Cutter v. Mallard Lumber Co.

• Decision Date: 06 August 1914
• Docket Number: 8913.
• Citation: 83 S.E. 595,99 S.C. 231
• Parties: CUTTER v. MALLARD LUMBER CO., LIMITED.
• Court: South Carolina Supreme Court

83 S.E. 595

99 S.C. 231

CUTTER v. MALLARD LUMBER CO., LIMITED.

No. 8913.

Supreme Court of South Carolina

August 6, 1914

Petition for Rehearing Dismissed November 21, 1914.

Appeal from Common Pleas Circuit Court of Williamsburg County; T. S Sease, Judge.

Action by Thomas B. Cutter against the Mallard Lumber Company, Limited. Judgment for plaintiff, and defendant appeals. Affirmed.

Hydrick and Gage, JJ., dissenting.

The third charge requested by the defendant and given by the court was as follows:

"(3) It therefore follows that the plaintiff in this case cannot recover merely by showing that there was a defect in the machinery operated by him; this must be shown, but, in addition, the jury must be satisfied by the preponderance of the evidence that the plaintiff was injured as the result of such defective machinery so operated by him."

The following were the exceptions of the defendant:

"(1) Because his honor erred, it is respectfully submitted, in refusing to continue this case on motion of one of the defendant's attorneys, it having been made to appear to the court that defendant's senior counsel, John A. Kelley, Esq., who was experienced in such cases and was in thorough touch with this case, and was expected to have charge of the conduct of the trial, had suddenly taken seriously ill and was physically unable to leave his room and thus prevented from attending the trial of the case.

(2) Because his honor erred, it is respectfully submitted, in excluding the testimony offered by defendant to show that no other accident like the one in question had ever occurred at defendant's lumber plant under the same circumstances and conditions; it being respectfully submitted that such testimony was competent, relevant, and material, as tending to show: First, that the accident in question did not happen as alleged in the complaint; second, that the defendant was not guilty of negligence in allowing plaintiff to shift the belt mentioned in the complaint in the way it was shifted and, third, that the appliance used by plaintiff in shifting said belt was reasonably safe.

(3) That his honor erred, it is respectfully submitted, in requiring the negro witness, E. J. McCollum, over the objection of the defendant, to testify as follows: 'Mr Logan: Q. What are your wages there? Mr. Lee: That is irrelevant. Q. I don't know whether it is or not. What are your wages? A. I don't usually tell my wages unless asked. Q. You are paid more than the white men around there aren't you? A. I don't know. Mr. Lee: I object. A. I don't know what their wages is. Court: I think that would be competent; of course, I presume the object is to show that the witness is prejudiced. Mr. Logan: That's it, your honor. Q. I am asking you if you are not paid well by this lumber company? Aren't you one of the highest paid witnesses down there? A. I don't know what the white men get. Q. You don't know what the white men get? A. No, sir. Q. You don't know what they are getting now? A. No, sir. Q. What do you get? I will show what they get. A. I don't usually tell my wages. Court: You will have to answer. A. I get $55 a month.' The error being that said testimony was totally irrelevant and immaterial and was brought out by plaintiff's counsel solely for the purpose of appealing to the prejudice of the jury; it is apparent from the language used by plaintiff's attorney in propounding his questions that said testimony was not being brought out to show the bias of the witness, but, on the contrary, that he was seeking to bring out said testimony for no other purpose than to show that this negro witness was paid higher wages than some of the white employés of the mill, and thus to prejudice the minds of the jury against the defendant to its damage, all of which was incompetent and improper and should not have been allowed by the presiding Judge.

(4) Because his honor erred, it is respectfully submitted, in allowing the plaintiff, over the objection of the defendant, to testify as follows: 'I want to ask you whether in that same mill they covered those places, the pulleys, and if they used or did not use a shifter or lever? At the sawmill machines they got down there they got places covered and fixed a shifter in it; ain't a bit of danger or nothing in the world; ain't got no stick to shove them off, but got levers to shift them from a place covered there. Court: You mean a place covered over the pulleys? A. The belts up here and the shifter covered. Q. And have the belt there and shifter? A. Yes, sir. Q. The belt covered and the shifter? A. Yes, sir. Q. Is that right? A. Yes, sir. Court: Shifter is working with a lever, isn't it? Mr. Davis: Yes, sir. Court: I wanted to get it in my own mind.' The error being that said testimony was incompetent and irrelevant relating as it did to the machinery in other parts of defendant's plant, it not having been shown that the conditions and circumstances surrounding such other parts of the plant were the same as those which surrounded the machine at which plaintiff sustained his injury.

(5) Because his honor erred, it is respectfully submitted, in charging the jury as follows: 'I charge you in order to get it before you, that when it appears that a servant is injured by defective machinery or appliances furnished by the master, it is presumptive negligence on the part of the master, and the burden is on the master to remove it,' etc. It being respectfully submitted that no presumption of negligence on the part of the master arises from proof of injury from defective machinery or appliances in this case.

(6) Because his honor erred, it is respectfully submitted, in refusing to charge defendant's fifth request, which is as follows: 'I charge you, further, as matter of law, that the defendant in this case is not liable to the plaintiff for injuries to him arising from defects in the place for work, or in the machinery or appliances, of which defect it had no knowledge prior to the time of the accident. In other words, if you find from the testimony in this case that the alleged defect in the belt in question did not exist prior to the time of the accident, or if it did and the defendant had no knowledge of it, then I charge you as matter of law that your verdict must be for the defendant.' The reason of this is there can be no negligence where there is no knowledge of the defects on the part of the person charged with the negligence; it being respectfully submitted that said request contains a sound proposition of law, applicable to the facts in this case, and his honor should have so charged the jury.

(7) Because his honor erred, it is respectfully submitted, in not granting defendant a new trial upon the first ground set out in the motion for a new trial, as follows: 'Mr. Lee: The first ground of the motion for a new trial is that the court should have continued the case upon the showing made that Capt. Kelley was engaged in the suit, and that the case should have been continued beyond this court when Capt. Kelley was taken seriously ill during the term of the court, and it further appeared that he advised with and was in charge of the case, and that I myself could not go along without his assistance, co-operation, and advice.' It being respectfully submitted that his honor, the presiding judge, should have granted a new trial when it was made to appear to him that the case had been commenced recently; that defendant's senior counsel, who was in thorough touch with the case and who was expected to have charge of the conduct of the trial, had suddenly taken seriously ill and was unable to attend the trial; that defendant's other attorney was gravely embarrassed and labored under serious disadvantage in the trial of the case on account of the absence of said senior counsel, which operated to the injury of the defendant and to the detriment of its case.

(8) Because his honor erred, it is respectfully submitted, in modifying defendant's third request to charge by adding: 'I charge you that in connection with what I have already charged you in regard to the presumption of negligence where injury results from defective appliances and machinery.' The error being: (a) That in so modifying defendant's request his honor completely annulled the force and effect of the same, and therefore denied to the defendant the benefit of having the instruction contained in said request submitted to the jury unincumbered; (b) that said modification was wholly uncalled for and unnecessary and injured defendant's case before the jury; (c) that in so modifying said request and in using the language quoted his honor indicated to the jury his opinion that the burden was upon the defendant to show that it was not negligent, whereas it should have been left entirely to the jury to say whether or not the plaintiff had made out a prima facie case; and (d) that said language contains an erroneous proposition of law.

(9) Because his honor erred, it is respectfully submitted, in allowing plaintiff's attorneys in their arguments to the jury to vigorously reiterate and repeatedly

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