Martin v. Royster Guano Co.

• Decision Date: 18 July 1905
• Citation: 51 S.E. 680,72 S.C. 237
• Parties: MARTIN v. ROYSTER GUANO CO.
• Court: South Carolina Supreme Court

51 S.E. 680

72 S.C. 237

MARTIN v. ROYSTER GUANO CO.

Supreme Court of South Carolina

July 18, 1905

Appeal from Common Pleas Circuit Court of Richland County; Gary Judge.

Action by Benjamin Martin against the Royster Guano Company. Plaintiff appeals from order of nonsuit. Affirmed.

P. T Youmans and De Pass & De Pass, for appellant. Melton & Belser, for respondent.

GARY A. J.

This is an appeal from an order of nonsuit. The first paragraph of the complaint alleges that at the time thereinafter mentioned the defendant was a corporation engaged in the manufacture of fertilizers. The second and third paragraphs are as follows:

"(2) That on or about the 18th day of February, 1902 the plaintiff was in the employ of said defendant as a laborer, and as such was engaged in rolling a wheelbarrow filled with an acid or fertilizer compound from a large and high pile of the acid compound to another part of said factory, under the immediate direction and supervision of one of the agents of said defendant, specially charged therewith, commonly called by plaintiff and his fellow workmen the "boss.'

(3) That, while plaintiff was so employed, the defendant, by its agents and servants, not regarding their duty in that respect, so carelessly and negligently interfered with, cut, and dug in and upon said large pile of acid or fertilizer compound, and so negligently and carelessly failed to notify plaintiff of the danger thereof, that the same fell over and upon said plaintiff, without any fault or negligence upon his part, whereby he received great bodily injury. ***"

The defendant's answer contained a general denial, and set up as a defense the assumption of risk by the plaintiff. At the close of the plaintiff's testimony the defendant made a motion for a nonsuit on the following grounds:

"(1) That there is no evidence tending to show any negligence or breach of duty on the part of the defendant. There are neither allegations of, nor evidence tending to prove, negligence or breach of duty as to (a) providing or maintaining safe and suitable machinery or appliances; (b) employment of incompetent fellow servants; (c) providing a sufficient force for the performance of the work required; (d) providing and maintaining safe places to work; (e) inspection and repair of materials, appliances, and place; (f) or any other duty which the defendant was required by law to perform. The only specifications of negligence set forth in the complaint are: (a) That the defendant, by its agents and servants, negligently and carelessly interfered with, cut, and dug in and upon a large pile of fertilizer compound; and (b) that the defendant failed to notify the plaintiff as to the danger thereof.

As to the first of these specifications, there is an entire failure of evidence tending to show that the large pile of fertilizer compound was negligently or carelessly interfered with, cut, or dug in and upon by any one whomsoever; but, if so, certainly not by any one for whose act the defendant is responsible for injury to the plaintiff, no direct act of the defendant itself, nor of a vice principal, nor of a superior servant, nor of any one else for whose act the defendant is responsible.

As to the second specification of negligence, viz., failure to warn the plaintiff of the alleged danger, it will be observed here that there is neither allegation nor evidence tending to prove that the plaintiff was either youthful or inexperienced, and the proof is to the contrary. In order to impose upon the master the duty of warning a servant in a case like this, it must be made to appear (a) that the master knew, or by exercise of ordinary care ought to have known, of the danger; (b) that the servant was ignorant of the danger; (c) that the master knew, or ought to have known, that the servant was ignorant of the danger. There is absolutely no testimony tending to prove these facts.

(2) That the evidence conclusively establishes that the proximate cause or causes of the injury were either the acts of fellow servants of the plaintiff, or the acts of the plaintiff and his fellow servants combined, and concurring, for neither of which the defendant is liable.

(3) That if any negligence has been proved on the part of the defendant, there is no evidence tending to show that such negligence was a proximate cause of the injury to the plaintiff.

(4) That the evidence conclusively establishes that the risk and danger, if any, from which the injuries resulted, were assumed by the plaintiff, and the evidence is capable of no other inference."

1. His honor, the presiding judge, granted the nonsuit on the foregoing grounds, as well as on the ground that the words "danger thereof," in the third paragraph, had reference to the danger of cutting, digging, and interfering with the pile of acid, while the plaintiff contended that they were intended to refer to the danger arising from the unsafe condition of the said pile. The presiding judge said "The real cause of action is that, having dug out an excavation in the acid pile, it caused the pile to become dangerous to its employés engaged in moving the same, and while it was in this dangerous and unsafe condition negligently ordered plaintiff to remove a portion of the acid without having notified party of its...