39 S.C. 507 | S.C. | 1893
The opinion of the court was delivered by
This action was brought by the plaintiff, an employee of. the defendant, for the recovery of damages sustained by him through the negligence of the defendant company. The case came on for trial before his honor, Judge Wallace, and the defendant company interposed an oral demurrer, that the complaint did not state facts sufficient to constitute a cause of action against the defendant. The judge, without stating his reasons, sustained the demurrer and dismissed the complaint. From this order the plaintiff appeals to this court upon one general ground, that the judge erred in sustaining the demurrer.
“That the defendant, its agents and servants in charge of the loose cars as aforesaid, not regarding their duty, conducted themselves so carelessly, negligently, and unskillfully, that they failed to make said obstruction known to those in charge of the approaching engine No. 135 in time to stop the same, either by placing torpedoes on the track or by signaling the engineer running said engine, at a point sufficiently removed from said obstruction wherein it was possible to stop said engine, as is required by the rules and regulations governing the running of engines on the road of the above named defendant. That for the want of due care and attention to the duty devolving upon the said defendant, its agents and servants as aforesaid, at the time and place aforesaid, and while the said loose cars were in the use and service of said defendant, and in charge of one of its conductors as aforesaid, on the track of the said rail
But it is said that, by successive decisions of the courts, the rule has been modified, and, according to the limitations imposed, the parties here were not technically “fellow-servants.” After some conflict, we suppose it may be regarded as settled, that, whether parties are “fellow-servants” in the sense of the rule, does not depend upon the grade, rank, or authority of the two servants. A fireman and engineer or conductor are “fellow-servants.” Judge Cooley states that persons are “fellow-servants, when they engage in the same common pursuit, under the same general control.”' Cooley on Torts, 541. Judge Thomson, in his work on Negligence, announces as a general
Let us see what is the proper construction of this limitation. As we have seen, the employees of a railroad company are necessarily divided into classes, to each of which, in the division of labor, certain specified ordinary duties are assigned, as to which each servant, within the compass of his employment, in one sense, is the representative of the company. Is it the intention that “the duties of the master” referred to, as changing the character of an employee into that of master, should include those matters of ordinary regulation and management, or only those original and essential duties implied by the contract of service; such, for instance, as the duty of keeping a safe and sound track, furnishing all proper appliances, competent servants, &c.? But be this as it may, competent authority has indicated the following as “the duties of the master” referred to, viz: to furnish suitable machinery and appliances, and keep them in repair; the selection and retention of sufficient and competent servants, and the establishment of proper rules and regulations, &c. Under the head of “appliances” is understood to be included a proper roadway, or, as it has come to be phrased, “a safe track and a safe place to work.”
Did the company directly or indirectly violate any of these fundamental contract duties in this case? It will be observed that there is no allegation in the complaint that the cars were “loose” on the track from any fault or negligence on the part of the servants on train No. 1, nor any distinct allegation as to the time when they were detached, or, indeed, in what manner
The judgment of this court is, that the judgment of the Circuit Court be affirmed.