Boling v. Woodside Cotton Mills

• Decision Date: 27 September 1933
• Docket Number: 13696.
• Citation: 171 S.E. 9,171 S.C. 34
• Parties: BOLING v. WOODSIDE COTTON MILLS.
• Court: South Carolina Supreme Court

171 S.E. 9

171 S.C. 34

BOLING v. WOODSIDE COTTON MILLS.

No. 13696.

Supreme Court of South Carolina

September 27, 1933

Appeal from Common Pleas Circuit Court of Greenville County; J Henry Johnson, Judge.

Action by C. A. Boling against the Woodside Cotton Mills. From a judgment for plaintiff, defendant appeals.

Affirmed.

Stephen Nettles and E. P. Riley, both of Greenville, for appellant.

J Robert Martin, of Greenville, for respondent.

CARTER Justice.

In this action, commenced in the court of common pleas for Greenville county, December 30, 1931, the plaintiff seeks to recover damages against the defendant, Woodside Cotton Mills, for personal injuries alleged to have been caused by the negligence and willfulness of the defendant while the plaintiff was in its employment, September 22, 1931. In its answer the defendant interposed a general denial and set up the plea of contributory negligence, and also assumption of risk. The case was tried at the October, 1932 term of said court before his honor, Judge J. Henry Johnson and a jury, resulting in a verdict for the plaintiff in the sum of $3,500 actual damages; his honor having granted a nonsuit as to punitive damages, based on the defendant's motion. From judgment entered on the verdict the defendant has appealed to this court, imputing error to the trial judge in his refusal to grant defendant's motion for a directed verdict (as well as nonsuit) upon three grounds: (1) That the evidence fails to establish actionable negligence; (2) that as a matter of law the evidence makes out the defense of contributory negligence; and (3) as a matter of law the evidence makes out the defense of assumption of risk. On the hearing before this court appellant abandoned the exception based on the alleged error that his honor committed in refusing to grant the said motion for direction of a verdict as well as nonsuit as to contributory negligence. We, therefore, have to consider only the allegations of error imputed to the trial judge in refusing the motion on the other two grounds stated, which we shall consider together.

We are unable to agree with appellant in the position that there was error in refusing the said motion, either upon the ground that the evidence fails to establish actual negligence, or that, as a matter of law, the evidence makes out the defense of assumption of risk. As we view the record of the case, there was testimony to go to the jury on this issue. In support of appropriate allegations as to the manner in which the plaintiff's alleged injuries occurred and the cause of the same, namely, that they "resulted from and were caused by the negligent and reckless acts of the defendant, Woodside Cotton Mills, its agent and servant, in the discharge of the duties it as master owed to the plaintiff as servant, in failing to furnish the plaintiff a safe place to carry on the work required of him, in failing to furnish the plaintiff safe tools and instrumentalities with which to carry on the work required of him, in failing to furnish the plaintiff safe methods and means of carrying on the work required of him, in failing to supervise and see that the work was properly carried on," the plaintiff introduced considerable testimony. We think, however, that the testimony given by the plaintiff, alone, was sufficient to warrant his honor, the trial judge, in refusing defendant's said motion; and for the purpose of setting forth clearly what transpired at the time in question and how the plaintiff's injury occurred, we quote at length from his testimony. In answer to questions on his direct examination the plaintiff stated:

"Q. Were you a regular employee of the Woodside Mills? A. No, sir.

"Q. On what occasion, were you, if at all, called to work at the Woodside Mills? A. I heard they were doing some extra work down there.

"Q. To whom, upon hearing that, did you apply for work? A. Mr. Epting, the boss mechanic.

"Q. He was Mr. Epting? A. Yes, sir.

"Q. Mr. Epting, the boss mechanic? A. Yes, sir.

"Q. What was done about engaging you? A. He said he guessed he would use me.

"Q. Well, did he make any directions or send you to anyone to start to use you? A. Directed me to Mr. League.

"Q. Directed you to Mr. League? A. Yes, sir.

"Q. What position did he hold? A. Second hand of the shop.

"Q. Did this hanging of pipe come under what is known as the mechanical work of the mill? A. Yes, sir.

"Q. So you were directed by Mr. Epting to Mr. League? A. Yes, sir.

"Q. What did Mr. League do with you? A. He directed me to Mr. Hall.

"Q. All right, for what purpose? A. To help him, to help Mr. Hall.

"Q. Do what? A. About the pipe work and--

"Q. Well, about the pipe work, what was Mr. Hall doing and what did he put you to doing? A. Put me to help him put up a pipe, four inch pipe.

" Q. Well, where? A. In the machine shop.

"Q. What part? A. In the machine shop of the cotton mill.

"Q. Was he putting them on the floor or on the ceiling or where? A. Hanging them on to the ceiling.

"Q. Hanging four inch pipe, well, about how long were the pieces of pipe handled there with Mr. Hall? A. Most of them were cut up in short sections.

"Q. About how long? A. Well, I, they were different lengths.

"Q. Well, about how long? A. Some four or five feet long.

"Q. Then, you were doing this work of hanging pipes with--who was the man in charge of it? A. Mr. League, the second hand.

"Q. Well, you talk about the time when you went to work, who were you put under? A. Mr. Hall.

"Q. About how many days would you say you were engaged at that work? A. With Mr. Hall, about three days, something like that.

"Q. Mr. Hall, any one else helping, any assistants? A. Well, when we would need help, if he would have large pipe he would usually give help to help get it up.

"Q. He would call in someone else? A. Yes, sir.

"Q. Now, Mr. Boling, you worked at that, you say, two or three days, did your work cease? A. Yes, sir.

"Q. Why? A. We got out of material.

"Q. Out of material? A. Yes, sir.

"Q. You mean pipe gave out or something? A. Some of the pipe fittings.

"Q. And what occurred, then, what was your orders then? A. We were told to go home and come back next morning.

"Q. When did you go back? A. Went back at one, we were told--

"Q. That same afternoon, why, or how come you to go back? A. Got word to come back at one.

" Q. Upon reporting there who did you go to work with? A. Mr. League told me he could not get hold of Mr. Hall, that he must have gone out of town and--

"By Mr. Nettles: I don't think that is relevant, your honor.

"By Mr. Martin: That is the directions, if your honor please, I don't know about his going out of town, but--

"Q. Mr. Hall was not there? A. No, sir.

"Q. Who did you report to at one on the afternoon of this occasion? A. Mr. League, the second hand.

"Q. What did he put you to doing? A. He put Mr. Baker and myself working on the pipe, putting it up.

"Q. What process, what size pipe were you putting up? A. Four inch.

"Q. How many pieces did you put up? A. Well, I don't remember how many pieces, but we were putting them up short sections at the time, one at the time.

"Q. How high was the pipe from the ground? A. Well, it must have been something like ten or twelve feet.

"Q. Explain just how you would do that? A. Well, we were putting it up using two ladders, short pieces, and brace the ladders together.

"Q. And the ladders, two ladders were used by you and the man Baker? A. Yes, sir.

"Q. Explain how you would take it up and how you would connect it? A. We would take it up, one of us up on the shoulder and the other one hold and get it placed and get it ready to make the pipe, enter it into the threads of the other pipe.

"Q. While you were doing that was there any supervision, any boss man come about and say anything to you? A. Yes, sir, all along.

"Q. Who? A. Mr. Epting a time or two and Mr. League, he would give us directions too.

"Q. All right, sir, did you have any plumb or means of keeping it up there straight? A. Well, we would get it out of line sometimes.

" Q. Well, did you get it out of line any? A. Yes, sir.

"Q. Well, tell us about it? A. Mr. Epting come along and he said that the pipe was too low and raise it up.

"Q. That is while you and Baker were-- A. Yes, sir.

"Q. After you started back that afternoon? A. Yes, sir.

"Q. All right, then, how many pieces, or how long in hours did you and Mr. Baker work there together before this thing happened? A. It was some little time, I don't remember just how long.

"Q. Well, tell what you were doing, Mr. Boling; where would you prepare the pipe? A. At a work bench on the outside of the mill, just at the back door of the shop, and we would prepare the pipe out there.

"Q. What would you do to this four inch pipe out there? A. We would get our measurements, and then thread them out there.

"Q. Did you have a turn-lathe or anything? A. No, sir, we were threading them by hand, a pipe machine.

"Q. While you and Baker were out there threading did Mr. Epting or the man League either come out there? A. Mr. League came up.

"Q. What position did Mr. League have? A. He was second hand.

"Q. Did you or not obey his orders; is he the man that paid you? A. Mr. Epting and Mr. League.

"Q. I say did you obey Mr. League's orders; was he a second hand there? A. Yes, sir.

"Q. Well, he came out there? A. Yes, sir.

"Q. All right, now, tell the Court and jury what was done, what was said? A. Mr. League walked up and he asked us how we were getting along and so we told him we were going along very well, we reckoned, if we got those two pieces we had cut there and we had one piece threaded and we were going to thread the other and Mr. League pitched in

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