Bridgeman v. So. Bell Telephone & Tel. Co. , 100 S.C. 204 ( 1915 )

The opinion of the Court was delivered by

Mr. Justice Gage.

Action for actual and punitive damages by a servant against the master; verdict for the defendant; appeal by the plaintiff.

History: The plaintiff, a young man 22 years old, was a lineman in the service of the defendant; he was instructed by the defendant’s superintendent of the local office at Dillon to do some work on a telephone line at Gallavon, in the country, out eight miles from the town of Dillon; he climbed a pole and cut a wire,' the pole broke off just above the ground and fell with the plaintiff on it and hurt the plaintiff’s shoulder.

There were no requests to charge.

The Court withdrew from the jury any consideration of punitive damages, and submitted to the jury the issue of actual damages.

There are nine exceptions and they fall into these classes, to wit: (1) The 1st, 2d and 9th i'efer to the issue of wilfulness; (2) the 3d and 5th and 7th refer to a failure of the Court to charge; (3) the 4th states a proposition of law, but does not claim that the Court refused upon request to charge it, or that the Court charged a contrary proposition of law; (4) the 6th claims that the Court charged a proposition irrelevant to the testimony; (5) the 8th claims that the Court charged on facts.

The first class will be considered last.

1 Those embraced in the second class all complain that the Court failed to charge; but that is no ground for complaint, unless the Court had been requested, in some fashion, to cover the now suggested phases of the case.

2 The legal proposition stated in the third class may be true; but the Court did not directly or by inference dispute it; and the Court was not requested to state it as the law. The fourth class has reference to that part of the charge which dealt with the law of fellow-servant.

The entire answer is not printed, but those parts which are printed make no reference eo nomine to fellow-servant.

There must have been some such defense plead, for the Court said to the jury: “Now take up the defense of the matter of fellow-servant,” and proceeded to correctly declare the law upon that subject. The complaint itself suggested the subject by alleging that “plaintiff was working under the orders of the defendant’s local plant superintendent.”

It is true the testimony does not tend to show that the plaintiff was a fellow-servant with Gilbert (the other sole employee with the plaintiff, and referred to in the testimony as superintendent) ; but the plaintiff himself had testified: “My duties were to follow the instructions of the plant foreman and do what he told me to do.” The Court was, therefore, warranted by plea and by testimony to charge the jury the law of fellow-servant.

3 The fifth class refers to the constitutional prohibition to charge on the facts. The specific charge on the facts assailed in the instant case is, that the Court stated to the jury an issue that was not plead in the complaint, to wit: “Was it due care on their part to stipulate with an employee that he should do all of the inspection and not be able to recover damages if he got injured by reason of the fact that he had assumed the duty of doing all of the inspection of the pole?”

But the 4th paragraph of the complaint alleged that the duty to inspect the pole was on the master; and the 3d paragraph of the answer denied that, and alleged that by the written terms of the employment the plaintiff’s duty was to inspect the poles.

The Court did not indicate whose duty it was to inspect the poles; it only stated the contentions of the litigants thereabout. There was no approach to a charge on the facts.

The first class has already been reserved for the last consideration.

4 There were only two witnesses for the plaintiff, the plaintiff himself and the stable boy who drove him to the locus.

The testimony is that to all ocular appearances the post was sound; there was no testimony to suggest that the defendant (by its superintendent, Gilbert) had any knowl edge of the decayed condition of the post. The plaintiff said nothing to indicate that the master was guilty of any conscious wrong.

There is, therefore, no foundation for any of the exceptions, and they must all be overruled.

The real issue in the case was that suggested by the foreman of the jury: for granting that the master was convicted of negligence, was the plaintiff also guilty of negligence in climbing a pole and cutting one of three wires running in contrary ways from its top, so that the pole fell to the ground ?

The foreman asked the Court: “We want to know that if in your charge was it that, if we found both acted carelessly, were we to find nothing for the plaintiff.”

That was the issue in the case, and on it the plaintiff lost.

Judgment below is affirmed.

Footnote.—As to the nondelegability of duty of master to inspect poles to be used by its linemen, see note in 30 L. R. A. (N. S.) 47, 50.