Elms v. Southern Power Co.

• Decision Date: 02 April 1908
• Parties: ELMS v. SOUTHERN POWER CO. et al.
• Court: South Carolina Supreme Court

60 S.E. 1110

79 S.C. 502

ELMS v. SOUTHERN POWER CO. et al.

Supreme Court of South Carolina

April 2, 1908

Appeal from Common Pleas Circuit Court of Lancaster County; John S Wilson, Judge.

Action by John W. Elms against the Southern Power Company and another. From a judgment for plaintiff, defendants appeal. Affirmed.

See 58 S.E. 809.

Morrison & Whitlock, Francis I. Osborne, Russell G. Lucas, and W. C Hough, for appellants.

J Harry Foster, for respondent.

GARY A. J.

This is an action for damages alleged to have been sustained by the plaintiff through the negligence and willfulness of the defendants. The complaint alleges that the plaintiff, while in the employment of the defendant company in the capacity of a mechanic or laborer, was working under the defendant Rosamond, the foreman or superintendent, when a shive wheel of one of the derricks got out of repair; that the defendant Rosamond directed the plaintiff to cut out the shive wheel and repair the same; that Rosamond declined to stop the running of the derrick, and that plaintiff, in order to repair the shive wheel, was forced to put his foot between the shive wheel and the bull wheel; that when his foot was in the narrow space between the said wheels his leg was caught by a brace on the bull wheel, which projected beyond the rim, and was carried between the wheel and the framework of the derrick and seriously injured. The complaint alleges that the defendants were negligent in the following particulars: In furnishing dangerous and defective machinery; in failing to provide a safe place for the plaintiff to work; by reason of the fact that the bull wheel did not run level, and was not properly constructed; in that the bull wheel of the derrick had certain braces across it, which projected beyond the rim of the wheel, one of projecting ends caught plaintiff's leg and pulled it between the bull wheel and the frame of the derrick; in that the defendants failed to notify the plaintiff of the projecting braces; and in that Rosamond refused to stop the derrick while plaintiff was making the repairs, but ordered him to make the repairs while the derrick was in motion. It is alleged that these acts were willfully, wantonly, recklessly, and negligently committed jointly and concurrently by the defendants. The defendants denied the allegations of negligence and willful misconduct, and set up the defenses of assumption of risk, contributory negligence, and that the negligence, if any, that caused the injury, was of a fellow servant of the plaintiff. The jury rendered a verdict in favor of the plaintiff for $5,000, and the defendants appealed.

The first question that will be considered is relative to the jurisdiction of the circuit court to hear the case. At the March, 1907, term of the court the defendants made a motion that the case be removed to Greenville or Chester county, on the ground that neither of the defendants was a resident of Lancaster county, but that the Southern Power Company was a resident of Chester county, and that Rosamond was a resident of Greenville county. The motion was granted, and the order required the cause to be removed to Chester county, but on appeal this order was reversed. The cause was tried at Lancaster at the October, 1907, term of the court, but before the trial commenced the defendant's attorneys objected to the jurisdiction of the court as to the defendant Rosamond, on the ground that he was not a resident of Lancaster county. The question of jurisdiction related to the person, and was waived by answering to the merits. Garrett v. Herring Co., 69 S.C. 278, 48 s. e. 254. Furthermore, section 146, Code Civ. Proc. 1902, provides that, "if there be more than one defendant, then the action may be tried in any county, in which one or more of the defendants to such action resides, at the time of the commencement of the action." On the former appeal in this case (78 S.C. 323, 58 S.E. 809) the court ruled that the court in Lancaster county had jurisdiction of the Southern Power Company. The case, therefore, comes within the provisions of said section, and the exception raising this question is overruled.

We proceed to consider the pivotal question in the case, to wit whether the danger to which the plaintiff was subjected was plain and obvious, or extraordinary and unusual. "The well-settled rule, as we understand it, is that it is the duty of the master, when a servant is set to work at a dangerous place, or with dangerous machinery or other appliances, to warn the servant of the danger to which he is exposed, where he knows or ought to know that the servant is not aware of the danger." Owings v. Oil Mill, 55 S.C. 483, 33 S.E. 511; Jennings v. Mfg. Co., 72 S.C. 411, 52 S.E. 113. The plaintiff testified as follows: "I cut it nearly through and could not reach it, and I crossed over and found I could not cut down the bull wheel and the shive board and would not be caught, and I only had a few licks to make, and just as I finished up the engine started and something struck my leg, and I looked up right quick and I found out there was a projecting brace up across the wheel. I tried to pull loose from the brace, but it held me. Q. Did you know that the brace was there? A. No, sir; I never had been up on the machine before. Q. If that brace had not been on there, what would have been the consequence? A. I never would have been caught. Q. Did he (Rosamond) say who put it there? A. He said he had it done. Q. He knew it was on there? A. Yes, sir. Q. And he didn't tell you it was on there? A. No, sir; he told me this after I was in bed. Q. What part of the derrick was covered? A. There wasn't any part of the derrick that was covered that I saw. I never saw a covered derrick. Q. All parts of it were visible to the eye? A. Yes, sir. Q. By an ordinary careful inspection you could have seen everything about that derrick in which you were injured, couldn't you, Mr. Elms? A. Well, if I had taken the time to look it over, I could. Q. There wasn't any obstruction to the eye about any part? A. No, sir; I could not see from where they put me. Of course I wasn't able to go around and inspect them to see if there was anything wrong. I was told to go out to the shive wheel, and that is where I went. Q. Well, Mr. Elms, what I want to know of you is if it would not have been any trouble to see these projecting braces you have testified to at all if you had looked? A. Well, I do not know about that. Well, now, _____ Yes, sir; I suppose if a man had looked he could have seen it. Q. He would have had no difficulty in seeing it? A. There is more than one brace on the bull wheel, you know. This one went across on top, and there are a lot of braces in the wheel. Q. I understand, but these that projected and caused your injury _____ A. It is _____ Q. One minute until I give you your question. I ask you what there was from where you were working when Mr. Rosamond left you to obstruct your view of those projecting braces? A. Well, there was nothing. Q. Well, then, if you had happened to have looked, you would have seen those braces? A. It wasn't necessary for me to look. Q. Please don't argue the question with me. Just answer the question. Could you have seen them or not if you had looked? A. ...