*1 Armstrong v. Lumber Co. Syllabus. opinion The filed in 11, this case oo held but May up petition for until rehearing 19, 1910. The

May opinion Court was deliv- ered by The issues in this case are the Mr. Woods. Justice

same as those in Sanders v. in Donnelly, and the judgment that case is conclusive of this.

The o'f this Court judgment is that for petition mandamus be dismissed. 19, 1910.

May Careful examination of Curiam. Per petition does not us convince that there rehearing material issue on the arising record overlooked or in the disregarded the Court. judgment therefore, is, dismissed and the order petition stay- the remittitur revoked. ing v. A.

ARMSTRONG C. TUXBURY LUMBER CO. Pleadings Negligence Contributory op Risks. —An Assumption 1. — — defense, setting answering, “and up answer further this defend- alleges if it negligent ant that even were it denies—still —which proximately due

accident own negligence, his in in that he conducted himself a careless manner and failed to keeping body observe caution in from coming contact with care,” cogs, said could have done if had used due up the plea contributory sets no defectively negligence, but motion be made to make more definite or demurrer be not inter- posed, support evidence in the plea should be admitted. Error excluding it is cured admitting assumption evidence as risks, which was also pleaded. Difference assumption between contributory risks stated. engineer charge Servant. —An machinery cannot

2. Master recover of the master for an caught coat getting caused oiling in uncovered cogs while ordinary boxes which it not his Term, April ¡Rep.] knew, only negligence of which he

duty to oil but *2 the condition the cogs wrong way the revolved and were charged being the cogs situate some distance above the floor and unguarded. were usually That they superintendent were not oiled with the coat on. the machinery, dry, and directed him to oil the which was present was bring within the the servant the obeying does not the case rule spot guilty contributory negligence. on the is not master Gary dissents. Mn. Justice Charleston, 1909. Reversed. DpVoRR,

Before J., April, A. Action Frank T. C. against Tuxbury Armstrong defendant appeals excep- on Company, following Lumber tions :

1. erred in “The defendant’s presiding Judge refusing nonsuit the in motion for a upon following ground, urged motion, That evidence plaintiff’s said support'of namely: that the to caused injury plaintiff failed to show the the of the defend- part carelessness ant. in

2. “The erred1 defendant’s presiding Judge refusing in motion for a nonsuit upon following ground urged motion, That evi plaintiff’s said namely: support’of was due to injury dence showed own negligence. defendant’s erred Judge refusing

3. “The presiding in- for a nonsuit upon following ground, urged motion evi- motion, That the plaintiff’s namely: of said support was due to showed that the dence aware, and which was fully -the plaintiff risk of which assumed. voluntarily erred in defendant’s refusing “The Judge presiding following ground, urged for a nonsuit

motion motion, That the evi- plaintiff’s- namley: said support that even if the defendant guilty showed dence of con- the plaintiff guilty in any respect, Lumber Exceptions. proximate cause tribuíory negligence, injury.

5. “The erred permitting plaintiff, objection Armstrong, testify against defend- Mr. ant as follows: do know Mr. ‘Q. Armstrong, you Yes, Davies ? A. sir. Q. position What does hold with A. Tuxbury Oompanj''? Vice-president and Lumber Q. business. Did ever talk to him manager you Yes, A. about this matter? sir. did Q. What he tell you do; he tell did see A. He told you go anyone? Frost, me to and see Mr. represented who the accident go *3 Objected as company. incompetent. to The I think Court: him, he he can' went to see but not what he say said.’ 6. “The erred in the as charging jury Foreman, ‘If Mr. you, follows: were operating machinery individual, there as a corporation or and to hire you were servants to-look your after and such machinery, servants knew When entered the they employment that the machin- that, ery to and still dangerous operate, knowing they it, entered into contract with to then you operate they assumed the risks that were natural and incidental to that work. I In that same connection that it is the charge you of the master duty provide to a safe suitable and for place to perform labor; is, servant and work that his the duty master, is imposed upon the and that does not mean an safe place, means a safe rea- reasonably place, absolutely safe and suitable sonably place perform work which he is on to perform. called master Whenever the has per- formed in duty respect that and the servant in injured his to do and undertaking perform work, having assumed the ordinary risks that are incidental the performance it, he and injured account either negligence, in the 'and manner he is way work, that performing or by one of the risks incidental to his employment; why, would mot be liable.’ The charge master this partic- ular calculated instruct the that the master being jury v. Lumber April Term, must a safe and suitable in which the provide servant place ini is to work order to himself from even discharge liability, suitable, not to be place when servant knows the safe or this, and enters the work and voluntarily knowing the risks from the unsafe and unsuitable assumes arising place. requested instructed jury by

7. “Having ‘If as follows: an works in voluntarily employee are conditions where place dangerous dangerous him, he assumed risks appreciated known by of such condi befall him reason that any injury may tions, his employer responsible.1 cannot hold fol instructions as in. said qualifying erred Judge presiding law, if that a man knows danger : ‘That is lows risk, a risk that naturally and assumes the risk which he is of the work and out labor springs ordinarily is the cause injured, why, and he becomes to perform, unless, I find you as have stated you, injury, his own a reason furnish master’s failure to it was caused work.’ him to perform place safe suitable ably to instruct being designed This qualification and suitable place a safe provide failure master’s him liable the renders to work the servant is *4 such servant’s employment in consequence occurs knew the servant even place, though and unsuitable unsafe unsuitable, voluntarily and and to be unsafe place the there. the risk working assumed fourth the request defendant’s presiding

8. “In charging follows: same as ‘If an qualifying employee erred in Judge work, a safe one way a doing dangerous has choice of the way, voluntarily an unsafe other chooses the he is meets with an then thereby injury, and1 way, unsafe and cannot hold his employer responsi negligence, guilty I After the word refuse to injury, damages.’ his ble for word, insert this: if you ‘And after that charge you I he can then charge you be negligence, that to believe Lumber Exceptions. hold employer responsible injury.’ not his Because if, stated, the conditions under the employee voluntarily chose unsafe it the followed as a conclusion of law that way, the responsible. would not be employer

9. “The erred the presiding Judge refusing charge fifth instruction submitted the Tf by defendant: is in not a safe employer in which negligent providing place work, is to and the employee meets with an employee if thereby, cause of the injury yet, proximate injury is own employee employee’s negligence, concurring with and thus con- combining employer, about the he cannot tributing injury, hold the bring Because, is responsible.’ submitted employer answer defendant sufficiently had pleaded contributory' negli- and no to the answer motion demurrer to make gence, made, more and certain been definite having was entitled to have the issue to the submitted jury. as “Having charged requested defendant as follows: Tf the is employer negligent providing work; safe in which his place employee to yet, an injury sustained at employee such place is due proximately to the own employee’s negligence, he cannot hold his employer responsible therefor.’ The erred presiding Judge T in adding: that if the charge you due injured party, and to his alone, Because, cannot recover.’ why, in so charging, pre- withheld from the siding Judge jury the issue of contrib- utory negligence.

11. “The erred in charging follows: ‘The defense is not contributory negligence I be considered by you. charge you you must con- evidence, or, rather, clude from this if you do conclude from this evidence that injured and dam- *5 if conclude that he aged, you has been injured and damaged on account of his own then negligence, under the pleadings case, in this liable; the defendant would not if, be but April Term, Rep.3 the of and the plaintiff guilty

although believe of negligence, yet you defendant guilty the direct and proximate the defendant’s negligence Thus, recover.’ the could still plaintiff cause of the injury, issue of contributory from the the again, wi'th'oldimg jury negligence.

12. “The erred in the charging jury Tt is tell follows: in this connection that duty you my comes-into this Court it -is plaintiff whenever his duty evidence, his case the prove by preponderance of the -evidence, the the and the greater weight by preponder- does a numerical ance of evidence not mean prepond- ance, not that there must be more witnesses on -oneside than other, on the but it means whatever testimony you there are to, whatever believe. credence you may witnesses may give balances; illustrated the use of a by pair That has been and it in one put tabe testimony you in the of the defendant testimony scale and you put -scale, if the testimony plaintiff -outweighs other Foreman, defendant, that would repre- Mr. why, that of the was, of the -evidence the greater weight where sent possibly I that what is of this case charge you for the purpose means the of the evidence weight greater meant fact to be material the -evidence on any weight greater that is to be proved fact necessary material proved, -to full your liable must be shown the defendant hold facts; must you satisfaction, are the judges and you not.’ The illustration -or is sufficient evidence what say bal- -of a pair Judge presiding -employed thus towas be -of the testimony in which ances defendant, testimony against weighed cal- -inevitably accordingly, determined preponderance must find for that they believe jury lead culated offered no testimony-; having the- the plaintiff, instructed the have should Judge whereas, the presiding offered by weigh should they *6 Armstrong 122 Co.

Argument of Counsel. S. and determine whether plaintiff, in favor preponderated of the plaintiff or defendant.

13. “Because Court erred in defendant's refusing motion for new trial based following grounds others: Because the among Court erred in (1) refusing for a motion nonsuit. Because Court erred in (2) say to the decide the case jury, you ing preponderance evidence; is, of the will you put of the testimony in one scale the testimony of the defendant in other, and determine the case according plaintiff’s or defendant’s shall testimony other; whereas, outweigh the Court should have instructed the jury they should weigh plaintiff’s and decide the case accord as it preponderated in favor ing either against Because parties. the counsel of (3) plaintiff asked irrele vant of his witness for questions the purpose of informing an there was company had indemnity case, because, insured the defendant in this after the bad ruled on the Judge evidence, introduction of such plain counsel, in his tiff’s address- to the stated that jury, he did not blame one counsel because he wa!s his best doing for his accident company. Because the (4) the fourth charge request refused submitted by defend ant. Because -the (5) presiding Judge refused to charge fifth submitted request defendant.” Miller, Bissell,

Messrs. & Whaley Frost, Smythe, &Lee Miller, Messrs. appellant. Bissell Whaley & cite: Plain- assumed, C., C., 541; 557; risks: 21 22 S. 55 S. S. tiff 483; C., 468; C., 237, C., 264, 346; 61 C., 72 S. S. 74 S. C., 419; 80 IX 232. art 15, S. Sec. Constitution C., 9; C., 204, 302; does not such case: 60 apply to S. 66 S. C., 55; C., 303; C., 483; C., 470, 55 75 70 68 S. S. S. S. 237, C., 264, 346; 315, 242; C., 419; C., 72 74 S. S. 76 S. C., 452; C., 502; 349; C., 374; C., 80 81 83 79 S. S. S. S. 19, 271. zuith charged keeping machinery Plaintiff Lumber Term, April 1910. C., C., C., 97; 549. Contribu- 491; 82 S. S. S. order: 72 S.'C., 495; 64 on nonsuit: available tory C., 77 S. C., C., 533; 336; 72 S. C., 561; S. *7 C., 331; 54 16 S. contributory negligence: The plea of C., Assumption S. 550. C., 470; S. C., 485; S. 76 70 of C., S. 123; 21 20 Ency., master: without negligence risk of C., 232. S. C.,-315; 80 70 S. C., 468; S. 541; 61 Prost cite: No & Smythe, Messrs. Lee C., 494. reason- 61 zvas S. Machinery part defendant: of C., C., 398; C., 529; 102; 69 34 72 75 S. S. S. ably safe: C„ S., 467; C., 68; 60 C., 214; 211 U. 76 287. S. S. S. 1252; 61 cover the 26 cogs: Cyc., master to Not duty of 685; 488; 182, Div., 10 494; C., T. R. B. C., 55 S. S. R., 693. risks: R., S. E. 44 N. 449; Assumption W. of C., C., 234; C., 488; 348; 80 C., 547; 55 72 S. 21 S. S. S. 146; 20 26 C., way: Ency., 21 459. S. unsafe Safe C., contributory negligence: Plea 1248; 328. 77 S. Cyc., of counsel to insur- 553; C., C., 475. 70 76 S. S. Reference W., R., 55; C., 408; 84 69 At. S. 77 ance S. defendant: 1100. contra, M. Bryan, Holman and' P. Legare

Messrs. C., S. not 70 good: negligence, contributory Plea cite: C., C., 146; master 91. Duty 67 S. 475; S. fur- C., C., 426; Assump- 77 S. S. 443. place: nishing safe C., 238. S. risks: 80 tion deliv- of the Court The 1, opinion

June ered by brought The plaintiff Mr. Chiee Jones. Justice injuries alleged for personal recover damages

action to in allow- of defendant from' the negligence have resulted that plaintiff’s so remain unguarded cog gear ing arm into same, pulling in the thereby coat was caught necessitate same so injuring the cog gear Opinion of the Court. amputation. rendered a verdict in favor of plain- tiff for seven thousand dollars.

As are clearly we 'opinion there be a should certain; reversal we will notice exceptions only compel same. read, had

After been pleadings plaintiff’s counsel stated that would object introduction tes defense of timony support contributory negli

gence upon that such ground defense was not set forth in. the sufficiently answer. After argu ment the announced in his opinion, contributory pleaded, sufficiently and that he all would exclude support thereof. *8 there While now no specific to this exception is the ruling, is in question the ninth fairly presented and eleventh excep tions, which as are follows:

9. “The presiiding erred in' to Judge the charge refusing fifth instruction submitted the Tf defendant: the is employer in which negligent providing place safe work, and to the an employee employee meets with if a injury thereby, cause proximate of the to yet, the own employee employee’s negligence, concurring with that of the combining 'employer, thus con about the injury, cannot hold the tributing bring Because, submitted, if is employer responsible.’ answer of the had defendant sufficiently pleaded1 negli contributory and no make gence, demurrer to answer or motion to made, more definite certain been having was entitled to have submitted jury. the issue to the

11. “The presiding erred in Judge charging jury ‘The follows: defense of contributory is not I be considered by you. charge you you must conclude evidence, or, rather, from this you if do conclude from this evidence that the plaintiff injured and damaged, if you injured conclude that was damaged account then, of his own1 under in this negligence, pleadings April Term, 1910. case, liable; if, defendant would' not be but although the of and the defendant is guilty negligence, of if believe that guilty negligence, yet you the defendant’s direct and proximate cause the injury, the plaintiff could still recover.’ Thus again withholding from the jury issue contributory negligence.” Court,

Under the defendant was ruling denied to offer evidence as to- opportunity contributory negligence, and under the were not allowed consider charge the matter under the contributory negligence arising No in the plaintiff. was offered testimony case, himself. It mani- except seems given by error, fest this is reversible the defendant interposed plea contributory negligence. besides a answer denial was as follows: 3. general “Further this defendant that the answering, alleges plain- defendant, tiff was the engineer charge which he was and it was his injured, machinery duty make safe the at or near the where place machinery worked, and if the at which he employees place injured was not such condi- sufficiently danger, guarded against tion was due to the plaintiff’s negligence failing per- form duty.

4. “And further answering, alleges ¡of the character and condition aware fully and at which he was- and of injured, the machinery cogs box, that' whatever attended and dangers upon oiling risk such assumed the attendant plaintiff voluntarily box, to the he thus of the and his was due oiling injury risk assumed.

5. further “And this defendant answering, alleges even it were it negligent denies—still the acci —which dent due to his own proximately neg in that he himself in. a conducted careless manner ligence, and failed1to caution in from observe keeping body

126 Lumber

Opinion Court. S. have into contact with said which could coming cogs, used due care.” done if he 'had in effect that if defendant five states Paragraph clearly caused proximately own plaintiff’s negligent, negligence are which plaintiff’s facts stated from injury, be inferred. The inser is to- contributory sought be “which it denies” not given tion of words ought denial than involved in the previous force is greater general “contributory The omission of t'be words- negligence. or “negligence plaintiff concurring negligence” such with the defendant’s negligence” combining at that to authorize the Court stage fatal1defect as plea negli the attempted case to ignore contributory are is when the facts stated especially gence, was not such This claimed1show contributory negligence. th-edefense as to-warrant Court to-state an entire failure at but of contributory negligence, evidence excluding have been cor most, which should a defective plea it was certain by make more definite and rected motion- Pom. Code amendment, rule stated. with the harmony C., Mills, 553. 548, Rem., v. Inman 76 S. Wingo assump from distinct Contributory entirely ri-sk, approximate in certain phases although- tion of they marking twilight that there dim each The fact -other. does not of night and the day- beginning the close cases Our day night. distinction between destroy v. Rail Bodie the distinction. and -enforce dearly recognize 80 Co., C., 715; v. 468, E., Mfg. James way, S. S. C., 237-8, E., S. Co., A., R. In Norramore v. Cleveland etc. R. R.L. 68, Taft of the Circuit opinion Circuit Judge delivering said: of risk and contribu Appeals, “Assumption Court of where the is so obvious approximate danger tory negligence man ordinarily prudent and imminent that no would assume But the risk of therefrom. where the danger, *10 which men are one present appreciated many though Lum:ber Term, April men, in the habit of who must assuming, prudent earn a are to assume for extra compensation, living willing one who assumes the risk cannot be said be guilty if, the risk of view contributory negligence having assumed, care commensurate he uses danger reasonably with the who injurious risk to avoid One consequences. thereof, who, not does use such care and reason suffers and cannot guilty contributory negligence, reoover not causes the because be and1 the master injury, or because cause it.” they jointly In the case of v. Schlemmer Co., etc. R. R. Buffalo Ct., 409,

Sup. after attention to' the calling broad sense Which of risk” “assumption was used ini -the statute under consideration, viz., as covering conditions, as “dangerous like, machinery, premises and the which the injured party understood and appreciated when he submitted his them,” person to the Supreme Court of the United States said: of risk in “Assumption this broad sense obviously shades into as understood. commonly Negli- in conduct which gence common or the experience consists special of the actor knowledge shows be so likely the result produce oomplained of under the circumstances actor, known to the that he is held answerable result, certain, although intended or foreseen. isHe held to assume the risk same Choc- ground. McDade, S., taw etc. v. 191 U. 64-68. from the Apart contract, notion of rather to this applied broad shadowy form of the difference of the conception, practical latter ideas is in the two their degree proximity particu- lar harm. The conduct of preliminary into getting or relation is dangerous employment said be accompanied of risk. The act by assumption more leading immediately ato accident is called But the specific difference negligent. between the two is one of than rather of kind.” degree Brewer,

In a in which opinion Peck- dissenting Justices ham, concurred, McKenna and it is stated: “That Day *11 Armstrong

128 Lumber Co.

Opinion of the Court. a vital there is difference between of risk and- assumption is clear. contributory As said this Court McDade, S., 64, 68, etc v. Choctaw U. ‘The question of risk from assumption of that of contribu quite apart Brien, S., tory also Union etc. v. negligence.’ See U. however, 451. This is so familiar ele proposition, that citation of authorities is mentary superfluous.” think We do not the case of Schlemmer v. supra, Ry., justifies conclusion that the difference between the defenses of o f risk assumption and contributory negligence to shadowy so one denied the show right contributory has no if he to right complain is permitted If, indeed, show of risk. assumption these defenses are same, defendant, then it would follow that practically risk, having admittedly pleaded assumption should not been deprived have to have the jury consider right the facts with reference to contributory negligence. testified,

The alone plaintiff giving the most favorable construction defendant was entitled to a nonsuit.

Plaintiff was head of the defendant engineér company, old, years and had been twenty-eight -engineer defend ant for about a before the year accident. As engineer

had with which machinery- he came charge contact injured when and when it out of order -it was his see that it was repair done. duty 2, 1907, the superintendent On was near December heard the directed creaking machinery plaintiff fix it at -once. This was merely telling per form a duty. neglected ordinary machinery for want of which the and his oil assistant creaking consisted a small machinery had failed- apply. This floor belt to about pulley on the attached on shaft engine above, end of which shaft was a small feet near the eight with a much wheel on another larger wheel meshing cog cog chain on which was pulley driving conveyor shaft April Term, 1910. which carried fuel to the furnace. The had machinery no other connection with the main and could be plant stopped almost without instantly operation stopping the mill. It was the usual of the assistant duty plain under tiff to oil but plaintiff had never seen the machinery, *12 assistant to do with his so coat on. The fireman attempt moment, at the climbed being engaged otherwise box;es were, to Where the wheels that the up ascertained cog shaft were and in to oil them holding dry, attempting sleeve in the wheels his coat meshes caught cog arm in and his and crushed. The wheels right dragged cog side, if worked inward on the and it was said that upper had would not wheels outward cog worked of have did not happened'. complaint allege negligence in but the defendant it cannot attention escape regard, if the wheels worked inward above they,necessarily that cog below, versa, so worked outward vice that mere change or in the would have merely changed revolution wheel's care person from above below to point of danger wheel's with coat on. The about the cog lessly working from contact with- wheels cog danger arising moving person ordinary prudence, one which of manifestly any have should charge, much more experienced engineer Nevertheless, failed for care. known called in a have done moment and which he might stop gear, to risk the motion safety. Choosing oiled with perfect assist removed coat as his have machinery might did, it drawn run the risk having ant as not to so always hazards, take these Wheels. Concluding into the cog avoidable, wheels over moving cog worked easily attention whatever any without paying with coat on meshes. in the his coat caught danger having is the Did “Q. Such cross-examination: if know two wheels were that if you cog revolving way, in them he would be in? A. I never anyone dragged got You it don’t know that? A. I know any thought. Q. gave 9—86 Lumber

Concurring Opinion. Course, I A. it You don’t know it now? Of Q. now. know I ask if don’t if in there. Q. you know you got you it would wheels two you cog revolving together, got Did in it ? A. I know it now. Q. crush thing got No, mean tell You Q. it before? A. sir. know you the Tuxbury' head me that are an engineer, engineer you if a piece know that don’t Company, you Lumber revolving else in two wheels got cog cloth anything them ? it be between dragged that would same direction A. known that? always I that. Had not Q. you A. know at it I would'have it a and looked If I-had given thought it, I never attention.” but paid known Mr. Miller “Mr. Armstrong, redirect examination: On know did practically tried to make appear you directions, as a in opposite if two were working gears course, hurt that know that a man would matter get you *13 Yes, A. sir.” way?

If, therefore, it be concluded that the wheels could cog have been prevent so an from com guarded employee therewith, in contact that ing was negligent in not so them it is clear that knew guarding or should have known that were they and that unguarded, must be to have held assumed the risk of the machin oiling a coat Whilein motion. ery with on There element of nois or to take the out of ordi inexperience emergency case rule. The risk full was after nary knowledge assumed conditions, and was incidental performance one work and its Martin v. arising during progress. Royster E., C., 242, Co., 680; S. S. Guano 51 v. Cotton Wofford E., 348, Mills, C., 918; 72 S. S. James v. Fountain Inn E., C., 332, S. Co., 80 Mfg. of the Circuit Court should be reversed. judgment I base concurrence in the my Hydrick. Mr. Justice

result on the that was no evidence of there ground negli on the of the defendant. The part only allegation gence

Armstrong Lumber April Term, 1910. cogs injured is were not covered. to the According testimony, were they elevated a frame to ten feet -eight above the room, floor of the-engine so that there was no one danger any contact coming them, with unless up on frame. got It appeared it was not for necessary there, one to any for get up except purpose boxes which held the oiling or shafting, perhaps adjust repair themselves. cogs They could have been instantly stopped by valve at turning base -of the frame. circumstances, Under these I do not think that would -ordinary prudence have to- suggested one that that, should It they be covered. be may they covered, had been the accident would not have happened, no means certain. But though it generally after an easy accident has enough, happened, suggest some means have been whereby It does might prevented. follow, however, must, therefore, no that we conclude that prudence would have suggested adoption ordinary case, such-means in the first instance. In this view of the I deem it to consider the unnecessary defenses set up answer, to be set attempted up the defenses may be properly considered after only prima case has facie been made out the defendant. against Court has stated in recent

This several decisions how the defense of should be contributory negligence pleaded. form- While no set o-f words is facts must necessary, the be from which a reasonable can be inference drawn alleged *14 that the was caused the by joint concurrent negli- both of as causes thereof. No gence parties proximate made, and, therefore, such was the was allegation plea have taken objectionable, but 'the should been objection by demurrer for the facts to constitute insufficiency alleged of the defense. dissenting. This is an action fo-r Mr. Gary, Justice to have been

damages, alleged sustained the by plaintiff, the of the defendant. through

Dissenting Opinion. the questions the material to complaint, of allegations pre as the are follows: by exceptions, sented December, heretofore, A. D. on 'the second of

“That day 1907, in of named the plaintiff employment above was the defendant as an engineer. the defend- plaintiff employed by

“That while the so ,as ant, his duties such and' while in of discharge a of the machinery it became oil necessary part engineer, boxes, which held the shaft for the conveyor known as the chain. in said

“That while was so plaintiff engaged oiling m coat became and entangled caught his machinery, chain, and pulls drives conveyor which cog gear, furnace. fuel to the in the man- caused to be injured, “That the aforesaid, and through neg- the means ner and defendant, in place providing dangerous ligence and work, unsecure and providing for the in the course of his for the plaintiff machinery unsafe the cog that the 'defendant allowed gear employment, uncovered, coat so that plaintiff’s remain exposed same, arm in the cog pulling in the was caught thereby neces- injuries upon plaintiff, such inflicting gear, arm.” right sitated the amputation of negligence denied the allegations The defendant interposed risk. It also assumption set the defense up contributory negligence. was a defense what it contends the defend- testimony the plaintiff’s close of Upon refused. nonsuit, which was motion for a ant made a a verdict favor of the plaintiff rendered The juiy defendant made a motion for $7,000, whereupon refused, trial, it appealed also which new in the of the case. wil'1be set out report exceptions, considered, is whether -that will be The first question tending prove allegations there was any defendant. part *15 April Term, 1910. of the testimony plaintiff tended to show that he was the and that engineer, oiler; there was also' an that his principal duty boilers, was look engineer after the

pumps that a colored engines; fireman always oiled the that he machinery; had never oiled it before; he that had to do with the nothing cog gear, and had been previously upon that of the part platform situated; inward, where was that worked instead cogs outward; that the cog gear exposed; that he was ordered to in a go, hurry, by who superintendent, services; had to direct his right there although it; not aware of danger, could have place been made safe that there was covering cog gear; no other for him to way approach the machinery.

Thus showing exception raising question can not be sustained.

The next that will question be considered is whether the showed that the testimony was due aware, to a risk of and which he volun- fully assumed. tarily

There was to the effect that there was no to oil duty machinery, resting or act with reference to the that there perform any cog gear; was an that he went place emergency; danger, under the orders of the who was superintendent, present, services; that he who had the direct his right was- of the aware danger. C., 481, v. E., 968,

In the case of Wilson Ry., S. error was these two of the assigned charging requests plaintiff: servant, “That a the instructions obeying

(1) of the master on the is not spot, representatives guilty in so said master.” contributory negligence obeying fact, “That the that the servant’s work is done (2) under the immediate direction presence, foreman, case, conductor in this- is equivalent master’s *16 134 Armstrong Co. Lumber v.

Dissenting Opinion. [8G C. S. to the assurance the master that the servant may safely him.” to work proceed' required The of error were orerruled under the assignments C., 55, E., of Carson v. 68 46 525. authority Ry., S. S. “If reasonable there difference of ground opinion as to the is not servant bound to set his up danger, judg- ment that of his whose orders he is superior, against but he required obey, may rely upon judgment C., such v. 82 542. superior.” Stephens Ry., S.

It was for the whether the conditions say to such an amounted as would or excuse justify emergency a man of prudence judgment undertaking ordinary out the'orders of the Hall v. carry superintendent. Ry., C., 522, E., C., 848; v. 82 528. Brown Ry., S. S. is overruled.

The this exception question raising The next will be question considered is whether error in there was nonsuit, motion for refusing on ground guilty contributory negligence.

The defense the defendant interposed, is as fol lows : “And further answering, alleges if it even were negligent denies—still the acci —which

dent to the plaintiff was due proximately his own in that he negligence, conducted himself in a care manner, less and failed to observe caution in keeping his from in contact body with said coming which he cogs, could have done if he had used due care.” statement appears in the following record: “After read, had been pleadings plaintiff’s counsel stated that he would object to introduction of any testimony defense support of contributory negligence, upon that such defense was not ground set forth sufficiently in the answer. After argument that, in announced opinion, contributory and that he pleaded, would all exclude tes- sufficiently Lumber v. Term, April duly Defendant’s counsel thereof. support timony ruling.” excepted Honor’s the question from this ruling,

There was no appeal the part whether there was contributory consid- the Court for is not before properly eration. can not be sus- exception objection, such

But waiving tained. *17 definition has following

The contributory negligence been this in numerous by Court cases: “Contribu- approved is the tory want of care the negligence ordinary per- another, son the actionable by com- injured, negligence and with that and contribut- concurring negligence, bining thereof, as cause the a without ing injury proximate to which the would not have occurred.” 548, Rem., it is

In Pom. Code section “The codes said: to line intend draw a broad distinction between an clearly state action failure to cause of or defense on the entire side, which is taken one be either advantage by facts, for want of sufficient demurrer or general trial, a all evidence at the statement of exclusion of insufficient, in an of action or defense imperfect, cause manner, which is informal be corrected by incomplete more to render definite and certain pleading motion amendment.” 470, E., Mills, C., v. In S. S. Charping Toxaway Court, after definition 186, the quoting foregoing uses this “This defini contributory negligence, language: must be the defend nition there imports plaintiff with that of the produce ant operating fault, one of if the is at entirely injury, definition, of the defend the elements ant wanting.” terms that in express alleges

The defense effect, merely alleges not negligent, at fault. entirely Dissenting Opinion. Furthermore, the was not to the ruling prejudicial rights defendant, as the facts related the matter of risk, as well as assumption contributory- negligence, -thereof, full defendant received the benefit under the full and instruction clear risk—the assumption of difference between these two 'defenses being only shadowy. v. Ct. Ry., Sup. Rep., Schlemmer Honor, The of his free ruling presiding Judge, from error. This Exception. can not be exception sustained

Fifth the reason that the all the ruled tes- out the bare fact that the to see timony, except plaintiff went Fr-o-st, Mr. was not -error. certainly prejudicial Exception. set out charge exception- Sixth therein, is not mentioned susceptible of inference espe- when considered in connection with-die cially entire charge. Exception. Seventh What considering said sixth of this exception disposes question. overruled, This for the

Eighth Exception. exception *18 erroneous, reason that even if the there proposition and, therefore, it were no facts to which was applicable, not prejudicial. Ninth, Tenth and Exceptions. Eleventh The only error these assigned by exceptions is that Judge presiding from the jury withheld consideration' of the question of are, contributory -therefore, negligence. They disposed what has been said. already fail -to Exception. We see how the -could Twelfth misled, hav-ebeen unless they simply ignored plain lang- o-f the uage -charge.

Thirteenth has Exception. What been said already dis- poses of subdivisions (1), (3), (4) (5).

The statement the Circuit Judge the case settling shows that subdivision can not be (3) sustained. I

Fo-r these reasons diss-ent.