Chesser v. Tyger River Pine Co.

Citation152 S.E. 646,155 S.C. 356
Decision Date18 March 1930
Docket Number12860.
PartiesCHESSER v. TYGER RIVER PINE CO.
CourtUnited States State Supreme Court of South Carolina

Appeal from Common Pleas Circuit Court of Union County; Harry Hines Special Judge.

Action by Erwin Chesser against the Tyger River Pine Company. From a judgment for plaintiff, and from an order settling case on appeal, defendant appeals.

Order and judgment affirmed.

Exceptions 4, 5, 6, 7, and 8 are as follows:

4. Error in charging plaintiff's first request, as follows:

"'I charge you, when it is made to appear that a servant is injured by defective machinery and appliances furnished by the master, it is presumptive negligence on the part of the master, and the burden is thrown upon the master to show that he used due care and diligence in keeping in repair the machinery and appliances. This presumption of negligence is rebuttable presumption'--Now, gentlemen right there, the word rebuttable means that proof will have to be brought into Court to overthrow that presumption--'and if the master shows that he exercised due care and diligence in the premises, he is not liable. The jury are instructed that a servant performing work for his master has a right to assume that the place where he is put to work and the appliances furnished him to work with are reasonably safe and suitable, for it is the positive duty of the master to see that this is the case, and if he fails to perform this positive duty to his servant then the master is prima facie guilty of negligence." D'

The error being, first, that said charge was not applicable to the case as made by the plaintiff in that there was no evidence of any defective machinery or appliances furnished by the master existing for more than an instant of time, if that, and therefore, there was no presumption of risk on the part of the master placing the burden upon it to inspect the appliances, as the most minute inspection could not have revealed the presence of the hook sticking out, even a moment before the accident; and that said request, and charge thereunder, placed greater burdens upon the defendant, in this instance, and particularly under the testimony in the case, than the law laid down in the Hopkins case sustains.

5. Error in charging plaintiff's third request, as follows:

"' As the law imputes to the master knowledge of the danger, even though latent, in the use of the instrumentalities which he provides his servant, he cannot escape liability by showing that he was ignorant of the fact, unless he should further show that by use of due diligence he could not have discovered the danger.' I charge you that."

The error being that said charge under the evidence in the case placed a much greater burden on the defendant, under the facts and the testimony in this case, than the law requires, and said charge, under the testimony in this case, is not sustained by the law as announced in the Hopkins case.

6. Error in charging the plaintiff's fourth request as follows:

"'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 risk and contributory negligence unless the danger was so glaring that no prudent man would enter into it.' I charge you that; I have already charged you that in effect."

The error being, that the same not being applicable in the least to the facts or testimony in the case, but so wholly foreign thereto, as to greatly prejudice the defendant's case before the jury, and to confuse them as to the issues they were required to pass upon.

7. Error in charging the plaintiff's sixth request as follows:

"'In considering the above doctrine--with regard to assumption of risk and contributory negligence--the nature and degree of the danger is to be considered; the experience of the plaintiff; the exigency of the work; the plaintiff's appreciation of danger; and as to whether or not the master promised to remedy the situation may also be considered.'
"Yes, gentlemen, that is a correct proposition of law, all of those are entitled to be considered."

The error being in charging the jury that it was to consider, in addition to the other elements named, the matter "as to whether or not the master promised to remedy the situation"; it being respectfully submitted, that such question was neither made by the pleadings or the testimony in the case; and therefore should not have been submitted to the jury; and it is respectfully submitted, that said portion of the charge was calculated to confuse the minds of the jury, and allow them to consider such question which was not made by the pleadings or the testimony in the case, but was calculated to mislead and confuse the jury, to the prejudice and damage of the defendant.

8. Error in charging plaintiff's seventh request to charge which is as follows:

"'Where the master's fault is the cause of the injury to his servant, he is prima facie liable, and if he would relieve himself of the consequences, on the ground that the servant assumed the risk, he must show not only that the servant assumed the risk or that it was so obvious he should have known it, but that he also apprehended and appreciated the danger." D'

It is respectfully submitted, that said charge was taken from the opinion of this Court in Davis v. Spartan Mills, 139 S.C. at page 22, 137 S.E. 198, 199, where this Court said: "Where the master's fault is the cause of injury to his servant, he is prima facie liable, and if he would relieve himself of the consequences, on the ground that the servant assumed the risk, he must show, not only that the servant knew the danger, or that it was so obvious that he should have known it, but also that he comprehended or appreciated it."

The error being, in said charge, in the use of the words, "not only that the servant assumed the risk", instead of using the words "not only that the servant knew the danger", as laid down by this Court in said case; it being respectfully submitted, that the use of the words "assumed the risk", instead of the words the servant "knew the danger" which makes a vast difference and most certainly did in the minds of the jury and in this instance the jury could have concluded from the testimony of the plaintiff himself that he did not assume the risk, whereas they could have been satisfied beyond any doubt that he knew the danger.

J. Ashby Sawyer, of Union, for appellant.

Barron, Barron & Barron, of Union, and McDonald, MacAulay & McDonald, of Chester, for respondent.

BLEASE J.

This action on tort, where the plaintiff claimed both actual and punitive damages, was tried in the court of common pleas of Union county before Hon. Harry Hines, special judge, and a jury. A verdict in favor of the plaintiff for $7,000, actual damages, resulted. The presiding judge refused to disturb the verdict. The defendant has appealed to this court from the verdict and judgment.

The defendant has also appealed from the order of the presiding judge settling the case.

The respondent alleged, and he submitted evidence in support of his charges, that the appellant operated a lumber plant. That the respondent, employed in the plant, had the duty of operating a trimming machine, which trimmed the ends of the lumber before it went into the planer. The machine was operated from a pulley attached to it, located about two and one-half feet from the ground. The power was supplied by a belt operated on that pulley, and thence to another pulley, directly above for a distance of about three feet, and from there to another pulley, a short distance above, and from that last point, the belt proceeded at an angle to a driving shaft some four feet away. The belt, as it proceeded from the pulley on the machine to the pulley directly overhead, twisted, leaving an open space between the twist and the pulley of some two feet. The belt was worn old, and defective, and by reason of rubbing against posts had become more narrow than when originally put on, having worn some two inches. At various places on the belt were worn places with fragments exposed; and the ends of the belt were joined by hooks. Respondent had been running the machine for two weeks, or less, at the time of the accident, although he had worked about the mill at other jobs for almost two years prior. It was not respondent's duty to repair the belt. In the morning of the day on which he was injured, he complained to the superintendent of the plant, who was charged with the duty of repairing the belt, that the belt was worn, and was slipping. The superintendent told him to go ahead and wax or dress the belt to keep it from slipping, and that a new belt would be put on the following morning. The superintendent gave him a stick of wax to apply to the belt. As directed by the superintendent, respondent applied the wax on the belt once or twice during the day, doing this in the customary and proper method, which was to hold the stick of wax to the inner side of the belt just above the pulley attached to the planing machine. In the afternoon, as he was applying the wax to the belt, respondent's right thumb was caught by one of the hooks, which had come loose where the two ends of the belt joined, and his right arm was jerked into the pulley and broken. The respondent did not know the hook was sticking out from the belt, and had no knowledge or appreciation of the danger involved in obeying the orders of the superintendent, upon whose judgment he relied in applying the wax to the belt. Respondent's right arm is practically useless, due to the failure of the bones to knit. He has had much medical attention, and physicians have advised him that an operation and much further treatment are necessary to restore his arm to anything like normal...

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8 cases
  • State v. Mishoe
    • United States
    • South Carolina Supreme Court
    • October 27, 1941
    ... ... added). See also Chesser v. Tyger River Pine ... Company, 155 S.C. 356, 152 S.E. 646. In the light ... ...
  • Ford v. A. A. A. Highway Exp.
    • United States
    • South Carolina Supreme Court
    • April 13, 1944
    ... ... speculation. Other illustrative cases are Chesser v ... Tyger River Pine Co., 155 S.C. 356, 152 S.E. 646; ... Pinkussohn ... ...
  • Tiger River Pine Co. v. Maryland Cas. Co.
    • United States
    • South Carolina Supreme Court
    • December 4, 1931
    ...its contract of indemnity with defendant. The case went to the Supreme Court, and the judgment of the circuit court was affirmed. 155 S.C. 356, 152 S.E. 646. complaint alleges that the loss thus entailed on the plaintiff was due to the negligence of the defendant, its willful disregard of p......
  • Blackmon v. Kirven
    • United States
    • South Carolina Supreme Court
    • July 7, 1933
    ... ... Brewer v. Railway Company, 149 S.C. 454, 147 S.E ... 596; Chesser v. Pine Company, 155 S.C. 356, 152 S.E ... 646; Dickson v. Motor Bus ... ...
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