71 S.E. 980 | S.C. | 1911
July 26, 1911. The opinion of the Court was delivered by *389 Plaintiff was injured while working in defendant's fertilizer factory. At the time of his injury, he was engaged with other laborers in digging down a large pile of material composed of ground phosphate rock mixed with sulphuric acid. The pile was from 25 to 30 feet high and about 100 feet long, and originally shaped somewhat like a railroad fill or embankment with sloping sides, the loose material being dumped on it from above. Owing to a difference in the character of the phosphate rock used, some parts of the pile were dense and hard, while others were more yielding and loose like sand, and would, therefore, more readily slide down from the pile as the supporting mass beneath was removed. Plaintiff and another laborer were digging it down with picks, so that others could shovel it into wheelbarrows and carry it to the mixers. The pile had been cut into for some distance from the bottom, until its side for some distance up had become nearly if not quite perpendicular. Plaintiff was working under the direction of John Byers, who was defendant's general foreman of work, with authority to employ and discharge hands, and direct them what to do and where and how to work. He had authority to direct how the pile was made and how it should be dug down and removed. Byers ordered plaintiff to dig a trench at a particular place in the pile and plaintiff proceeded to do so, but stopped, saying it was dangerous. Byers ordered him to go on digging. He said he thought there was danger, but waived his own judgment and relied upon that of the foreman, and obeyed his orders. While digging the trench, the pile fell on him and he was injured.
The Court granted a nonsuit on the ground that plaintiff's injury was caused by his own contributory negligence and was the result of a risk which he assumed.
It is the duty of the master to furnish his servant with a safe place to work and also a safe method of doing the work. Under the circumstances stated, Byers was the representative of the master in ordering the plaintiff to cut the trench *390
in the pile, and in telling him where on the pile to cut it. If, in doing so, he was guilty of negligence which resulted in plaintiff's injury, defendant would be liable, unless the plaintiff was guilty of contributory negligence, or unless his injury was the result of a risk which he assumed. InStephens v. Ry.,
In this case, the evidence tending to show negligence on the part of defendant and contributory negligence and assumption of risk on the part of plaintiff was susceptible of more than one inference. It was, therefore, error to grant the nonsuit. This case is distinguished from Martin
v. Royster Guano Co.,
Reversed.