64 S.E. 601 | S.C. | 1902
May 11, 1902. The opinion of the Court was delivered by This action was brought for damages on account of personal injuries suffered by the plaintiff while in defendant's employment as a fireman. The appeal is from an order of nonsuit made on the ground that the evidence admitted of no other inference than that the injury was due to plaintiff's own negligence or that his negligence contributed to it as a proximate cause. The facts may be shortly stated. Charles Alphonse was engineer and the plaintiff, fireman, on defendant's freight train which left Columbia about seven o'clock on the morning of 11th August, 1904. The claim of the plaintiff is, that his injury resulted from the negligence of the engineer in requiring him to jump from a moving train. His account of the order of the engineer and his own conduct and the resulting injury is best given in his own language: "A. Just before we got to the block, and while the train was running, he told me, `Stephens, I am not going to eat any breakfast this morning, but I want you to get down and go back to the cab and get me a cup of coffee.' Q. Where was the cab? A. That was back behind the engine; there was nineteen freight cars and the cab back behind the engine. When we were first rolling up to the block station, I at first denied him; when he told me to go for the coffee we were running between six and seven miles an hour; I told him now directly I would go for him as soon as I fixed my fires. I grabbed my chain and shovel and gave her three shovels of coal and eased the blower on; he said: `I want you to get my coffee — I don't want to lose any schedule on this train; I was a little late coming in yesterday.' I told him to wait till she stopped; he said, `No, I want it now.' So I took the cup he handed me in my left hand, and started back on the fireman's side, and caught the hand-rod on the tender with my right hand and the cup in my left hand, with my feet on the step. As I was swinging out he put on his brake to the *544 emergency, and threw me over on the connecting-rod and I must have fallen under the engine. * * * * * A. I know that the engineer told me to jump off three times; he told me the third time to jump off three times before I did it. * * * * * Q. What did you tell Mr. Alphonse when he told you to get off the train? A. I denied him until the third time; I told him that I would get off when the train stopped. Q. Was the train going too fast? A. I can't tell whether it was going too fast or not. Q. You did not want to get off the train because you were afraid it might have done what it did to you? A. Of course. Q. You told Mr. Alphonse that you did not want to get off the train because it was going too fast? A. Yes, sir. Q. The engineer told you that you must get off? A. Yes, sir, he told me to get off and get the coffee for him."
These rules were introduced: 574. "In all matters pertaining to the Transportation Department, firemen will report to and receive instructions from the Superintendent and Train Master. In all matters pertaining to the Motive Power Department, they will report to and receive instructions from the Master Mechanic and Road Foreman of Engines. Within shop and engine-house limits they must obey the orders of the foreman. When with an engine they must obey the orders of the engineman.
Rule 11. "Every employee must exercise the utmost caution to avoid injury to himself or to his fellows, especially in the switching of cars and in all movements of trains, in which work each employee must look after and be responsible for his own safety. Jumping on or off trains or engines in motion, getting between cars in motion to couple or uncouple them, and all similar imprudences, are dangerous, and in violation of duty. All employees are warned that if they commit these imprudences it will be at their own peril and risk.
Rule 12. "Every employee is hereby warned that before exposing himself in, being on the track and grounds of the *545 company, or in working with or being in any manner on or with its cars, engines, machinery or tools, he must examine for his own safety the condition of all machinery, tools, tracks, cars, engines or whatever he may undertake to work upon or with before he makes use of or exposes himself on or with the same, so as to ascertain as far as he reasonably can, their condition and soundness; and he is required to promptly report either to the Superintendent or to the Agent who may be his immediate superior officer, any defect in any track, machinery, tools or property of the company, affecting the safety of any one in using or operating upon or with the same. The object of this rule is to protect employees from suffering personal injury from any cause, while the company will be responsible to each one for the discharge of all its duties and obligations to him, and for any fault and neglect of its own or of its Board of Directors or General Officers which are the approximate cause of the injury, yet it will not be responsible to him for the consequences of his own fault or neglect, or that of any other employees of the company, whether they, or any of them, are superior to him in authority as conductors, foremen, or otherwise; it being the right and duty of every employee, under all circumstances, to take sufficient time, before exposing himself, to make such examinations as are here required, and refuse to obey any order which will expose him to danger. Every case of personal injury must be promptly reported."
We inquire first, whether there was any negligence on the part of the engineer, imputable to the defendant as a proximate cause of the injury. The engineer had the right to direct or control the services of the fireman under the rules of the company, and, therefore, the railroad company would be liable for injury to the plaintiff, resulting from his negligence. Pagan v. So. Ry. Co.,
In Redding v. South Carolina R.R. Co.,
On this point, we consider first, the effect of the rule of the company forbidding its employees to jump from a moving train. In Carson v. So. Ry. Co.,
In this case, however, the plaintiff testified that while he had undertaken to read all the rules, he had not reached those forbidding employees to jump off moving cars, and *549 requiring them to disobey all orders which would expose them to danger. It appeared from the evidence that the rule book was given to the plaintiff some time in 1904, but it does not appear how long he had it before the accident in August of that year. The Court could not say as a matter of law that the time was long enough to justify the inference that the plaintiff should have known the rules. His ignorance of them, and consequent failure to obey them cannot as a matter of law be imputed to him as negligence. If he knew those rules of caution or could have known them by the exercise of reasonable diligence then he could not recover, because his act was in direct violation of them. But the Court could not decide this issue, because the evidence left room for more than one inference.
But aside from the company's rules of caution above mentioned, the plaintiff could not stupidly, recklessly, or even carelessly obey an order of the engineer requiring him to do an obviously dangerous act, and hold the defendant responsible for a resulting injury. For in doing so he would be guilty of contributory negligence.
The remaining inquiry is, whether the plaintiff's act was of this character. To show contributory negligence, it is not sufficient that the employee receiving the order should have misgivings, and believe the act required to be hazardous, unless the danger is so imminent and obvious that a man of ordinary prudence would not incur it. If there is ground for reasonable difference of opinion as to the danger, the servant is not bound to set up his judgment against that of his superior whose orders he is required to obey, but he may rely on the judgment of such superior. The matter is thus well stated by Mr. Justice Holmes in McKee v. Tourtellotte,
Whether it is negligence to jump from a slowly moving train is a question for the jury, and the Court will not hold it to be contributory negligence as a matter of law. To take the case from the jury, it must clearly appear that the train was going at such a high rate of speed that it was in fact obvious to the plaintiff or would have been obvious to any reasonable man that injury would probably result from jumping. Creech v. Ry. Co.,
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.