97 S.E. 825 | S.C. | 1919
January 27, 1919. The opinion of the Court was delivered by This is an action for damages for personal injuries. The only question that needs consideration is the question of assumption of risk.
At the close of the plaintiff's case the defendant made a motion for a nonsuit. The motion was refused and a motion was made to direct a verdict at the close of all the testimony. This also was refused. The motion for a nonsuit should have been granted.
The plaintiff testified that he was employed as a "smash hand" by the defendant mills. That he had been working for the mills for some twenty-five years. That "the boss weaver came to me that morning and told me that the hand that had been helping me had ran away, and he asked me if I knew anybody he could get, or anybody that had worked on it before. I studied a little bit and told him that this man, Parker, had worked on it awhile before, but that he was a crazy man." *372
Parker had been working in the mill for years. Parker and the plaintiff went to work at a machine, and plaintiff charges that Parker started the machine while the plaintiff had his hand in the machine, and the plaintiff was injured. It was conceded that Parker was a fellow servant. The negligence alleged was in employing an incompetent fellow servant. The plaintiff further testified: "I did not tell Mr. Branson (the boss weaver) I did not want to work with Parker and I had been working with Parker two months before I got hurt." Again: "Q. Mr. Morgan, while he was working there, did you realize the danger of working there with him? A. No, sir; I did not until after I got hurt, and then I thought over it, and I thought it was a wonder he had not hurt me before he did."
On this question we must accept the plaintiff's testimony as true. The plaintiff shows that he, himself, had suggested this fellow servant. That he knew the danger, made no protest and after the accident, he wondered that he had not thought of the danger before. That his amazement at his own want of caution was based upon what he knew before the accident. The plaintiff's case depends on obvious risk. So obvious that it was negligence of the master not to know it. Baldwin v. Piedmont Manufacturing Co.,
"The master is not liable for obvious risks caused by his negligence or those of which the servant knew. The servant assumes those risks."
The plaintiff knew the fact from which the danger arose. He was an experienced man. A servant cannot shut his eyes to an obvious danger, make no protest and hold the master. He assumes the risk. Assumption of risk is an affirmative defense, it is true, but when the facts are admitted, it is a question of law.
*373Judgment is reversed and a nonsuit ordered.
