Kennedy v. Custom Ice Equipment Co., Inc., 20724

• Decision Date: 24 July 1978
• Docket Number: No. 20724,20724
• Citation: 246 S.E.2d 176,271 S.C. 171
• Court: South Carolina Supreme Court
• Parties: Odell C. KENNEDY, a minor by his duly appointed and acting Guardian ad Litem, J. C. Kennedy, Respondent, v. CUSTOM ICE EQUIPMENT COMPANY, INC., Appellant.

Page 176

246 S.E.2d 176

271 S.C. 171

Odell C. KENNEDY, a minor by his duly appointed and acting Guardian ad Litem, J. C. Kennedy, Respondent, v. CUSTOM ICE EQUIPMENT COMPANY, INC., Appellant.

No. 20724.

Supreme Court of South Carolina.

July 24, 1978.

Young, Clement & Rivers, Charleston, for appellant.

Moore, Flowers & Doar, Georgetown, for respondent.

GREGORY, Justice.

Respondent Odell C. Kennedy brought this action by his guardian ad litem against appellant Custom Ice Equipment Company, Inc. (Custom) to recover damages he sustained when his left arm was amputated by machinery designed and installed by appellant. The jury returned a verdict for respondent. Appellant contends the trial judge erred by refusing its motion for a directed verdict and by charging a particular OSHA regulation to the jury. We affirm.

On July 15, 1976, the day of the accident, Odell Kennedy had been employed at Georgetown Ice Company (Georgetown) for three days. He was fifteen years old and this was his first job.

Georgetown is in the business of manufacturing and distributing crushed or "party" ice.

Custom designed and installed the machinery used by Georgetown to manufacture ice.

Odell was instructed to enter the cold storage room at Georgetown and empty the ice storage bins. These storage bins are fed by an overhead Archimedean screw conveyor which carries the ice from the ice making machine to the bins. The ice is removed from an opening in the underside of each bin through which the ice falls when a trap door is opened. It is common for the ice in these bins to freeze up or solidify and not fall out of the bins through the trap doors. When this freezing up of the ice, or "bridging" as the condition is called, occurs, the ice has to be physically dislodged.

To this purpose, Georgetown constructed a wooden catwalk alongside the storage bins from which its employees could reach into the bins and break up the frozen ice with a garden hoe.

On the morning of the accident Odell mounted the catwalk for the first time and proceeded to dislodge the frozen ice with a garden hoe. He was drawn into the overhead conveyor by his left arm when the hoe made contact with the conveyor. Odell's left arm was torn off and he suffered disfiguring scars to his left shoulder.

It is undisputed that all machinery involved in the accident was designed and installed by appellant and that the wooden catwalk was constructed by respondent's employer, Georgetown.

Respondent's complaint alleges two causes of action against appellant: one for negligent design of the overhead screw conveyor and one based on strict liability in tort. By way of defense appellant sought to establish the conveyor was not negligently designed, but that if it was negligently designed respondent was contributorily negligent. Appellant further sought to establish the machinery was not defective when delivered but had been rendered defective by the construction of the catwalk by Georgetown.

Appellant's motion for a directed verdict as to each cause of action was refused by the trial judge and the case was submitted to the jury. A verdict was returned for respondent in the amount of $208,000 actual damages. This appeal followed.

On appeal from an order of the lower court denying appellant's motion for a directed verdict, this Court will review the evidence and all reasonable inferences therefrom in the light most favorable to respondent. Our task is to determine if the evidence warranted the submission of the case to the jury. Bellamy v. General Motors Acceptance Corp., S.C., 239 S.E.2d 73 (1977).

Appellant first contends it was entitled to a directed verdict as to respondent's cause of action for negligence. Appellant alleged the overhead screw conveyor was designed and installed without protective shields because the height of the conveyor off the ground rendered it unforeseeable that anyone would come in close contact with the exposed portions of the rapidly turning auger. Appellant compared the danger to that presented by a high tension power line. Appellant further argued the dangerous nature of the conveyor was openly obvious, and that respondent was contributorily negligent by climbing up to the conveyor.

Respondent presented evidence that ice "bridging" was a common problem in the industry and that appellant was aware of the need to come in close contact with the conveyor to dislodge the bridged ice. There was also testimony that appellant had actual knowledge that it was a common practice in other ice plants to reach into the ice storage bins with a garden hoe to dislodge the frozen ice.

Since the evidence was conflicting and is subject to more than one reasonable inference the trial judge did not err by submitting this cause of action to the jury. As we stated in Wilson v. Marshall, 260 S.C. 271, 195 S.E.2d 610 (1973):

Questions of negligence, proximate cause and contributory negligence are ordinarily questions of fact for the jury, as to which the trial court's only function is to inquire whether particular conclusions are or not the only reasonable inferences to be drawn from the evidence. If the facts in...