Appeal
from Common Pleas Circuit Court of Kershaw County; Geo. W
Gage, Judge.
GARY
C.J.
This is
an action for damages, alleged to have been sustained by the
plaintiff through the negligence of the defendant. The
defendant denied the allegations of negligence, and set up
the defense of contributory negligence and assumption of risk
on the part of the plaintiff, and that the injury was the
result of a risk which was incident to his said employment,
by which, it seems, was meant the negligence of a fellow
servant. 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 $1,000.
The defendant made a motion for a new trial, which was also
refused. The defendant then appealed upon numerous
exceptions, which will be reported.
The
first question that will be considered, is raised by the
thirteenth exception.
The
plaintiff testified as follows:
"Q.
The date alleged in this complaint, about the 5th of
December, 1910, where were you working? A. At the Hermitage
Cotton Mills. Q. What were you employed to do there? A. I
was employed to help, at the time, Mr. Andrews, putting up
frames. Q. The morning of the injury what work were you
actually engaged in that morning? A. Putting up skeleton
frames; I was helping them move boxes. Q. Who
did you say was there; whom did you work under? A. Mr.
Andrews; working under Mr. Andrews at the time. Q. Was Mr.
Andrews present? A. Yes, sir. Q. Now, Mr. Watts, were you
injured there? A. Yes, sir. Q. I wish you would tell the
court and jury how you received any injury there. A. Well,
we were moving those boxes, Mr. Andrews had us to move the
boxes from the back end, the first box had to go around the
upper end of the frame, and come between the wall and
frame; as I passed Mr. Andrews I said, 'Where will we
put this box?' He said, "Set it up over
there.' Q. Pointed out the place to put it? A. Yes,
sir. Q. Who was bringing it? A. Us three; Noland Ballard
and myself. Q. Where was Mr. Andrews? A. Standing in the
alley, opposite between them and the other frames. Q. You
went up and asked him where to put the box? A. Yes, sir. Q.
And he told you where to put it? A. Yes, sir. Q. Did you
put it where he told you? A. Yes, sir. Q. And you were
instructed to set it up on the end? A. Instructed to set it
up on the end. Q. Did you place it where he told you? A.
Placed it where he told me. Q. Now, coming down to the
actual injury, how did that occur? A. After we placed the
box up there, I steadied it; I was on the other side of it,
and the other two turned off in about the same time I did,
I reckon, I think about that time; but we steadied it good
before we let it loose, where it was to stand; I just
turned around; as I turned around, I got far enough to keep
the box from catching me anywhere, except right here, and
it knocked me down. Q. Could this box have been laid flat
down on the ground? A. Yes, sir; could have been.
"The
Court: What you mean is on the side and not on its end?
"Mr.
Monteith: Yes, sir.
"Q.
If it had been laid that way, would have been flat down on
the floor? A. Yes, sir. Q. Could it have turned over that
way? A. No, sir. Q. Were you or not instructed
to set it up on its end? A. I was. Q. And you did so? A.
Did so; yes, sir. Q. Was this Mr. Andrews the
superintendent of the mill? A. He was foreman
of them frames; he was not superintendent of the mill. Q.
Who was superintendent of the mill? A. Mr. West was
superintendent of the mill. Q. Who told you work with this
man, Andrews? A. Mr. West. Q. Told you Mr. Andrews was
there in charge of putting up the frame? A. Yes, sir; he
put me with Mr. Andrews that morning. Q. And told you to do
as Mr. Andrews told you to do? A. Yes, sir."
H. F.
Andrews, a witness for the defendant testified as follows:
"Q.
Where were you at work? A. The Hermitage Mills. Q. What was
your business there? A. I came here to put up fly frames. Q.
Did you have any one to assist you at that work? A. Three of
the millmen. Q. Was Mr. Watts one of those employed with you
at the time? A. Yes, sir. Q. Who furnished you the hands to
do this work? A. The superintendent, Mr. West. Q. Was Mr.
West there while you were doing this work any time? A. He was
in and out of the room. Q. You did that; you directed what to
do and how to do it. A. Yes, sir."
Redirect
examination:
"Mr.
Mills: Mr. Andrews, you were asked whether there was reason
for setting the boxes on end, and you sold there was. Why? A.
You set them on ends, square them around to get them out of
the way to go by with the others and give more room. Q. Are
you accustomed to receiving boxes of that size and setting
them up? A. Yes, sir. Q. Was that the usual box? A. Yes, sir;
with that stuff in it. Q. It is customary for you to have
those boxes set up that way, on end? A. Yes, sir. Q. How many
years have you been doing that? A. Thirteen years. Q. You
have done that in one mill, or in many mills? A. Several
mills. Q. Have you been doing that since that time? A. Yes,
sir. Q. It is not a common thing to set those boxes up that
way? A. Yes, sir. Q. And to receive them as you have stated?
A. Yes, sir.
"Mr.
Blakeney: You say for the reason to move them out, that's
the reason that you set them up on end; more liable to fall
that way than if laid down to be opened? A. Yes;
more apt to fall. If you had laid it down as you did when you
took it off of Mr. Watts, it could not have fallen on
anybody? A. No, sir. Q. If you laid it down flat, it would be
a safer way so far as falling? A. Yes, sir. Q. There was
plenty of room to lay it flat? A. Yes, sir. Q. That is the
safest way, as far as falling on anybody? A. Yes, sir."
P. L.
West, the superintendent of the mill thus testified as a
witness, for the defendant:
"Q.
Did you hire Mr. Watts? A. Yes, sir. Q. What had you hired
him to do? A. Before that, I had him to do something else.
I turned him over to Mr. Andrews, and Mr. Andrews gave him
instructions. I just told Mr. Andrews to take those men, he
could have them to assist him."
It will
thus be seen that P. L. West, the superintendent of the mill,
placed the plaintiff under the direction and control of H. F.
Andrews, with instructions to do whatever Andrews told him to
do, and that he was injured while carrying out the orders of
Andrews, which rendered the situation more dangerous than if
the box had been placed on its flat surface.
It was
the duty of the defendant to furnish the plaintiff with a
safe place to work, and also a safe method of doing the work.
Under the circumstances Andrews was the representative of the...
