Leslie v. Southern Paving Const. Co.
| Decision Date | 12 April 1933 |
| Docket Number | 13620. |
| Parties | LESLIE v. SOUTHERN PAVING CONST. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.
Action by J. H. Leslie against Southern Paving Construction Company. From judgment for plaintiff, defendant appeals.
Affirmed.
Herbert & Dial, of Columbia, for appellant.
McDonald Macaulay & McDonald, of Chester, and Tompkins & Gary, of Columbia, for respondent.
This is an action for damages for personal injuries suffered by plaintiff, on September 11, 1930, while in the employ of the defendant, a paving and construction company engaged in road building near the city of Spartanburg.
It was alleged ; and that the injuries so received were due to the careless and willful acts of the company, in that, inter alia, it "failed to provide safe machinery, there being a defective steering gear on the scraper and the defendant could have by the use of reasonable care determined that the said mechanism was defective." The company, by its answer, denied responsibility for the alleged injuries, and pleaded the defenses of contributory negligence and assumption of risk. On trial of the case the jury found for the plaintiff $1,500.
The following question, the decision of which will dispose of the appeal, is raised by the exceptions: Did the trial judge commit error in refusing to direct a verdict for the defendant on the grounds (1) that there was no evidence of actionable negligence; (2) that the only reasonable inference to be drawn from the testimony was that plaintiff contributed to his injury by his own negligence as the proximate cause thereof; and (3) that no inference could be drawn from the testimony other than that the plaintiff was injured as a result of risks which he had assumed.
As to the first ground, the appellant takes the position that, even if the steering gear on the scraper was removed by some employee whose act was the act of the defendant, the only reasonable inference to be drawn from the testimony is that the absence of the steering apparatus had nothing whatever to do with the accident.
The plaintiff testified, and for the purpose of the motion his testimony is taken to be true, that the defendant, in preparing the roadbed for the pouring of the cement, maintained two crews--one which did the rough grade work, the building and shaping of the roadbed at approximately the desired grade, and one which did the finishing or fine grade work, the changing or reshaping of the rough-graded roadbed to the exact grade required; that at the time he was injured he was working for the defendant as a fine grade foreman, having had about ten years' experience in that class of work; that he had no control over the work being done by the rough grade crew, except that he would check up on it for reasons having to do with his own work; that it was no part of his duty to inspect the machinery used in the rough grading, but that this was the duty of the superintendent, Murphy, who was also foreman in charge of the rough grade crew; that plaintiff's duties were inspecting the grades, setting the forms, etc preparatory to the pouring of the concrete; that the engineer of the state highway department would set stakes every fifty feet and the forms would have to be level with the tops of those stakes; and that, after the rough grading was approximately complete, the witness would go ahead of his crew to inspect the stakes and the rough grades. He also testified that on September 11, 1930, as was his custom, he went ahead of his crew, up to where the rough grading was being done and was approximately finished, for the purpose of checking the stakes, etc., when the rough grading crew came along with a tractor drawing a scraper, the machinery used by that crew in doing such work; that when the tractor passed him, going in the same direction, it was about five or six feet from him to his right, and that, just as the scraper was opposite to and about four feet from him, it jumped in his direction, its wheel striking and knocking him down and breaking four bones in his foot. With regard to the machinery used in doing the rough grade work, he testified that one man sat on the tractor in front to guide it, and another on the rear of the scraper for the purpose of guiding and controlling it; that there was a coupling space between the scraper and the tractor some feet in length with a stiff tongue fastened in with a chain; that by means of the steering gear on the scraper the man sitting at the rear was able to shift it from one side to the other, although the tractor was going ahead in a straight line; that there were stones in the ground where this particular grading was being done, and, should the blade of the scraper strike one of these, it would cause the machine to jar and jump--though he never saw a scraper jump as much...
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