Bradford v. F. W. Woolworth Co

• Decision Date: 15 October 1927
• Docket Number: (No. 12289.)
• Citation: 140 S.E. 105
• Court: South Carolina Supreme Court
• Parties: BRADFORD. v. F. W. WOOLWORTH CO. et al.

140 S.E. 105

BRADFORD.

v.F. W. WOOLWORTH CO. et al.

(No. 12289.)

Supreme Court of South Carolina.

Oct. 15, 1927.

Cothran, J., dissenting.

Appeal from Common Pleas Circuit Court of Sumter County; E. C. Dennis, Judge.

Action by Mrs. Annie H. Bradford against the F. W. Woolworth Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Harby, Nash & Hodges, of Sumter, for appellants.

Epps & Levy, of Sumter, for respondent.

WATTS, C. J. This action was commenced in the court of common pleas for Sumter county, S. C, on or about the 15th day of January, 1925, and was brought to trial before his honor Judge Dennis and a jury at the spring term of court, 1926. The trial resulted in a verdict in favor of the plaintiff in the sum of $10,000, following which a motion for a new trial was made, and refused by the presiding judge. From judgment entered on this verdict the defendants, within due time, served notice of intention to appeal to the Supreme Court. During the progress of the trial, at the close of plaintiff's testimony, defendants made a motion for a nonsuit, and at the close of all the testimony made a motion for a directed verdict, the grounds of said motions being correctly set out in the exceptions. The grounds of the motion for a new trial are also correctly set out in the exceptions.

The exceptions are:

"(1) That his honor the trial judge erred, it is respectfully submitted, in refusing defendants' motion for a nonsuit upon the ground that there is no testimony to prove the allegations of negligence alleged in the complaint, or that the condition of the store floor was due to any act of negligence on the part of either of the defendants, said error being that the said motion was meritorious and should have been granted, for the reason that the testimony failed to show any actionable negligence on the part of the defendants, or either of them.

"(2) That his honor the trial judge erred, it is respectfully submitted, in not granting the motion made by the defendants for a directed verdict in their favor, on the ground that there was no evidence of the acts of negligence alleged in the complaint, and that the acts shown by the testimony were not proved to have been negligent, and that there was no evidence of any lack of due care, said error being that the said motion was meritorious and should have been granted, for the reason that the entire testimony showed that the defendants, in respect to the matters in question, had acted with due care and had not been negligent in any of the particulars alleged in the complaint, and his honor should have so held.

"(3) That his honor erred, it is respectfully submitted, in refusing the motion for a new trial made upon the ground that his honor erred in refusing the motion for a nonsuit and direct-ed verdict, and that the verdict was contrary to the greater weight of the evidence, for the reason that said motion was meritorious and should have been granted."

So the question involved upon this appeal is whether or not any actionable negligence alleged in the complaint was supported by sufficient testimony to carry the case to the jury.

This court cannot reverse the trial judge in refusing a new trial on the ground that the verdict was contrary to the greater weight of the evidence; that is, with the trial judge. If there was any competent evidence to support the verdict, then this court will not reverse the judgment.

We think the evidence of appellants' witnesses Martin, Burns, and Lee was sufficient to carry the case to the jury as to whether, where floors are habitually oiled, there is liable to be an accumulation of oil or grease, which may be dangerous.

The respondent testified as to the actual condition of the floor at the spot she fell. Dr. Lemmon's and Mrs. Flowers', also Mr. Flowers', evidence was sufficient to carry the case to the jury.

It was for the jury to say whether the appellant allowed a particular location, where the respondent fell on this floor, to become dangerous on account of an accumulation of oil or grease.

In the case of Trimmier v. Railway, 81 S. C. 203, 62 S. E. 209, the court held:

"That it was the duty of the master to see to it that its appliances and instrumentalities were in proper condition, and that the plaintiff, by showing that they were not, made a prima facie case against the defendant."

In Bunch v. American Cigar Company, 126 S. C. 326, 119 S. E. 828, the court says:

"If without her fault she stepped into the oil and a part of it adhered to her shoe, causing her to slip and fall, in descending the stairs, it is the same in principle as if the oil had been spilt upon the steps, and brings the case within the doctrine so often declared by this court, that if an injury is shown to have resulted from an unsafe place to work, a prima facie case of negligence is made out against the master, and the burden of exculpating himself is cast upon him."

In Branch v. Railway Company, 35 S. C. 407, 14 S. E. 808, the court says:

"The allegation on the part of a servant, that he has sustained an injury while in the service of the master by reason of the neglect of a duty which the latter owes to the former, unquestionably states a cause of action, for, as said above, the omission of such duty affords at least prima facie evidence of negligence, and while it is true that such prima facie showing may be rebutted by evidence tending to show that such omission of duty on the part of the master was not owing to his want of care and diligence, but was due to other causes which he could not control, yet until such prima facie showing is rebutted, it will be conclusive. For instance, the master may show that he did not know, and could not by the use of due care and diligence have ascertained, that there was any such defect in the machinery or other appliances furnished the servant as would be likely to cause the injury complained of; but until this is shown, the failure to perform an acknowledged duty stands unexcused and renders the master responsible."

In Grainger v. Railway Company, 101 S. C. at page 83, 85 S. E. 231, the court says:

"The allegation on the part of a servant that he has sustained an injury while in the service of the master, by reason of the neglect of a duty which the latter owes to the former, unquestionably states a cause of action, for, as said above, the omission of such duty affords at least prima facie evidence of negligence, and while it is true that such prima facie evidence showing may be rebutted by evidence tending to show that such omission of duty on the part of the master was not owing to his want of care and diligence, but was due to other causes which he could not control, yet until such prima facie showing is rebutted, it will be conclusive.

"For instance, the master may show that he did not know, and could not, by the use of due care and diligence, have ascertained, that there was any such defect in the machinery or other appliances furnished the servant, as would be likely to cause the injury complained of; but until this is shown, the failure to perform an acknowledged duty stands unexcused and renders the master responsible.

"It seems to us, therefore, that want of knowledge on the part of the master of the defect in the machinery, being a matter of excuse for the failure on his part to perform an acknowledged duty, constitutes matter of defense, and is not an element in the cause of action. Branch v. Railway, 35 S. C. 405, 14 S. E. 808."

In the case of Gowns v. Watts Mill 135 S. C. 163, 167, 133 S. E. 550, 551, the court quotes with approval:

"The master is nevertheless required to exercise such reasonable care in respect of the installation, maintenance, and operation of such machinery as is commensurate with the dangers involved, and he will be liable for injuries resulting from his failure to exercise such care." 39 C. J. 341.

The case of Lasure v. Graniteville Manufacturing Company, 18 S. C. 279, states that plaintiff was engaged in removing cotton bales from warehouse by rolling them on a truck over an elevated tramway and while so doing the tramway gave way by reason of the splitting or breaking of some of the timbers supporting the track, and plaintiff fell, etc. The negligence in that case consisted of master's failure to provide safe and suitable appliances to enable his operatives to do their work, and to see that same are kept in proper repair.

The law imputes to the master knowledge of latent danger in his instrumentalities and casts on him the burden of provingthat he could not hare discovered the danger by the exercise of due diligence. Trimmier v. Railway, 81 S. C. 203, 62 S. E. 209.

I have quoted from cases of master and servant. The appellant was owner and in charge of the store; the respondent was invited to go there and trade. She did so and was injured. For the purposes of this case the same doctrine as in cases of master and servant should prevail.

All exceptions are overruled and judgment affirmed.

BLEASE, J. (concurring in result). I agree with the CHIEF JUSTICE that there should be an affirmance of the judgment in this cause. I am not prepared at this time, however, to agree with him in the view that the rule requiring the master to furnish a reasonably safe place for his servant is precisely applicable in this case, where the relationship was that of owner of a public store and his invitee.

It occurs to me that the proper rule to be applied in this case is that laid down in Thompson Co. v. Phillips, 22 Colo. App. 428, 125 P. 563, cited by Mr. Justice Cothran, to the effect that a merchant who invites the public to his premises, is not an insurer of the safety of his patrons, and is therefore not liable for injuries caused by some defects in the premises, in the absence of any evidence tending to show that he or his agents knew or should have known, by the exercise of reasonable diligence, of the defect. (Italics added.)

While the precise point seems not to have been...