Mcbrayer v. Va. Carolina Chem. Co

• Decision Date: 26 July 1911
• Citation: 89 S.C. 387,71 S.E. 980
• Parties: McBRAYER. v. VIRGINIA CAROLINA CHEMICAL CO.
• Court: South Carolina Supreme Court

89 S.C. 387

71 S.E. 980

McBRAYER.

v.VIRGINIA CAROLINA CHEMICAL CO.

Supreme Court of South Carolina.

July 26, 1911.

1. Master and Servant (§§ 101, 102^*)—Master's Duty—Safe Place to Work.

The master must furnish his servant with a safe place to work, as well as a safe method of doing it.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 180-184; Dec. Dig. §§ 101, 102.*]

2. Master and Servant (§ 190*)—Vice Principal.

A general foreman, with authority to employ and discharge men and direct them where and how to work, represented the employér in directing laborers, engaged in digging down a large pile of phosphate rock, to cut a deep trench in the pile, and in directing them where to cut it, so as to make the employér liable for his negligence in so doing.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.*]

3. Master and Servant (§ 245*)—Contributory Negligence.

To constitute contributory negligence in obeying a master's orders, it is not sufficient that the employé believe the act required to be hazardous, unless the danger is so obvious that one of ordinary prudence would not incur it; the servant being entitled to rely upon the master's judgment, if there is ground for reasonable difference of opinion as to danger.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 778-788; Dec. Dig. § 245.*]

4. Master and Servant (§ 219*)—Assumption of Risk—Obeying Master's Orders.

In determining whether a servant assumed the risk of obeying his employér's orders and continuing in service after knowledge of danger in doing so, the degree of danger, the extent of the employér's appreciation thereof, and the necessity of doing the work should be considered, there being no absolute rule to determine the question, though generally the employé does not assume the risk, unless the danger is so obvious that one of ordinary prudence would not incur it.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219.*]

5. Master and Servant (§ 288*)—Injuries-Jury Question—Assumption of Risk.

If the evidence as to whether an employé assumes the risk of injury from obeying an order is susceptible of more than one inference, the question is for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1008-1088; Dec. Dig. § 288. *]

G. Master and Servant (§ 286*)—Injuries-Jury Question—Negligence.

In an action for personal injuries, while engaged in digging down a pile of ground phosphate rock, by the pile falling on plaintiff, evidence held to make the question of negligence one for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1010-1050; Dec. Dig. § 286.*]

7. Master and Servant (§ 289*)—Injury-Jury Question—Contributory Negligence.

In an employé's action for personal injuries, while digging down a pile of ground phosphate rock, by the pile falling upon him, whether plaintiff was negligent held for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. §

289. *]

8. Master and Servant (§ 288*)—Injuries-Jury Question—Assumption of Risk.

In an employé's action for personal injuries, while digging down a pile of ground phosphate rock, by it falling upon him, whether plaintiff assumed the risk held a jury question.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*] Appeal from Common Pleas Circuit Court of Cherokee County; W. B. Gruber, Special Judge.

"To be officially reported."

Action by Joseph McBrayer against the Virginia Carolina Chemical Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

N. W. Hardin and Sanders & De Pass, for appellant.

Butler & Hall, for respondent.

HYDRICK, J. Plaintiff was injured while working in defendant's fertilizer factory. At the time of his injury, he was engaged with other laborers in digging down a large pile of material composed of ground phosphate rock mixed with sulphuric acid. The pile was from 25 to 30 feet high and about 100 feet long, and originally shaped somewhat like a railroad fill or embankment, with sloping sides; the loose material being dumped on it from above. Owing to a difference in the character of the phosphate rock used, some parts of the pile were dense and hard, while others were more yielding and loose, like sand, and would therefore more readily slide down from the pile, as the supporting mass beneath was removed. Plaintiff and another laborer were digging it down with picks, so that others could shovel it into the wheelbarrows and carry it to the mixers. The pile had been cut into for some distance from the bottom, until its side for some distance up had become nearly, if not quite, perpendicular. Plaintiff was working under the direction of John Byers, who was defendant's general foreman of work, with authority to employ and discharge hands, and direct them what to do and where and how to work. He had authority to direct how the pile was made, and how it should be dug down and removed. Byers ordered plaintiff to dig a trench at a particular place in the pile, and plaintiff proceeded to do so, but stopped, saying it was dangerous; Byers ordered him to go on digging. He said he thought there was danger, but waived his own judgment and relied upon that of the foreman, and obeyed his orders. While digging the trench, the pile fell on him, and he was injured. The court granted a nonsuit, on the ground that plaintiff's injury was caused by his own contributory negligence, and was the result of a risk...