Gibbes v. Railroad Co.

The opinion of the court was delivered by

This is a petition in the causes above stated, asking leave to bring an action against the receiver of the Greenville and Columbia Nail road Company to recover damages for the killing of petitioner’s intestate, by the explosion of a boiler on one of the locomotives used on said road, which was alleged to be due to the negligence of the receiver in supplying suitable machinery, &o., and in employing an incompetent engineer. The receiver filed an answer denying the allegations of the petition, pleading contributory negligence on the part of the intestate, and resisting the prayer of the petition. The Circuit Court refused to grant leave to sue the receiver in a separate action, but referred it to the master “ to hear and determine all issues of law and fact arising upon the pleadings.” To this action of the court there was no exception, and no appeal has been taken therefrom. On the contrary, the hearing before the master was proceeded with without objection, and he made his report, in which he finds, substantially, as matter of fact, that the death of intestate was not due to any negligence on the part of the receiver, and, as matter of law, that the petition be dismissed.

To this report the petitioner filed sundry exceptions, and the case came before the Circuit judge upon this report and the exceptions thereto, and he, concurring in the views of the master, rendered judgment dismissing the petition. From this judgment the petitioner appeals upon several grounds, all of which, except the seventh (not to mention the eighth, which is of too general a character to require notice,) raise simply questions of fact. As to these questions it is sufficient for us to say that we are not only unable to discover any ground which, under the well-settled rule of this court, would warrant us in disturbing the finding of fact by the master, concurred in by the Circuit *497judge, but, on the contrary, a careful examination óf the testimony incorporated in tbe “Case” satisfies us that such findings are well supported by the evidence.

The seventh ground of appeal, which is the only one raising a question of law, is in the following words: “ Because he (the Circuit judge) concluded, as matter of law, that the measure of the receiver’s duty was the exercise of ordinary care in the selection of machinery, &c.” We see no error in this. The receiver was not bound to exercise extraordinary care, and we do not know what terms the Circuit judge could have employed that would have more appropriately indicated the degree of care required of the receiver. The basis of the claim is the negligence of the receiver, and the definition of that term, as given by Wharton and approved by this court in Gunter v. Graniteville Manufacturing Company, 15 C. C. 450, necessarily implies that ordinary care is all that is required. Wharton, § 1, p. 1, says: “ Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person, under existing circumstances, would not have done, the essence of the fault being either in omission or commission.” This is no more than saying that negligence is the want of ordinary care.

The appellant’s counsel, in his argument, seems to contend that the true measure of liability is the want of “ail reasonable and proper care,” but we confess that the difference between those terms and the terms “ ordinary care ” appears, to us,.-inappreciable. Self-interest usually prompts those engaged in any enterprise to bestow upon it all reasonable and proper care, and hence the words “ ordinary care ” imply reasonable and proper care, inasmuch as that is the degree of care which we find that persons ordinarily bestow upon their affairs. The citation of the second decision in Gunter v. Graniteville Manufacturing Company, 18 S. C. 262, to sustain the view contended for by appellant betrays a misconception of that case. There the doctrine was distinctly recognized, that an employer was not bound to furnish the best and most approved machinery, but only such as a reasonable and prudent person would ordinarily have used under similar *498circumstances; that is, he must use ordinary care in the selection of his machinery, &c.

This doctrine is fully sustained by the authorities. As is said in 2 Thomp. Negl. 982, without citing others, in speaking of the duty of the employer in selecting and maintaining safe machinery and competent servants: “ He is not an insurer of the safety of his servants in this respect. He does not warrant the competency of his servants or the sufficiency of his machinery. His duty to them is discharged by the exercise of reasonable or ordinary care.”

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