98 S.E. 134 | S.C. | 1919
January 21, 1919. The opinion of the Court was delivered by This is an appeal from an order of nonsuit as to the first cause of action set out in the complaint herein by County Judge Whaley upon trial in Richland county Court in July, 1918. The injury plaintiff complained of in the action arose from paint getting into his eyes, at the mill of defendant, in the city of Columbia. The plaintiff alleged two specifications of negligence: (1) In failing to furnish him with safe, suitable, and proper tools and appliances to do the work required of him, in that the paintbrush was old, worn, and stubby, and unfit for the purpose for which plaintiff was required to use it. (2) The paint was dangerous and poisonous. The element of negligence raised by exceptions and involved in this appeal is the one as to the defective paintbrush.
On the day of the accident Stevens gave the plaintiff a key, and told him to unlock the house where the creosote was kept, and to get some creosote and a brush and paint some rafters. Plaintiff did so, and proceeded to paint rafters, and while doing so some creosote splashed from the brush into his eyes. He did not stop work then, and did not lose a day until he left employment of defendant, in February, 1917. Plaintiff selected *389 the brush himself; the condition was obvious and patent; nothing hid about its condition. There was no reason for the defendant to warn him that paint might splash into his eyes. Defendant had the right to assume that a man of ordinary intelligence and full age, and with experience as a workman, would know the condition of the paintbrush and the risk of using it, and, by having selected the brush and used it, with full knowledge of its condition, he assumed the risk attendant on its use. The paintbrush was an instrumentality of simple character different in character with complicated machinery, and the duties of the master in regard thereto are not so strict. The plaintiff, by the exercise of ordinary care and intelligence on making his selection of the paintbrush and voluntarily using the same, with such knowledge, assumed the risk of the use of the brush, and should not be allowed to recover.
Exceptions overruled.
Judgment affirmed.
