Brazeale v. Piedmont Mfg. Co.

• Decision Date: 21 September 1937
• Docket Number: 14533.
• Citation: 193 S.E. 39,184 S.C. 471
• Parties: BRAZEALE v. PIEDMONT MFG. CO.
• Court: South Carolina Supreme Court

193 S.E. 39

184 S.C. 471

BRAZEALE v. PIEDMONT MFG. CO.

No. 14533.

Supreme Court of South Carolina

September 21, 1937

Appeal from Common Pleas Circuit Court of Greenville County; G Duncan Bellinger, Judge.

Action by Ollie Brazeale against the Piedmont Manufacturing Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Morgan & Cothran and B. T. Leppard, all of Greenville, for appellant.

B. F Martin and J. G. Leatherwood, both of Greenville, for respondent.

PER CURIAM.

This is an action for damages, both actual and punitive, for personal injuries which the plaintiff, an employee of the defendant claimed to have suffered in June, 1935, while working as a spinner in the company's cotton mill. She alleged:

"That while so engaged, a small steel ring or appliance known as a 'traveler,' by reason of being worn and defective, became disconnected from the machine, flew off and struck the plaintiff in her left eye, cutting, tearing and wounding same, and bringing about a diseased condition, and causing her much illness, pain and suffering and permanently affecting and injuring her vision and her physical and nervous system, causing certain bony structure to have to be removed and causing her great physical, nervous and mental pain, shock, suffering and impairment as well as medical expenses and loss of time. * * *

That all of the said injury and damages were proximately caused by the negligence and wilfulness of defendant in that it negligently and wilfully failed to furnish plaintiff with a safe place in which, and safe appliances with which, to do her work and negligently and wilfully furnished defective and unsafe appliances and an unsafe place within which she should do her work, and in like manner failed to inspect same and keep same in proper repair."

The defendant admitted that the plaintiff was in its employ at the time she received the injuries complained of, denied all acts of negligence or willfulness on its part, and alleged that any injury suffered by Mrs. Brazeale "was caused by an ordinary risk incident to her employment, which risk the plaintiff assumed."

The case was tried in December, 1936. The issue of actual damages was submitted to the jury, and a verdict for $2,500 was returned for the plaintiff. From judgment entered thereon, this appeal is taken.

By its first four exceptions, the appellant imputes error to the trial judge in refusing its motions for a nonsuit and a directed verdict made upon the following grounds: (1) That there was no evidence of negligence on the part of the defendant; and (2) that the plaintiff assumed the risk incident to her employment. These we will consider in the order named.

There is no presumption of negligence, as the respondent concedes, "from the mere failure of defendant's instrumentalities." As stated in Green v. Southern Railway, 72 S.C. 398, 52 S.E. 45, 47, 5 Ann.Cas. 165, "when an accident happens by the breaking of a machine in ordinary use, and there is neither proof of defects in the machine nor of error in its use by the servant, the law will not draw first the inference that the machine was defective, and then from that inference infer the lack of care of the master."

As to the master's duty, in Lester v. Carolina C. & O. Railway, 93 S.C. 395, 76 S.E. 976, we find the following: "The law is so well settled in this state that it is unnecessary to quote authority that it is the duty of the master to furnish the servant with a reasonable, suitable, and safe place to work, and keep the same in reasonable, safe and suitable repair, and furnish the servant with reasonably safe and suitable machinery and appliances to do the work with, and keep the same in reasonably safe and suitable repair, and this duty of the master is nonassignable."

In the case at bar, while it was alleged, as is seen, that the small steel ring or appliance known as a "traveler," by reason of being worn and defective, flew off and struck the plaintiff in her left eye, it was testified that the defects in the machinery were really in the "traveler ring," the ring on which the traveler moved. The plaintiff, who operated five large spinning frames, stated that the traveler moved very rapidly, that the traveler ring was worn, and that there was also a slight nick in the ring, which looked like an old break. She also said that, while a traveler ring was supposed to be fastened down by screws to a steel beam, it was in fact loose at the time. As the appellant argues that her testimony establishes its contention, that the evidence does not show what caused the traveler to fly off, we quote her thereabout:

"Q. Do you mean to say that that being loose caused the little ring to fly off? A. Well, it would help to have caused it.

Q. It might have caused it; how many other things would cause this little ring to fly off? A. Well, that place being chipped out in there.

Q. Now that might have done it? A. Yes, sir.

Q. It being loose might have done it? A. Yes, sir.

Q. What else might have done it? A. It being worn.

Q. It being worn might have done it? A. Yes, sir.

Q. Now do you know which of those did cause it? A. Sir?

Q. Do you know which one of those things did cause the little ring to fly off? A. Well, I should think all three of them.

Q. You think all three of them? A. All three of them did have something to do with it coming off.

Q. Would anything else have caused it to come off? A. Not that I know of.

Q. Suppose it had broken? A. If it had broken or hit that place it would have caused it to come off.

Q. But as to those three do you know whether or not any one of the three caused it? A. Well, I should think they would have helped to cause it.

Q. Yes, but do you know that any one caused it? A. I could not say which of the three did cause it.

Q. You could not say which one caused it? A. No, sir.

Q. But anyone of the three might have caused it? A. Yes, sir."

Harper Gilreath, a witness for the plaintiff, also testified on this point. He stated that "the traveler ring sets on a rail like this and the traveler runs on the flange and if there is a crack in this flange it won't run, it will break off." On being shown the traveler ring in question he stated that it was not in running condition on account of a crack that appeared in it, and that in such case the traveler would run for a while but would finally break off. Elbert Luther, a mill hand experienced in such matters, stated that a defect in the traveler ring will cause the traveler to fly off, and that nothing else would; and that the speed of the traveler would not cause it to do so unless the ring was badly worn.

We think that the trial judge correctly refused to grant a nonsuit on this ground. As is seen, the testimony we have quoted tended to show that the traveler ring, on which the traveler moved, was defective, in that it was worn and had a crack in it, which would cause the traveler to fly off or break off. Also, according to the evidence, the traveler ring was not properly fastened to the spinning frame, but was loose, from which it might be inferred that proper inspection of the machinery was not made, and from all of which an implication of negligence on the part of the defendant as to keeping the machinery in reasonably proper repair and as to reasonable inspection might arise.

As to the second ground of the motions, it is argued by the appellant that if the "flying off of the traveler" was an ordinary risk of the employment, the plaintiff assumed such risk; that even if the risk was an extraordinary one, the plaintiff knew that the travelers would fly off and that she might be struck by them, and fully understood and appreciated the dangers therefrom; and that, therefore, Judge Bellinger was in error in refusing to direct a verdict on this ground.

In Tyner v. Atlantic Coast Line R. Co., 149 S.C. 89, 146 S.E. 663, 670, the court said: "The general rule is that the servant assumes such risks as are ordinarily incident to the service, but does not assume extraordinary risks unless they are known to and appreciated by him, or are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them." See, also, Gowns v. Watts Mill, 135 S.C. 163, 133 S.E. 550; McKinney v. Woodside Cotton Mills, 167 S.C. 438, 166 S.E. 499; Scott v. International Agr. Corporation, 180 S.C. 1, 184 S.E. 133; Hice v. Dobson Lumber Co., 180 S.C. 259, 185 S.E. 742.

In 39 C.J. 704, the writer says: "Risks and perils ordinarily incident to the employment are such as are to be expected from the particular character of the service in which the employee is engaged, and have generally been defined as those which remain after the master, or one rightly exercising the authority of the master, has exercised due care to prevent or avoid them-which cannot be obviated or avoided by the exercise of due care on the part of the master. Risks which ought not to exist and would not exist except for the employer's negligence are not classed as ordinary risks, but as extraordinary risks."

The word "extraordinary," as has been held, is not used to denote magnitude or as a mark of degree. "An extraordinary risk is one lying outside of the sphere of the normal, arising out of conditions not usual in the master's business, and, in applying the doctrine of assumption of risk, one which may be obviated by the exercise of reasonable care on the master's part." 39 C.J. 691.

In the case at bar, the plaintiff testified that she knew the travelers were accustomed to fly off, and that she had had them to hit her in the back, "but usually it was a bad ring, rusty or something." She also stated that the traveler ring here in question was not fastened securely to the spinning frame as it...