Brown v. Piedmont Mfg. Co.

• Citation: 96 S.E. 138,109 S.C. 343
• Decision Date: 23 March 1918
• Docket Number: 9938.
• Parties: BROWN v. PIEDMONT MFG. CO.
• Court: South Carolina Supreme Court

96 S.E. 138

109 S.C. 343

BROWN v. PIEDMONT MFG. CO.

No. 9938.

Supreme Court of South Carolina

March 23, 1918

Appeal from Common Pleas Circuit Court of Greenville County; Ernest Moore, Judge.

Action by B. F. Brown by guardian ad litem, J. L. Brown, against the Piedmont Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Cothran Dean & Cothran, of Greenville, for appellant.

Martin & Henry, of Greenville, for respondent.

WATTS J.

This is the second appeal in this case. The first appeal is reported in 102 S.C. 223, 86 S.E. 814. The case was again tried before Judge Moore and a jury at the November term, 1916, for Greenville county, and resulted in a verdict in favor of plaintiff for $1,500. After entry of judgment defendant appeals. Exceptions 1, 2, 3, 4 and 5 complain of error in his honor's charge to the jury, and the other four exceptions complain of error in overruling the defendant's motion for a new trial.

A reading of the evidence in the case shows that the plaintiff's evidence at this trial was practically the same as that at the trial that was appealed in the former case, and, that being the case, what was said in the case reported in 102 S.C. 223, 86 S.E. 814, became the law of the case, and by the former decision the judge was bound to send the case to the jury, and would have erred in granting a nonsuit or directing a verdict. Neither, however, was asked for by the defendant.

The facts for the former appeal in substance constitute the facts of the present appeal as far as the plaintiff's evidence is concerned, with the defendant's evidence impeaching and contradicting that of the plaintiff of the issues involved.

The first exception at a first glance looks as if his honor was in error, and that the charge was prejudicial to the defendant in instructing the jury as to the duty of the master to an ignorant and inexperienced servant, and in the instruction that the defense of assumption of risk does not apply except where the servant has full knowledge of the dangers incident to his employment. The plaintiff should have, of course, availed himself of the knowledge and conditions before him. It was for the jury to determine whether he acted as one of ordinary prudence should act under similar circumstances, and not that he should have full knowledge of the danger. But, while his honor was in error in so charging, he remedied and corrected that mistake later...