Davis v. Spartan Mills

• Decision Date: 08 March 1927
• Docket Number: 12171.
• Citation: 137 S.E. 198,139 S.C. 19
• Parties: DAVIS v. SPARTAN MILLS.
• Court: South Carolina Supreme Court

137 S.E. 198

139 S.C. 19

DAVIS v. SPARTAN MILLS.

No. 12171.

Supreme Court of South Carolina

March 8, 1927

Appeal from Common Pleas Circuit Court of Spartanburg County; C. C Featherstone, Judge.

Action by Dora Davis, by her guardian ad litem, Mrs. Sinie A. Davis against the Spartan Mills. Judgment for plaintiff, and defendant appeals. Affirmed.

Perrin & Tinsley, of Spartanburg, for appellant.

R. A Hannon and Nicholls, Wyche & Byrnes, all of Spartanburg, for respondent.

WATTS C.J.

This is an action to recover damages sustained by the plaintiff, a minor, while working as a spinner in the mill of defendant company. The immediate cause of the injury received by the plaintiff was the fact that her finger was caught in the machinery while cleaning off one of the gears. The plaintiff alleged that she was required to do this cleaning while the machinery was running, and that it was negligence on the part of the defendant to require one of tender years and inexperience to clean the machinery while in motion. The defendant, answering the complaint, admitted the injury, but denied the other material allegations of the complaint, and set up as special defenses contributory negligence and assumption of risk. The matter came on for trial in the court of common pleas for Spartanburg county before Judge C. C. Featherstone at the January term of court for Spartanburg county, and resulted in a verdict for the plaintiff in the sum of $1,200. A motion for a new trial was duly entered on the records, and in due course was argued and the motion refused. At the close of all the testimony a motion for a directed verdict was made and refused.

The exceptions, six in number, raise the following issues Refusal to grant nonsuit and directed verdict; refusal to grant a new trial; the verdict was the result of caprice, etc.

There was no objection to the admission of testimony; no complaint as to the judge's charge.

There is no doubt under the evidence that it was dangerous to clean the machinery while in motion, and that to do so was in violation of the rule of the company; but, according to the evidence, that rule was often violated, with the knowledge of the "bosses."

Evidence of the plaintiff is that the "boss" over plaintiff was Fowler Plaintiff testified that Fowler required her to clean the machine while in motion, and required her to start the frames up, or he would run her out. His "boss," McNeely, testified that it was dangerous to clean the machinery while in motion, and, if Fowler told her to clean it while in motion, then he told her to do a dangerous thing.

Under the testimony in the case his honor committed no error in submitting the case to the jury Not to have done so would have been to ignore the testimony of plaintiff and her witnesses. It was the duty of the jury to settle the issues as made by the plaintiff's and defendant's testimony.

In Mew v. Railway Co., 55 S.C. 102 and 103, 32 S.E. 828, we find this from the opinion of Mr. Justice Jones:

"In 14 Eng. Law, 357, the doctrine is laid down: 'If a master or superior orders an inferior into a situation of danger, and he obeys and is injured, the law will not charge him with assumption of the risk, unless the danger was so glaring that no prudent man would have entered into it,' which is supported by citation of cases. Here, then, was another question for the jury, Was the danger or risk in this case so obvious as that no prudent man ought to have entered it? The case of Thorpe v. Missouri Pac. R. R. Co., 89 Mo. 650 58 Am. Rep. 120, is in point. In that case it was held that an employee of a railroad company, who had complained to the yard master that the work on which he was engaged was unsafe, because enough hands were not furnished to perform it, and who, without any promise from the company to furnish more, continued in the service and was injured, was not negligent, as matter of law. To the same effect is Patterson v. Pittsburg, etc., R. R. Co., 76 Pa. St. 389, 18 Am. Rep. 412. Whether the matter of assumption of risk by an employee is to be tested by the law of waiver, Hooper v. R. R., 21 S.C. 541 , or the law of negligence, Bussey v. R. R. [52 S C 438, 30 S.E. 477] supra, in either case, it is a question of fact for the jury."

See, also, Dobson v. Receivers, 90 S.C. 423, 73 S.E. 879, which holds:

"To show contributory negligence, it is not

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