ey to pay hotel bill, she cannot recover damages therefor, unless the carrier had notice. 4. SAME DELIVERY.

"Deliver," as applied to a telegram, means "transmit and deliver."

5. EVIDENCE-OPINION EVIDENCE.

It is within the discretion of the trial judge to allow a telegraph messenger to testify what would be a reasonably quick delivery of a telegram.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 2196.]

6. TELEGRAPHS -DELAY IN DELIVERY-EVI

DENCE.

An addressee of a telegram, in an action for damages, makes out a case by proving_long delay in delivery and damages resulting therefrom.

[Ed. Note. For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 63.] 7. TRIAL-ARGUMENTS OF COUNSEL.

Statement of attorney for plaintiff, in action against telegraph company for failure to deliver message, that if the telegram had been sent to any prominent man in the city "the company would fall over itself" to deliver it, was prejudicial and ground for reversal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 303.]

Appeal from Common Pleas Circuit Court of Union County; Memminger, Judge.

Action by Mamie G. Kirby and Wm. F. Kirby against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Reversed.

Geo. H. Fearons, Evans & Finley, and J. Ashby Sawyer, for appellant. S. Means Beatty and De Pass & De Pass, for respondents.

POPE, C. J. Plaintiffs, Mamie G. Kirby and her husband, William F. Kirby, brought this action against the defendant telegraph company. to recover actual damages alleged to have resulted from the negligent delay in delivering the following telegram sent to the plaintiff Mamie G. Kirby by her father, J. E. Kinsey: "Your mother is dead; come to-night." The message, according to the testimony, was received by the agent at Branchville, the home of J. E. Kinsey, between 7 and 8 o'clock on the morning of the 3d of March, 1904, and was delivered to the plaintiff at Union about 2 o'clock p. m. of the same day. Plaintiff alleges that by reason of the delay it was impossible for her to reach Branchville that day, the noon train, the only day train south, having already gone; that she was compelled to leave Union at 9 o'clock that night, and arrived at Columbia at 11 o'clock, where she was forced to remain in the depot all night. suffering much from the severe cold; that upon reaching Branchville, and learning that it was about time for the funeral, being unable to obtain other conveyance, she was forced to take passage with a mail carrier who proved very obnoxious to her; that she arrived too late for the interment; that she suffered much mental anguish by reason thereof; and as a result of her stay in the depot and her ride through the country in the uncomfortable vehicle of the carrier she took cold and became sick, and was put to much

inconvenience and expense. Defendant denied that it was negligent, and sought to show that, even if it was, its negligence was not the proximate cause of plaintiff's damage. The case was heard at the November, 1906, term of the court for Union county, and resulted in a verdict of $500 for the plaintiff. Judge Memminger, the presiding judge, having overruled a motion for a new trial, the defendant appeals.

1. The first exception alleges error: (1) In admitting the testimony of the witness J. E. Kinsey that he sent a comfortable buggy by one of his sons-in-law to meet plaintiff at Branchville about 6 o'clock in the afternoon, expecting her to be there about that time in response to the telegram. (2) In allowing said witness to state the physical condition of the plaintiff at the time she reached his house from the cemetery. We think this exception should be sustained. There are a number of cases recently filed by this court holding that the plaintiff can recover only for damages such as the defendant had notice of, or as a reasonable person should have known would result from delay in delivery. Doster v. Telegraph Co., 57 S. E. 6711; Du Bose v. Telegraph Co., 73 S. C. 220, 53 S. E. 175; Arial v. Telegraph Co., 70 S. C. 418, 50 S. E. 6. The telegram here under consideration on its face contained nothing that could put defendant on notice that, if it was not delivered promptly, plaintiff would be depriv ed of the convenience of a comfortable buggy in which to make the trip to her father's. Such a result was not in the contemplation of the parties, and therefore defendant cannot be held responsible. Evidence tending to show damage resulting therefrom was, hence, incompetent.

2. As to the second ground of the exception, it was not shown that the witness was in a position to testify as to the physical condition of the plaintiff. It does not appear that he was a physician or an expert in such matters. His opinion was, therefore, not admissible. He could have stated the facts from which the jury might have inferred plaintiff's condition. 17 Cyc. 25.

3. The second exception alleges error in allowing plaintiff to testify that she stayed in the waiting room because she did not have money to pay hotel expenses and was a stranger in Columbia. Damages resulting from these causes could not be other than special damages, and for them it is well settled the defendant cannot be held responsible, unless notice is given. Jones v. Tel. Co., 75 S. C. 208, 55 S. E. 318.

ter implies separation of the actors. There is nothing to lead to the conclusion that while a message is passing over the wire it is being transmitted, and while in the possession of the messenger boy, being carried to its destination, it is being delivered. We think the whole constitutes one transaction, the passage of the message between the sender and the person to whom it is sent.

5. The fourth exception alleges error on the part of the circuit court in refusing to permit the witness J. R. Mathis, a messenger boy, to testify as to what would be a reasonably quick delivery in this case. The admission of such testimony is largely in the discretion of the trial judge, and will not be ground for reversal, except where it is clearly harmful to the appellant. 17 Cyc. 28; Watts v. Railway, 60 S. C. 70, 38 S. E. 240; Tinsley v. Telegraph Co., 72 S. C. 352, 51 S. E. 913. That the exclusion here could not have been harmful is very evident. The witness was allowed to state the facts, and from these the jury could form their own opinion.

6. The circuit judge charged the jury that unreasonable delay created the presumption of negligence; that the defendant was called upon to relieve itself of the presumption, and, if it failed, then they must inquire whether Mrs. Kirby had shown that she suffered by reason of that negligence. Defend

ant contends that this relieved the plaintiff from proving her case by the preponderance of the evidence. It is well settled in this state that long, unexplained delay gives rise to the presumption of negligence. Poulnot v. Telegraph Co., 69 S. C. 545, 48 S. E. 622; Hellams v. Telegraph Co., 70 S. C. 83, 49 S. E. 12; Arial v. Telegraph Co., 70 S. C. 423, 50 S. E. 6. Therefore, if such delay is shown, and it is not explained, clearly the preponderance of the evidence is that the company was negligent. If the plaintiff then go further and show that she suffered by reason of that negligence, then certainly her case is made out. This contention cannot be sustained.

7. The eighth exception alleges error on the part of the circuit court in permitting the plaintiff's counsel to use the following language in his argument to the jury: "If a telegram were to be sent to Mr. Duncan, Mr. Nicholson, or Mr. Farr, that the telegram would go to them with arms open, and the company would fall over itself to deliver the message to any prominent man in Union." And also: "That the newspapers of the state were constantly publishing, from New York to St. Augustine, articles about South Carolina juries not doing their duty when trying criminal cases, and that Mr. Sease, the solicitor, had remarked about it last week." In the case of State v. Robertson, 26 S. C. 118, 1 S. E. 443, it is said: "That it is most certainly proper, and especially in criminal cases, that counsel, in addressing a jury, should keep themselves strictly within the record." In 2 Ency. of P. & P. 752, it is said: "Very

many abuses in argument may be sufficiently counteracted by instructions of the court to the jury, and a large discretion as to the refusing of new trials because of such violations of propriety is accorded to the trial courts. The appellate court will frequently condemn the language or conduct of counsel, and at the same time affirm a judgment denying a new trial, on the ground that under all of the circumstances the rights of the defeated party were not materially prejudiced. or that the action of the trial court in the premises was effectual to restore to the proceedings the fairness of which they had been divested." Let us, then, inquire whether the rights of the defendant here might have been materially prejudiced. It will be borne in mind that there was not a cause for punitive damages. Only actual damages were sought. Another fact which must not be overlooked is that there seems to be a tendency at the present day to hold corporations to strict accountability for their acts. Any language which tends to fan this natural feeling into greater fury, "flights of oratory" though it be, certainly has its weight and should be avoided. Courts are for the purpose of dispensing justice, and, were this kind of advantage allowed, in many cases that purpose might be defeated. Where the record does not sustain the remarks made, if it is evident that harm does result from them, it seems that this court should exercise its power and grant a new trial. We think the language here used was highly prejudicial to the defendant, and therefore sustain the exception.

The last exception raises the point that a new trial should have been granted because there was no evidence to show that the delay in the delivery of the telegram caused Mrs. Kirby any damage whatever. It being already decided that a new trial should be granted, we do not consider it necessary to pass upon this question.

It is the judgment of this court that the judgment of the circuit court be reversed.

GARY, A. J., concurs in the result. JONES, J., concurs in the result, and thinks the eighth exception should be overruled, citing State v. Williamson, 65 S. C. 249, 43 S. E. 671.

LYON v. CHARLESTON & W. C. RY. (Supreme Court of South Carolina. July 10, 1907.)

1. MASTER AND SERVANT-INJURY TO SERVANT -EVIDENCE.

In an action for injuries to a flagman while attempting to uncouple cars, evidence held insufficient to show negligence on the part of the

master.

2. SAME-FELLOW SERVANTS.

A flagman who had been instructed to obey the orders of conductors and engineers while the conductors are in charge of trains, while obey

ing the orders of such conductors is a fellow servant of the engineers.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 493-514.] 3. SAME-NEGLIGENCE-PROXIMATE CAUSE.

Where failure of a railroad company to have the cars equipped with air brakes operated from the engine, as required by act of Congress, was not the proximate cause of the injuries to a flagman, such failure cannot be assigned as negligence on the part of the railroad. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 162, 257–263.] 4. APPEAL-REVIEW-NEW TRIAL.

It is the duty of the court, on appeal, to reverse a judgment against a master for injuries to an employé and grant a new trial, where the evidence in its opinion admits of no other inference than that plaintiff's own negligence contributed to his injury as a matter of law. 5. MASTER AND SERVANT-INJURIES TO SERVANT-ASSUMPTION OF RISK.

Where a flagman was injured while uncoupling cars under the order of the conductor, which duty was within his employment, he assumed the risk.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 550, 648-651.] Gary, A. J., dissenting

Appeal from Common Pleas Circuit Court of Greenwood County.

Action by A. B. Lyon against the Charleston & Western Carolina Railway. Judgment for plaintiff, and defendant appeals. Reversed.

See 56 S. E. 18.

S. J. Simpson and McGhee & Richardson, for appellant. Grier & Park, for respondent.

WOODS, J. The vital question in this case is whether the circuit judge erred in refusing a motion for a nonsuit and for new trial.

The plaintiff, a flagman on defendant's freight train, while attempting to uncouple a moving car, fell on the track and had his leg crushed. He brought this action for damages and recovered judgment, alleging the accident was due to the defendant's negligence. Without taking up the exceptions in detail, we consider whether there is evidence to support any one of the several charges of negligence as a proximate cause of the injury. The case depends principally on the testimony of the plaintiff, who gave this account of the accident on his direct examination: "What did you do? We went and unloaded all of the freight that was for Hampton, and the conductor got out of the car and signed the engineer ahead, and the train rolled or at the rate of about three or four miles an hour. He ordered Stephen New, the brakeman, and myself, to cut the flat car loose, and let the rear of the train trail behind and roll clear of the siding, put the flat car in the side track, and come back to the main line and get the train and go on to Brunson to meet 41, a passenger train. Stephen New went and caught hold of the lever on the cattle car to cut it loose from

the flat. The lever was hard to work, and it seemed like it was impossible for him to cut the car, and I knew I could not, and I crossed over to the corner of the flat car and pulled the lever, and a jerk from the car threw me under the rolling train behind. There was no air on the train. What happened when you fell under there? The front trucks of the cattle car rolled over me, broke my leg, fractured my hip and ankle, broke my collar bone, and bruised my shoulder, and cut a gash in my head." On cross-examination he says: "Just state again how it happened; where were you and what were you undertaking to do, to carry out the conductor's orders. Just tell what you were doing. Stephen New, when we got orders, he went over and caught hold of the lever on on the outside, without going in between the lever on the cattle car so that you could stand on the outside, without going in between the cars and uncouple it, one of those iron automatic levers? Yes, sir; it don't set outside the car, it sets in between. You can stand outside of the car without going in between them? Yes, sir. And you intended to turn that lever over and raise the peg up and uncouple the car? That was Steve New's idea, and it seemed he could not work his lever. When Steve New caught hold of that lever, where were you? On the flat car. Why did you get on the flat car? I was going down with the train, and when it got near the siding I was going to get on the top of the cattle car and apply the brakes, as ordered to do. How were you going to get across the gap between the flat car and the cattle car? Several ways. I could have got down on the ground and got up, or I could have reached over and got the ladder. You knew that Steve New was going to separate them as soon as he could? He was getting pretty close to the clear post, and he had not got them loose, and I just pulled the lever on the flat car. When Steve New first caught hold of the lever, where were you? I was on the flat car. You got on the flat car? I was already on the flat car. I just got up to ride on down. There was not any need of my trotting beside it. You got on the flat car the first thing you did, before Steve New caught hold of the lever? That is true, is it not? I don't recollect about that. You knew tha as soon as Steve New worked that lever, if it worked all right, the cars would separate? Yes, sir; but as I cut the car I was expecting to give my own signals, but it was done before I could do it. I thought you said that Steve New was going to cut the car off? I said he was trying to pull it up and it looked like he could not get the lever to work, and I pulled the lever on the flat car. But, when you went on the flat car, you did not intend to have anything to do with the lever? I was going to carry out the orders of the conduetor. Didn't you, when you got on the flat car, think that Steve New would operate the

lever so as to separate the cars? I knew that was his intention, sir. And at that time you did not intend to have anything to do with uncoupling the cars? I was going to carry out the orders of the conductor, and I could not have done it otherwise. But, when you got on the flat car, your intention was that Steve New should do the uncoupling, and then you were to get over on the other car and put on brakes? Yes, sir; but, when he could not do it, there was but one lever on his side, and I was compelled to pull the lever. And, when he had difficulty in uncoupling, you undertook to help him? Yes, sir."

1. Negligence as a proximate cause of the injury is charged against the conductor, in that he "ordered, required, and directed this plaintiff to get upon and uncouple the said cars while in motion, and get upon and apply the brakes to the trailing cars while in motion, and in leaving the train without seeing that his orders were carried out and the train operated with due care, without a sudden increase of the speed of the train." The plaintiff's own account shows clearly the accident was due to his act of leaning over the corner of the moving car and uncoupling it by pulling a lever at the side; but there is no evidence whatever that the conductor ordered the plaintiff to get upon the moving car and uncouple it from that position, or even saw him when he did it. There is evidence of an order from the conductor to uncouple the moving car, but a lever was provided on each side of the car as a means of uncoupling from the ground. That the plaintiff, as well as New, understood the order to mean that the lever should be used from the ground, is conclusively shown by his evidence that they went about the uncoupling in that manner; New handling the lever and the plaintiff mounting the car in order to leap over on another car and put on the brakes as New uncoupled. New, the brakeman, made an unsuccessful effort to use the lever on his side from the ground, and then the plaintiff, without giving any signal to stop the train or attempting to use the lever on the other side from the ground, or even reporting to the conductor or receiving any order from him, of his own volition, without even giving notice to any one in control of the motion of the train of his intention, attempted the perilous feat, of stooping over from the moving car and pulling the lever below him. There is no ground for saying the order of the conductor required or contemplated such peril. Without doubt, when an order is given, it is the duty of the servant to take the safe way of carrying it out, if one is provided; and, if that fails, he cannot, except, perhaps, in cases of emergency arising from the fault of the master, charge the master with the result of using a dangerous method not in the purview of the order. If the order of the conductor could in any reasonable view be regarded as

suggesting to the plaintiff to stand on the flat car and uncouple from that position, then there might be ground for saying that the defendant could not escape liability for a condition of things produced by its order to him, in which on a sudden impulse he took a dangerous course, resulting in his injury. But it would be beyond all reason to say the order contemplated mounting a flat car as the plaintiff did, with the intention of stepping or leaping from that to the following car, in order to apply the brakes to that car, or the attempt to use the lever while stooping from the end of the flat car. Here, then, was a general order from the conductor to uncouple, and there was a lever provided for the purpose to be used from the ground, and, if it had been used as intended by the defendant, the plaintiff could not have been injured by falling from the car. This distinguishes the case from Carson v. Railway, 68 S. C. 55, 68, 46 S. E. 525, 529; for in that case the court said: "It was shown, or rather there was testimony offered tending to show, that the conductor ordered this servant, the plaintiff, to couple those cars; that such conductor in this matter represented the master; that the servant called to such conductor to hold fast the train until he signaled; that this servant did not signal the conductor to move the train; that it was under these circumstances the train was moved so that the two cars bumped against each other, thus causing his injuries; that, when the cotter pin was out of its place, it would be necessary for a servant to go between the cars to arrange it; that it was necessary to go between the cars to open the instrument by which the coupling was made." The conductor's position at the time of the accident does not appear from the evidence, and therefore there could be no finding of negligence on the ground that he was not present to direct the details of the uncoupling and the movements of the train. The plaintiff's testimony shows that he clearly understood the manner in which the lever was to be used, without any instruction or direction. That the master is not liable for any injury which results from the use of a safe appliance in an unsafe and dangerous manner not contemplated by him seems too obvious to require a particular citation of authority. The cases will be found collected in 20 Am. & Eng. Ency. 141. No authority has been cited, and we think there is no foundation in reason, for the proposition that, though the plaintiff knew fully the safe and proper way to use this safe appliance, it was nevertheless the duty of the conductor to stand by him and see that, whenever ordered to uncouple cars, the plaintiff should use with due care the safe means provided, and should not take the peril of an improper use of such means. The evidence of the plaintiff shows beyond doubt that he knew the safe way, and chose the dangerous.

2. The plaintiff further charged "that

the said defendant was further negligent, careless, and reckless in the said engineer in charge of the said engine, who was a superior officer and agent to the said plaintiff, and who had the right to direct the services of the said plaintiff, and who was in charge of the said train in the absence of the said conductor, gave the said train a sudden and violent lurch and start forward, without warning to the said plaintiff or signal from him, and while the said plaintiff was engaged in carrying out the directions and orders of the said defendant, and was in a dangerous position, which negligence, carelessness, and recklessness was a direct and proximate cause of the said injuries." The general rule in this state and elsewhere is that an engineer is not ordinarily the representative of the master, but is the fellow servant of the train hands; all being under the orders of the conductor as the representative of the master. The plaintiff in this instance testified, however, that at the time of his employment as a flagman he was told by the train master that he must obey the orders of the conductor or the engineer, and that accordingly he did obey, to use his own words, "the conductor when he needed my services and the engineer when he needed my services." The Constitution provides: "Every employee of any railroad corporation shall have the same rights and remedies for any injury suffered by him from the acts or omissions of said corporation or its employees as are allowed by the law to other persons by law who are not employees, whe the injury results from the negligence of a superior agent or officer, or a person having a right to direct or control the services of a party injured, and also when the injury results from negligence of a fellow-servant engaged in another department of labor from that of the party injured, or of a fellowservant on another train of cars, or one engaged about another piece of work." Under this constitutional provision, in view of the plaintiff's evidence as to obeying the orders of the engineer, the question arises whether in this case the engineer was a superior agent or officer, or person having the right to control or direct the services of the plaintiff. Under a constitutional provision identical with ours, the Supreme Court of Mississippi held an engineer not to be a person having the right to control or direct the services of a brakeman. Evans v. Railway, 12 So. 581, 70 Miss. 527. In this state the rule adopted is thus clearly stated in Brabham v. Tel. Co., 71 S. C. 56, 50 S. E. 716, and is quoted and approved in Martin v. Royster Guano Co., 72 S. C. 237, 243, 51 S. E. 680, 682: "In determining who are fellow servants, the test or rule in this state is not whether the servants are of different grade, rank, or authority, one of them having the power to control and direct the services of the other, but the test is in the

character of the act being performed by the offending servant, whether it was the performance of some duty the master owed to the injured servant, the performance of which duty the master had intrusted to the offending servant. In the case under consideration there was no duty resting upon the defendant to give notice to the plaintiff, as the danger was not hidden or unusual, and the plaintiff had knowledge thereof." Assuming that the engineer was the offending servant, through whose negligence the plaintiff was injured, the whole evidence shows that, in accordance with the wellunderstood custom, the master had intrusted to the conductor, and not the engineer, the duty of giving orders for the shifting and coupling of cars, and there was no evidence that the conductor was absent and the train in the charge of the engineer. Therefore, in carrying out the conductor's orders, the plaintiff was not at the time under the engineer, as a person having the right to direct or control his services, but was under the conductor, and hence was a fellow servant of the engineer on the same train. But, in addition to this, we do not see how negligence can be imputed to the engineer as the proximate cause of the injury. The plaintiff, it is true, testified he fell on account of a sudden jerk of the train, but jerks are inevitable and are to be expected in movements of freight trains (Steele v. Railroad Co., 55 S. C. 389, 33 S. E. 509, 74 Am. St. Rep. 756); and there is nothing in the evidence indicating the engineer had any reason to suspect the plaintiff was attempting to uncouple the cars while stooping over the corner of a moving car, or in any other position of danger. If the plaintiff had been on the side of the train uncoupling the car by the use of the lever from the ground, it would have been impossible for a sudden jerk to have precipitated him from the car under the wheels.

3. Another specification of negligence alleged as a proximate cause of the injury was a failure to have a sufficient number of cars "equipped with power driving wheel brakes and appliances, commonly known as air brakes, as is required by law, and have air properly working for the operation of said brakes on said cars." The sections of the federal statute (Act March 2, 1893, c. 196, §§ 1, 2, 8, 27 Stat. 531, 532 [U. S. Comp. St. 1901, pp. 3174, 3176]), relating to interstate trains on which this allegation of negligence rests are as follows:

"Section 1. That from and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not equipped with a power-driving wheel brake and appliances for operating the train brake system, or to run any train in such traffic after