Barnwell v. ELLIOTT , 225 S.C. 62 ( 1954 )

Onner, Justice.

Appellant, Tom Barwell, an uneducated and unskilled Negro laborer about 40 years of age, while loading lumber on a truck on February 16, 1951, sustained a rather serious injury when a heavy piece of lumber fell from a nearby stack or pile behind him, striking pne of his legs. He brought suit against respondents by whom he was employed in their sawmilling operations. Respondents entered a general denial and also pleaded contributory negligence and assumption of risk. On the trial of the case, timely motions were made for a nonsuit and a directed verdict. Both motions were refused and the jury found for appellant in the sum of $3,000.00. Thereafter the trial Judge set aside the verdict and entered judgment non obstante veredicto for respondents upon the ground that appellant had failed to establish negligence. The sole question presented by this appeal is whether there is any testimony reasonably warranting an inference of negligence on the part of respondents in one or more of the specifications alleged in the complaint.

At the time of appellant’s injury, the saw-mill had been moved. There was on the yard a pile of green lumber consisting, according to appellant’s testimony, of 6x8’s of varied lengths and described by the witnesses for respondents as being 6x6s’ and 4x6’s from 10 to 14 feet long. Appellant and four other laborers, along with respondents’ superintendent, were engaged in loading this lumber on a truck. It was lifted by four men, two at each end, and was received by two men on the truck who placed the lumber as it was loaded. Appellant and the superintendent worked on the ground at the same end. There is quite a conflict in the testimony as to the position of the truck. Appellant testified that it was parked about one foot from the pile of lumber, while the witnesses for respondents estimated the distance from three to six feet. All the loading operations were directed by the superintendent. He told the laborers where to stand, how the lumber was to be loaded and had full control and direction of the job.

Appellant testified that after two or three pieces of 6x8’s had been loaded and while facing the truck, a piece of lumber struck the back of his leg, knocking him down. He was unable to say where it came from or what caused it to fall.

Several employees engaged in loading this timber testified, but noné saw the timber strike appellant and none was able to give any explanation as to why it fell. The superintendent, a witness for respondents, testified that the pile of timber was about 2^4 feet in height and “stacked perfect”; that about fourteen or fifteen pieces had been loaded on the truck; and that at the time of the accident, he (the superintendent) was holding the end of one piece of timber which had just been removed from the pile. The following is also taken from his testimony:

“Q. When you picked up the piece you had in your, hand at the time of the accident, did you see the piece that later fell? A. Yes, sir.

“Q. Tell the jury what the condition of that piece was. A. Well, the pile was stacked straight up and these two pieces of six by six were on top of another six by six, there were three pieces of six by six, and I had just pulled off one which I had in my hand at the time, and Thomas (appellant) fell on my leg, fell over side of my leg—

“Q. Before you get there, when you picked up one, that left the piece that fell there? A. That’s right.

“Q. What was the condition of that piece when you picked up your piece, what was its condition before it fell? A. It was lying perfect on top of the other piece in other words it wasn’t hanging over the edge of nothing, right straight up over it.

“Q. I want you to answer me this, I am not trying to tangle you up, but if this lumber was stacked perfect, why did it hit Tom on the leg? A. The piece didn’t fall off the pile, because the piece that fell on the fellow’s leg—

“Q. You didn’t see the piece? A. I didn’t see it, but when I moved the third piece which I was loading, I left two pieces back there, a six by six was on top of a six by six, and after I picked him up those pieces were laying side by side.

“Q. One of those fell off another? A. That’s right.

“O. And it was the next piece to the one you picked up ? A. That’s right.

“Q. And you picked it up, and Tom hadn’t touched the piece you picked up? A. No, sir, in fact he hasn’t touched it yet.”

In the order granting judgment for respondents non obstante veredicto, after analyzing the evidence, the trial Judge concluded: “All we have is that the piece fell.” He further stated: “In the instant case to say that the mere fact that the timber fell is evidence of an unsafe place provided by the master would be to apply the rule of res ipsa loquitur, to indulge in surmise and conjecture.”

If the question of negligence had to be determined solely from the testimony of appellant, who was unable to state the cause of the timber falling, the conclusion of the trial Judge would be correct. Watson v. Charleston Stevedoring Co., 141 S. C. 355, 139 S. E. 778; Jackson v. Brock, 160 S. C. 471, 159 S. E. 22; Weston v. Hillyer, 160 S. C. 541, 159 S. E. 390; Cullbreth v. Taylor-Colquitt Co., 168 S. C. 153, 167 S. E. 148. But in determining the question of negligence, all of the testimony must be considered. “We have held in numerous cases that, even though a nonsuit should have been granted at the conclusion of plaintiff’s testimony, yet, if the deficiency of evidence was supplied either on direct or cross examination of defendant’s witnesses, neither a nonsuit nor a directed verdict could be granted at the conclusion of all the testimony.” Eargle v. Sumter Lighting Co., 110 S. C. 560, 96 S. E. 909, 911.

It is elementary that negligence may be established by circumstantial evidence. Thornton v. Seaboard Air Line Ry. Co., 98 S. C. 348, 82 S. E. 433; Watson v. Coxe Bros. Lumber Co., 203 S. C. 125, 26 S. E. (2d) 401. And in considering the sufficiency of such evidence, “the facts and circumstances shown should be reckoned with in the light of ordinary experience and such conclusions deduced therefrom as common sense dictates.” Leek v. New South Express Lines, 192 S. C. 527, 7 S. E. (2d) 459, 462. The fact that the doctrine of res ipsa loquitur is not applied in this jurisdiction does not mean that negligence may not be established by circumstantial evidence as well as direct evidence. Eickoff v. Beard-Laney, Inc., 199 S. C. 500, 20 S. E. (2d) 153, 141 A. L. R. 1010. It is also important to bear in mind that the fact that an injury may have been caused in one of two or more ways does not preelude recovery, “if the facts and circumstances in evidence warrant a reasonable inference that it was caused in any way alleged in the complaint for which the master would be liable.” Steele v. Atlantic Coast Line R. Co., 103 S. C. 102, 87 S. E. 639, 643.

When the entire evidence is considered in the light of the foregoing principles, we think there was enough to warrant the submission of the issue of negligence to the jury. The deficiency in appellant’s testimony with respect to negligence was supplied by the testimony of the superintendent. While the quoted testimony of this witness may not disclose direct evidence of negligence, it shows circumstances warranting that inference. According to him the lumber was properly placed in the pile. Just after he had removed one 6x6 which he was still holding in his hand the 6x6 next to the one just removed fell and struck appellant’s leg. A. jury could infer that the superintendent either pushed off the pile the sill which struck appellant or negligently left it in such unbalanced position as to cause it to fall. The testimony negatives the conclusion that either the appellant or the other laborers did anything to cause this sill to fall. There is other testimony on the part of the superintendent to the effect that appellant would not have been injured had he been standing farther away from the pile of lumber. If this be true there is also a possible inference of negligence from placing the truck too close to the pile of timber. Although the testimony on that question is conflicting, appellant testified that the truck was parked within about a foot of the pile of lumber which was being loaded.

While not directly in point, the following cases tend to sustain our conclusion that the Court below erred in entering judgment for respondents: McBrayer v. Virginia-Carolina Chemical Co., 89 S. C. 387, 71 S. E. 980; Montgomery v. Conway Lumber Co., 171 S. C. 483, 172 S. E. 620; Mullikin v. Southern Bleachery & Print Works, 184 S. C. 449, 192 S. E. 665.

Not raised on this appeal is the interesting question of whether with respect to the work being done by the superintendent, he and appellant were fellow servants. For a review of our' decisions on this question, see the recent case of Wesley v. Holly Hill Lumber Co., 211 S. C. 40, 43 S. E. (2d) 619. Nor are we called upon to pass upon the defenses of assumption of risk and contributory negligence. The trial Judge held, from which there is no appeal, that respondents were not entitled to a judgment non obstante veredicto on these grounds.

In fairness to the trial Judge, it should be stated that in considering the motion of respondents for judgment non obstante veredicto, he had only before him the testimony offered by appellant and through the inadvertence of counsel was not furnished with the testimony of the superintendent which we have considered so material in determining the question presented.

The order granting judgment non obstante veredicto is reversed, and the case is remanded to the Circuit Court for entry of judgment in favor of appellant in accordance with the verdict of the jury.

Stukes and Taylor, JJ., and T. B. Greneker, A. A. J., concur. Baker, C. ]., dissents.