Brewer v. Brooklyn Cooperage Co.
| Decision Date | 05 October 1932 |
| Docket Number | 13484. |
| Citation | 166 S.E. 85,167 S.C. 152 |
| Parties | BREWER v. BROOKLYN COOPERAGE CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; C.J Ramage, Judge.
Action by Murray Brewer against the Brooklyn Cooperage Company. From the judgment for plaintiff, defendant appeals.
Affirmed.
Epps & Levy, of Sumter, for appellant.
Reynolds & Reynolds, of Sumter, for respondent.
This action, by Murray Brewer, as plaintiff, against the defendant, Brooklyn Cooperage Company, commenced in the court of common pleas for Sumter county, May 16, 1930, is a suit for recovery of damages for personal injuries sustained by the plaintiff, alleged to have been caused by the negligence carelessness, and willfulness of the defendant, while the plaintiff was employed as a laborer by the defendant in unloading logs from a crane, it being alleged "that it was plaintiff's duty, when logs were swung on the platform, where the plaintiff was stationed, to release the hooks from their hold on the log, which had been lifted on the platform," and that his alleged injury occurred while performing such duty; that as he leaned over the log in the act of releasing the hooks from the log, "the defendant, through its agents and servants, without any warning to the plaintiff, and with an utter and total disregard for the safety of the plaintiff, negligently, recklessly, wilfully and wantonly attempted to swing said hooks from the platform, thereby causing the hooks to slip loose from the other end of the log and strike plaintiff violently in the face" and caused the alleged injuries. The defendant, in its answer, admitted the formal allegations of the complaint, and also admitted that the plaintiff was injured while in the employment of the defendant engaged in the work alleged, and that it was his duty to release the hooks from the logs, but denied all other material allegations of the complaint, and specifically denied "that it was the defendant's duty or custom to give the workmen any warning," and alleged that "everything was in plain, open view and that it was the duty of the plaintiff to keep out of the way of the hooks referred to in the complaint," and alleged that the plaintiff was "well aware of the fact that all of the work about the defendant's plant was more or less dangerous, as a matter of necessity and it was the plaintiff's duty to keep out of the way of the hooks." The defendant further alleged that it was the "duty of the plaintiff and his fellow servants to handle the complete unloading of the logs, including whatever warning they should give each other," and, also, set up the plea of contributory negligence, alleging that the accident was caused by the plaintiff's negligence "in standing too near the hooks after the same had been released; in not heeding the warning given, and getting out of the way of the hooks; in not standing far enough away so that the said hooks would not strike him and in not keeping a proper lookout on said occasion." The defendant, further, interposed the plea of assumption of risks, alleging that the plaintiff assumed all of the risks incident to his employment.
The case was tried at the October, 1931, term of said court before his honor, Judge C.J. Ramage, and a jury, resulting in a verdict for the plaintiff in the sum of $725, and from the judgment entered thereon the defendant has appealed to this court.
Appellant presents a number of exceptions, but, as appears from the brief, it is the contention of the appellant that the errors imputed to the trial judge raise only five questions.
Exceptions 1 and 2 impute error to his honor in refusing to grant defendant's motion for a nonsuit and motion for direction of a verdict. As contended by appellant, the question here is: Was there any evidence of actual negligence to go to the jury? The trial judge directed a verdict as to punitive damages and, therefore, that issue is not before us. As to actual damages, a careful reading of the transcript convinces us that there was evidence of negligence to go to the jury, and that the trial judge committed no error in overruling defendant's motion for a nonsuit and direction of a verdict. There were five men engaged in hauling the logs in question. Mr. Sutton, one of the men, referred to as the engineer, was operating the crane or derrick, and was in a position to see what the other men were doing. Two of the men were on the flat car, whose duty it was to fasten the hooks into the logs so that they could be carried from the flat car, by means of the crane, over onto the platform, where the plaintiff and one other person were stationed for the purpose of taking the hooks loose from each log as it was placed thereon, the plaintiff loosing the hooks from one end of the log and the other person loosing the hooks from the other end of the log, so that the crane, with the attachments connected therewith, could be turned, by the engineer, in the direction of the flat car for the purpose of getting another log. The plaintiff testified, in this connection, as follows:
There was testimony offered by the defendant to the effect that the person on the platform with the plaintiff (this person did not testify in the case and was not present at the trial) gave a signal to Mr. Sutton, the engineer, to the effect that the hooks were loose and to go ahead, and, acting on such signal, that the engineer, Mr. Sutton, put the crane in motion, and that this caused the plaintiff's injury; and it is the contention of appellant that the person giving such signal was a fellow servant with the plaintiff, and therefore, the injury having been caused by the negligence of a fellow servant, the plaintiff could not recover. This was probably one inference to be drawn from the testimony, but, in our opinion, more than one reasonable inference can be drawn from the evidence as to whose negligence was the cause of the plaintiff's injury. It is the further contention of appellant that even if the injury to plaintiff was caused by the negligence of Mr. Sutton, the engineer in charge of the crane, that the plaintiff still could not recover for the reason that he, too, was a fellow servant with the plaintiff. There was testimony on behalf of the plaintiff to the effect that his injury was caused by the negligence of Mr. Sutton, the engineer; but it certainly does not appear conclusively that Mr. Sutton was a fellow servant. Considering the testimony as a whole, we are satisfied that more than one reasonable inference can be drawn therefrom as to whether or not Sutton was a fellow servant and, therefore, an issue arose for the jury. In this connection we call attention to testimony on the part of the plaintiff to the effect that the plaintiff was wholly inexperienced in the work in which he was engaged and that he did not appreciate the dangers connected with the work. It further appears from the plaintiff's testimony that the defendant, through the said Mr. Sutton, first directed the plaintiff to perform other work at another place, but decided that it was too dangerous, and the plaintiff being wholly inexperienced, instructed the plaintiff to perform the work at the place where he was injured, having led the plaintiff to believe...
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