Hill v. Broad River Power Co.

• Decision Date: 05 July 1929
• Docket Number: 12696.
• Parties: HILL v. BROAD RIVER POWER CO.
• Court: South Carolina Supreme Court

148 S.E. 870

151 S.C. 280

HILL v. BROAD RIVER POWER CO.

No. 12696.

Supreme Court of South Carolina

July 5, 1929

Appeal from Common Pleas Circuit Court of Richland County; H. F Rice, Judge.

Action by Elizabeth Hill, as administratrix of the estate of N. B Hill, deceased, against the Broad River Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Douglas McKay and Elliott & McLain, all of Columbia, for appellant.

A. F Spigner and James S. Verner, both of Columbia, for respondent.

BLEASE J.

This suit, growing out of the alleged wrongful death of plaintiff's intestate, N. B. Hill, was tried in the court of common pleas for Richland county before Hon. H. F. Rice circuit judge, and a jury. There was a directed verdict in favor of the defendant as to punitive damages. Defendant's motion for a directed verdict as to actual damages was refused. The jury returned a verdict in favor of the plaintiff for actual damages. The appeal is by the defendant from that verdict and the judgment thereon. The exceptions all relate to the trial judge's refusal to direct a verdict as to actual damages. These charge error on the part of Judge Rice in refusing to direct the requested verdict on these grounds: (1) That there was not sufficient evidence of actionable negligence; (2) that the only reasonable inference to be drawn from the evidence was that plaintiff's intestate assumed the risk of the work he was engaged in; and (3) that the deceased was guilty of contributory negligence.

This court has been much impressed with the statement of facts and the argument of counsel for the respondent, and we think these cover and set forth all that is necessary for us to say in this case. We have, therefore, with appropriate changes, adopted that statement and argument as the opinion of the court.

The plaintiff alleged that, while her intestate was working for the defendant as foreman of one of several squads of laborers engaged in clearing up a right of way for a line of power wires, a tree fell upon him, and he was killed. As to the cause of the falling of the tree, the plaintiff alleged:

"6. That on April 1, 1927, and for several days prior thereto, the defendant company had a squad working under another foreman, the servant and agent of the defendant, on the right-of-way hereinabove mentioned, at a point between the Broad and Saluda Rivers and about three miles west of the city of Columbia, where there was a very thick and heavy growth of trees and bushes. That said squad of men in opening said right-of-way carelessly and negligently and with wilful disregard of the rights of others having to pass along said right-ofway, nearly severed and cut a large tree from its stump and roots but left the same standing with its gaping wounds concealed In a growth of bushs, briars and weeds; the said defendant knowing that to leave said tree so standing would greatly endanger the lives of those passing along said right-of-way, and also well knowing that plaintiff's intestate and others would be passing that way in the discharge of their duties."

"9. That the death of the plaintiff's intestate was due to the carelessness, negligence, wilfulness and wantonness of the defendant, its servants and agents in cutting and leaving said tree, which fell upon the plaintiff's intestate, standing, but liable to fall at any minute; in failing to furnish the plaintiff with a safe place to work, the place being unsafe by reason of the cut, but unfelled tree, standing in a concealed place and in failing to warn the plaintiff of the latent danger of working at said place under the circumstances."

By its answer, the defendant pleaded a general denial, contributory negligence, and assumption of risk on the part of the plaintiff's intestate.

It appears that, when the appellant served its proposed transcript of record, there was in it the following statement:

"Under this general head the defendant argued:

"(a) That deceased was sole representative of the master, was in charge of the work, and hence responsible for the condition under which the cutting was being undertaken;

"(b) He assumed the risk of the work;

"(c) That he was guilty of contributory negligence.

"(After argument, the court sustained the motion as to punitive damages, but overruled the motion as to the second ground of the motion and submitted the case to the jury.)"

As amendment of the proposed transcript, the respondent suggested that the statement above quoted should be stricken out and the stenographic record of the motion for a directed verdict by the defendant inserted in lieu thereof. The amendment was not agreed to, and the case was submitted to Judge Rice for settlement. By his order settling the case, Judge Rice ordered: "That the proposed amendments of respondent be and the same are hereby allowed and that the proposed case as amended shall constitute the case for appeal, with leave to the appellant to set out the foregoing matter in an appendix to the case, if it deems advisable."

The matter which Judge Rice gave leave to have printed in the appendix is that part of the proposed case, which his honor ordered should be stricken out of the record.

From the order settling the case, or transcript of record, the appellant did not appeal. This court, then, can consider as having transpired at the trial of the cause only that which the court stated took place. And in this connection we note that the only questions raised on the motion for a directed verdict were as to the sufficiency of the evidence to sustain a verdict of actual and punitive damages. See Southern Pine Lumber Co. v. Martin, 118 S.C. 319, 110 S.E. 804; Glenn v. Southern Railway Co., 145 S.C. 41, 142 S.E. 801; Kneece v. Hall, 138 S.C. 157, 135 S.E. 881.

No question as to the assumption of risk or contributory negligence then having been made in the motion for a directed verdict, the appellant cannot now complain that the court erred in not directing a verdict for the defendant on account of the plaintiff's assumption of risk or contributory negligence. See Gilliland v. Railway, 86 S.C. 137, 68 S.E. 186, where at page 140 (68 S.E. 187) it appears that: "At the close of the plaintiff's testimony, the defendant's attorneys made a motion for a non-suit, on the grounds that there was no evidence of negligence on the part of the defendant, and that the testimony showed that the plaintiff was guilty of contributory negligence." On appeal from a judgment rendered for the plaintiff in that case the Court said: "We have not discussed the question whether it appeared from the evidence, that the plaintiff assumed the risk which caused the injury, as this was not made a ground for nonsuit, or for a new trial." See, also, Thomas Drug Store v. National Surety Co., 104 S.C. 190, 88 S.E. 442; Hill v. Railway Co., 67 S.C. 548, 46 S.E. 486; Mims v. Hair, 80 S.C. 460, 61 S.E. 968.

By the only exception, then, which assigns error to any ruling by the court below, the appellant says that there was not sufficient evidence of actionable negligence to warrant the case being submitted to the jury.

Since one cannot recover damages of another unless the second has failed to discharge a duty which he owed to the first, and since in this case the plaintiff alleges that the defendant cut the tree, and left it standing as above described, the inquiry is: Did the defendant owe the plaintiff's intestate the duty not to so cut and leave the tree? The duty which one owes to another under such circumstances is declared in verses 33-34 of the Twenty-First chapter of Exodus, as follows:

"33. And if a man shall open a pit, or if man shall dig a pit, and not cover it, and an ox or an ass fall therein;

"34. The owner of the pit shall make it good, and give money unto the owner of them; and the dead beast shall be his."

It is a long cry from Moses to the present day, but there has been little change in the law in the meantime, as shown in the case of Bradford v. Woolworth Co., 141 S.C. 453, 140 S.E. 105, where, quoting from 20 R. C. L. 55, 56, it was said:

"The authorities are entirely agreed upon the proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or concealed perils. In the language of a recent opinion: 'The law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them.' If there are hidden dangers upon the premises he must use ordinary care to give warning thereof. While the rule has been applied in innumerable situations, it has been invoked most frequently, perhaps, in the case of injuries from unguarded excavations, unprotected stairways, hatchways, trapdoors, turnstiles, revolving or swinging doors, and collapsing buildings. The facts of the particular case are, of course, controlling upon the question of negligence, and the decision thereon is properly within the sphere of the jury." 20 R. C. L. 55, 56.

And in the same case Mr. Chief Justice Watts, basing his conclusion on the cases of Grainger v. Rwy., 101 S.C. 73, 85 S.E. 231; Branch v. Ry., 35 S.C. 405, 14 S.E. 808; Lasure v. Graniteville Mfg. Co., 18 S.C. 275; Trimmier v. Railway, 81 S.C. 203, 62 S.E. 209, said:

"The law imputes to the master knowledge of latent danger in his instrumentalities and casts on him the burden of proving that he could not have discovered the danger by the exercise of due diligence.

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