Sawyer v. Marion County Lumber Co.

• Decision Date: 22 July 1909
• Citation: 65 S.E. 225,83 S.C. 271
• Parties: SAWYER v. MARION COUNTY LUMBER CO.
• Court: South Carolina Supreme Court

65 S.E. 225

83 S.C. 271

SAWYER v. MARION COUNTY LUMBER CO.

Supreme Court of South Carolina

July 22, 1909

Appeal from Common Pleas Circuit Court of Marion County; Chas. G Dantzler, Judge.

Action for personal injuries by C. W. Sawyer against the Marion County Lumber Company. From a judgment for plaintiff defendant appeals. Affirmed.

Mordecai & Gadsden and Rutledge & Hagood, for appellant. W. F Stackhouse and Montgomery & Lide, for respondent.

GARY A. J.

This is an action for damages, alleged to have been sustained by the plaintiff, through the wrongful acts of the defendant. The allegations of the complaint material to the questions under consideration are as follows: "That on or about the 24th day of November, 1906, the plaintiff was in the employment of defendant, as an unskilled laborer at its lumber plant, in said state and county; that on the same day plaintiff was ordered and directed by the defendant to take charge of and operate a machine known as a No. 5 molder; that plaintiff had never been employed in the operation of this machine, and was wholly inexperienced in the use thereof; that the operation of said machine is dangerous, and requires skill and knowledge on the part of the workman in order that it may be safely performed, even though said machine is provided with the proper safeguards; that defendant, wholly disregarding its duty to the plaintiff, negligently, carelessly willfully, and wantonly ordered plaintiff to engage in said work, without informing him that said work was in any wise dangerous to an unskilled or inexperienced workman; that it was the duty of the defendant to provide safe and suitable machinery for plaintiff's use in his said employment, but that when the plaintiff was ordered by the defendant to take charge of and operate said machine, the defendant negligently, carelessly , willfully, and wantonly failed and neglected to provide any framework, shield, cap, cover, or guard for the lower cylinder of said machine, although it was the duty of the defendant to provide a framework, shield, cap, cover, or guard for the lower cylinder of said machine in order to render it reasonably safe for its operation by the plaintiff; that while the plaintiff had charge of and was operating said machine, his right hand was caught in the lower cylinder of said machine, the same being in motion, and was badly cut." The defendant denied the allegations of the complaint, and set up the defenses of assumption of risk and contributory negligence. His honor, the presiding judge, charged the jury that there was no evidence of willfulness. The jury rendered a verdict in favor of the plaintiff for $2,200. The defendant made a motion for a new trial, on the following grounds: "That the whole of the evidence shows that the injury sustained by the plaintiff was due to, and caused by, the negligence of a fellow servant of the plaintiff, for which defendant was not liable; that the evidence showed that the injury sustained by the plaintiff was due to, and caused by, his own negligence contributing to the same, and as the proximate cause of such injury, and that the defendant was not liable for the same; that the evidence showed that the injury sustained by the plaintiff was caused by a danger which was apparent and obvious to the plaintiff as an incident of his employment, which plaintiff voluntarily assumed, for which defendant was not liable." The motion was refused, and the defendant appealed.

The only assignments of error are in refusing the motion for a new trial, on the three grounds mentioned.

The first question that will be considered is whether there was error in refusing the motion for a new trial on the ground that the injury was caused by the negligence of a fellow servant. If there was any testimony whatever tending to prove the allegations of negligence on the part of the defendant, even though every fact as to which the plaintiff's witnesses testified was contradicted by the witnesses for the defendant, nevertheless this exception could not be sustained. We, therefore, turn to the evidence to see if there is any testimony tending to show negligence by the defendant. The plaintiff testified as follows "Q. What kind of work had you done, prior to your employment by the Marion County Lumber Company? A. I farmed. Q. Did you ever have any experience in sawmill work? A. No, sir; not any. Q. Did you ever work in a sawmill before you were employed by the Marion County Lumber Company? A. No, sir. Q. What kind of work did you do for the ...