Lasure v. Graniteville Manufacturing Co. , 18 S.C. 275 ( 1882 )

The opinion of the court was delivered by

Me. Justice McIvee.

This action was brought by the plaintiff, who was a laborer in the employment of the defendant, a company carrying on a cotton factory, to recover damages for injuries sustained by reason of the alleged negligence of the company. It appears that the plaintiff was engaged in removing cotton bales from the warehouse to the mill of the company, by rolling them on a truck over an elevated tramway between the two buildings, and, while so doing, the tramway gave way by reason of the splitting or breaking of some of the timbers, which supported the track, and the plaintiff fell and sustained the injuries for which, the action was brought. Both parties presented to the Circuit judge sundry requests to charge, which were neither specifically refused or granted, and the case was submitted to the jury under a charge to which no exception was taken by either party. The jury found a verdict in favor of the plaintiff for $500, and judgment being entered thereon, both parties have appealed, alleging, as error, the refusal or neglect of the Circuit judge to charge the several propositions as requested by them respectively.

It will not be necessary to consider the merits of the several propositions contained in the numerous requests submitted by the plaintiff, for every one of them relate solely to the plaintiff’s right to recover, and none of them relate to the question of the amount which he was entitled to recover, or could in any way affect the question of the measure of his damages. Now, as the plaintiff has recovered, his only possible ground of complaint is as to the amount of his recovery, and we cannot conceive how he could be prejudiced by the refusal or omission to charge any proposition of law, however correct it might be, affecting only his right to recover, and not affecting the question of the measure of his damages. In cases of this kind there are always two questions, first, whether the plaintiff has made a case entitling him to recover any damages, and if so, second, what is the proper measure of his damages. The two questions are entirely distinct and different, and depend upon different principles. The plaintiff having established his right to recover, as is conclusively demonstrated by the verdict in his favor, any error on the part of the Circuit judge, either of commission or omission, in submitting the first question to the jury, becomes wholly immaterial, and need not, therefore, be considered. The appeal on the part of the plaintiff cannot, therefore, be sustained.

The defendant also appeals upon five grounds. The first and fifth were very properly abandoned, as it is manifest that they could not be sustained.

The second ground of appeal alleges that the Circuit judge erred in not charging the fourth request submitted by the defendant, which is in these words: “ That even if the jury find there was a defect in the tramway known to the company, yet if they find that the plaintiff also knew of said defect, or by the exercise of ordinary care and diligence could have known of it, and still, voluntarily, continued in the employment of the company, he cannot recover, and the verdict must be for the defendant.” We think it very clear that the proposition, or rather propositions (for there are two of them), contained in this request, are not well founded. It does not follow necessarily that a servant is guilty of contributory negligence because he remains in the service of his master after he has knowledge of defect in the machinery or appliances with which he is furnished to perform his work, but it is a question of fact for the jury to determine under all the circumstances of each particular case. Wood on Master and Servant, § 357, citing Snow v. Housatonic Railroad Company, 8 Allen 441.

It was, therefore, no error to refuse to charge, as matter of laAV, that if the plaintiff knew of the defect in the tramway, and still continued in the employment of the company, he could not recover. The other proposition involved in the request— that if the plaintiff could, by the exercise of ordinary care and diligence, have known of the defect, and still, voluntarily, continued in the service of defendant, he could not recover — cannot be sustained, not only for the reason above stated, which applies with equal force to both propositions, but also because it presupposes a duty upon the part of the servant to exercise due care and diligence, to ascertain whether the machinery or appliances furnished him to work with are kept in proper repair, whereas this is the duty of the master and not of the servant.

The third and fourth grounds of appeal, involving practically the same principles of law, will be considered together. They are based upon a refusal or neglect to charge the propositions contained in the fifth and sixth requests submitted by the defendant, which are in these words: 5. “ That if the jury find that the company constructed the tramway with due skill and caution, and employed competent and reliable persons to superintend their work, then they have performed all their duty as employers to their employe, the plaintiff, and he cannot recover.” 6. “ That even if the jury find there was a defect in the tramway, caused by the negligence of those employes who had charge of it, yet the plaintiff cannot recover, because the negligence which caused the misfortune is not that of the company, but of fellow-employes, working under the same common head.”

The principles involved in these requests have been considered and passed upon in the decision just filed in the case of Gunter v. The Graniteville Manufacturing Company, ante p. 262, and, therefore, we need not repeat here what was said in that case upon these points. It was there determined that it is not only the duty of the master to provide, in the first instance, safe and suitable machinery and other appliances necessary to enable his operatives to do the work for which they are employed, but that it is equally his duty to see that such machinery and appliances are kept in proper repair, and that for any negligence in the performance of either of these duties, from which an injury results to one of the operatives, the master is liable, even though these duties may have been entrusted by the master to a subordinate officer or agent, by whatever name he may be called, and without regard to the rank of such subordinate. Hence, if an injury is sustained by a servant by reason of the negligence of a mechanic, employed to keep the machinery or other appliances in proper repair, the master is liable, notwithstanding the fact that the master may have exercised due care in the selection of the agent to whom such duty is entrusted, because such duty is a duty of the master, and whether performed in person or by an agent, any negligence in the performance of it is the negligence of the master. It follows, therefore, that there was no ("tot in refusing to charge the propositions contained in either of these requests.

The judgment of this court is that the judgment of the Circuit Court be affirmed.