GARY
A. J.
This
action was commenced on the 28th of December, 1895, and tried
before his honor, Judge Benet, and a jury, at the April
1896, term of the court for Charleston county. The jury
rendered a verdict in favor of the plaintiff for $4,850. The
defendant moved for a new trial upon the minutes of the
court. The presiding judge made an order granting a new trial
unless the plaintiff would remit from the amount of the
verdict the sum of $1,350 within 10 days from the date of the
order, which was done. The complaint and answer will be set
out in the report of the case.
The
appellant's first exception alleges error on the part of
the presiding judge as follows: "(1) In refusing
defendant's motion to require plaintiff to elect upon
which cause of action stated in the complaint he will proceed
to trial; several causes of action being blended in one
statement, to wit: First, whether plaintiff will proceed to
trial upon the cause of action stating that defendant was
negligent in failing to provide and furnish safe machinery
appliance, guards, and protectors, and in providing and using
unsafe, defective, and insecure machinery and appliances, or
upon the cause of action stating that the defendant was
negligent; second, in failing to provide a safe place for
plaintiff to stand and work while engaged in the performance
of his duties as such employé." Upon the call of the
case the defendant's attorneys, pursuant to notice, made
a motion for an order requiring plaintiff to elect upon which
of said alleged causes of action he would proceed to trial.
After hearing argument upon said motion the court ruled as
follows: "Unless the testimony throws more light upon
this question as to whether or not the place where plaintiff
had to stand would be something separate and distinct from
the appliances and machinery, I shall overrule your motion.
The allegation, as it appears in the third paragraph, charges
only one cause of action. It includes several statements,
viz. the failure to furnish safe belting, failure to provide
safe place to stand, etc., but I cannot say that that is
stating more than one cause of action. In Ruff's Case , where the plaintiff alleged a defective crossing,
and negligence in running the train, those
are two very distinct facts, either of which would have been
a cause of action, and the supreme court said there was no
necessary connection between the unsafe crossing and the
negligent running of the train; but I cannot see that there
is no necessary connection between the appliances and the
place the plaintiff had to stand." A place to stand was
a part of the appliances for operating the rounder, and there
was such connection between them that one would have been
useless without the other. In other words, each was
necessarily dependent upon the other in accomplishing the
purpose for which each was intended. This exception is
therefore overruled.
The
second exception alleges error as follows: "(2) In
holding that the allegations of the third paragraph charge
only one cause of action, and in refusing to hold that there
is no necessary connection between the appliances and the
place the plaintiff had to stand." This exception is
disposed of by what was said in considering the first
exception, and is also overruled.
The
third exception complains of error as follows: "(3) In
admitting, against the objection of defendant's counsel,
testimony as to subsequent precautions taken by the
defendant, after the accident, to prevent a recurrence of
similar accidents, as follows, to wit: 'Q. by Mr. Bryan:
In response to Mr. Fitzsimons' inquiry of the relative
danger of these two machines, I ask the witness this
question: Have they not put a protection in front of this
machine, to protect the operatives from the danger of this
rounder, and, as a matter of fact, have not put protection at
any other machine throughout the factory? (Question objected
to by Mr. Fitzsimons. Objection overruled. Ruling excepted
to.) A. Yes, sir. Q. And is it not a fact that this
protection they have put since the accident is the only
protection they have put in that factory since the accident?
A. Yes, sir."' Immediately preceding the foregoing
interrogations and answers, the following took place upon the
examination of the plaintiff: Redirect examination: "Q.
by Mr. Bryan: I understand you to say that as long as the
machine was working, and you were standing in your position,
you had protection? A. Yes, sir. Q. Now, what part of the
machine did you go to in order to take the piece out? A. To
the front of the machine. Q. When you turned and faced the
machine, and moved to get that piece out, was there any
protection there? A. No, sir. Q. Could you get that piece out
without facing the machine? A. No, sir."
Recross-examination: "Q. by Mr. Fitzsimons: Protection
from what? A. Something in front of you to protect anything
that broke loose from hitting you. Q. You mean protection
from belting? A. Yes; in that particular case. Q. Wasn't
the belting where you were working the said machine as near
to you as in this machine? A. No, sir; nothing like."
Upon the examination of Mr. Benjamin, a witness for the
defendant, the following took place, when examined by Mr.
Fitzsimons: Q. Have you since made any changes in that
machine, to guard against a recurrence of the accident? A.
Yes. Q. Why did you do it? A. To avoid any accident that
might occur in the future. Q. What was the change you made?
A. We placed a shield up in front of the belt. Q. That would
prevent a recurrence of a similar accident now? A. Yes."
There was other testimony of defendant's witnesses to the
same effect. The defendant also introduced in evidence a
photograph of the rounder taken subsequent to the accident.
Whatever right the defendant had to object to testimony in
behalf of the plaintiff as to subsequent precautions was
waived by the introduction in its behalf of the testimony
just mentioned. It would be unjust to the plaintiff to allow
the jury to consider the defendant's testimony as to
precautions made subsequent to the accident, and to exclude
from their consideration testimony in behalf of the plaintiff
as to such precautions. Furthermore, even if there was error
in admitting testimony on the part of the plaintiff as to the
fact that precautions were made by the defendant subsequent
to the accident, when the defendant established such fact by
its witnesses, it would be harmless error. This exception is
overruled.
The
fourth exception complains of error as follows: "(4) In
refusing defendant's motion for nonsuit, made upon the
following grounds: First. Because there was no testimony as
to the material allegations of the complaint. Second. Because
there is no testimony that the injury received is the result
of negligence of defendant. Third. Because there is no
testimony that the injury received is the result of
negligence testified to, nor is there any testimony that the
injury received is the result of the negligence alleged in
the complaint. Fourth. Because the testimony is that the
injury received is the result of a risk incident to the
employment. Fifth. Because the testimony is that plaintiff
knew, and had the means of knowing, of the alleged unsafe
place and defective appliances, and voluntarily assumed all
risks incident thereto. Sixth. Because the injury received is
shown by the testimony to be the result of an accident
without fault on the part of the defendant." When the
plaintiff was on the stand, among other things he testified
as follows: "Q. by Mr. Bryan: Tell the court and jury
just what you were doing? A. I was turning out bottoms for
half barrels. That morning the belting broke, about half past
8 o'clock, and I repaired it. About 9, or a little after,
I discovered the belting pulling apart; that is, where the
wire had cut through the eyelets of the belt, and leaving the
underside running open. I stopped the rounder, and called Mr.
Cameron's attention to it; and he punched two holes back
of the two that had cut through, and laced those two holes
with a leather lacing, and the remainder with copperwire
lacing. Q. Who was Mr. Cameron? A. The general foreman. He
made the remark
to me: 'Farley, now you are all right. Go ahead.' I
ran the rounder for about an hour, I presume. While the
machinery was laboring we were protected by the side of the
rounder being walled up, and we stood behind the rounder,
because there was a danger of its throwing pieces of wood. I
had cut a bottom, and I stepped in front of the machine, and
kicked the clapboard that held the bottom loose, and took my
file to take out the bottom. As I reached for my file the
belting broke and struck me in the face, putting two gashes
across my nose, and striking me in the eye, and cutting my
eye out. Q. When the knives are cutting, you say, there is a
protection for the person working? A. Yes; while the machine
is laboring. Q. When you go around to take out the bottom,
have you any protection? A. No, sir; no protection at that
time. Q. How long had you been working at this machine? A. A
day and a half. *** Q. What kind of lacing for the belts was
furnished you in that factory for the machines worked by you
previously? A. I used staples, mostly, and when I did not use
staples I used a leather lacing. Q. When you came to this
rounder, what kind of lacing did you find...
