Bryant v. Gaffney Mfg. Co. ( 1906 )

December 10, 1906. The opinion of the Court was delivered by This is an action for damages sustained by the plaintiff, through the alleged negligence of the defendant.

The complaint alleges that the plaintiff was employed by defendant as an operative in its mill, and while handling a carboy of vitriol, was injured through the negligence of the defendant. (1) In not having said carboy cased, so as to prevent it from breaking; the thinness of the carboy and lightness of construction, rendering it a part of proper care and prudence on the part of the defendant, that the same should have been cased or boxed. (2) In not furnishing him with a safe and suitable appliance with which to work, and in not informing him of the unsafe condition of the carboy, of which he had no notice.

The defendant denied the allegations of negligence, and set up as a defense, that the injury sustained by the plaintiff was caused solely by his negligence, in that he attempted to pour the vitriol out of a bottle from which he had removed the casing, and so carelessly and negligently handled the bottle that it broke; and that the plaintiff selected from a number of carboys, one having an insufficient case, instead of one with a sufficient box, which would have prevented it from breaking.

The testimony in behalf of the plaintiff tended to show that he was working in the defendant's bleaching department, and one of his duties was to pour oil of vitriol into a mixing vat made of lead; that the carboys were manipulated by placing them on a table, then tilting them and pouring the oil into a vat; that the carboys came incased in wooden boxes, and the carboy in question was in a case when brought to the plaintiff on trucks; that when there was an attempt to lift it on the table, the top of the box became loose from the bottom, which was rotten; that the plaintiff then asked the person in charge of the bleaching department for instructions, and was told to get plenty of help and proceed with it as it was, but to be careful; that the plaintiff got two operatives to assist in placing the bottle on the table, and then in a careful manner he tilted it against the vat, and was preparing to pour the oil when the bottle broke, in consequence of which he was seriously injured.

The plaintiff in his testimony said: "Q. How did you attempt to pour it in? A. I was very careful. Q. Why were you careful about poring it in? A. Well, simply because I knew that the glass would not stand as much in the condition it was then in, as it would if it had a crate around it, and I was careful. Q. You knew it was dangerous to handle that glass against that vat, didn't you? A. Certainly. Q. That is the reason you handled it so carefully? A. Yes, sir."

At the close of the plaintiff's testimony, the defendant made a motion for a nonsuit, which was refused.

The jury rendered a verdict in favor of the plaintiff for $1,000, and the defendant appealed.

The first assignment of error is because his Honor, the presiding Judge, erred in not granting the nonsuit on the ground that the plaintiff and the party in charge of the bleaching department were fellow-servants.

The presiding Judge took the view that the case did not depend solely upon that principle, and, therefore, made no direct ruling upon the question. He, however, stated that the question was whether the risk was obvious and was assumed by the plaintiff, and refused the motion for nonsuit, on the ground that the risk was not obvious.

The vital question presented by the exceptions is whether there was error in this ruling. While the evidence showed that the plaintiff did not know how thick the glass was, out of which the bottle was made, he, nevertheless, knew that there was danger in pouring the oil out of the bottle in the absence of a case enclosing it. The case, therefore, comes within the principle announced in Dawkins v. Key StoneGranite Co., 74 S.C. 419, in which the cases cited likewise show, that the plaintiff and the person in charge of the bleaching department, were fellow-servants, and the motion for nonsuit should have been granted.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.