Cumming v. Lawrence

• Decision Date: 30 January 1911
• Citation: Cumming v. Lawrence, 87 S.C. 457, 69 S.E. 1090 (S.C. 1911)
• Parties: CUMMING v. LAWRENCE.
• Court: South Carolina Supreme Court

69 S.E. 1090

87 S.C. 457

CUMMING v. LAWRENCE.

Supreme Court of South Carolina

January 30, 1911

Appeal from Common Pleas Circuit Court of Spartanburg County; J. W De Vore, Judge.

Action by Clarence Cumming, by his guardian ad litem, Mrs. E. H Cumming, against Bryan Lawrence. Judgment for plaintiff. Defendant appeals. Affirmed.

Defendant's exceptions are as follows:

"(1) Because the presiding judge erred in allowing the plaintiff's counsel, against the defendant's objection, to ask, and have answered, questions from the defendant's witness G. W. Greene as to the financial standing of the defendant, when such testimony was competent only for the purpose of collecting punitive damages, when there was no evidence in this case tending to show a right to any such damages.

"(2) Because, the presiding judge having allowed testimony as to the financial ability of the defendant on the theory that punitive damages were demanded in the complaint, he erred in that, having afterwards ruled that no such damages could be recovered in this case, he failed to instruct the jury that they should pay no attention at all to testimony as to the defendant's pecuniary standing.

"(3) Because the presiding judge erred as a matter of law in not holding on the defendant's motion for the direction of a verdict that, if there was any negligence on the part of the defendant shown in the case, such negligence was the negligence of one Heney, who, under the uncontradicted testimony, was a fellow servant with plaintiff, and in not, therefore, directing a verdict on the ground that, the negligence shown being of a fellow servant, the plaintiff could not recover in this action.

"(4) Because the ruling by the presiding judge on the motion to direct a verdict that, if the plaintiff was over 14 years of age, he would not hesitate a moment to grant the motion, was tantamount to a holding by him that the uncontradicted evidence showed that the plaintiff had sufficient capacity to make him subject, just as any adult would be, to the defense of fellow servant, and, this being true, it was error of law for the circuit judge to hold that he could not, under the law, direct a verdict in favor of the defendant on this ground.

"(5) Because the presiding judge erred in not holding on the motion to direct a verdict that the plaintiff, even though he was under 14 years of age when his injuries were received, was subject, so far as the motion in question was concerned, to the same rules of law as an adult or an infant over 14 years of age would be, and in not therefore, on the uncontradicted evidence in the case, granting the motion for the direction of a verdict in favor of the defendant.

"(6) Because the presiding judge erred in leaving to the jury the question whether the plaintiff and the party through whose alleged negligence he was injured were fellow servants or not, when, under the law and the uncontradicted evidence in this case, the said party was a fellow servant with plaintiff, and it was the duty of the presiding judge to so instruct the jury.

"(7) Because the presiding judge erred in not holding that, while it is a general principle of law that the presumption is that an infant between the ages of 7 and 14 years is presumed not to have capacity sufficient to make him guilty of contributory negligence, still in a clear case, as here, where the uncontradicted evidence shows clearly, as here, that such a plaintiff has capacity sufficient to charge him with contributory negligence, it is the duty of the presiding judge to so hold, and in not on this principle so holding in this case.

"(8) Because the presiding judge erred in instructing the jury as follows: 'On the other hand, if the person who was starting the machinery was a fellow servant with the party who was injured and he was not representing the master, and it was the negligence of a fellow servant that caused the injury, why, the master would not be liable, and in considering that you must take into consideration age of the party injured, whether he had sufficient knowledge, sufficient intelligence to assume the risk, whether he knew the danger, whether he knew that it was his duty to avoid the danger and to use care himself'--the error being: (a) In limiting the cases in which the plaintiff could not recover because the negligence alleged was the act of a fellow servant to cases in which the alleged fellow servant did not represent the master, when the nonrepresentation of the master referred to should have been stated to be in respect to nondelegable matters. (b) The instruction was erroneous, in that it led the jury to believe that the plaintiff could not be barred of a recovery, being a minor, unless the jury should find that he had sufficient intelligence to assume the risks of his employment and to know the dangers thereof, and to know that it was his duty to avoid the danger and use care himself, when, under the law, if the question of the intelligence of the plaintiff, he being an infant, was involved at all as to the matter of the defense of fellow servant, the obligation on the defendant was that of showing this, and this only, namely, that he had sufficient intelligence to know that he was to work with, and might be injured by, another servant working with him .

"(9) Because the presiding judge erred in not instructing the jury as requested in the defendant's sixth request as follows: 'If the jury believe from the evidence that the plaintiff was injured through the negligence of an employé of the defendant Lawrence and that such employé was a fellow servant with the plaintiff, and did not stand in the relation of master to him, then the plaintiff cannot recover in this action, because the law says that, if an employé is injured through the negligence of a fellow workman or fellow servant, he cannot hold the master or the employer of both liable for his injuries,' and in modifying such instruction to the jury

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