James v. Fountain Inn Mfg. Co.

• Decision Date: 24 April 1908
• Citation: 61 S.E. 391,80 S.C. 232
• Parties: JAMES v. FOUNTAIN INN MFG. CO.
• Court: South Carolina Supreme Court

61 S.E. 391

80 S.C. 232

JAMES v. FOUNTAIN INN MFG. CO.

Supreme Court of South Carolina

April 24, 1908

Appeal from Common Pleas Circuit Court of Greenville County; Geo. W Gage, Judge.

Action by Lee James against the Fountain Inn Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed.

Cothran Dean & Cothran, for appellant.

Haynsworth Patterson & Blythe, for respondent.

JONES J.

The plaintiff recovered judgment against defendant in this action for $500 as damages for personal injuries received by him while operating an engine in the employment of defendant. The exceptions raise only the question whether it was error to refuse defendant's motion for nonsuit. The complaint alleged negligence in these particulars: "In failing to furnish him a safe engine and appliances with which to work as its employé, and in requiring him to work upon an unsafe engine, to wit, in that the engine was out of order because the dash pot would not pick up, by reason of which it was necessary that plaintiff should place his hand against said spring for the purpose of making it pick up, during which act of plaintiff, rendered necessary by said defective and unfit machinery, his hand slipped and was caught and mutilated." There was testimony tending to show that plaintiff had been in the employ of defendant as chief electrician for four or five days previous to the injury, which occurred on January 26, 1906. When not engaged as electrician, it was the duty of plaintiff to assist T. W. Moon, who was chief engineer and master mechanic of the defendant company. On the day the injury occurred, the regular fireman not appearing, the engineer, Murphy, in charge of the steam engine driving the machinery of defendant's manufacturing plant, was put to firing, and plaintiff was called in to help Moon in operating the engine. Moon had occasion to leave the engine room for about 20 minutes, and requested plaintiff to stay in the engine room and attend to the engine. A short while after Moon went out one of the pot hooks failed to "pick up" the dash pot, and plaintiff attempted to remedy this without stopping the machinery by pressing the spring on the dash pot hook the usual way, and, finding it unusually difficult to make the dash pot pick up, he leaned forward, and pressed hard against the spring, and in so doing his hand slipped and was caught between the hook and the arm of the dash pot, and was mashed and lacerated. While the plaintiff was an electrician, he had some familiarity with steam engines, and knew how the dash pots operated, and before Moon left the engine room had noticed that one of the dash pots was not working properly, and that just before Moon went out plaintiff informed him of that fact, and asked Moon what he must do with it, and that Moon replied: "All we can do is to handle it as we have been handling it. We will shut down Saturday, and fix it Saturday night and Sunday. The only way to do it is to press your hand against the spring." That same morning plaintiff had pressed the spring of the dash pot hook to make it work without being injured. On the last attempt he pressed harder than usual because it was harder to make work. The dash pot moved up and down at the rate of 90 strokes to the minute. There were four dash pots, and the failure of one of them to work would cause some diminution of the speed of the engine. There was evidence tending to show that the plaintiff while operating the engine was under the direction and control of Moon, the chief engineer, and that it was Moon's duty to see that the engine was in good condition; that the defect in the dash pot hook had existed for several weeks; that Moon knew of this defect; and that it could have been repaired in a few hours with the proper material on hand.

The grounds upon which the motion for nonsuit was based, and which are renewed here by the exceptions, are: "(1) There was no testimony to show that the alleged negligence was the proximate cause of the injury. (2) That the testimony shows that the proximate cause of the injury was the plaintiff's voluntary and unnecessary exposure of his person to the moving machinery. (3) That the testimony shows that the plaintiff knew of the defective machinery, and placed his hand in a known dangerous place. (4) That the testimony shows that the injury was the result of an accident. (5) That plaintiff was injured not by any defect of the machinery, but by his attempt to relieve the defective operation . (6) That Moon was fellow servant with plaintiff, and, if the injury was the result of his negligent direction to plaintiff, defendant is not liable. (7) That the complaint did not allege injury as the result of Moon's negligence in directing him to put his hand on the spring."

Fellow Servant: This not being a suit by an employé of a railroad company, we need not consider the question from the aspect that Moon was "a superior agent or officer, or a person having a right to control or direct the services of the party injured," as referred...