Gunter v. Graniteville Mfg. Co.
| Decision Date | 27 November 1882 |
| Citation | 18 S.C. 262 |
| Parties | GUNTER v. GRANITEVILLE MANUFACTURING COMPANY. |
| Court | South Carolina Supreme Court |
1. Where the presiding judge said to the jury concerning requests to charge " that most, if not all, of them were in accordance with the law as understood by me, and already laid down in my charge," but " were declined so far as they contained matter inconsistent with the instructions already given," a request to charge cannot be said to have been refused unless shown to be inconsistent with the general charge.
2. A workman, employed by a cotton manufacturing company to keep the machinery of the mill in repair and good working order is not a fellow-servant with a weaver in the factory in such a sense as to exempt the employer from liability for an injury to the weaver caused by the negligence of such workman.
3. A master is liable for any injury to his servant caused by his own negligence, or by the negligence of any person representing him; and a person employed to do anything which it is the master's duty to do-as e. g. , in a cotton factory, to employ the operatives and discharge them when incompetent or careless, to provide suitable machinery and to keep it in proper repair and safe working order-is the master's representative.
4. In action against a corporation for damages, an employe of the company was called as a juror and examined on his voir dire ; after answering in the negative the statutory questions, he was asked by the court if he was an employe of the defendant, and the juror said he was, whereupon he was excluded. Held , that the question was proper, and that the propriety of this juror's exclusion was a matter wholly within the discretion of the presiding judge.
Before KERSHAW, J., Aiken, September, 1881.
This was an action by Marina S. Gunter against the Graniteville Manufacturing Company, commenced October 4th, 1879, for $10,000 damages for the loss of an eye, caused by a shuttle flying from its place while a loom was being repaired, in work hours, by one Harling, the loom repairer. The case was tried in September, 1880, and a verdict was rendered for plaintiff for $2,000. On defendant's appeal, a new trial was granted; and at this second trial the verdict was for plaintiff, $5,400.
The judge's charge was as follows:
In order that the plaintiff may recover, it must appear to you that the facts alleged in the complaint are true as alleged therein. That the plaintiff was employed by the defendant company at the time of the alleged injury. That the defendant was negligent in providing and using unsafe, defective and insecure machinery, or in causing the machinery to be repaired during working hours, and when the plaintiff was compelled, in the performance of her duty, to be so near the same as greatly to endanger her person. That the plaintiff suffered the injury complained of. That the injury was caused by the alleged negligence of the defendant.
The whole law of this case is laid down in the opinion of the Supreme Court read in your hearing, and you will take that as a part of this charge. Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done, the essence of the fault being either in the omission or commission of the duty.
To apply this definition to the conduct of the defendant, it was their duty to provide and use such machinery only as a reasonable and prudent person would ordinarily have done, under the circumstances of the situation in which they were. It was their duty to keep the same in repair as a reasonable and prudent person would ordinarily have done under the same circumstances. It was their duty to repair, or cause to be repaired, the machinery at such hours and in such manner as a reasonable and prudent person would have done under the same circumstances.
If the defendant company has failed in these duties, or any of them, they have been negligent in a legal sense, and if the plaintiff has been injured as the direct result of such negligence, the defendant is liable, unless it appeared that there are other circumstances in the case which will excuse the company from liability. For if the injury complained of was not entirely occasioned by the negligence or improper conduct of the defendant, but would, notwithstanding such faults of the defendant, have been avoided, but for the negligence or want of ordinary care on the part of the plaintiff, the defendant is entitled to the verdict. So, also, if the injury was not entirely occasioned by the negligence or improper conduct of the defendant, but would have been avoided but for the negligence or want of ordinary care on the part of a co-laborer of the plaintiff, the defendant is entitled to a verdict, unless it appear that the defendant had not used ordinary care and reasonable prudence in the selection of such a co-laborer, it being a principle of law, that the employe assumes the risks incident to his employment, one of which is the negligence of a co-laborer. The company is liable for the negligence of its officers and agents to whom it delegates the control of its business and operatives, and the performance of their duties, but not for that of a co-laborer of the plaintiff.
The term co-laborer embraces all those employed in performing any portion of the work of the cotton mill, in which the plaintiff was employed, in any of its departments, but not a workman employed to keep the machinery in repair, though in some respects a fellow-servant or co-laborer. As to what constitutes a middle man, or such an officer or agent as to represent the company as to make it liable for his negligent acts or omissions, I will read a passage from the case of Buckner v. The New York Central Railroad Company , cited in 31 Am. Rep. 515, 516. ***
If then you find that the plaintiff has suffered the injury complained of as a direct result of the negligence of the defendant or its representatives, you will proceed to enquire whether it could have been avoided by the exercise of ordinary care or prudence of the plaintiff, or of any co-laborer whose want of care contributed directly to the injury, for if such want of care on the part of the plaintiff or her co-laborers in any way contributed to the cause of the injury, the defendant would not be liable, for when the injury in part was caused by the negligence of the plaintiff, and in part by negligence of the defendant, or of a co-laborer, the court will not distinguish between these contributing causes, but will refuse to interfere.
The questions are, was the injury complained of caused by the use of defective machinery as alleged? Were such defects known to the defendants, or might they have known of such defects by the use of ordinary care and prudence? Or was it caused in any part by the repairing of the machinery during the work hours? If so, was that a want of reasonable care and prudence on the part of the defendants, or was it caused by a want of reasonable care and prudence on the part of the workmen appointed to repair the machinery? If so, then the defendants would be liable, unless you find that the negligence or want of reasonable care and prudence on the part of the plaintiff, or on the part of a co-laborer, contributed to the cause of the injury, as I have before stated.
What act is there on the part of the plaintiff which she ought not to have done, as a reasonable and prudent person, which contributed as a cause to her injury? If you find any such, she cannot recover. What ought she to have done, as a reasonable and prudent person, to avoid such injury which she did not do? If you find any such neglect on her part that contributed as a cause of the injury, she cannot recover. If you find no such negligence on the part of the plaintiff, then apply the same test to the conduct of any co-laborer of the plaintiff having any connection with the accident. If you find any such contributory negligence on the part of any co-laborer of the plaintiff, she cannot recover.
But if you find that the injury was caused entirely by the negligence of the defendant company or their agents, middlemen or representatives, your verdict should be for the plaintiff. If you find for the plaintiff, you must find such a sum of money as you may think should reasonably compensate her for the injury she has sustained, the loss of time, mental and bodily suffering, loss of eyesight, and other permanent injuries and disabilities. [Here the learned judge read the fifth syllabus in Hough v. Railway Company , 10 Otto 214, as a part of his charge.]
The defendants moved for a new trial, which being refused, they appealed to this court on the exceptions stated in the opinion.
Messrs. D. S. Henderson and Youmans , Attorney-General, for appellants.
I. On the request to charge, first considered by this court, the following authorities were cited: 24 N. Y. 442; Prof. Jury Tr. , § 337; Shearm. & R. Negl. , §§ 87, 88, 92; Wood M. & S. §§ 331, 332, 333, 452; 32 Md. 411; Cooley M. & S. 7-13; 2 Thomp. Negl. 971; 1 Add. Torts 904. II. Counsel cited Wood M. & S. , § 326; Cooley M. & S. 6-11; 50 Geo. 465; 55 Id. 133; 58 Id. 490; 25 N. Y. 565. III. Counsel cited Wood M. & S. , § 327; Shearm. & R. Negl. 94. IV. Upon the next request to charge, and the alleged error in the charge, considered together by the court, counsel cited Cooley M. & S. 3-18; Wood M. & S. , §§ 393-396; 39 N. Y. 468; 53 Id. 549; 12 Otto 213; 9 Cush. 113; Shearm. & R. Negl. , §§ 100-110; Prof. Jury Tr. , § 344. V. On last request to charge, Wood M. & S. , § 419; Cooley M. & S. 18; Shearm. & R. Negl. , § 99.
Messrs. W. W. Williams, O. C. Jordan, G. W. Croft , contra.
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