this time as a correct enunciation of the law, still, in the case of
Wingo
v.
Inman Mills,
76 S. C., 550, 57 S. E., 525, it is held that “where plaintiff had notice of the pleas of contributory negligence and assumpton of risks, and both sides introduced evidence on a defective plea of the issues, without objection, a new trial will not be granted on the mere technicality of defective plea, unless it is shown to have impaired substantial rights.”
In the case at bar the plaintiff and defendant, without objection, offered testimony as to the plea of contributory negligence; the Judge acted upon the assumption that the plea of contributory negligence was pleaded; no attention
was called thereto until the last argument was being made; the defendant had offered to substantiate the plea of contributory negligence in his answer; the Circuit Judge declined to make any amendments on the ground that he conceived that the plea had been already made. In his charge to the jury he had instructed the jury on this plea. Under these circumstances we feel constrained to hold that his conduct should be upheld by us. We, therefore, overrule all the exceptions relating to this matter.
6
Eighteenth. The rule as stated in 13 Enc. of Eaw, 897, is as follows: “This rule which, with its statutory modifications, it is the purpose of this article to discuss, may be stated as follows: 'Where a master uses due diligence in the selection of competent and trusty servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable, where there is no countervailing statute, to one of them for an injury received by him in consequence of the carelessness of another, where both are engaged in the same service.’ * * To make out the case for the application of the fellow-servant rule the injured person must, of course, have been a servant of the defendant. * * * It is a self-evident proposition that persons are not fellow-servants within the rule exempting a master for liability to one servant for the negligence of another, unless they are in the employ, or at least under the control, of the same master.”
The Judge submitted the question to the jury as a matter of fact whether or not the plaintiff and Deaver were fellow-servants. Can the contention be sustained? The idea of the request, as well as the intention of the Court, was that if the jury found from the testimony that there were facts sufficient, then they could say, as a matter of fact, that they were fellow-servants; the jury were not to find as a matter of law who were fellow-servants. The Judge in his charge held that Deaver, the fellow-servant, if he was such fellow-servant of the plaintiff, failed to give or extend such notice to the plaintiff, and it was due to this negligence of a fellow-
servant that the plaintiff received the alleged injuries as a primary cause, then he cannot recover for the negligence of such fellow-servant. We overrule this exception.
It follows, therefore, that the judgment of this Court is that the judgment of the Circuit Court be affirmed.