Morgan v. Roper, 18716
| Decision Date | 25 October 1967 |
| Docket Number | No. 18716,18716 |
| Citation | 250 S.C. 280,157 S.E.2d 572 |
| Court | South Carolina Supreme Court |
| Parties | Eddie G. MORGAN, Respondent, v. Ben ROPER, Hugh O. Busbia and R. W. Best, Partners, doing business under thename of Augusta Sand & Gravel Company, Appellants. |
Harris, Chance & McCracken, Augusta, Ga., Lybrand, Rich & Cain, Aiken, for appellants.
Frank H. Cormany, Sr., Aiken, for respondent.
This is a master-servant case wherein the servant, plaintiff-respondent, recovered actual damages for personal injuries in the amount of $2,434 against his employer, the appellant Ben Roper, doing business as Augusta Sand & Gravel Company, the action having been dismissed as to the other defendants named in the caption.
The only testimony in the record is that of the plaintiff and the appeal is primarily from orders of the trial court denying defendant's motions for nonsuit, directed verdict, and judgment non obstante veredicto, it being contended by the defendant that there was no proof of negligence on the part of the defendant, that plaintiff was barred from recovery under the doctrine of assumption of risk, and that the evidence was not susceptible of any other reasonable inference than that plaintiff's injuries were caused either solely or contributorily by his own negligence or carelessness. It is elementary that in deciding whether defendant was entitled to judgment on either of the mentioned grounds, the evidence and all the inferences reasonably deducible therefrom have to be viewed in the light most favorable to the plaintiff. We, accordingly, proceed to state the facts as disclosed by the testimony of the plaintiff in the light of the foregoing principles.
The plaintiff, prior to February 25, 1963, was employed by the defendant, and/or his former partners, for a period of approximately seven years, the place of employment being, until the early part of 1963, at a sand and gravel mine in or near Augusta, Georgia, but the mining oprations were transferred then to a new pit in Aiken County. Plaintiff's duties consisted of truck driving, operating a front end loader, and other duties incidental to the mining operation, but he had never operated a dragline or had any occasion to become familiar therewith. On the morning of February 25th, after loading two trucks with a front end loader, he was directed by defendant's foreman to take two five gallon cans of gasoline and a funnel and pour the gasoline into the fuel tank of a dragline which was nearby. Pursuant to his orders or instructions, plaintiff climbed up on the back of the dragline and poured one can of gas into the tank without incident, but when he was bringing the second can forward for the purpose of pouring its contents into the tank, the can came in contact with the side of the top of the funnel and the opposite side of the funnel top came in contact with a hot or live wire which sparked and caused the gasoline to explode, rather severely burning and injuring the plaintiff.
It was a cold morning and the dragline had not been in operation that morning. The fuel tank was located under the motor of the dragline. Without the aid of a diagram used in the course of the trial, which is not before us, it is difficult to state with precision the evidence as to the location of the wire with which the funnel came into contract. It apparently ran from the motor immediately above the tank down alongside the tank itself and to or into a floor underneath the tank. It was a black insulated wire, but a lower portion thereof near the floor had the insulation trimmed therefrom. Plaintiff had to work in a rather close place in order to get the gasoline into the tank. While he admittedly saw the insulated wire prior to the sparks and resulting explosion, the record fails to disclose that he either saw or had a reasonable opportunity to see that a portion of the wire was uninsulated prior to the sparks coming therefrom. Plaintiff had been given no special instructions or warning as to the condition of the dragline or wire.
Under the foregoing facts and circumstances, we think the trial judge was clearly correct in submitting to the jury the issue of liability, if any, on the part of the defendant.
We quote from Tucker v. Holly Hill Lumber Co., 200 S.C. 259, 20 S.E.2d 704, the following which we think is here appros,
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...of the adverse party have been prejudiced." 5 Am.Jur.2d Appeal & Error Section 795 (1962). This rule was applied in Morgan v. Roper, 250 S.C. 280, 157 S.E.2d 572 (1967), the court holding that defendants could not complain that the trial court overruled their demurrer following judgment on ......
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...195 S.C. 213, 10 S.E.2d 305.' The principles above set forth were recognized and applied in the more recent case of Morgan v. Roper, 250 S.C. 280, 157 S.E.2d 572 (1967), wherein we 'A true case of assumption of risk arises when an employee, without any negligence on his part or that of his ......
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