Cumming v. Lawrence

January 30, 1911. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff on account of the wrongful acts of the defendant.

The allegations of the complaint, material to the questions under consideration, are as follows:

1. "That on the 3d of July, 1907, Clarence Cumming, a child of eleven years of age, was in the employment of the defendant in a laundry at Glenn Springs, in said county and State, operated by said defendant, and was working under the control and direction of defendant's representative, — Heny, who was in charge of said laundry for defendant.

2. "That on said day, while he was so at work for the defendant, at a machine known as an ironer, his hand was caught and drawn into said machine, between the hot rollers thereof, by the same being started by the defendant's said representative, while his hand was in position to be caught thereby; that after said hand was so drawn into said machine, and between said hot rollers, the said defendant, by its said representative, with full knowledge of the situation, reversed the movement of the rollers, and caused the same to again mash and crush plaintiff's hand, by rerolling it in the opposite direction, and thereby so crushing and mangling his hand that it had to be amputated; said second crushing and mangling being of greater damage than the first.

3. "That by the aforesaid negligence and wantonness of the defendant, plaintiff has been damaged in the sum of two thousand dollars."

The defendant denied the allegations of negligence and wantonness, and set up the defenses of contributory negligence and assumption of risk.

The jury rendered a verdict in favor of the plaintiff, for two thousand dollars, and the defendant appealed upon exceptions, which will be reported.

First and Second Exceptions: The testimony was admitted on the ground that the complaint alleged wantonness; and, after his Honor, the presiding Judge, ruled that there was no testimony tending to show wantonness, it thereby became immaterial.

Furthermore, the witness only testified that he understood the defendant was well fixed, but did not know what he was worth. Under these circumstances, it is not reasonable to suppose that, even if there was error, it was prejudicial to the rights of the appellant.

Third, Fourth, Fifth, Sixth, Seventh and Ninth Exceptions: The question presented by these exceptions are concluded by the cases of Goodwin v. Columbia MillsCo., 80 S.C. 349, 61 S.E. 390; and Alexander v.Carolina Mills, 83 S.C. 17, 64 S.E. 914; and Owens v. Cotton Mills, 83 S.C. 19, 64 S.E. 915.

In those cases it was held that there is a presumption that a minor under fourteen years of age is incapable of assuming the risks incident to his employment, or those arising from the negligence of a fellow servant. This presumption continues until rebutted by the testimony, and the question whether it is rebutted is exclusively for the jury. See, also, Mack v. R.R., 52 S.C. 323; and Griffith v. R.R.,82 S.C. 252, 64 S.E. 222.

In the last mentioned case the Court says: "When these instructions are considered together, the meaning seems obvious, that the killing of live stock on the track, raises a presumption of negligence against a railroad company; but when the railroad company, denying negligence and assuming the burden of proving due care, offers evidence which tends to overcome the burden, placed on it by the presumption of negligence, then the jury cannot rest their verdict, on the presumption alone, but must consider, not only the presumption, but all the evidence on the subject, and rest their verdict on the preponderance of the entire evidence."

Eighth Exception: There was no error, but, even if there was, we cannot conceive of any reasonable ground for supposing that the jury was misled.

Tenth and Eleventh Exceptions: The fact that the plaintiff alleged, that he sustained damages to the amount of two thousand dollars did not preclude him from proving, that he was injured to a greater extent than that sum. The only limitation upon the plaintiff's right to recover the amount of damages, which he proved, was that the jury could not find a larger sum, than was alleged in the complaint, to wit, two thousand dollars.

Judgment affirmed.