Jennings v. Edgefield Mfg. Co.

• Decision Date: 07 October 1905
• Citation: 52 S.E. 113,72 S.C. 411
• Parties: JENNINGS v. EDGEFIELD MFG. CO.
• Court: South Carolina Supreme Court

52 S.E. 113

72 S.C. 411

JENNINGS v. EDGEFIELD MFG. CO.

Supreme Court of South Carolina

October 7, 1905

Appeal from Common Pleas Circuit Court of Edgefield County; Purdy Judge.

Action by A. H. Jennings against the Edgefield Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The following are the defendant's exceptions:

"(1) Excepts because his honor erred in charging the jury that 'it was the duty of the defendant company to keep the means and appliances and machinery in proper condition, to keep them in proper repair,' whereas he should have charged the jury that it was the duty of the defendant company to furnish proper machinery and appliances to the engineer, to plaintiff herein, to enable him to operate the machinery, and it was the duty of the engineer to use said appliances in such a manner as to keep the machinery and appliances in proper repair and in a reasonably safe condition.

(2) Excepts because his honor erred in charging the jury as follows: 'Where a person in the employment of another is injured through the default or neglect of the master who employs him, and the injury is due to said fault or neglect then the party can recover.' It is respectfully submitted that this is a charge upon the facts and in violation of the Constitution, in that the judge assumes that there was an injury.

(3) Excepts because his honor erred in charging the jury that they 'might give punitive damages in this case,' when there is no testimony showing willfulness, recklessness wantonness, and disregard of the servant's rights.

(4) Excepts because his honor erred in charging the jury as follows: 'Was his injury due to the negligence of the defendant, the ordinary negligence of the defendant, in the situation in which the plaintiff was placed?' It is respectfully submitted that this is a charge upon the facts and in violation of the Constitution, in that the judge assumes that the plaintiff was injured.

(5) Because his honor erred in charging as follows: 'Was his injury due to the negligence of the defendant, the ordinary negligence of the defendant, in the situation in which the plaintiff was placed? If so, he can recover such actual or compensatory damages as may be entitled'--whereas he should have charged that if the defendant was negligent and the plaintiff did not contribute to that negligence of the defendant, was the sole and proximate cause of the injury, if there was an injury, then he could recover actual damages.

(6) Because his honor erred in charging the jury in reference to punitive damages; there being no testimony upon which the jury could infer or conclude that the defendant acted in a reckless, willful manner, or in utter disregard of the plaintiff's rights.

(7) Because his honor erred in charging the second request of the plaintiff; that is: 'It is the duty of the master to provide suitable machinery and appliances and keep them in proper repair, and the employé has the right to assume that the master has discharged his duty in this respect, and is not bound to exercise care in ascertaining whether the master has so acted.' The judge should have charged in this case that it was the duty of the plaintiff, acting as engineer in charge of this machinery and appliances, to keep the same in proper repair.

(8) Because the judge erred in charging the jury the third request of the plaintiff; that is: 'A master is liable for injury to his servant caused by his own negligence or the negligence of any person representing him, and the person employed to do anything which is the master's duty to do is the master's representative.'

(9) Because the judge erred in charging the fifth request of the plaintiff: "If there is a defect in appliances, inclusive of a place to work, then whether a servant is guilty of contributory negligence by remaining in the employ of the master after knowledge of such defect is a question for the jury.'

(10) Because the judge erred in charging the sixth request of the plaintiff; that is to say: 'There can be no assumption of risk by an employé without knowledge of the risk, as the doctrine of the assumption of risk depends upon agreement or waiver, which depends upon such knowledge.'

(11) Because the judge erred in charging the eighth request of the plaintiff; that is: 'It is the duty of the master, when a servant is set to work in a dangerous place or with dangerous machinery, material, or other appliances, where he knows or ought to know that the servant is not aware of the danger, to notify him of the same.'

(12) Because the judge erred in charging the ninth request of the plaintiff; that is: 'The physical and mental pain and suffering which the plaintiff has already endured by reason thereof, and also that which he is likely to experience in the future by reason thereof, the impairment of health, resulting from such injury or sickness, the pecuniary loss sustained up to the trial of the case, and the pecuniary loss to earn in the future'--because this is a charge upon the facts and is a violation of the Constitution.

(13) Because the judge erred in charging the tenth request of the plaintiff; that is: 'If the jury find that the plaintiff was injured by wantonness or recklessness on the part of the defendant, and that such wantonness and recklessness was the proximate cause of the injury, then he would be entitled to punitive damages, the amount being in the discretion of the jury'--there being an entire absence of any testimony showing recklessness or wantonness on the part of the defendant towards the plaintiff, it being the special duty of the plaintiff to look after this special machinery and appliance, and because the charge does not limit the jury to the amount fixed in the complaint.

(14) Because the judge erred in charging the jury the twelfth request of the plaintiff; that is: 'The law imputes to the master the knowledge of the danger, even though latent, in the use of instrumentality with which he provides the servant. He cannot escape liability by showing he is ignorant of the fact, unless he could further show that by use of due diligence he could not have discovered the danger.'

(15) Because the judge erred in refusing to charge the defendant's request to charge No. 6, as same was written, but by elimination therefrom the words, 'and of the character ordinarily in use'--the said request as written being as follows: '(6) It is not the duty of the employer to furnish the best machinery and appliances that are obtainable. His duty is discharged when he furnishes machinery and appliances which are reasonably safe and suitable, for the intended use and of the character ordinarily in use, having regard for the character of the services required.'

(16) Because his honor erred in permitting the plaintiff's attorney to ask the following question, and the same over objection: 'Q. You did not accept $30 to pay for your damages? A. No, sir.'

(17) Because the court erred in allowing J. T. Robinson to testify 'that he saw Mr. Sossaman taking it out once' (take the pipe out once), and allowed the witness to testify, over objections of the defendant, with reference to taking up a pipe by Mr. Sossaman, three or four years prior to the accident.

(18) Because the judge did not allow the witness of the defendant, J. H. Walker, to answer the following question, on objection by plaintiff's attorney: 'Q. If Jennings allowed the fireman to stop up the pipe, whose carelessness would it be?'

(19) Because his honor erred in charging the first request of the plaintiff to charge as follows: 'The master is bound to use ordinary care in providing a reasonably safe place in which, and reasonably safe and proper appliances and instruments with which, the servant may do his work. Appliances include a place to work'--without adding the proper qualification, that the ordinary hazards of business are excepted, and that the plaintiff (servant) must not rashly and deliberately expose himself to unnecessary and unreasonable risks.

(20) Because his honor erred in his general charge as a whole in not instructing the jury, in the light of the circumstances of this case, that among the assumptions of risks of an employé incident to the business are the carelessness of those at least in the same work or employment, with whose habit, conduct, and capacity he has in the course of his duties and opportunities become acquainted, and against whose negligence or incompetence he may take such precaution as his inclination or judgment may suggest.

(21) Because his honor erred in his general charge in not making clear to the jury the distinction between the duty of a master and servant, with reference to third parties and the neglect of the servant to do the very thing required of him in his duties, and in not charging the jury that if in this case it was the duty of the plaintiff as servant, as engineer, to look after the engine room and its fixtures and

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