Maddox v. Steel Heddle Mfg. Co.

• Decision Date: 23 January 1929
• Docket Number: 12566.
• Parties: MADDOX v. STEEL HEDDLE MFG. CO.
• Court: South Carolina Supreme Court

147 S.E. 327

149 S.C. 284

MADDOX v. STEEL HEDDLE MFG. CO.

No. 12566.

Supreme Court of South Carolina

January 23, 1929

On Rehearing, March 15, 1929.

Appeal from Common Pleas Circuit Court of Greenville County; M. L Bonham, Judge.

Action by Conway Maddox, a minor, by his guardian ad litem, Karen Maddox, against the Steel Heddle Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Haynsworth & Haynsworth, of Greenville, for appellant.

P. A Bonham and Price & Poag, all of Greenville, for respondent.

WATTS C.J.

This was an action for damages for the sum of $25,000 for personal injuries, and was tried before Judge Bonham, at Greenville and a jury, and resulted in a verdict for the plaintiff in the sum of $12,500.

A motion was made for a directed verdict by the defendant which was refused; a motion for a new trial was made and refused. Defendant appeals, and by ten exceptions challenges the correctness of Judge Bonham's rulings, and alleges error in not directing a verdict for the defendant on grounds asked for: In charging certain requests of plaintiff; in refusing to charge certain requests of defendant; and modifying defendant's requests to charge; and in not directing a verdict on the grounds asked for.

These exceptions are overruled under: Munroe v. Williams, 35 S.C. 576, 15 S.E. 279; Seyle v. Charleston Terminal Co., 109 S.C. page 99, 95 S.E. 178; Gill v. Ruggles, 97 S.C. 278, 81 S.E. 519; Crews v. Sweet , 125 S.C. 303, 118 S.E. 613, 29 A. L. R. 43; Pinckney v. Atlantic Coast Line R. Co., 92 S.C. 557, 75 S.E. 964, and cases therein cited.

The second exception, asking for a directed verdict, is based upon the ground that "the evidence admits of no other conclusion than that the risk was assumed."

We cannot see the slightest evidence of assumption of risk in this case. The contention that this boy should be charged with assuming the risk here is utterly without foundation. He was a hand worker and knew nothing whatsoever about the machinery, and particularly the machine which injured him. His work did not require him to come in contact with the machinery at all. He had never been warned or instructed in any way about the machinery. He was not in the slightest danger from the machine at his regular place of work. He was called from this place of safety to a place which proved to be dangerous. Lawrence Bowen, the expert in charge of the wire machine, testified that the boy did not know anything about the machinery. Superintendent Wood testified that he had never been instructed about the machinery and was not in the slightest danger where he worked.

This court has clearly held that where the facts as to assumption of risk are susceptible of more than one inference, the case presents a question for the jury. Whisonant v. Atlantic & C. A. L. Ry. Co., 86 S.C. page 300, 68 S.E. 566.

In the case of Berry v. Dillon Mills, 120 S.C. 333, 113 S.E. 348, the plaintiff was an inexperienced cotton mill employee, and was struck in the eye by a belt which ran off a pulley. It was contended in that case that the risk was patent. The Supreme Court, in disposing of appellant's contention that a directed verdict should have been granted because plaintiff has assumed the risk of this particular injury, said: "But even if he knew that the defect existed, it does not follow that he understood and appreciated the danger. *** It is essential that the servant understand that there is danger and have some intelligent appreciation of it. *** Whether the plaintiff knew the machine here was defective, and, if so, whether he fairly comprehended and appreciated the danger of such defect were clearly questions for the jury's determination."

The third to eighth exceptions, inclusive, allege error in the charge of the presiding judge on the question of the law of fellow servants.

Here plaintiff sustained an injury inflicted by the carelessness of the master himself. If Wood had been the sole owner of the plant, it would have been impossible to avoid legal liability. The employer (the master) was a corporation, and Wood was its vice principal or superintendent.

Wood was the superintendent. He hired and fired all the help. He gave instructions about the work. Wood testified himself that he had absolute control over that workroom; that at the particular time he was giving the boy instructions about his work. He found, the machine in operation, and because the regular operator (Bowen) was then at another task, he took charge and was working it himself.

It was the master's duty to supervise the operation of all machinery, and to keep it safe and not to permit it to be operated in a dangerous way, thus endangering the lives of other employees. This was a nondelegable duty.

The master was bound to furnish a safe place and keep it safe by reasonable supervision. The master must protect employees, especially young and inexperienced employees, from known dangers. The fact that the wire flew through the air and destroyed the plaintiff's eye conclusively establishes a dangerous place.

"That the environment of Kell's work at the time of his injury was dangerous is established by the event." Kell v. Rock Hill Fertilizer Co., 123 S.C. 199, 116 S.E. 97.

Could the master have anticipated this danger? All the testimony shows that he could. Bowen knew of the danger and guarded against it. The exercise of slight care would have saved the boy.

"In the light of hindsight, either Kell ought not to have been working on the beam, or the gin pole ought not to have been in that position, unsecured." Kell v. Rock Hill Fertilizer Co., supra.

In James v. Fountain Inn Mfg. Co., 80 S.C. page 236, 61 S.E. 392, the court held: "The testimony tends to show that Moon [the chief engineer] was representative of the master in that his duty was to see that the machinery was in good order. Therefore his direction to the plaintiff to remedy the situation caused by the defective machinery was the direction of the master, and the injury sustained in obedience to such instruction was not the result of the act of the fellow servant."

The vice principal here ordered the plaintiff to come to him and then caused his injury by doing an act which it was the master's duty not to do.

In Shaw v. Arkwright Mills, 80 S.C. 567, 61 S.E. 1018, the plaintiff was a young cotton mill employee, 21 years of age, but inexperienced. He was placed in charge of one Amos Gibson for instruction, who failed to warn and instruct him about certain features of the machine upon which he was placed to work. He lost two fingers on his left hand; and, among other grounds, the defendant asked that his case be nonsuited because the negligence of Gibson in failing to warn him was the negligence of a fellow servant. The court said: "Under the circumstances Andrews was the representative of the master in ordering the plaintiff to deposit the box on end, and if in giving such directions, he was guilty of negligence, which resulted in the plaintiff's injury, the defendant would be liable."

In the Kell Case, supra: "But no statement of principle or reference to other cases is decisive, or perhaps even greatly serviceable, in solving the concrete question here presented. The ultimate touchstone is practical common sense applied to the facts of the particular case."

In James v. Fountain Inn Mfg. Co., supra, the Court used the term "usual test." In the Kell Case, the phrase was "accepted test." In Gunter v. Graniteville Mfg. Co., 18 S.C. page 270, 44 Am. Rep. 573, one of the cases cited by the Supreme Court as its authority in the Brabham Case, 71 S.C. 53, 50 S.E. 716, these words are used: "The true test is whether the person in question is employed to do any of the duties of the master."

In Couch v. Charlotte, C. & A. R. Co., 22 S.C. 564, this language appears: "In this confusion, we think we have discovered that there is a manifest tendency in the latest authorities to follow the principle and to make the employer responsible wherever the act complained of was done by one placed in authority by the principal to discharge some of the duties of the principal, and in regard to which he is the representative of the company and as such entitled to be obeyed."

We are of the opinion that the case as a whole, was free from error as complained of, and all exceptions are overruled, and judgment affirmed.

BLEASE, STABLER, and CARTER, JJ., concur.

COTHRAN J. (dissenting).

I think that a verdict should have been directed in favor of the defendant, upon the ground that no other reasonable inference can be drawn from the evidence, than that the injury sustained by the plaintiff was the result of the negligence of a fellow servant; at least, that a new trial should be ordered for obvious errors in the charge of the presiding judge.

It appears that in the operation of a machine, consisting of a drum, upon which wire was wound, and from which it was unwound and conducted to another machine, which flattened it, the wire was allowed to "run out" on the drum, while the machinery was running at full speed; the effect of which was that the loose end of the wire flew through the air and struck the plaintiff, causing the injury complained of, the loss of an eye.

The regular operator of the machinery was one Bowen, who temporarily had left his work. The foreman of the room, one Wood, for the moment took the place of Bowen in the operation of the machinery.

(It will be observed that Wood is constantly referred to, in the opinion of the CHIEF JUSTICE, as the "superintendent" of the defendant's plant; as a matter of fact, the manager of the entire plant was one Hampton Smith, and Wood was "foreman of the shop" in which Bowen and the plaintiff were at work.)

The plaintiff was...