I concur in the judgment for reversal. The testimony in view of the decision on the former appeal in this case, 73 S.C. 572, 54 S.E., 231, leaves no room to doubt that plaintiff was fellow-servant with Wilson in the matter of moving the cars from the threatening fire and that the failure of Wilson to uncouple the cars, as directed by Carothers, representing the master, was the proximate cause of the injury. The plaintiff testified that just before he went in between the cars to push with Wilson, he heard Carothers direct Wilson to uncouple the cars and that he supposed the order had been obeyed. Being a fellow-servant with Wilson, however regretable his misfortune, plaintiff cannot recover of defendant for injuries resulting from the negligence of Wilson in failing to obey the order of Carothers. *Page 557
The master is liable to a servant for the acts or omissions of a fellow-servant, due to incompetency and incapacity, when the master is negligent in the selection of such fellow-servant. Proof of a servant's incapacity raises only a primafacie presumption of negligent selection by the master, but in this case there was no evidence that Wilson, a section hand, was incompetent to uncouple standing freight cars, and there was no evidence that it was a negligent act to select Wilson to aid in the sudden emergency and necessity for quick action caused by the fire.
For these reasons there was error in refusing to grant a nonsuit as alleged in subdivisions a and b of the second exception, in charging the jury as alleged in the fourth and fifth exceptions and in refusing a new trial for want of evidence to sustain the verdict, as alleged in the eighth exception.
MR. JUSTICE GARY dissents. Mr. Chief Justice Pope uses this language in his opinion:
"The Circuit Judge charged the jury, in effect, that if the master fails to employ competent servants, and an employee is injured by reason of the incompetency or incapacity of his fellow-servants, then the master is liable. The defendants object to this charge, on the ground that it renders the master absolutely liable, if injury results from the employment of incompetent servants. This contention must be sustained. * * * This, in effect, makes the master a guarantor of the competency of his servant, whereas, all that the law imposes upon the master, is the exercise of due care in selecting his servants. The question of due care under all the circumstances, should have been submitted to the jury."
In order to determine whether there was error in that portion of the charge just mentioned, it will be necessary to refer to the pleadings, for the purpose of ascertaining the issues involved.
The complaint, in specifying the particulars in which the defendant was negligent, alleges that it failed to "select or *Page 558 employ a competent servant to uncouple the freight or box cars, to further and expedite their removal;" also, to "furnish a sufficient and competent force to remove said freight or box cars, with due regard to the safety of plaintiff."
While the answer of the defendants does not deny this allegation, in express terms, it may, under a liberal construction, be regarded as put in issue, but the defendants did not set up as a defense, that they exercised due care in the selection of their servants.
In the case of Hicks v. Ry., 63 S.C. 559, 575,41 S.E., 753, the Court says: "We see no reason why it should not be prima facie evidence of negligence, to employ an incompetent servant, as well as to furnish defective machinery. Nor do we see why a servant should be held to assume the risk of negligence on the part of an incompetent fellow-servant, when he does not assume the risk arising from defective machinery, especially, since it has been decided that the word appliances includes the persons necessary to operate the machinery." The principle is thus stated in Branch v. Ry., 35 S.C. 405,407, 14 S.E., 808: "The allegation on the part of a servant, that he has sustained an injury while in the service of the master, by reason of the neglect of a duty, which the latter owes to the former, unquestionably states a cause of action, for, as said above, the omission of such duty affords at least prima facie evidence of negligence, and while it is true that such prima facie showing may be rebutted by evidence, tending to show that such omission of duty on the part of the master was not owing to his want of care and diligence, but was due to other causes which he could not control, yet until such prima facie showing is rebutted, it will be conclusive. For instance, the master may show that he did not know, and could not by the use of due care and diligence have ascertained, that there was any such defects in the machinery, or other appliances furnished the servant, as would be likely to cause the injury complained of; but until this is shown, the failure to perform an acknowledged duty stands unexcused, and renders the master responsible. *Page 559
"It seems to us, therefore, that want of knowledge on the part of the master of the defect in the machinery, being a a matter of excuse for the failure on his part, to perform an acknowledge duty, constitutes matter of defense, and is not an element in the cause of action. * * * As the law, recognizing the imperfection of human nature, does not require absolute perfection in the performance of duty, it will listen to excuses for non-performance, as a defense to an action to recover damages for an injury sustained by one by reason of the failure of another to perform a duty, which the latter owes to the former. We think, therefore, that knowledge on the part of defendant company, in this case, of the defect in the machinery, by reason of which the injury complained of was sustained, constitutes no part of the plaintiff's cause of action, but is a matter of defense."
Under this authority (which has been affirmed in subsequent cases), the charge mentioned in the opinion, even standing alone, was free from error.
But his Honor, the presiding Judge, charged specifically that, "after the employer has exercised reasonable care in selecting employees, he is not bound to compensate a fellow-servant for the negligence of his fellow-servants," thus submitting the question squarely to the jury, whether there was due care in the selection of the servants.
It seems to me that the doctrine announced in the opinion would practically overrule the case of Branch v. Ry., 35 S.C. 405,14 S.E., 808, in this particular.
For these reasons I dissent.
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