Medlin v. Vanderbilt , 133 S.C. 256 ( 1925 )

A further statement of the facts is unnecessary. The exceptions, six in number, allege error, in substance: (1) In holding that there was no tender of the amount paid for the release, and in refusing to grant a nonsuit for that reason; (2) because his Honor refused to charge the jury on the question of the assumption of risk, under the plea of contributory negligence; (3) that his Honor erred in not directing a verdict (a) upon the defendant's plea of contributory negligence on the part of the plaintiff; and (b) in not holding that the release was valid and good in law and in fact.

The sixth exception is as follows:

"Because the verdict of the jury was contrary to the overwhelming weight of the testimony, both as to the execution of the release and as to the negligence of the plaintiff in his failure to exercise due diligence and care in the performance of his duty."

Treating the exceptions in the inverse order, as stated:

The record does not disclose that there was a motion made for a new trial, and this exception is overruled. Had there been a motion for a new trial made and refused upon the ground stated, there would have been no error in refusing it, as there was testimony to support the verdict.

The rule is so well settled that authorities need not be cited that a person who signs a paper is bound by it, and that a failure to read it will not relieve the party of the consequences of signing the paper.

There are exceptions to this rule. In this case, the trial was had before a Judge of long and varied experience. Medlin and his wife were shown from the testimony to be ignorant. Medlin was hurt, and the release was signed when he was in dire straits and in the act of leaving the hospital and while in an automobile preparing to leave. The trial Judge had all these things before him and this Court cannot say that he erred in submitting the validity of the release to the jury, and it was submitted with thoroughness, and the verdict of the jury was adverse to the defendant. J.B. Colt Co. v. Britt, 123 S.E., 845.

On the question of assumption of risk, we do not regard the case of Betchman v. Railway Co., 75 S.C. p. 68;55 S.E., 140, as undertaking to settle the question of pleading the assumption of risk. The following is taken from that case:

"This action shows that John Betchman was either engaged in another department of labor from that of the fellow servants in charge of the train, or that he and they were engaged in a different piece of work. Therefore their negligence was not one of the ordinary risks which he assumed upon entering into the contract aforesaid."

Hence what was said by the Court in reference to pleading the assumption of risk must be treated asobiter dictum, in view of the decisions of this Court, and particularly in view of the decisions which have been since promulgated on that subject. No matter what may be the law in other jurisdictions, it is now so well settled that assumption of risk is an affirmative defense, and must be pleaded, that only a few of the cases need be referred to.Strait v. Rock Hill, 104 S.C. 116; 88 S.E., 469. Kelly v.Lumber Co., 107 S.C. 96; 91 S.E., 978. And in the case of Becker v. Railroad Co., 128 S.C. 131; 121 S.E., 476, it is held that an employee pleading assumption of risk must confine his proof of the risk assumed in the specification pleaded.

The United States Supreme Court has undertaken to draw the distinction between the assumption of risk and contributory negligence, as is clearly set forth in RailroadCo. v. Horton, 233 U.S., at pages 503, 504; 34 S.Ct., 635;58 L.Ed., 1062; L.R.A., 1915C, 1; Ann. Cas., 1915B, 475, as follows:

"* * * There is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of assumption of risk — perhaps none was deemed feasible.

"The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employee, and, since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employee. The risks may be present, notwithstanding the exercise of all reasonable care on his part. Some employments are necessarily fraught with danger to the workman; danger that must be and is confronted in the line of his duty."

The decisions of this Court indicate that this Court holds to the doctrine that contributory negligence and assumption of risk are akin and tend to shade into each other.

His Honor charged the jury as follows:

"Now, the defendant sets up a second defense, in which it alleges that, if the plaintiff was injured, he was guilty of negligence himself, in that he had full instructions and due notice as to the proper methods of replacing belts, and knew the surrounding conditions of the conveyer box, and that he conducted himself so recklessly and carelessly at that point that he brought about his injury, and that his negligence was a contributing proximate cause of the injury."

His Honor further charged the jury that, if they believed the negligence of the plaintiff had something directly to do with bringing about the injury to the plaintiff, the jury could not stop there, but would have to go further and determine whether the defendant had made out its defense of contributory negligence, because the plaintiff owed a duty, not only to himself, but to others, to exercise ordinary care, such care as an ordinary reasonably prudent man would have exercised in the same circumstances in the discharge of his duty, and added that, if the jury found the plaintiff was guilty of contributory negligence, having something directly to do with bringing about the injury, then the parties would be left where the jury found them, unless the jury believed that the master was willful. It will thus be seen that the Judge submitted the case to the jury under the issues raised. The testimony shows that the tender to return the money paid for the release would have been refused, and therefore the exception, based on failure to return the release money, cannot be sustained.