McDaniel v. Charleston & Western Car. R. R.

November 9, 1904. The opinion of the Court was delivered by This action for damages rested on evidence to this effect: While plaintiff was engaged as road master in clearing a wreck from defendant's roadway, the other portion of the work train ran against the detached flat car on which he was standing with such violence that he was thrown from the car and injured. The work train was operated by a conductor and engineer. Plaintiff, as road master, worked under the direction of the engineer of the railroad, and the conductor of the work train ran his train under orders of the train master; but the plaintiff was familiar with the rules of the railroad company, which required him "to attend in person all accidents" on his division, and provided that, "Conductors and engineers of work trains will receive instructions from the road master in regard to work to be done by their train." On this occasion, plaintiff was actually left by a superior officer in charge of the entire work of removing the wreck. Subsequently, he and the conductor of the work train, of their own motion, agreed on a division of the work, and in pursuance of the agreement the work train was parted so that each should have some of the cars. The locomotive was attached to the cars the conductor was using. The accident occurred from these cars being moved violently without warning against the car which the plaintiff was using and on which he was standing.

The Circuit Judge ordered a nonsuit on the ground that if the injury was due to negligence, it was the negligence of a fellow-servant. The plaintiff's exceptions, as we understand, really involve three propositions which he undertakes to sustain: First, the conductor operating the train was the superior of the road master in the conduct of the work, and had a right to direct or control his services. There is no evidence to sustain this statement; on the contrary, the plaintiff positively confutes it. Second, the plaintiff and the conductor and engineer were engaged in different departments of labor. In the mere running of the work train from place to place, doubtless, to avoid interference with other trains, the conductor received orders from the train master; but when actually at work, the rules placed the conductor and crew under the direction of the road master and in his department of labor. Third, the plaintiff and the conductor and engineer were engaged about a different piece of work. Obviously removing different pieces of the wreck did not constitute being engaged about different pieces of work, within the meaning of section 15, article IX., of the Constitution.

The common enterprise — the piece of work — was the removal of the wreck. The engine and cars were instrumentalities provided for the purpose, to be used by the conductor and engineer under the plaintiff as their superior, just as jack-screws and shovels were to be used by others, and the negligent moving of the train stands on the same footing as would the negligent placing of a jack-screw. But aside from the rules of the company and the other evidence indicating that the plaintiff and conductor and engineer were engaged as fellow-servants about the same piece of work, the plaintiff testified that he voluntarily agreed with the conductor as to what part of the wreckage each should remove, and the accident occurred while they were working about the common enterprise as fellow-servants in conjunction with each other in pursuance of the agreement. Of the many cases on the subject, it is only necessary to refer to Wilson v.Railway Co., 51 S.C. 79, 28 S.E., 91, and Koon v. RailwayCo., 69 S.C. 101.

The judgment of this Court is, that the judgment of the Circuit Court be affirmed.