White v. Seaboard Air-Line Railway

Pottle, J.,

concurring specially. I concur in the judgment, for the reason that under the evidence the jury could find that the defendant’s foreman in charge of the work was such a superior servant, or officer, within the meaning of the law of South Carolina, as to take the case out of the operation of the fellow-servant rule, and that the efficient cause of the injury was an improper order given by the foreman. If this agent of the defendant was a mere fellow servant with the plaintiff, he would not be entitled to recover. The plaintiff can not,* under the evidence, recover solely upon the theory that the defendant employed and retained in its employ an incompetent servant. The mere fact that a master employs or puts in charge of a given work a servant who is in the habit of cursing and “rearing” at and hurrying other employees is not such negligence 'as to authorize a recovery in a given case, upon the theory that the other servants became so excited by reason of the conduct of the servant in charge of the work as to perform the work improperly, with consequent injury to one of the servants engaged therein. Knowledge by the defendant of this habit of the superior servant is not enough to authorize a finding that it could reasonably have anticipated that, in consequence of this habit, such an injury as that disclosed in the present record might result to one of the servants. If, therefore, the jury should find that the order given by the foreman was a proper one, the plaintiff would nót be entitled to recover.

Treating the defendant’s agent in charge of this work as an “appliance,” within the meaning of the law of South Carolina (which seerps to have been so construed by the Supreme Court of that State), it can not be said, under the evidence, that the plaintiff’s injury was the proximate result of any negligence of the defendant company in furnishing an improper appliance. All that appears in the evidence on this subject is that the foreman, on the occasion upon which the plaintiff was injured, cursed and “reared,” and hurried the servants engaged in the same work with the plaintiff, to such an extent as to cause them to become excited and drop the iron rail. This is not an act which the defendant could reasonably have anticipated would result from the foreman’s conduct, above set forth.