Johnson v. Merchant's Fertilizer Co.

• Decision Date: 01 December 1941
• Docket Number: 15334.
• Parties: JOHNSON v. MERCHANTS FERTILIZER CO. et al.
• Court: South Carolina Supreme Court

17 S.E.2d 695

198 S.C. 373

JOHNSON v. MERCHANTS FERTILIZER CO. et al.

No. 15334.

Supreme Court of South Carolina

December 1, 1941

Moore & Mouzon, of Charleston, for appellant.

Irving Steinberg and A. R. McGowan, both of Charleston, for respondent.

FISHBURNE Justice.

This claim for compensation under the Workmen's Compensation Act, Act July 17, 1935, 39 St. at Large, p. 1231 , arose out of the death of Willis Johnson, an employee of Merchants Fertilizer Company; he was killed in the company's fertilizer factory near Charleston on March 11 1940. Liberty Mutual Insurance Company was the insurance carrier under the terms of the Act. The employer and the carrier denied liability upon the ground that Johnson's death did not arise "out of and in the course of the employment." It is contended that at the time of his death he was in a prohibited area, and in a place where he was forbidden to go.

The hearing commissioner awarded compensation which was approved by the full commission. This appeal is from an order of the Circuit Court affirming the award.

Willis Johnson, a negro about 60 years of age, had been employed by the fertilizer company for four or five years prior to his death, in the mixing plant. About two weeks before the fatal accident his work as a mixer was discontinued, and on Saturday, March 9th, he was given employment as a sweeper on the second floor of the building.

The second floor of the mill runs the entire length of the building, 85 feet, and is 37 feet in width. This floor is pierced by two large rock bins and a dust hopper. Along the outer or open edge of the floor there runs horizontally about two feet above the floor, a line shaft from which belts run to the rock bins. The shaft is about 65 feet long starting at a point about six or eight feet from the end wall of the building, and it was on this end of the shaft that the accident occurred. About a foot from the line shaft on either side and about six inches above it, there is a guard rail made of 2 X 4 timbers, placed there for the protection of employees. Because the floor did not extend beyond the line shaft there was an open space running the length of the shaft from the second floor down to the first floor.

Johnson was

put to work on Saturday sweeping up and collecting fertilizer dust which lay thick on the second floor. He had never worked on this floor before, and the general foreman, Mr. Bunch went up with him for the purpose of instructing him as to his duties. He swept on the second floor on Saturday, and went back to sweep at seven o'clock on Monday morning, March 11th. Later in the morning, about nine o'clock, the foreman, Bunch, saw him at the blacksmith shop on the mill yard getting a drink of water. About twenty minutes later he was killed on the drive shaft. His body was torn to shreds as it spun around the shaft, and the guard rails were shattered. There were no eyewitnesses to the accident.

The space leading to the point where the accident took place lies between the outside brick wall of the mill and what is described as rock bin No. 2, and the defendants contend that the deceased had been forbidden to go into this area.

The only testimony in the record is that of Mr. Bunch. He testified that on the Saturday before the accident he went to the second floor with Willis Johnson for the purpose of instructing him in his duties, and that on Monday morning March 11th, which was the day of the accident, "I went by there *** and warned him about the belt and the shaft, and not to go across to the belt and line shaft." From another place in his testimony we quote the following:

"Q. Did you or not tell him to sweep in the space between the rock bin and the wall of the building? A. Yes.

"Q. What about the space up here between the rock bin No. 2 and the brick wall at the end of the building, was he supposed to sweep in there? A. No, he did not have any business up there.

"Q. Did you say anything to him one way or the other about sweeping in there? A. No.

"Q. Did you tell him anything about where he was to go and where he was not to go? A. Yes, I told him to sweep this part here and not to go around the line shaft and belt." A little further on Mr. Bunch testified: "Yes, I warned him about the line shaft and belt, not to go close to the line shaft or belt."

The burden was upon the defendants to establish the fact that at the time of Johnson's death he had gone into a prohibited place in violation of a positive order. We do not think this burden has been successfully borne. So far as the record shows, the deceased had never been on the second floor of the company's mill until the Saturday before his death. It is reasonably inferable that he was unfamiliar with its physical environment and surrounding conditions, and more or less ignorant of the arrangement and disposition of the machinery and its dangers. Nor does it appear that he was ever clearly and specifically told not to enter the area between the brick wall and rock bin No. 2, which led to the end of the line shaft on that side of the room. In fact Mr. Bunch stated that he did not "say anything to him one way or the other about sweeping in there."

The appellants stress that portion of Mr. Bunch's testimony wherein he said that he warned Johnson "about the line shaft and belt, not to go close to the line shaft or belt," and his further testimony that the deceased was not supposed to do any sweeping between rock bin No. 2 and the brick wall at the end of the building, and that there was nothing connected with his duties to take him in the area between the rock bin and the wall, or in the neighborhood of the shaft.

The...