Sexton v. Noll Const. Co.

• Decision Date: 23 January 1918
• Docket Number: 9873.
• Citation: 95 S.E. 129,108 S.C. 516
• Parties: SEXTON v. NOLL CONST. CO.
• Court: South Carolina Supreme Court

95 S.E. 129

108 S.C. 516

SEXTON v. NOLL CONST. CO.

No. 9873.

Supreme Court of South Carolina

January 23, 1918

Appeal from Common Pleas Circuit Court of Spartanburg County; H. F Rice, Judge.

Action by Joseph Sexton, an infant, by his guardian ad litem, W. G Sexton, against the Noll Construction Company. Judgment on verdict for plaintiff, and defendant appeals. Reversed.

Nicholls & Nicholls and John Gray Evans, all of Spartanburg, for appellant.

Sanders & De Pass, of Spartanburg, for respondent.

GARY C.J.

This is an action for damages, alleged to have been sustained by the plaintiff, an infant. The allegations of the complaint, material to the questions involved, are as follows:

"That on or about the 4th day of September, 1914, the defendant had in its possession, use, and control a metal pot, tank, or receptacle containing melted asphalt, which it was necessary to maintain in a melted condition. That said receptacle was on a vacant lot near South Church street, one of the much-traveled and public streets of the city of Spartanburg, and at a place where young children were accustomed to play--all of which was well known to the defendant."

"That said tank or vessel in which the aforesaid asphalt was melted had attached to it a pipe or faucet, out of which the said asphalt was allowed to flow. That the threads on said pipe or faucet had become worn, so that the same could readily and easily be removed, or become detached, from said pot or vessel."

"That on or about the 4th day of September, 1914, the plaintiff, Joseph Sexton, while passing near the said pot or vessel containing the asphalt, was seriously and permanently injured by said pipe or faucet becoming loose or detached from the pot or vessel thereof, permitting said melted asphalt to flow out of the pot or vessel with great force on the legs, arms, and body of the said Joseph Sexton."

"That the willfulness, wantonness, negligence, and carelessness of the defendant consisted in the following: (1) In having and using a tank or vessel with a pipe or faucet attached thereto, that was old and worn in such manner that the said pipe or faucet was easy to become detached from the same. (2) In not having the faucet or pipe firmly attached to the aforesaid vessel containing the melted and hot asphalt, so that the same could not be readily and easily removed therefrom. (3) In not guarding and protecting said vessel and pipe in such manner, so as to prevent young children or other persons, from coming in contact with it, or getting too near to the same. (4) In not having a proper guard to warn young children, or other persons, of the danger of getting near to the said vessel containing the aforesaid asphalt."

The defendant denied the allegations of the complaint and set up the defense of contributory negligence. At the close of the plaintiff's testimony the defendant made a motion for a nonsuit, which was refused. The jury rendered a verdict in favor of the plaintiff for $3,000, and the defendant appealed.

The first exception is as follows:

"In that his honor erred in not granting the motion for a nonsuit, on the cause for actual damages, upon the following grounds: (a) Because the complaint does not state facts sufficient to constitute a cause of action; (b) because the undisputed evidence shows that the danger, if any, was known to the plaintiff; (c) that the instrumentality constructed was not of the kind or nature to attract young and innocent children, that the plaintiff knew that the instrumentality was dangerous, and that if he played with it, or came in proximity to it, he was likely to be injured, and the undisputed testimony shows, that the plaintiff was not playing with or standing by the machine, but was actually avoiding and getting out of the way of it, knowing the danger existing therein; (d) that, if any injury happened to the plaintiff, the undisputed testimony shows that he was a trespasser on the premises, and that the defendant owed him no duty, other than not to willfully injure him; (e) that there is no evidence in the case which shows, or tends to show, that the injury received by the plaintiff was a direct or proximate result of any negligence whatever, or any fault whatever, on the part of the defendant."

Prior to the injury, children were attracted to a pile of sand on the vacant lot. Their amusement consisted in rolling down the sand pile, which was harmless as an attraction. The pot containing the asphalt was about 100 feet from the sand pile, but it was not attractive to the children, nor did they resort to it for amusement. It was not necessary for them to go near the pot on their way to the sand pile. They, however, frequently passed by it, and it was while the plaintiff was merely passing by it that he was injured. The plaintiff thus testified as to the circumstances under which he was injured:

"Q. How close were you to the pot? A. Three feet. Q. What was making the pot boil? A. Fire; but it was done out then. It had been boiling all day, and I knew it was hot; and I knew they put fire under there to make it boil. I had seen it every day, since it had been there. They had big fires under it, made out of coal and wood, and the pot would boil. Asphalt was in it. It is something like tar. I knew it was in there boiling. I knew it would burn if it got out. I knew the fire would burn. * * * I had been by the pots a good many times; off and on, almost every day. I would go by there on my way to the sand pile. I never stopped by the pots. Q. Why didn't you stop? A. I was afraid I would get burnt. I never touched the pot, because I knew it was hot. Nobody ever said that I touched the pot. * * * Q. So you knew perfectly well that that was a dangerous place, didn't you? A. Yes, sir. Q. Why didn't you stay there? A. I never stopped in my tracks. I just walked on up towards the

sand pile. Q. Don't you know that you did go there to the kettles, and not to the pile? A. I went to the sand pile. I never went to those kettles. Q. Why didn't you go to those kettles? A. Because they were hot and would burn. Q. And you knew they would burn you? A. Yes."

This testimony is fully...