Farley v. Charleston Basket & Veneer Co.

Decision Date12 November 1897
Citation28 S.E. 193,51 S.C. 222
CourtSouth Carolina Supreme Court

Appeal from common pleas circuit court of Charleston county; W. C Benet, Judge.

Action by Charles H. Farley against the Charleston Basket & Veneer Company for personal injuries caused by defendant's negligence. From a judgment for plaintiff, defendant appeals. Affirmed.

Fitzsimons & Moffett, for appellant.

Bryan & Bryan, for respondent.


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...

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