Stanton v. Interstate Chemical Corp.

• Decision Date: 22 April 1914
• Citation: 81 S.E. 660,97 S.C. 403
• Parties: STANTON v. INTERSTATE CHEMICAL CORPORATION ET AL.
• Court: South Carolina Supreme Court

81 S.E. 660

97 S.C. 403

STANTON v. INTERSTATE CHEMICAL CORPORATION ET AL.

Supreme Court of South Carolina

April 22, 1914

Rehearing Denied May 11, 1914.

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

Action by Albert Stanton, by his guardian ad litem, against the Interstate Chemical Corporation and another. From a judgment for plaintiff, defendants appeal. Reversed in part and affirmed in part.

Hydrick J., dissenting in part.

Smythe & Visanska and Mitchell & Smith, all of Charleston, for appellants.

Logan & Grace, of Charleston, for respondent.

WATTS J.

This was an action for $10,000 for personal injuries brought by the plaintiff, an infant under 21 years. The cause was tried before Judge De Vore and a jury at the April term of the court, 1913, for Charleston county, and resulted in a verdict in favor of the plaintiff against both defendants. At the close of plaintiff's evidence a motion was made by the defendants for a nonsuit as to punitive damages and wantonness, or recklessness, or either of them, and as to the whole case on the ground that the plaintiff had failed to prove any negligence on the part of the defendants that the injury to the plaintiff was caused by the negligence of a fellow servant for which the defendant was not responsible, and that the plaintiff had assumed the risks incident to his employment. When the motion was made counsel for the plaintiff in open court announced that they withdrew all claim for punitive damages. His honor, the presiding judge refused the motion for nonsuit on the whole case. After all the testimony was in the defendants moved the court to direct a verdict in their favor on the ground that the testimony showed conclusively that the plaintiff was guilty of contributory negligence in standing on that part of the car which was obviously the most dangerous part of it, that there was no testimony tending to show that the switch was not in proper condition, the undisputed testimony being that the switch was in proper condition, and that if the plaintiff was injured by the negligence of any one, it was by the negligence of a fellow servant, the driver of the car which jumped the switch. The court was requested to direct a verdict in favor of the defendant Felix H. Chisolm, on the ground there was no evidence to connect him with the accident. The motion to direct a verdict was refused. After entry of judgment both defendants appealed.

The defendant Felix H. Chisolm alleges error on the part of his honor in failing and refusing to grant a nonsuit or direct a verdict in his favor on the ground there was no evidence to connect him with the accident. These exceptions must be sustained. A careful examination of all of the testimony in the case fails to disclose one particle of evidence connecting the defendant with the accident in this case. The undisputed and uncontradicted evidence in the case shows that this defendant had ceased working at the mill nine months before the accident; during all this time the cars were running up and down the track; that at the time of the accident, and for a long time prior thereto, the defendant Chisolm worked in the Broad street office in a clerical capacity, and had nothing whatever to do with the management and operation of the plant, at which the accident occurred the whole testimony shows that Tudor H. Chisolm, the brother of Felix H. Chisolm, had charge of the plant and gave orders, and not the defendant. In refusing the motion made on behalf of this defendant and assigning his reason his honor said: "Mr. Chisolm testified that he was superintendent at one time, and that this switch was put in while he was superintendent." His honor was mistaken as to the testimony. Chisolm's testimony was that he had been superintendent, but was not superintendent when track was laid and switches put down; that he had left there in September, and thought the switch had been put in after he left, but did not remember and would not swear that it had been put in after he left the plant, and it might possibly have been put in while he was there. There is neither allegation nor proof alone to show an improper construction of the switch, or installation of the same, so as to connect the defendant Felix H. Chisolm with it; the allegation in plaintiff's complaint being: "In causing and allowing said switch to be in such condition as to allow another car to collide with the car upon which said plaintiff was riding." We fail to find any testimony in the case warranting a verdict against this defendant, and his honor was in error in not granting the nonsuit asked for in the first instance by him, and in refusing to direct a verdict for him in the second instance. These exceptions are sustained and a nonsuit directed as to Felix H. Chisolm, and proceedings as to him dismissed. The exceptions of the Interstate Chemical Corporation are: The first exception, subdivided in five, alleges error on the part of his honor in not granting a nonsuit, and is as follows: The said defendants submit that his honor erred in refusing the motion for a nonsuit, and assign the following grounds of error: That his honor erred in holding that it was nonassignable duty of the master to have its cars safely and properly driven, whereas, his honor should have held that Eugene Nelson was a fellow servant of the plaintiff; (2) that his honor erred in failing and refusing to hold that the plaintiff had failed to prove any negligence on the part of the defendants; (3) that his honor erred in refusing to hold that the plaintiff failed to prove that he was injured by negligence on the part of the defendant; (4) that his honor erred in failing and refusing to hold that the plaintiff assumed the risks incident to his employment; (5) that his honor erred in failing and refusing to grant a nonsuit on the ground that the only testimony tending to show negligence of any one was that the car was going too fast, and that "this was a scintilla of evidence of negligence on the part of the defendant," whereas, his Honor should have held that if the car was going too fast, and was being operated in a negligent manner, the negligence was that of a fellow servant for whose negligence the plaintiff cannot recover. The second exception contains six subdivisions, and alleges error on the part of his honor in refusing to direct a verdict for the defendant, and is as follows: The said defendants submit that his honor erred in failing and refusing to direct a verdict in favor of the plaintiff, and assign the following grounds of error: (a) That the testimony shows conclusively that the plaintiff was guilty of contributory negligence in standing on the part of the car which was obviously the most dangerous part of the car. (b) That there was no testimony whatever tending to show that the switch was not in proper condition, the undisputed testimony being that the switch was in proper condition. (c) That if the plaintiff was injured by the negligence of any one it was by the negligence of a fellow servant, to wit, Eugene Nelson, the driver of the car which jumped the switch. (d) That his honor erred in holding that Eugene Nelson, who was running the car which collided with the car on which the plaintiff was riding, was a representative of the master, whereas, his honor should have held that Eugene Nelson was a fellow servant of the plaintiff. (e) That his honor erred in holding that the master had to have a representative on the car which collided with the car upon which the plaintiff was riding, and that the said Eugene Nelson, who was in charge of the said car, was a representative of the master; whereas, his honor should have held and decided that the said Eugene Nelson was...