61 S.E. 960 | S.C. | 1908
Lead Opinion
April 24, 1908. The opinion of the Court was delivered by *245 Isaiah Gadsden, who sued by his guardian ad litem, Peggy Ross, brought this action against the Catawba Power Company, alleging that the defendant was a corporation, duly incorporated under the laws of the State of South Carolina, and was engaged in the construction, etc., of an electric and water power company and possessed of divers cars, engines, machinery, derricks and railroad, for the moving and transportation of material, and which said instrumentalities were operated by the superintendent, agents and employees of the defendant.
The plaintiff was a minor, employed as a laborer by the defendant, and the plaintiff alleged that his service by the defendant was to work as a laborer during the daytime, but that in the absence of the regular laborer employed for the purpose he, the plaintiff, was put to work as a brakeman and laborer on the railroad operated by the defendant and ordered to go on that special work on the night of June, 1903.
That the plaintiff was ordered and compelled by defendant to work on the train engaged in carrying cars, dirt, etc., back and forth upon the railroad, and while so engaged in such service he was ordered by his superior to change or throw a certain switch, upon the passage of said train and before its return, and while so employed in such service, and without waiting for any signal from him, suddenly and rapidly returned and pushed back and propelled the said cars toward and against the plaintiff, recklessly, wantonly, wilfully and negligently hitting and striking plaintiff, running over him, breaking his legs and arms, bruising and tearing his flesh, injuring his scalp, inflicting serious internal injuries, producing and inflicting upon the plaintiff permanent and increasing injuries, making him a cripple for life, incapacitating him from making a living and causing him great pain and agony.
That there was not on said train sufficient lights nor a sufficient number of men to safely discharge the work and properly to operate the train, nor did the defendant select *246 proper coemployees of plaintiff; the engineer was reckless, intemperate and incompetent; the engine was defective, out of repair and dangerous; that the defendant failed and omitted to instruct the plaintiff in the work to be performed and of the danger of the service; and through these violations of duty, causing or contributing to the above injury, the defendant wilfully, recklessly and negligently damaged and injured the plaintiff to the amount of twenty thousand dollars.
That Peggy Ross is a duly appointed guardian ad litem of the plaintiff.
The answer of the defendant admits its corporate character, and that it was engaged in the construction of the electric power plant and dam, in said county and State, and in said work was using various engines and machines and transporting its material for a short distance upon a tramway or railway of its own, by means of agents and employees, but it denies all the other allegations of said first paragraph.
The answer admits that the plaintiff was employed by the defendant as a laborer, but denies all the other allegations of the second paragraph.
The defendant admits that the plaintiff was employed and working as a switchman upon its said tramway or railway and that he, by his own carelessness and negligence, fell under one of the cars and his leg was broken and arm injured; but all of the other allegations of the third paragraph are denied.
That the fourth and fifth paragraphs of the complaint are denied.
For a further defense, the defendant alleges that even if it was negligent in any manner or respect, as is alleged in the complaint, the plaintiff himself was also negligent and careless, and the plaintiff, by his own negligence in switching the car, attempted to get on it, and in failing to take proper care of himself contributed to and caused his own injury. *247
Further answering, the defendant alleges that the injuries received by the plaintiff were within the risks and hazards of his occupation, and were assumed by him upon his acceptance of employment with the defendant.
And, lastly, that the injuries of the plaintiff were due to and caused by the negligence of his fellow-servants, and the defendant is not liable therefor.
The matter came on to be heard before Judge Prince and a jury. After a volume of testimony was taken and a careful charge to the jury by the Judge, a verdict for five thousand dollars was rendered in behalf of the plaintiff.
And the appeal now comes before this Court upon exceptions alleging error in the ruling and charge of his Honor, George E. Prince, presiding Judge. Let the exceptions for appeal be reported. We will now dispose of the exceptions in their numerical order:
First. The Judge, in the exception here pointed out, indicated that where a master has exercised due care in the selection of his servants, and the servant is then injured by one in the same character of employment with himself, same employment, doing the same work, the master is not then liable for that, because that is one of the risks that the servant assumes in entering upon the employment. The Judge does not restrict and limit the assumption of the risks of the negligence of fellow-servants, to those fellow-servants only who are in the same character of employment, doing the same work. In his charge he was trying to make plain to the jury that fellow-servants must be held to assume the risks of the negligence of fellow-servants; it was this character of coemployees that the jury were considering. This exception is overruled.
Second. The complaint directs the attention to the charge that the conduct of the defendant to the plainiff would enable the latter to recover from the former punitive damages.
This paragraph of the complaint alleges that the defendant wilfully, recklessly damaged the plaintiff; the Circuit Judge was merely laying down the law applicable to such *248 conduct of the defendant. Surely if the charge that the injuries wrought to the person of the plaintiff were only half true, a charge regarding punitive damages would be sustained. After all the testimony laying bare the facts relating to the dreadful wounds upon plaintiff's person were what the defendant had to meet, and it might be said that the defendant joined issue with the plaintiff as to these facts. Thus leaving the responsibility to the jury and not the judge. We can not say, therefore, that there was no issue as to punitive damages, nor do we find that there was any charge upon the facts. Lastly, do we find that the charge of the Judge was an incorrect statement of the law relating to punitive damages. This exception is, therefore, overruled.
Third. No more serious responsibility is placed upon an employer than his duty to control the actions of a fellow being, if that fellow being is an adult and represents himself as knowing what he was doing, for under those circumstances, the master would have the right to assume that the servant realized what he was doing, but where a man is immature or very ignorant of the employment, then it would be the duty of the master to warn him, and if he failed to do so, a question of the master's responsibility is thereby raised to be presented to the jury. This is what we understand to be the meaning of the charge of the Circuit Judge here excepted to. Of course, slight immaturity would not be considered as negligence.
Such questions as these belong to the realm of common sense, and no tribunal is better fitted to the proper solution of such questions than a jury. This exception is overruled.
Fourth. His Honor expressed the view that a risk of which the servant knows nothing cannot be assumed; how can one assume a risk unknown to him? The appellant ingeniously suggests that such lack of knowledge or ignorance of risks might be due to the servant's want of thought or care, in other words, to the servant's own negligence, without the fault of the master; this can *249 have no practical application to the question now before the Court; the plaintiff was only seventeen years old, had no experience with cars; therefore, to speak of his want of thought or care in this exception is to argue a point which is not raised upon this record. This exception is, therefore, overruled.
Fifth. Another phase of this question of immaturity and want of experience is here presented; his Honor endeavored in his charge to the jury to call their attention to what the law requires of employees in treating with immature infants or ignorant persons, the appellant thinks that there was no ground laid for this careful charge on the part of the Judge in this case; but it occurs to us that a youth seventeen years of age, with absolutely no experience or knowledge of machinery, presents an instance where the presiding Judge may properly warn a jury of the dangers of immaturity and want of experience. Every man who has charge of the life or liberty of a youth is called upon to explain fully all the dangers incident to an employment of which the youth knows nothing. Such a case is here presented, and when the Circuit Judge, in the interest of humanity, laid down the law requiring employees to deal with great care in such cases as the present, he committed no mistake. Let this exception be overruled.
Sixth. The Circuit Judge held that only those servants who were engaged in the "common employment," who are not discharging any of the duties of the master, are fellow-servants. In 26 Cyc., 1081, we find the following: "The mere employment of a minor without his parents' consent about dangerous work is not negligenceper se, unless forbidden by statute, or unless the employer knows that he is a minor and that the contract is made without the consent of his parents. But persons who employ minors must anticipate the ordinary behavior of children, must take notice of their lack of judgment and must exercise greater care toward and for them than is required by law to be exercised toward and for adults; and *250 where a minor is employed in a business, the danger of which he is unable, by reason of his immature judgment, to comprehend, the master is liable, etc.
"As to acts to which a master or principal is bound as such to perform toward his employees, if he delegates the performance of them to an agent, the agent occupies the place of the master, and the latter is deemed present and liable for the manner in which they are performed. This rule is applicable to individuals as to corporations."
Mr. McClain, the engineer, as the agent of the master, gave directions to the plaintiff, the minor, and it was while in their discharge the plaintiff was injured, the statement of the law just made that the immaturity of this plaintiff having no knowledge of the duties of switchman and being injured while in that condition, the responsibility becomes that of the master through his agent. This exception is overruled.
Seventh. In considering this exception we see no error as here pointed out in the three phases presented by the same, to wit:
(a) The jury were properly left to determine whether the defendant was negligent or not, as here required
(b) Under the charge of his Honor, it is properly left to the jury to say whether the defendant, through its negligence as a proximate cause, was responsible for the injuries to the plaintiff.
(c) As before remarked, the plaintiff was a minor of seventeen years, and there being no proof that he had any knowledge of machinery, the responsibility, primarily, was upon the defendant company to show that the plaintiff showed any negligence by which he could be held liable as contributing to his own injury. Therefore, this exception must be overruled.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed. *251
MR. JUSTICE GARY concurs in result.
Dissenting Opinion
I think there should be a new trial, on the ground that plaintiff's evidence shows conclusively that his own negligence contributed as a proximate cause to his injury. Lyon v. Charleston, etc., R.R.Co.,
The undisputed evidence was that at the time of the accident, June, 1903, the plaintiff was seventeen and a half years old, with a slight mustache, weighing 140 pounds; that he was strong and active, and skilled as a carpenter, at which business he had been working for eight years; that he had been working for defendant as a carpenter for about five weeks, and soon after his employment he became foreman of a squad of workmen; that two nights before the accident, at the request or upon the demand of defendant's superintendent, he undertook to act as brakeman and switchman on the private railroad operated by defendant in transporting material in the construction of its plant. He had not informed defendant of his age, but nevertheless defendant took the precaution to instruct him as to his duties. At folio 115 plaintiff testified: "Q. Did anybody else give you lessons as to how to throw switches? A. Yes, sir; the engineer showed me on the signs. Q. When was that? A. That was the first night I went to work." And again, at folio 131: "Q. You had thrown switches then two nights before this? A. Yes, sir. Q. Done the switching for the engine? A. Yes, sir. Q. And you knew how to turn the switch? A. Yes, sir; I had learned that; anybody could learn that. Q. And he showed you the signs? A. Yes, sir; showed me two signs."
The switch was about five feet from the rail of the track and the crossties extended about two feet. The switch was operated by means of a horizontal lever, to be turned over toward or from the track as the case may require.
Plaintiff testified that on this occasion he was standing on the crossties and reached over to turn the lever toward himself, *252 standing on the ties, but before he could throw the switch the cars struck him. Plaintiff testified that he knew that was a dangerous way to operate the switch, but that he was relying on the engineer not to move until he had made the signal, that he had been directed by the engineer that when he ran out of the switch, in fifteen or twenty minutes, when the hands had crossed the track, to sign him back and he would go back and hook up the cars.
The only inference that could be drawn from these undisputed facts is, that plaintiff was of age, experience and information sufficient to assume the risks of his employment and to be guilty of contributory negligence, that at most he sustained his injuries through the negligence of a fellow-servant, and that his own negligence contributed to his injury.
The injuries sustained by plaintiff naturally excite commiseration, but the province of the Court is only to properly fix the responsibility according to law
MR. JUSTICE WOODS dissents, and concurs in the opinionof MR. JUSTICE JONES.
Addendum
April 24, 1908. After careful consideration of the within petition, this Court is satisfied that no material question of law or of fact has either been disregarded or overlooked.
It is, therefore, ordered that the petition be dismissed and that the order heretofore granted staying the remittitur be revoked. *253
