Hice v. Dobson Lumber Co.

• Decision Date: 12 May 1936
• Docket Number: 14292.
• Citation: 185 S.E. 742,180 S.C. 259
• Parties: HICE v. DOBSON LUMBER CO.
• Court: South Carolina Supreme Court

185 S.E. 742

180 S.C. 259

HICE v. DOBSON LUMBER CO.

No. 14292.

Supreme Court of South Carolina

May 12, 1936

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

Action by R. C. Hice against the Dobson Lumber Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded, with directions.

Price & Poag, of Greenville, for appellant.

J Robert Martin, of Greenville, for respondent.

BAKER Justice.

This is an action for damages for injuries sustained by respondent while working for appellant in its planing mill. The complaint alleged negligence and recklessness on the part of appellant: (1) In failing to furnish respondent a safe place to carry on the work required of him; (2) in failing to furnish safe tools and instrumentalities with which to carry on the work required of him; (3) in failing to properly supervise the work as required of plaintiff by it at the time; (4) in failing to select and furnish proper material and instrumentalities by which and on which to carry on the work as directed. The appellant's answer set up a general denial, and the defenses of contributory negligence and assumption of risk. At the conclusion of the testimony for the respondent, a motion for a nonsuit was made on the grounds (a) there is no proof of actionable negligence of any of the allegations of the complaint sufficient to go to the jury, (b) that the only inference to be gathered from the testimony is that respondent fully assumed the risk and appreciated the danger, and without any exceptions to the general rule of assumption of risk, and (c) the only inference to be gathered from the testimony is that respondent was guilty of contributory negligence. This motion was overruled. At the conclusion of all of the testimony, a motion on the same grounds for a directed verdict was made and refused. The jury rendered a verdict in favor of respondent in the sum of $1,000.

The case comes to this court on ten exceptions, which raise but two issues: (1) Should a nonsuit have been granted? (2) Was the appellant entitled to a directed verdict? Thus it becomes necessary to a proper understanding of the case to briefly summarize the testimony.

On January 14, 1931, respondent, who was the foreman of appellant's planing mill, undertook to cut a slit through the center of some small pieces of lumber one inch square and about three feet long, leaving approximately three inches at each end of the pieces unsawed, so that when said pieces of timber were sawed it would continue as a solid piece of wood with a slit cut through the center thereof, and while this work was in progress, the respondent using a ripsaw in the work, suffered the loss of the four fingers at the second joint of his left hand.

Respondent was an experienced planing mill foreman, was forty-five years old, for ten years had been operating a ripsaw, and for six years or more had been foreman of appellant's planing mill department, in which department there was operated two ripsaw machines, two planer machines, and one moulding machine. It was the duty of the respondent to keep in repair all of this machinery and to supervise the operation thereof. The employees of appellant working in the planing mill were directly subject to the orders and directions of respondent who knew more about the machinery therein, and its operation, than any man connected with the entire plant.

The usual course of business at the lumber plant was that upon an order for lumber being received at the plant of appellant, it was delivered to Mr. A. D. Turner, the yard foreman of appellant; and if the order called for dressed lumber, Turner, as the yard foreman, would get up the required lumber from the yard, have it placed in the planing mill, and turn the order over to respondent, and it was then left entirely to him to fill the order or as to how the order was filled in that department.

On the said January 14, 1931, an order came into the lumber yard for fifteen or sixteen small pieces of lumber, of the size, and with a slit down the middle as hereinabove described. Respondent testified that he first knew of this order at about 11:30 o'clock in the morning, when Mr. Turner came to him in the planing mill with the pieces of lumber or timber cut into the proper length, and showed him what he wanted done; that he told Mr. Turner it was a job they were not equipped for, but Turner insisted that he do it, and he suggested another way; that is, to use two pieces with a cardboard at each end between it and nail it together; that Turner then said: "No, he had that already cut, and we would get it out of that, and he would help me." Respondent testified he knew it was dangerous to undertake to do this work with the ripsaw.

The only machine in the planing mill which could possibly do the work desired was the ripsaw. In the ordinary operation of this ripsaw, universally known as a dangerous instrument, it was attached to a table or bench, which had a metal top or surface, the saw protruding through a slit in the center thereof. The saw or table through which it protruded was equipped with rollers at either end, which acted as a guard to the operator, in that the rollers caught the timber and fed it through without the operator having to come within four or five feet of the saw. In order to do this particular job, however, the respondent had to make an adjustment on the saw so as to have it projecting about one and a quarter inch above the surface of the metal top, and then raise the rollers several inches so that he could get his hands under the rollers, which in doing the work of cutting a slit in these small pieces of lumber, required him to hold the pieces over the saw with his hands, and this method of operation brought his hands within a few inches of the exposed saw, revolving at a tremendous rate of speed. After respondent had completed three or more pieces, and while working on another piece, the saw jerked through the wood and his hand came in contact with the saw, resulting in the injury as aforedescribed. Mr. Turner was helping do the work by holding one end of the timber as it got through from under the roller to where he could reach it, and he would hold it until it got back close enough to the roller that he would have to turn it loose. Mr. Turner was holding the timber or piece on which respondent was working at the time of his injury, and respondent testified the timber was jerked back by the saw coming in contact with a rough snarly place, a cross-grain in the timber, thus causing his (respondent's) hand to go into the saw.

We have, in the above brief summary of the testimony, given respondent's version, and this, with all other testimony, must be considered most favorable to respondent. There is some testimony, though very weak, that respondent was subject to the orders of Mr. Turner, and at one place respondent testified Mr. Turner had "commanded" him to do this work. A conclusion will be reached on this theory.

In respondent's brief, in the "statement," is the following:

"There is no contention of any defect in the saw itself. Plaintiff bases his case on the theory that the work at hand was ordered by plaintiff's superior on the spot and was a type of work defendant was unequipped for and done in an emergency, using material and method selected by the Master for this particular job, and with the promise of help from his superior."

We quote from appellant's argument, the following:

"Assumption of risk and contributory negligence were the grounds upon which the motions for non-suit and directed verdict were made. The ten exceptions merely present all of the distinct grounds urged in support of the motions.

We realize that there is some distinction between the defenses of assumption of risk and contributory negligence. This distinction is either broadened or narrowed under the particular facts of each given case. In this case, however, we think that the facts almost merge the two defenses.

In the case of Hall v. Northwestern Railway Company, 81 S.C. 522, 62 S.E. 848, 850, we find this language:

'This is one of that class of cases where, by reason of the allegation that the danger was so obvious and imminent that no prudent servant would have undertaken to make the coupling, the defenses of contributory

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