Wood v. Victor Mfg. Co

• Decision Date: 30 June 1903
• Citation: 45 S.E. 81,66 S.C. 482
• Parties: WOOD. v. VICTOR MFG. CO.
• Court: South Carolina Supreme Court

45 S.E. 81

66 S.C. 482

WOOD.

v.VICTOR MFG. CO.

Supreme Court of South Carolina.

June 30, 1903.

INJURY TO SERVANT—LATENT DEFECTS—NEGLIGENCE OF MASTER—NONSUIT.

1. The question of the negligence of a master, in action for injuries to a servant, is for the jury, where the evidence shows that any danger in the place in which the servant worked was latent.

2. A motion for a nonsuit, in an action for injuries to a servant, on the ground that the danger was open to common observation, and, there being no evidence that defendant knew of the danger, there was no duty on his part to give warning, was insufficient, as based upon an assumed state of facts which could only be properly determined by the jury.

3. A motion for a nonsuit, assuming a state of facts which were in dispute, and which, therefore, could only be decided by the jury, was properly denied.

Appeal from Common Pleas Circuit Court of Spartanburg County; Purdy, Judge.

Action by Wm. A. Wood against the Victor Manufacturing Company. From judgment for plaintiff, defendant appeals. Affirmed.

Haynsworth, Parker & Patterson and Simpson & Bomar, for appellant.

Stanyarne Wilson, for respondent.

GARY, A. J. The appeal herein is from an order refusing a nonsuit. The allegations of the complaint material to the consideration of the questions raised by the exceptions are as follows: "(2) That from the month of June, 1899, to the infliction of the injury hereinafter stated, plaintiff was in the service and employ of defendant as carpenter and repairman in and about the cotton mill in said county, and was in such service on December 21, 1899. (3) That on said 21st December, 1899, the plaintiff received orders from the superintendent of said mill, who represented and had authority over plaintiff, to cut a hole in the floor of the picker room of said mill, about 10 inches in diameter, in order that a dust flue could be run through it from the lapper room above to the dust room beneath. That while engaged in so doing, and in the line of his employment, acting as aforesaid under the orders of defendant, through its agent and officer, the superintendent, three sacks of starch, weighing each about 280 pounds, fell a distance of about eight feet upon plaintiff's back, crushing him to the floor. (4) That the injury to the plaintiff by the falling upon him of said sacks was solely due to the gross negligence and carelessness of defendant, its agents and servants, in this: The said sacks had been by it and them negligently placed vertically upon one another, instead of being built across each other in layers, or at least so piled as to incline towards the wall and thereby prevented from falling; and moreover, notwithstanding such recklessly careless piling up of said sacks, of which defendant well knew, containing, as they did, so slippery a commodity as starch plaintiff was by defendant placed at work as aforesaid, within three feet thereof, where said sacks could and did fall upon him, without being informed of the danger." The defendant denied the material allegations of the complaint, and set up the defense of contributory negligence. The jury rendered a verdict j in favor of the plaintiff.

The first ground upon which the defendant made the motion for a nonsuit was: "Such danger as was involved in the presence of the pile of starch was open and obvious, and the plaintiff had full opportunity to observe it, hence the danger was assumed by the servant when he undertook the work." Before dis-cussing the testimony, we will state the gen-eral principles applicable to such cases. The rule when the facts should be submitted to the jury is thus clearly stated in 16 A. & E. Enc. of Law, 465 et seq. (which was quoted with approval in Rinake v. Victor Mfg. Co., 55 S. C. 179, 32 S. E. 983), to wit: "The general rule is well known that questions of fact are to be submitted to the jury, and this includes not only cases when the facts are in dispute, but also when the question is as to inferences to be drawn from such facts after they have been determined. It will readily be observed that few cases will arise in which there is no| question as to the facts involved; the element of ordinary care must from its very character always require the decision of a jury, except where there is a violation of statutory duty, or when the facts are undisputed, and but one inference can reasonably be drawn from them. And the same is equally true as to the determination of the question of proximate cause, so that the following rules may be stated as applicable to every case: The issue of negligence should go to a jury: (1) When the facts which, if true, would constitute evidence of negligence, are controverted. (2) When such facts are not disputed, but there may be a fair difference of opinion as to whether the inference of negligence should be drawn. (3) When the facts are in dispute and the inferences to be drawn therefrom are doubtful."

The following authorities relate to contributory negligence and to the assumption of risks: "The remaining in the master's service by an employe, after knowledge of an alleged defect in the instrumentalities to be furnished by the master, is not, as matter of law, an assumption of the risks by the employe Whether the employs assumed the risk is a question for the jury, to be determined from all the circumstances of the case. If the undisputed evidence is such as to be capable of but one inference, viz., voluntary assumption of the risk by the employe, then the jury would be rightfully instructed that the employs could not recover." Mew v. R. R., 55 S. C. 101, 32 S. E. 828. "It is the duty of the master to provide suitable machinery and appliances, and keep them in proper repair. The employs has a right to assume that the master has discharged his duty in this respect.and is not bound to exercise care in ascertaining whether the master has so acted. When, however, the employe has knowledge or receives warning that the master has not furnished suitable machinery, or that it has not been kept in proper repair, so that it has become dangerous, and he continues to use the same after such knowledge or warning, then it is a question to be determined by the jury whether, under the circumstances, the employe failed to exercise ordinary care and prudence, and was therefore guilty of negligence." Bussey v. R. R. Co., 52 S. C. 443, 30 S. E. 477. "The doctrine of assumption of risks by the employe is distinct from the doctrine of contributory negligence, although there may arise a certain condition of facts capable of supporting either inference. This has given rise to a great deal of confusion of statement when dealing with these...