90 S.E. 27 | S.C. | 1916
Lead Opinion
September 26, 1916. The opinion of the Court was delivered by Action for tort to the person. Verdict for the plaintiff for $900. Appeal by the defendant.
The plaintiff was doing the work of an ordinary section hand, but he was a farmer, and was only in the temporary employment of the railroad, and at the incident of the alleged accident he, with others, was either taking out defective crossties or was spacing ties on the roadbed near Blaney; and, of course, the gang of hands was under the direction of a boss called the section master. The track "was a rock ballast track," and the workers took the rock out of the roadbed and piled them on the sides of it pending the insertion of a new tie, or in order to space the ties, as the case was. A fast passenger train came along, and just as the cowcatcher of the engine passed the plaintiff he was struck, presumably by a rock, and felled to the ground.
The act of negligence charged by the complaint is indefinite; but that which the testimony tended to prove is the piling of rock so high by the side of the rails and betwixt them that a rapidly moving train might strike the pile and drive a missile against a bystanding servant.
There are seven exceptions, but not so many issues to be decided. The exceptions will not be considered by number, or in order, but, we trust, comprehensively.
1. The section hand was clearly under the direction and control of the section master, and was not, therefore, a fellow *473 servant. Constitution, art IX, sec. 15. A gang of negroes on a railroad track could not be managed without a superior man to say to one "go and he goeth, and to another come and he cometh." That is the essence of labor management.
2. The testimony tended to prove that the negligence of the defendant caused the injury. The section master testified thus:
"Q. What do you know about Green Williams being hurt? A. When the train passed — when I heard the train coming I asked the men to level down the rock, if any too high, in the track, and, of course, they did."
It is true the plaintiff's counsel objected to this testimony; but it was the essence of the case, and the Court allowed it. The same witness further testified:
"Maybe you don't understand me. I said as far as I could see, the rock was leveled down — as far as I could tell the rock was leveled down low enough. Then the train passed. Green Williams ran down the fill and sat down after the train passed; he did not get up. I went to him and asked him what was the matter. He said something had struck him on the leg; so one of my men pulled up his pants legs and I looked at his leg, but I could not see any sign of anything had struck him."
This testimony tends to show that the servants piled the rock too high by the master's direction; that they were instructed to level it down so that the train might pass; that the reasonable inference is the pile was not sufficiently leveled and a fast moving engine struck a rock and drove it against the bystanding servant.
3. The defendant's third request was sound, and the Court refused it; but it was irrelevant to the testimony. There was no negligence to run the train at the speed it was moving, so far as the testimony shows. The negligence lay by the side of the track, the pile of rock. *474
4. The defendant's second request was not relevant to the testimony. The three rules of the company proven by the plaintiff had no application to the testimony. There was no need to instruct the jury about the rules.
5. The plaintiff's ninth request was sound when applied to the testimony. The section master testified thereabout as follows:
"Q. That train gang stays on the track when they hear the train coming until you tell them to get off? A. No, sir; not necessarily. Q. They quit work as soon as they hear the train coming? A. No, sir; as soon as they see the train coming. Q. You don't allow them to get off until the train gets close? You are not wasting time? A. No, sir. Q. They work until you tell them to get off? A. Sometimes I tell them to get off, sometimes I don't; they know when to get off, anyway."
We are, therefore, of the opinion that the exceptions are not well taken, and that the judgment below ought to be affirmed.
It is so ordered.
MR. CHIEF JUSTICE GARY, and MESSRS. JUSTICES HYDRICK and WATTS concur in the opinion of the Court.
Concurrence Opinion
I concur in the result for the reason that I think it was the nature of the duty, and not the right to control, that governs this case. The plaintiff's duty was to take out the rocks and pile them. It was the duty of the "section boss' to have them leveled, so as not to come in contact with a moving train. If, therefore, the rocks were left at an improper height and were struck by a passing train and hurled against the plaintiff and wounded him, the jury were warranted in concluding that the place at which the plaintiff was injured was rendered unsafe; that it was rendered unsafe by the master. The duty to provide a safe place for the servant to work was the master's duty, and not the duty of a fellow servant. *475
