Hall v. Nw. R. Co. Of South Carolina

• Decision Date: 10 November 1908
• Parties: HALL. v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.
• Court: South Carolina Supreme Court

62 S.E. 848
81 S.C. 522

HALL.
v.
NORTHWESTERN R. CO. OF SOUTH CAROLINA.

Supreme Court of South Carolina.

Nov. 10, 1908.

1. Master and Servant (§ 203^*) — Assumption of Risk.

Assumption of risk involves an implied agreement by the employé to assume the risks ordinarily incident to his employment or a waiver after full knowledge of an extraordinary risk of his right to hold the employer for a breach of duty in that regard.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 538; Dec. Dig. § 203.*

For other definitions, see Words and Phrases, vol. 1, pp. 589-591; vol. 8, pp. 7584-7585.]

2. Master and Servant (§ 227*)—"Contributory Negligence."

"Contributory negligence" of an employé rests in the law of torts, and, when such defense is established, plaintiff's action is defeated not because of any agreement, express or implied, but because his own misconduct was a proximate cause of the injury complained of.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 608; Dec. Dig. § 227.*]

3. Master and Servant (§ 288*)—Injury to Servant—Assumption of Risk—Question for Jury.

Whether a freight conductor, injured while coupling cars by being caught between the buffers, assumed the risk of injury resulting from his going between the cars rendered necessary by reason of the failure of the company to provide a proper lever for the work, held for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1070, 1071, 1077, 1082; Dec. Dig. § 288.*]

4. Master and Servant (§ 289*)—Injury to Servant — Contributory Negligence — Question for Jury.

Whether a freight conductor, injured while coupling cars by being caught between the buffers, was guilty of contributory negligence in going between the cars, held for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1125; Dec. Dig. § 289.*]

5. Master and Servant (§ 288*)—Injury to Servant — Contributory Negligence — Question for Jury.

Whether a freight conductor, injured while coupling cars which were unsafe for lack of a proper lever, voluntarily operated the cars within Const. art. 9, § 15, declaring that knowledge of any employé of the unsafe character of any machine shall be no defense to an action for

[62 S.E. 849]

injury caused thereby except as to conductors in charge of unsafe cars, held for the jury.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 288.^2-*]

6. Master and Servant (§ 289*)—Injury to Servant — Negligence — Contributory Negligence.

Where, in an action for injuries to a freight conductor while coupling cars, there was evidence of negligence of the company in not providing a proper lever and in not providing against a defective appliance by inspection, and the jury might find that there was such an emergency as justified a man of reasonable discretion in going between the cars to make the coupling, a motion for nonsuit, on the ground that the evidence showed contributory negligence or assumption of risk, was properly denied.

[Ed. Note—For other cases, see Master and Servant, Cent. Dig. § 1125; Dec. Dig. § 289.*]

7. Master and Servant (§ 289*)—Injury to Servant—Contributory Negligence.

Where a railway company by its negligence created an emergency which justified a freight conductor in going between cars to couple them, it could not claim that the conductor was negligent as a matter of law because of a slight miscalculation in the usual position of danger.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1125; Dec. Dig. § 289.*]

8. Master and Servant (§ 289*)—Assumption of Risk.

A servant in entering his employment assumes the risk of his own errors; but where, by the negligence of the master, he is brought into a position of unusual peril, it is generally a question for the jury whether the injury arose from an error of the servant due to his negligence, or to such inadvertence as a reasonably prudent man might have fallen into in the servant's situation.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1095; Dec. Dig. § 289.*]

9. Master and Servant (§ 295*)—Injury to Servant—Assumption op Risk.

An instruction that, where a servant knows of a patent defect in the appliances which will make it dangerous for him to operate them, it is for the jury to determine whether he assumed the risk, or whether a man of ordinary prudence would have undertaken to operate the appliances with knowledge of its defect, etc., is not erroneous as making assumption of risk to depend on reasonable care.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 295.*]

10. New Trial (§ 162*)—Power of Court—— Grounds—Excessive Verdict.

The power of circuit courts to grant new trials, as authorized by Civ. Code, § 2734, extends to the granting of new trials for excessive verdicts in tort for unliquidated damages on condition that plaintiff shall refuse to remit the amount deemed excessive.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 326; Dec. Dig. § 162.*]

11. Appeal and Error (§ 979*)—Discretion of Trial Court — Granting or Refusing New Trials—Review.

The granting or refusing of a new trial on the ground of an excessive verdict in tort for unliquidated damages is within the discretion of the circuit judge, and the court on appeal will not disturb the ruling unless it was based on an error of law.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3873; Dec. Dig. § 979.*]

12. New Trial (§ 76*)—Grounds—Excessive Verdict.

A new trial should not be granted merely because the trial judge would have found a less amount than that found by the jury, unless the opinion of the judge amounts to a clear conviction that injustice has been done by an excessive verdict.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 153; Dec. Dig. § 76.*]

13. New Trial (§ 162*)—Grounds—Excessive Verdict.

Where the circuit judge in the exercise of his discretion orders a new trial unless plaintiff will remit a specified sum, he adjudges that the verdict is by such amount excessive, and that defendant is of legal right entitled to be relieved from that excess or have a new trial.

[Ed. Note.—For other cases, see New Trial, Dec. Dig. § 162.*]

14. New Trial (§ 161*)—Grounds—Excessive Verdict.

The circuit judge, in granting a new trial because the verdict is excessive, may provide that defendant shall do things necessary to preserve the rights of plaintiff as a condition of the new trial, and he may require defendant to secure the reduced amount of the verdict if it should stand.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. § 321; Dec. Dig. § 161.*]

15. New Trial (§ 161*)—Grounds—Excessive Verdict.

An order for a new trial because the verdict is excessive is a benefit to which defendant is entitled by right, and it cannot be made a condition of the enjoyment of such right that he shall surrender his right of appeal on the ground of error committed in the trial.

[Ed. Note.—For other cases, see New Trial, Dec. Dig. § 161.*]

16. New Trial (§ 162*)—Grounds—Excessive Verdict.

An order granting a new trial because the verdict is excessive, which provides that if defendant, within a specified 'time, shall tender a specified sum in satisfaction of the verdict, and if plaintiff shall decline to accept it, a new trial shall be had, but, if defendant fail to make the tender, a new trial shall be refused, is erroneous, as imposing the condition that defendant shall tender the...