Kinsey v. Colleton Cypress Co.

• Decision Date: 25 January 1922
• Docket Number: 10824.
• Citation: 110 S.E. 395,118 S.C. 234
• Parties: KINSEY v. COLLETON CYPRESS CO.
• Court: South Carolina Supreme Court

110 S.E. 395

118 S.C. 234

KINSEY v. COLLETON CYPRESS CO.

No. 10824.

Supreme Court of South Carolina

January 25, 1922

Appeal from Common Pleas Circuit Court of Colleton County; J. W. De Vore, Judge.

Action by Nettie Kinsey, as administratrix of the estate of Grady Kinsey, against the Colleton Cypress Company. Judgment for plaintiff, and defendant appeals. Reversed.

Padgett & Moorer, of Walterboro, and Mitchell & Horlbeck, of Charleston, for appellant.

R. M Jeffries and Heber R. Padgett, both of Walterboro, for respondent.

FRASER J.

This is an action for damages for a death by the wrongful act.

Grady Kinsey was at work cutting down trees for the defendant company. He had only a few days' experience in cutting down trees. The men who cut down the trees worked in pairs. The deceased and another new man worked together for a few days. They came to the conclusion that it was better to get coworkers of experience, and the deceased took J. H. Varn as his coworker. The cutters were assigned certain territory in which to cut. These workers selected the trees they were to cut and the order in which they were to be cut. They came to a place where there was a live tree to be cut and near it a dead tree. They cut the live tree, and when it started to fall Varn ran west as the tree was falling to the east. The deceased ran. For some unaccountable reason the dead tree fell on him and crushed his head. The administrator brought suit for his death.

At the close of the plaintiff's evidence the defendant put in no testimony, but moved for a directed verdict. This motion was refused.

There are a great many exceptions, but, in the view that this court takes of the case, only one question need be considered: Was there any evidence of negligence as the proximate cause of the death of the deceased? The plaintiff is required to prove only one specification as the proximate cause of the death.

(a) The first specification of negligence is the failure of defendant to instruct the deceased of the danger. Varn, the experienced and instructed coworker chosen by the deceased on account of his skill and experience, apprehended no danger. There is nothing in the case to even suggest in any way that the fullest instruction would have prevented the accident. The instructions to which the testimony referred were instructions that would enable the cutter to avoid injury from the tree that was being cut down. There is no presumption of negligence here. The injury...