61 S.E. 202 (S.C. 1908), Hunter v. D.W. Alderman & Sons Co.

Citation:61 S.E. 202, 79 S.C. 555
Opinion Judge:POPE, C.J.
Party Name:HUNTER v. D. W. ALDERMAN & SONS CO.
Attorney:Charlton Du Rant and Lee & Moise, for appellants. L. D. Jennings, for respondent.
Case Date:April 09, 1908
Court:Supreme Court of South Carolina
 
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Page 202

61 S.E. 202 (S.C. 1908)

79 S.C. 555

HUNTER

v.

D. W. ALDERMAN & SONS CO.

Supreme Court of South Carolina

April 9, 1908

Appeal from Common Pleas Circuit Court of Sumter County; R. W. Memminger, Judge.

Action by W. F. Hunter against the D. W. Alderman & Sons Company. Mistrial, and plaintiff was allowed to amend his complaint. Defendants moved for change of venue, and appealed from the order denying the motion. Reversed.

Charlton Du Rant and Lee & Moise, for appellants.

L. D. Jennings, for respondent.

POPE, C.J.

The plaintiff in this action alleges that the defendant is a corporation with one of its places of business at Alcolu, Clarendon county, S. C., and has one of its steam sawmills at said place; that while in the employ of the defendant as a saw filer and band-sawmill adjuster at said mill, and while so engaged in defendant's sawdust pit, a pit used for band saw to revolve in, on the 2d day of June, 1905, the steam out of the boiler or boilers was turned on by the defendant, which caused said band saw to revolve in pit, and cut the plaintiff's right leg almost to the bone, and otherwise bruised and injured plaintiff, causing him great bodily pain, mental anguish, and a great nervous shock; and that plaintiff is permanently injured in his right leg, and unable to perform regularly his regular avocation[79 S.C. 556]. The defendants, D. W. Alderman & Sons Co., answering the complaint, admits its corporate character, and that plaintiff was in its employ at the time, but alleges that the injury to the plaintiff was caused by his own negligence in knowingly placing himself in a dangerous position by not using a safety appliance, and further that the injury to the plaintiff was caused by the negligence of a fellow servant violating his instructions, for which violation it is not responsible. The defendant, further answering, alleges that the plaintiff was a mere volunteer, and defendant owed him no duty except not to willfully or maliciously injure him, which defendant did not do. Upon these pleadings a trial was had, which resulted in a mistrial.

The plaintiff thereupon moved to amend his complaint, which was granted. The defendant before his answer gave notice of a motion for the removal of the cause upon affidavit as follows:

"Affidavit. [Caption omitted.] Personally appeared D. W. Alderman, who, being sworn, says that he is the...

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