Ruth v. Lane

• Decision Date: 14 July 1970
• Docket Number: No. 19079,19079
• Citation: 254 S.C. 431,175 S.E.2d 820
• Court: South Carolina Supreme Court
• Parties: James RUTH, Respondent, v. Everett C. LANE, d/b/a Carolina Steel and Metal Company, Appellant,

Page 820

175 S.E.2d 820

254 S.C. 431

James RUTH, Respondent, v. Everett C. LANE, d/b/a Carolina Steel and Metal Company, Appellant,

No. 19079.

Supreme Court of South Carolina.

July 14, 1970.

Arrowsmith & Jackson, Florence, for appellant.

Hyman, Morgan & Brown, Florence, for respondent.

BUSSEY, Justice:

In this tort action plaintiff-respondent, alleging that he was severely burned as a result of the negligence of his employer, the defendant-appellant, obtained a jury verdict for actual damages amounting to $6,000.00. The appeal is from an order of the lower court denying defendant's motion for judgmenmt non obstante veredicto, and in the alternative for a new trial.

The defendant contends that he was entitled to a directed verdict because there was no reasonable inference to be drawn from the evidence other than that the plaintiff was guilty of contributory negligence and had assumed the risk of his employment as a matter of law. In considering this contention, it is elementary that all conflicts in the evidence have to be resolved in favor of the plaintiff and that the evidence and all inferences reasonably deducible therefrom have to be viewed in the light most favorable to the plaintiff. No issue of willfulness or recklessness on the part of either the plaintiff or the defendant was submitted to the jury, with the result that simple contributory negligence, if established, would be a bar to recovery by the plaintiff.

The defendant contends that the defenses of contributory negligence and assumption of risk may be merged into one and the same defense, and treated interchangeably. He, accordingly, in his brief argues these defenses as a single question. It is true that in a number of earlier decisions this court has, under the facts of the particular cases, interrelated assumption of risk and contributory negligence. This court, however, in the case of Cooper v. Mayes, 234 S.C. 491, 109 S.E.2d 12 (1959), clearly and succinctly set forth the fundamental distinction between the two defenses in the following language:

'Assumption of risk, in its true sense, rests in contract, not tort. A true case of assumption of risk arises when an employee, without negligence on his part or that of his employer, is injured as the result of a hazard ordinarily incident to the proper performance of the duties of his employment. When by his own negligence the employee increases the hazard to which his work would normally expose him, and as the result of such negligence and not of any negligence of his employer sustains injury from the abnormal hazard which he has thus created, he is barred from recovery by his own negligence. Where the extraordinary hazard is attributable to the employer's negligence, but would not have caused the injury except for the negligence of the employee, the bar no recovery is not assumption of risk, but contributory negligence. Where negligence enters into the consideration of the rights of an injured employee against his employer, the issue moves from the field of contract into that of tort. Attempt in such cases to interrelate assumption of risk and contributory negligence is more academic than practical, and sometimes loses sight of the fact that the difference between the two is fundamental and not merely of degree. See Bodie v. Charleston & W.C.R. Co., 61 S.C. 468, 39 S.E. 715; Barksdale v. Charleston & W.C.R. Co., 66 S.C. 204, 44 S.E. 743; James v. Fountain Inn Mfg. Co., 80 S.C. 232, 61 S.E. 391; Hall v. Northwestern R. Co. of South Carolina, 81 S.C. 522, 62 S.E. 848; Hice v. Dobson Lumber Co., (180 S.C. 259, 185 S.E. 742) supra; Stogner v. Great A. & P. Tea Co., 184 S.C. 406, 192 S.E. 406; Whisenhunt v. Atlantic Coast Line R. Co., 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 said,

'A true case of assumption of risk arises when an employee, without any negligence on his part or that of his employer, is injured as a result of a hazard ordinarily incident to the proper performance of the duties of his employment.'

In the instant case the verdict of the jury has adjudicated that the employer was negligent in one or more particulars and that such negligence was a proximate cause of plaintiff's injury. Such adjudication is not challenged on appeal and hence we have before us a case where clearly the defense of assumption of risk is no longer pertinent.

We will proceed to consider whether or not the evidence established that the plaintiff was guilty of contributory negligence as a matter of law and, in doing so, will state the evidence and the inferences reasonably deducible therefrom, as we are required to do, in the light most favorable to the plaintiff.

The defendant was engaged in the metal salvage business, the plaintiff being one of a number of employees. Plaintiff was, at the time of his injury in November 1965, 33 years of age, had a third grade education and was employed as a common or manual laborer. A part of the defendant's business consisted of salvaging copper from used electrical tranmsformers. These transformers have a metal bar or core on the inside around which is coiled a copper wire. The metal bar and the insulated coiled copper wire are enclosed in a metal container which contains oil in order to keep the transformer from overheating when in use. In order to salvage the copper wire it was necessary that the top of the metal container be...