MASTER AND SERVANT—INJURY TO SERVANT — JURORS — CHALLENGE TO ARRAY — SPECIFICATION OF GROUNDS—APPEAL—TRIAL—INSTRUCTIONS—REQUESTS.
1. An objection that an act under which jurors for a certain case were drawn was unconstitutional cannot be urged on appeal where no mention of any specific act of the legislature was made in the challenge to the array, or the grounds therefor, or in the action taken thereon by the court, and no allegation was made that the jurors were drawn under the act
2. In an action by an employe against an employer for injuries received in the course of his employment, an instruction that the defendant was not liable therefor if it had exercised such care in furnishing proper machinery as other well-regulated companies engaged in similar business exercised, was properly refused, since the liability depended on the care exercised by the defendant in furnishing propel appliances under the circumstances.
3. An exception that the court erred in omitting to charge on certain points cannot be urged on appeal, where no further charge wa» requested.
4. It is not error to omit to charge on a certain point where the omitted charge was subsequently given on request of counsel.
5. In an action by an employe against an employer for injuries received in the course of the employment, a requested instruction that the operation of ail machinery is always attended with more or less danger was properly refused, as such instruction was a mere statement of fact.
6. A requested instruction was properly refused where the substance thereof had already been charged.
7. In an action by an employs against an employer for injuries received in the course of
the employment, an instruction that contributory negligence to any extent barred a recovery was properly refused, since such negligence bars a recovery only when it is the proximate cause of injury.
8. In an action by an employe against an employer for injuries received in the course of the employment, an objection that no instruction as to contributory negligence had been given was without merit, where the court had instructed that the plaintiff could not recover if the injury was received as the result of any imprudent, careless, or negligent act on his part.
Appeal from common pleas circuit court of Charleston county; Ernest Gary, Judge.
Action by Thomas W. Lowrimore against the Palmer Manufacturing Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
The following is the judge's charge, referred to in the opinion:
"This is a suit on the part of the plaintiff to recover of the defendant—the plaintiff being Thomas M. Lowrimore, against the Palmer Manufacturing Company—to recover of said company for damages, which he alleges he sustained under the following circumstances: The plaintiff contends that he was employed by the defendant company to operate a machine known as the 'round header, ' for manufacturing barrel heads, which machine you have seen. His contention is that while he was operating that machinery he received the injury complained of, and that the injury was caused by reason of the fact that the defendant company failed to furnish him with suitable and proper machinery. In other words, that the machinery they furnished him did not have a 'dog' on it, and by reason of that defect it was negligence on the part of the company in not having a dog, and he sustained the injury complained of. That is the plaintiff's contention. It is more tersely stated in his complaint, which complaint you will have, and you can see it for yourselves when you go to your jury room; but I desire to call your attention to that portion of it which shapes the issues to which I desire to attract your attention. The third allegation is as follows: 'That heretofore, on the 1st day of June, 1898, while the plaintiff was in the employment of the defendant as aforesaid, and operating its said machine, the plaintiff had his left hand cut and lacerated by coming in contact with the saw used in connection with the said machine [the round header, gentlemen; that machine you have seen] while
said saw was In rapid motion; that it became necessary, In consequence thereof, to have the left hand of the plaintiff amputated; and the plaintiff further alleges that his entire left hand was amputated, with the exception of his thumb, by reason of the injuries so received as above mentioned.' That, he alleges, is the injury he sustained, —that he lost his hand with the exception of his thumb. Now, the fourth allegation brings up the question of negligence, in these words: 'That the aforesaid injury to the plaintiff was caused by reason of the negligence and carelessness of the defendant company in failing to provide safe and suitable appliances on the said machine known as the "head rounder, " in that the defendant company did not provide a dog on the same to hold the machinery in proper position, the dog being necessary for the safe operation of said machine, and that by reason of said defect plaintiff's hand was thrown on and against said saw, thereby causing the injuries to the plaintiff before mentioned.' Now, you will see that the particular act of negligence was that the defendant company failed to furnish a machine—a round header I believe It was called there—with a dog on it. Now, the defendant company takes issue with him on that statement, —that charge. The contention of the defendant company is that it was not necesary to put a dog on the machine; that that would not make it any safer to put a dog on it; but its contention is that the plaintiff, if injured at all, was injured through his own carelessness, and not through the carelessness of the defendant company. So the issue for you to try is, was there negligence or carelessness, and, If so, was it on the part of the defendant company in failing to have a dog on that machine, or was it on the part of the plaintiff here in the careless manner in which he operated the machine that they furnished him? Those are the issues. The law is not very lengthy on this question, but it is this: That, where a master employs a servant to operate certain machinery, he must use due and proper care in protecting him from danger by using proper precautions by which he might not be endangered. By that is not meant that the master insures his safety, because, as the witness states here, the law recognizes the fact that all machinery is dangerous; but he is required to use proper precautions to save the servant from being injured. Now, it is a question for you to say in this case whether that machinery was such machinery as it was necessary for the master, the defendant company, to put a dog on It to save the plaintiff from dangers that might attend him in operating the machine. Now, you have seen it work, and I know you know more about It than I do, because you have seen it, and I have not. I never saw one In my life, and it would be useless for me to tell you whether a dog is necessary or not necessary. You have seen it, and you haveheard testified how the Injury occurred to him. Now, was it carelessness in the defendant company not having a dog on that machine? And, if it was such carelessness that brought about such injury that would not have occurred to the plaintiff if he had used proper caution himself if they had had a dog, then I charge you that the master, if you find such was necessary, would have furnished improper machinery, and would be responsible for the injury. But, if it was not such a precaution as, in your judgment, you think was necessary for the defendant company to furnish to protect the servant from any danger that might happen, then I charge you there would be no action at law, because this suit is based upon negligence. You have got to place negligence somewhere, and, in order to find the company guilty, you must put negligence on the company. Now, as I say, you have seen the machinery operated. Was it carelessness on the part of the company in not having a dog on that machine? If you think from its operation that It should have provided a dog to insure the safety of its servant, this plaintiff, then it would be negligence on the part of the company in not furnishing a dog. But if, after having seen it operated, you think it was not negligence on the part of the company, then it would not be liable. That brings us back to where we started. The defendant has requested me to charge you the following propositions of law. That is a right a litigant has to submit them to the court, and have them charged or rejected. Some I have allowed; others I have disallowed. Those 1 have allowed I will read to you. The first is in this language: 'In this case no exemplary, punitive, or vindictive damages can be recovered. Only actual damages for the injury sustained are allowable, and no damages at all can be recovered unless the injury sustained resulted from the negligence of defendant.' That I charge you is the law What is known by exemplary damages, or punitive damages, or vindictive damages, is this: that, in order to grant such damages as this, you would have to conclude that the party willfully failed to put a dog on its machine, rather to entrap him, entice him, or maliciously do it. Under those circumstances you can punish a party by vindictive damages, but there are no facts in this case to warrant you In concluding that there was any malice or vindictiveness in this case. Therefore you cannot give smart money, or vindictive damages, but are confined to actual damages the party has sustained, if you conclude he is entitled to recover. And in estimating damages you cannot only consider the value of the fingers, or the portion of the hand which has been severed, but pain and anguish the party may have suffered by reason of that injury, — that part of his damages, if he is entitled to recover damages; the pain and damages ...
