McKain v. Camden Water, Light & Ice Co.

• Decision Date: 22 July 1911
• Citation: 71 S.E. 949,89 S.C. 378
• Parties: McKAIN v. CAMDEN WATER, LIGHT & ICE CO.
• Court: South Carolina Supreme Court

71 S.E. 949

89 S.C. 378

McKAIN v. CAMDEN WATER, LIGHT & ICE CO.

Supreme Court of South Carolina

July 22, 1911

Appeal from Common Pleas Circuit Court of Kershaw County; J. W. De Vore, Judge.

"To be officially reported."

Action by Nannie M. McKain, as administratrix of the estate of Richard N. McKain, deceased, against the Camden Water, Light & Ice Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The following are the exceptions referred to in the opinion:

Exceptions.

"The plaintiff excepts to the rulings of the trial court, and to the charge to the jury, and to the judgment entered upon the verdict, upon the following grounds of error:

"(1) In refusing to allow the question, 'Was that protected?' alluding to crank which came within two inches of a guard surrounding fly wheel; the error of law being found: (a) In refusing to allow witness to testify as to an allegation of negligence, the unguarded condition of fly wheel, it being for the jury to determine whether the protection of the crank would not also have been a protection of the fly wheel, whether or not one could be protected without the other. (b) In refusing to allow testimony as to the conditions or surrounding circumstances of the alleged unsafe place where plaintiff's intestate met his death, because of an unprotected and unguarded fly wheel.

"(2) In allowing and permitting the witness Boynton, over plaintiff's objection, to testify as to the terms of a verbal contract between the defendant and the Camden Oil Mill, whose machinery defendant was using when plaintiff was killed. The error of law being found: (a) In allowing testimony as to irrelevant matter calculated to mislead the jury from one of the true issues in this case, whether or not defendant furnished plaintiff's intestate with a reasonably safe place to work. (b) In allowing testimony tending to show that the unsafe place was furnished defendant by the Southern Oil Mill, under terms and conditions which prohibited or excused defendant from making any changes, thereby injecting into the case a foreign issue calculated to mislead, and which could in no way excuse defendant for not performing its legal duty to furnish plaintiff with a reasonably safe place to work.

"(3) In allowing and permitting the witness Eve, over plaintiff's objection, to testify as to the terms of a verbal contract between the defendant and the Camden Oil Mill, whose machinery defendant was using when plaintiff was killed. The error of law being found: (a) In allowing testimony as to irrelevant matter calculated to mislead the jury from one of the true issues of this case, whether or not defendant furnished plaintiff's intestate with a reasonably safe place to work. (b) In allowing testimony tending to show that the unsafe place was furnished defendant by the Southern Oil Mill, under terms and conditions which prohibited or excused defendant from making any changes, thereby injecting into the case a foreign issue calculated to mislead, and which could in no way excuse defendant for not performing its legal duty to furnish plaintiff with a reasonably safe place to work. (c) In allowing testimony of terms of a contract which witness testifying did not inform plaintiff's intestate of, or know of his own knowledge that plaintiff's intestate derived such information from any other source, the only effect of which could be to bolster up the witness Boynton's testimony to show that he was telling the truth about an irrelevant and undisputed fact.

"(4) In charging without qualification: 'And it is the duty of the master to furnish, not an absolutely safe place for the servant to work in, but a reasonably safe place.' The error of law being found: (a) In charging in effect that if a man of ordinary care and prudence, under all the circumstances, would furnish an absolutely safe place to work in, it would not be negligence to leave undone what said man of ordinary care and prudence would have done.

"(5) In charging: 'I might be negligent in leaving my horse hitched to the buggy out here, without tying him, and if that horse did anybody any injury I would not be liable.' The error of law being found in erroneously defining the proximate cause. If I negligently cease to control a dangerous and unreasoning instrumentality which belongs to me, in a public place, and damage ensues to some one as a direct consequence of my negligence, I am liable.

"(6) In charging that: 'If the master furnishes a place, and it is defective to such an extent that a man of ordinary prudence, care, and reason can see for himself that it is defective, knows it is defective, knows the danger, and, after knowing that, he undertakes to operate, why he assumes that risk. I say that he assumes it, although the master directs him to go and perform that work.' The error of law being found in making knowledge of the danger on the servant's part the sole criterion of his negligence, or assumption of risk, whereas the correct legal principal is that, if a person of ordinary care and prudence, under all the circumstances, would undertake to operate with knowledge, such person does not assume the risk.

"(7) In charging: 'It might not be negligence for me to undertake to jump over that gate out there, but if I had one leg it might be negligence for me to undertake to do it.' The same being a thinly veiled charge upon the facts; it being in evidence that plaintiff's intestate only had one leg when he was killed.

"(8) In not charging the seventh request to charge of plaintiff, viz.: 'A promise by the master to remedy a defect, after notice or protest, tends to rebut the inference of waiver of the defect by the servant's remaining in the master's service after knowledge. If the servant continued in discharge of his duties, relying on the master's promise to remove a defect, he could not be said to have waived such defect. The jury is the proper tribunal to determine this question in the case.' Whereas it is submitted that the request stated a correct proposition of law applicable to the facts in this case; it being in evidence that plaintiff's intestate protested to defendant about the unsafe place where he met his death, and defendant promised to remedy the defect."

Clark & Von Treskow, for appellant. T. J. Kirkland, M. L. Smith, and E. D. Blakeney, for respondent.

GARY A. J.

This is an action for damages, alleged to have been sustained on account of the wrongful acts of the defendant, causing the death of plaintiff's intestate.

The allegations of the complaint, material to the questions involved, are as follows:

"That on or about the 30th day of July, A. D. 1906, and some time prior thereto, the plaintiff's intestate was engaged as a servant and employé by the defendant, and was at the time hereinafter mentioned acting within the scope of his employment.

"That it was the duty of plaintiff's intestate to perform services and labor upon the machinery operated by the defendant, by applying grease thereto and otherwise doing such acts and things as he was directed to do, and as were necessary and proper to run said machinery.

"That on the night of the 13th day of July, A. D. 1906, the plaintiff's intestate, in the discharge of his duties , filled up an oil cup, on the 'eccentric,' and turned to further discharge his duties in and about said machinery. That the floor whereon plaintiff's intestate was walking was greasy and slippery, and his left leg had been amputated below the knee, and plaintiff's intestate used an artificial limb and foot in walking. Tha

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