15 S.C. 443 | S.C. | 1881
The opinion of the court was delivered by
The plaintiff, while in the employment of the defendant as an operative in the weaving department of a cotton mill of defendant, was injured by a shuttle being thrown with great force from one of the looms at or near which her duties required her to be stationed. The shuttle struck in the right eye of the plaintiff with such force as to cause its total blindness.
This action was brought to recover damages for this injury. The complaint alleged negligence on the part of the defendant, in that the loom was unsafe, defective and insecure; and, further, that at the time of the injury the said loom was being repaired during work hours of the mill, and while the plaintiff was compelled, in performance of her duty, to be so near the same as to greatly endanger her person.
The defendant denied the right of the plaintiff to recover, and relied upon three defences :
1. “ Because the injury was an accident incident to the employment of the plaintiff, the risk of which she took upon herself.
2. “ Because, if it was more than an accident, it was caused by the negligence of a co-laborer and not by the defendant.
3. “ Because the accident and consequent injury were due and caused by the gross negligence and carelessness of the plaintiff.”
Upon the issues thus made up the jury rendered a verdict for the plaintiff for $2000. The defendant has appealed upon grounds which will now be considered:
First. In the organization of the jury, after a full jury had been presented to the parties litigant and the plaintiff had announced “ no objection to the jury as it then stood,” the defendant exercised his right of peremptory challenge as to two. Two others from the talesmen were then called. To these the plaintiff objected ; and although she had declined to exercise her right of challenge in the first instance she was permitted to do so as to these two persons called to supply the places of the two challenged by the defendant. To this ruling the defendant excepted, and this forms the first ground of defendant’s appeal.
In a recent case, Huff v. Watkins, ante 82, the exact point raised here was decided, and we need not now go beyond that decision. It sustains fully the exception of the defendant here, and must govern in the construction to be placed upon Section 26,
This opinion might close at this point, but several other important questions are raised in the other grounds of appeal, which, if decided now, might relieve the case from some embarrassment and contribute, on the second trial, to a more speedy and effectual administration of the law as applicable to cases of this kind. With that view the other grounds involved will be now considered.
There are three classes of cases in which a party may receive injury while in the employment of another, and for which he may become entitled to an action for damages, dependent upon the facts in each case. First, where the injury is the result of a direct act of the employer — either negligent or otherwise — or of a representative of his. Second, where the injury is the result of an act of a co-laborer with the employee. And, Thirdly, where it results from defective instruments or machinery with which the employee is furnished to do his work. In these several classes there are always both questions of fact and of law. For instance, in the first a question of fact may arise whether the party defendant is the employer or a subordinate principal. In the second, whether the party causing the injury is a co-laborer; and, in the third, whether the machinery is unsafe and defective, and, if so, whether known or unknown to the employer. These questions of fact, with such others as may be involved, when they arise in the case, must of course be tried by the jury. The questions of law must be decided by the court. And in a case like this— sounding in damages — which is a case at law, the only questions which can be brought to this court, by way of appeal, are the
It is not contended that the injury in this case resulted directly from any positive act of the defendant as employer. The allegation is that it resulted from unsafe and defective machinery, which was improperly undergoing repairs during work hours by the direction of the defendant.
The defendant served numerous exceptions to the charge of the judge, assigning errors both of omission and commission, refusals to charge and incorrect charges. It will not be necessary to take up these exceptions seriatim. .Taken as a whole, they raise four questions of law, as presented in appellant’s points and authorities.
The first involves the law as to contributory negligence. The second as to the degree of proof of defects in the machinery, which must be brought home to the master or employer. The third as to the liability of the master for the negligence of a fellow servant with the party injured. And the fourth as to the degree of negligence required to make the master liable to his servant. These are the points which have been mainly discussed before this court, and to these we will confine our opinion.
Inasmuch as negligence is a thread which runs, through and is common to all these questions, it will not be amiss to understand clearly at the beginning what is the meaning of this. Mr. Wharton, Section 1, page 1, defines negligence as correctly as it ®an well be done. He says “ that 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.”
Now, as to contributory negligence. This involves an inquiry into the question how far negligence, as above defined on the part of the injured party, will relieve the party whose act is complained of as the cause of the injury.
This is a very important question to the business interests of the country. There are indeed but few industries which can be carried on by a single individual, and consequently but few in
We have found some confusion and seeming conflict in some •of the cases, but we think that the following proposition may be «regarded as well established.
The question in all the cases seems to be: Has the damage or injury complained of been occasioned entirely by the negligence or improper conduct of the defendant, or notwithstanding such improper act of defendant, would the injury have been avoided but for the negligence or want of ordinary care of the plaintiff ? In the former case the plaintiff is entitled to recover. In the latter the defendant is entitled to the verdict. And this principle applies whether the injury complained of is alleged to be caused by the negligent act of the employer or a co-laborer, or resulting from' defective machinery. In other words, the courts cannot undertake in these cases to solve the problem how far such party may have contributed to the unfortunate result, and by this means assess the damages on each pro rata. The only question that can be considered is : Has the defendant entirely caused the injury? If so, he is responsible. If, however, the injury could have been avoided by reasonable qr proper care on the part of the plaintiff, then the defendant is held harmless. R. R. Co. v. Jones, 5 Otto 442; Wilds v. Hudson River R. R. Co., 24 N. Y. 430; Philadelphia and Reading R. R. Co., v. Hummell, 8 Wright (Penna.) 375.
In this state, in the case of Conlin v. Charleston, 15 Rich. 201, this doctrine was recognized. The court said : “ That where one has himself contributed to the cause of the damage of which he complains he cannot recover against another who also contributed
This remark would seem at first to have been intended as a modification of the general principle announced above as extracted? from the cases decided elsewhere. But upon an examination of the cases referred to by the court, this will be found to be a mistake. Judge Moses, in making this remark, referred to the cases of Witherly, Adm’x, v. Regents Canal Co., 104 Eng. C. L. 2; Tuff v. Warman, 2 C. B. (N. S.) 740. In these cases it was held that where the negligence or default of plaintiff was in any degree the direct or proximate cause of the damage he was not entitled to recover, however great might have been the negligence of the defendant. But if the negligence of the plaintiff was only remotely connected with the accident, then the question was whether the defendant might, by the exercise of ordinary care, have avoided it. It must be. understood, in this connection, that the term “proximate” does not mean the sole and direct cause, but it includes all such acts or omissions as may have contributed to the injury complained of, and there may be more than one proximate cause. Sherman on Neg., 10 33, 34.
Now, apply the test of these principles to the charge of the judge. He seems to have charged in general terms, “that if the plaintiff contributed to the accident from want of ordinary care or by the exercise of ordinary care could have prevented it, then the verdict must be for the defendant.” This, though not in the precise language of the request, was in substance in accordance-with the principles announced above, and standing alone, would-not be objectionable. But he charged further, “ that if the defendant was found to be negligent, grossly or otherwise, because-of any defect in the looms, or want of repairs thereof, and the defects thereof are not the -proximate cause of the injury, if the plaintiff, by the exercise of ordinary care, could have avoided the accident, she cannot recover.” This charge, when analyzed,, conveyed the idea that there could be but one proximate cause,
We do not think tjie cases of Conlin v. Charleston, Witherly, Adm’x, v. Regent’s Canal Co., and the case of Tuff v. Warman, supra, will bear this construction. In these cases, as was held' in the often-quoted Donkey case of Davis v. Mann, 10 M. & W., 46, the principle applied was that where it appeared from the evidence that the proximate cause of the injury — in the sense that the plaintiff in no way contributed thereto — was not the negligence of the plaintiff, and the injury could have been avoided or prevented by ordinary care on the part of the defendant, then the injury is to be ascribed to his gross negligence— for which he may be held responsible — notwithstanding there may have been remote and collateral negligence by the plaintiff. Tn a case of that kind it devolves upon the defendant to show that he could not have prevented the injury by the exercise of ordinary care.
The judge failed to state the principle in' this limited form. He held the defendant responsible if the jury found the defects in the loom the proximate cause of the injury, without regard to the fact whether the negligence of the plaintiff contributed directly as an additional proximate cause or not.
Now, as to the second point: What is the extent of the employer’s responsibility for injuries growing out of defective machinery? The plaintiff requested the judge to charge: That if the accident was caused by defects in the loom — not patent, but latent — not known to the president or other controlling officers •of the company, then the verdict must be for the defendant, and •even if this defect was known to Harling, Harling being a mere fellow-servant, that plaintiff could' not recover. The judge refused. We think he was right in refusing to charge thus broadly. The liability of an employer for defective machinery does not depend on the fact that the defects are latent and unknown, but it depends on the question of proper care in select
Next, as to the liability of the. master for the negligence of a-co-servant with the party injured. The respondent requested the judge to charge “ that whether a middleman represents the company, and whether the injuring party and employee were of' a common employment, were questions of fact for the jury/7-And the appellant requested him to charge “ that when the plaintiff entered the service of the company as a laborer in the-factory she assumed all the risks incident to said employment,, and that the negligence of co-servants is one of said risks. Hence, if the jury find that she was injured by the negligence of Harling, a co-laborer, she cannot recover.” The judge declined to charge as thus requested.
A part of both of these requests he might have charged. He could have charged the latter portion of respondent’s request,, and he could have charged that an employee assumes the risks incident to his emplo yment — one of which is the negligence of a co-servant. Sherman, § 88; Wood, § 422. But, as a whole, he could not have properly charged either request. Whether a middleman represents the company, is a question of law. Whether such an one is a middleman is a question of fact. And whether Harling was a fellow-servant was a question of fact.
Where requests are made for the charge of the judge upon propositions submitted as a whole, unless they are correct as a whole, it is not his duty to disconnect them, sustaining such as.
The judge, in overruling these requests, did charge that Harling was performing his duties under rules and regulations of the company; that the company thus became responsible for Harling’s performance of his duties and for his negligent performance ■ that if plaintiff was injured by his neglect to repair the defects of the loom, and such duty was imposed upon him, and that these defects were the immediate cause of the injury, the defendant was responsible. We think this, as a whole, was error, because questions of fact are intermingled and decided with questions of law, and because the principles of law laid down are stated stronger against the appellant than the decided cases warranted.
It does not follow that because different employees act in different departments of the same general business that they are not fellow-servants. And the fact that one acts in one department and one in another, does not impose any greater responsibility on the employer in case of injury by one to the other than when they are both in the same department. The question is: "Were they co-servants in the general business? And the test is: Were they acting under a common employer, and in the same general business? Wood, § 425. This being established, then they assume the risk of each other’s proper performance of duty, the employer being responsible for failure to exercise proper care in the original employment of his servants and in ascertaining their qualifications after they are in his service, Wood, § 416.
As to the degree of negligence of which the master must be guilty in order to be held responsible for an injury to his servant, the judge was requested by the appellant to charge that the measure was gross negligence. The judge laid down the rule to be the want of proper care. We see no error in this. A master is liable to his servants for his own negligence, and the measure of his negligence, when applied to him, must be the same as when applied to others. The case of Brickman v. South Carolina R. R. Co., 8 S. C. 198, does not fully sustain the position of appellant. In that case the Circuit judge had prescribed gross negligence as the true measure of defendants’
In conclusion, it may not be improper to recapitulate the legal propositions herein adjudged as applicable to this and similar cases. Where an injury has happened to a servant or employee the master’s liability is fixed as follows : If the injury results from the master’s own negligent act, or from that of one of his representatives, he is prima fade liable. If it results from defective machinery or the negligent act of a co-servant with the injured party, he is not responsible unless the proof shall go further and show that the master’s negligence or want of reasonable care in purchasing and overlooking his machinery, or in employing and supervising his servants, was the cause of his having defective machinery in use, and negligent servants engaged. And in all these cases, if it should appear in the defence that the negligence of the injured party, in the sense in which that term has been defined above, contributed to the injury in such degree as to become one of the proximate causes thereof so as to relieve the other causes mentioned from being the entire cause, then this will be a good defence.
The limitations above as to the master’s responsibility for the acts of a co-servant with the party injured is a-departure from the general common law rule imposing liability upon the master for injuries by servants to third parties. This departure was announced first (says Mr. Wood) in the year 1841, in this state, in the case of Murray v. Railroad Co., 1 McM. 385. Previous to this in England, in the case of Priestly v. Fowler, 3 Mees. & W. 1, a similar principle had been adopted in reference to appliances and machinery, but as to co-servants, as Mr. Wood says, our state seems to have been the pioneer in this new departure, and in the case of Murray v. Railroad Co., supra, essentially laid the foundation for the doctrine which has since been adopted both in England and in all the American states, as the true rule upon this subject.
To hold the employer as an insurer against the negligence of fellow-servants, or against all defects of appliances, would be a death-blow to some of the most important enterprises upon which the material progress of the country depends. Under such a principle no one would be safe in engaging in any industry beyond the reach of his own eyes, and the management of his own hands. It would hamper and cripple labor, and destroy capital. In jusT tice, however, to the employee, the employer should not be entirely exempt. The rule is the one adopted — a medium line — which holds the employer responsible for that part of the work which falls to him, either personally or through his agents, i. e., the proper selection and superintendence of both his operatives and his machinery. He is a guarantor that all reasonable and proper care shall be exercised in the performance of these duties, and Ms liability should be limited to a failure to meet his obligations in this respect.
The judgment of this court is that the judgment of the Circuit Court be reversed, and that the case be remanded for a new trial.
