55 S.C. 179 | S.C. | 1899
Lead Opinion
The opinion of the Court was delivered by
The presiding Judge, at the close of the testimony of the plaintiff, granted a nonsuit. The appellant now seeks to reverse the judgment entered upon that nonsuit. If there was any competent testimony material to the plaintiff’s cause of action against the defendant, it was error to' grant the nonsuit.
Second. Was there any testimony in support thereof?
Plaintiff sued defendant to recover $12,000 as damages arising from the neglect of the defendant in its duty to the plaintiff as its servant in providing itself, or suffering some one else, with its approval, to provide a plank to ascend to a gangway leading into-its buildings, which said plank, so ascending and so leading, was suffered by the defendant to become loose and to remain so loose for a long time, whereby any one who used such plank as aforesaid was subjected to great danger, and whereby 'the plaintiff, on the 2d September, 1896, as said servant, by reason of the fall of said plank, while he was upon the same in his discharge of duty as watchman, in ascending, fell to the earth (so was violently thrown to the ground). It is apparent that the cause of action of the plaintiff is the alleged breach of duty owed by the defendant to the plaintiff as its employee; in other words, that the defendant, having failed to discharge its duty to the plaintiff, as its servant, was guilty of negligence, which negligence was the proximate cause of plaintiff’s injury. It was the duty of the plaintiff to establish by the testimony offered by him, by its preponderance, this alleged negligence of the defendant. As is well said in 16 A. & E. Enc. of Law, at pp. 465-466, in discussing the subject of negligence: “The general rule is well known that questions of fact are to be submitted to the jury; and this includes not only cases when the facts are in dispute, but also when the question is as to inference to be drawn from such facts after they have been determined. It will be readily observed that few cases will arise in which there is no question as to the facts involved; the element of 'ordinary care must from its very character always require the decision of a jury, except where there is a violation of statutory duty, or when the facts are undisputed, and but one inference can reasonably be drawn from them. And the same is equally true as to the determination of the question of proximate cause, so that the following rules may be stated as applicable to every case. The
F. L. Tillatson, a witness for plaintiff, testified: “He (Mr. Burgess) only said that morning (morning after plaintiff was injured) that he was down there, that he was very sorry that Mr. Rinalce got hurt. It ought to have been fixed, or he ought to have had it fixed, I can’t be sure which.” Charles Jackson, a witness for plaintiff, in his testimony, stated that on the afternoon of the day in the night of which plaintiff was injured, “Mr. Burgess came.down in front of me, and as I went on down there were two little gangways,
But let us examine the testimony, and learn whether the independent contractor, McCarrell, and his hands alone used these planks at the side of the main gangway. The plaintiff testified: “Q. How would you go up into the building, when you went up into the building to see that everything was safe? A. I took the main gangway. But sometimes the main gangway was blockaded with lumber, so the only chance I had was to take the side gangway. Q. What do you mean by side gangway ? A. Planks that go up on the sides. Q. How often had ^'■ou used that main gangway and those side gangways? A. Just as it was convenient. If the main gangway wasn’t blockaded, I would go up the main gangway. Q. Who else used that main gangway and those side gangways? A. Most everybody that was working there. Q. Whom do you mean by ‘everybody?’ A. I mean all the hands who were working there.” The witness, Ben H. Walker, testified: “Q. For whom were you working? A. For the company. Q. By contract or day laborer? A. Day laborer. Q.'Who built the wings? A. Mr. McCarrell had them done, I think. Q. Who used those wings? A. The company and Mr. McCarrell, too-. Q. What did the company use those wings for? A. Sometimes there when we were taking out anything we would walk up these, but if we were carrying anything heavy, we would go up the main gangway. I have walked up these a heap of times with a stick of timber with two men to it. Q. Where was Mr. Burgess when this work was going on about the mill? A. He was around there nearly every day. Sometimes he was gone a week or ten days. Q. What objection did he make to the hands of the mill using those wings? A. None at all in my hearing. Q. The timber and material that were carried up the wings and main gangway were carried up for whom? A. The wood that was carried up there was for the company. Q. How long had the company been allowing the wood to be carried up there?
In considering this testimony and in reproducing parts of it, we must be understood as expressing nothing whatever as to its credibility. All we mean is to thus call attention to its materiality as to the issue of negligence. We think the Circuit Judge was in error in granting the motion for a non-suit. t>
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the action be remitted to that Court for a new trial.
Dissenting Opinion
dissenting. Being unable to concur in the opinion of Mr. Justice Pope, I will state briefly the grounds of my dissent. In order to understand what issues are raised by the pleadings, we will set out both the complaint and the answer.
The complaint is as follows: i. The first paragraph of the complaint alleges the corporate existence of the defendant.
The answer is as follows: I. The first paragraph admits the corporate existence of the defendant. “II. It admits that one of the approaches to the Victor building was a gangway referred to in the complaint, but alleges that this gangway was strongly and safely constructed, and furnished an easy and safe means of entering and leaving said building; that the said gangway was put up for temporary purposes only, and was used during the construction of said Uuilding-and placing machinery therein; that the plank referred to in the complaint as having been placed against said gangway was not a part thereof, nor was it constructed or furnished by this corporation as a way of approach to said
At the close of plaintiff’s testimony, the defendant made a motion for nonsuit on the ground that there was no testimony to sustain the allegations of negligence, and the practical question presented by the exceptions is whether there was error in granting the order of nonsuit on the ground that there was an entire failure of such testimony. In 16 A. & E. Enc. of Law, 389, actionable negligence is defined as “the inadvertent failure of a legally responsible person to use ordinary care under the circumstances, in observing or
We fail to discover in the testimony any facts showing a lack of ordinary care on the part of the defendant, and, therefore, dissent from the opinion of Mr. Justice Pope.