45 S.E. 81 | S.C. | 1903
June 30, 1903. The opinion of the Court was delivered by The appeal herein is from an order refusing a nonsuit. The allegations of the complaint material to the consideration of the questions raised by the exceptions are as follows:
"2. That from the month of June, 1899, to the infliction of the injury hereinafter stated, plaintiff was in the service and employ of defendant as carpenter and repair man in and about the cotton mill in said county, and was in such service on December 21st, 1899.
"3. That on said 21st December, 1899, the plaintiff received *484 orders from the superintendent of said mill, who represented and had authority over plaintiff, to cut a hole in the floor of the picker room of said mill, about ten inches in diameter, in order that a dust flue could be run through it from the lapper room above to the dust room beneath. That while engaged in so doing, and in the line of his employment, acting as aforesaid under the orders of defendant though its agent and officer, the superintendent, three sacks of starch, weighing each about 280 pounds, fell a distance of about eight feet upon plaintiff's back, crushing him to the floor.
"4. That the injury to the plaintiff by the falling upon him of said sacks was solely due to the gross negligence and carelessness of defendant, its agents and servants, in this: the said sacks had been by it and them negligently placed vertically upon one another, instead of being built across each other in layers, or at least so piled as to incline towards the wall and thereby prevented from falling; and moreover, notwithstanding such recklessly careless piling up of said sacks, of which defendant well knew, containing as they did so slippery a commodity as starch, plaintiff was by defendant placed at work as aforesaid, within three feet thereof, where said sacks could and did fall upon him, without being informed of the danger."
The defendant denied the material allegations of the complaint, and set up the defense of contributory negligence. The jury rendered a verdict in favor of the plaintiff.
The first ground upon which the defendant made the motion for a nonsuit was: "Such danger as was involved in the presence of the pile of starch was open and obvious, and the plaintiff had full opportunity to observe it, hence the danger was assumed by the servant when he undertook the work." Before discussing the testimony, we will state the general principles applicable to such cases. The rule when the facts should be submitted to the jury is thus clearly stated in 16 A. E. Enc. of Law, 465,et seq. (which was quoted with approval in Rinake v. Victor *485 Mfg. Co.,
The following authorities relate to contributory negligence and to the assumption of risks: "The remaining in the master's service by an employee after knowledge of an alleged defect in the instrumentalities to be furnished by the master, is not, as matter of law, an assumption of the risks by the employee. Whether the employee assumed the risk is a question for the jury, to be determined from all the circumstances of the case. If the undisputed evidence is such as to be capable of but one inference, viz: voluntary assumption of the risk by the employee, then the jury would be rightfully instructed that the employee could not recover."Mew v. R.R.,
We quote somewhat at length from the case of Texas Pac. Ry. Co. v. Archibald,
While it is true that the manner in which the sacks were piled was obvious and open to common observation, nevertheless the testimony on both sides showed that the danger was not apparent, and that if it existed it was latent.
The plaintiff testified as follows: "Q. State whether Mr. Burgess, superintendent, called your attention to the way in which those bags were constructed? A. No, sir; he didn't call my attention about the way it was packed at all. Q. State whether or not you noticed that those bags were put up this way and were not put crosswise? A. I noticed all the time, but I didn't think there was any danger — didn't think about any danger. The starch was that way when I moved there; don't know how long it had been there. Q. How long had that starch been there? A. I can't tell. Q. Did you believe it was a safe place to work? A. I thought so. If I hadn't I would not have worked there." *489
A.J. Burgess, who was superintendent of the mill at the time of the accident, testified in behalf of the defendant as follows: "Q. The starch was there where he could see it? A. Yes, sir. Q. State whether or not Mr. Wood was not in just as good a position to see the bags and to know how they were fixed as you yourself were? A. I should think anybody could see as well as I could; any man that had eyes — nothing to keep him from seeing them — right there before him. Q. State whether or not there was any reason to apprehend any danger. A. Of course, I didn't think there was any danger, nor did he either. Q. I want you to tell the jury whether or not you were in that room constantly, and standing against and near the starch? A. I passed by the starch anywhere from twice of half a dozen times a day. Q. Tell the jury whether or not you had any reason to apprehend danger from the starch? A. I didn't have any at all. I possibly might have been leaning against the starch, as Mr. Wood said I was. I don't remember leaning against it, but I was just as apt to lean against it as not. I didn't suppose there was any danger in it whatever."
Applying the principles hereinbefore stated to the facts of this case, it will at once be seen that the first ground of the motion for nonsuit was properly overruled.
The second ground of the motion was as follows: "The danger being open to common observation, and there being no evidence to show that the defendant knew, or ought to have known, of any want of knowledge of the danger on the part of the plaintiff, it follows that there was no duty on the defendant to give warning." This ground, as we have shown, is based upon an assumed state of facts which could only be properly determined by the jury, and it was also correctly overruled.
The third ground of the motion was as follows: "It appearing that the place was rendered unsafe made by the progress of the work which plaintiff was doing, the risk thereof was one assumed by plaintiff." This ground likewise *490 assumes a state of facts which were in dispute and which, therefore, could only be decided by the jury. Barney Wingo, a witness for the plaintiff, testified as follows: "Q. You saw the pile when it began to fall? A. Yes, sir, I saw it just as it started to fall. Q. What made it fall? A. I can't say. Q. You couldn't see anything that made it fall? A. No, sir. Q. It just started to fall of its own notion? A. I can't say. Q. You didn't see anything to make it fall? A. I couldn't see anything where I was." There was also other testimony introduced upon this question. It was, therefore, properly overruled.
The fourth ground is as follows: "The master is not bound to employ the safest methods, but only such as a reasonably prudent man would employ. There is no evidence to show that the sacks were not piled in a reasonably prudent manner." The plaintiff gave testimony tending to show that the sacks were not piled in a safe manner, and in reply to this testimony the defendant examined several witnesses for the purpose of showing that the sacks were piled in a safe and proper manner. The rule is well settled in this State, that the Supreme Court will not only consider the testimony introduced by the plaintiff on determining whether the nonsuit was properly refused, but will likewise consider all the testimony in the case. By reference to the testimony it will be seen that the question whether the sacks were piled in a reasonably prudent manner was hotly contested. Under these circumstances, this ground was correctly overruled.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed. *491