Hunter v. D. W. Alderman & Sons Co.
| Decision Date | 06 September 1911 |
| Citation | 71 S.E. 1082,89 S.C. 502 |
| Parties | HUNTER v. D. W. ALDERMAN & SONS CO. [D1] |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Clarendon County; J. C Klugh, Judge.
"To be officially reported."
Action by Walker F. Hunter against the D. W. Alderman & Sons Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.
L. D Jennings, for appellant. Charlton Du Rant and Davis & Weinberg, for respondent.
The plaintiff was employed in June, 1906, as a saw filer in the defendant's large sawmill at Alcolu. On the morning of June 2d, plaintiff inquired of Robert Alderman, the manager if the mill would run that day, and on being informed that it would not he went into the saw pit to adjust the mill. The valve in the pipe between the boiler and the engine having been opened, the blowing of the whistle at the noon hour caused the saw to move and cut the plaintiff. For the injury so received this action was brought, and on the trial the verdict was in favor of the defendant.
There was no doubt that the injuries were caused by the negligence of some one. The issues on the trial were: Was there any negligence of the defendant operating as a proximate cause of the injury? Was the injury due solely to the negligence of the plaintiff, or to the negligence of a fellow servant? Was the plaintiff guilty of contributory negligence? On the part of the plaintiff there was evidence that he was charged with the duty of adjusting the mill as well as filing the saws, that he went into the pit after notifying the manager that he wished to adjust the mill and receiving his assurance that the mill would not run, and that he was employed in that work in the saw pit, a very dangerous place, when the saws were started without warning, in consequence of the blowing of the whistle by Simon Witherspoon, the fireman. That the fireman was a fellow servant of the plaintiff was not in dispute, but plaintiff undertook to prove that he blew the whistle in obedience to the order of D. G. Hankinson, and that Hankinson was the representative of the master. The plaintiff admitted that there was a safety device called a "tightener," and that, if he had raised it before going into the pit, the saws would not have moved when the engine started; but he and others testified that the raising of the tightener would have interfered in some degree with the adjustment of the mill. On the part of the defendant, Robert Alderman, the manager, admitted that he had told the plaintiff that the mill would not run that day, but denied that the plaintiff was charged with the work of adjusting the mill. There was evidence that the tightener was provided for the express purpose of disconnecting the saws from the engine so that work could be done on the saws and in the saw pit without danger of injury.
There was no evidence whatever tending to prove negligence in the employment of incompetent servants, and the circuit court was right in so charging the jury. Plaintiff's counsel contend that there was such evidence of negligence on the part of the negro fireman who blew the whistle as to warrant the inference of incompetency. The fireman was a witness for the plaintiff, and testified that, contrary to the order of the manager, he opened the valve in order to blow the whistle and thus started the machinery without notice to employés working around the mill. Assuming this to be an act of negligence on his part, the general rule is that a single act of negligence by a servant does not tend to show that the servant was incompetent. Much less is it to be regarded evidence that the master knew or ought to have known at the time of the accident that the offending servant was incompetent. Galveston, etc., R. Co. v. Davis, 92 Tex. 372, 48 S.W. 570; Bank v. Chandler, 144 Ala. 286, 39 So. 822, 113 Am. St. Rep. 39; Smith v. Chicago, etc., Ry., 236 Ill. 369, 86 N.E. 150; Spring Valley Co. v. Patting, 86 F. 433, 30 C. C. A. 168; 26 Cyc. 1297; 2 Thompson on Negligence, 1054.
The following instruction to which exception is taken has been approved in numerous cases: "If the plaintiff, Mr Hunter, while in the discharge of his duty to the defendant had the choice of two ways of performing it, one entirely safe, and the other obviously and greatly dangerous, and adopted the dangerous way and as a result was injured, he was guilty of negligence, which will ...
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