Burton v. Anderson Phosphate & Oil Co. ( 1906 )

September 17, 1906. The opinion of the Court was delivered by By the complaint above set out in full, Bertha Burton, as administratrix seeks to recover of Anderson Phosphate and Oil Company damages for the death of her husband. The defendant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was overruled and the defendant appeals.

The complaint is very defective, but it does not altogether fail to state a cause of action. Briefly stated, the allegations as to the accident which caused the death of Burton, are that he was in the engine room, where he was frequently sent to do hard work and difficult and dangerous jobs, though employed to do different work not in the engine room; that while endeavoring to connect two large boilers by means of a pipe, "the pipe broke and a large, intense volume of steam was suddenly released, with almost cannon-like force and velocity; the small room was flooded with a dense hot cloud of pent-up steam, and the occupants put in peril of their lives; in his quick agitated attempt to save his life and make for safety, the said Burton fell from, or was hurled from, the said brick structure by the exploding steam, and received violent injuries from which next day he died."

Without specifying any particular machine or appliance, or any particular place, it is then alleged, "that the proximate cause of the injuries and death of the said Larkin Burton was the negligence of the defendant in failing to provide safe and proper machinery and appliances with which, and about which, said Burton should work, and to put and keep same in proper and safe position and condition, in failing to provide and maintain a safe place in which he should do his work, and in other particulars."

The complaint, therefore, does not fall under the principle laid down by this Court in a number of cases, from Gentry v.Railway Co., 66 S.C. 256, 44 S.E., 728, to Green v. RailwayCo., 72 S.C. 401, for the plaintiff does not rely on any presumption that the machinery or appliance was defective or the place unsafe, from the mere fact that the accident happened at that place or was due to the breaking of the appliance, but, on the contrary, she affirmatively charges negligence as the proximate cause of the accident, in the failure to provide safe machinery and appliances and a safe place to work. Construing the complaint, as we must do, most favorably to the pleader, the remedy of the defendant was a motion to require the complaint to be made more definite and certain, and not demurrer. Garrett v. Weinberg, 50 S.C. 316,27 S.E., 770; 14 Ency. P. P., 341.

There is no force in the point that the complaint shows the deceased was injured by his own act in attempting to escape from the engine room. The allegation is distinctly made that the hot steam put the deceased in peril of his life, and if, having a reasonable apprehension of great danger, he was injured in an effort to escape from a condition due to defendant's wrong, the defendant would be liable. Stokes v.Saltonstall, 13 Peters, 193; Wade v. Electric Co., 51 S.C. 302,29 S.E., 233.

The complaint was indefinite, also, as to the time of the accident, and as to Burton's employment by the defendant when the accident occurred, but this indefiniteness affords no support for a demurrer.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.