Jennings v. Mfg. Co.

October 7, 1905. The opinion of the Court was delivered by The plaintiff, who was an engineer at defendant's mill in charge at night of the engine and boiler and of the pipes attached to them, was injured while going from the engine to the pump by stepping into a pool of hot water made by the breaking of a defective underground pipe. The judgment was for the plaintiff, and the defendant appeals.

Gardner, master mechanic of the mill, under whom plaintiff worked, testified his own duties "were to keep up the machinery and to see that everything was in running condition." His testimony, and that of other witnesses for plaintiff, was to the effect that before the accident he had twice seen the pool of hot water, and his attention had been called to the defective pipe, and instead of repairing it, being "pushed up with work," he "poked in cinders" to stop the hole, and "just let it go." He stated also that he had talked to the superintendent about the defective pipe a few days before the accident. This witness further says upon examination, after the accident he found the pipe "corroded and eat up with rust, little bubbles, holes all through it." The plaintiff was on duty only at night, and testified he had no information before the accident that there had been a leak or that the pipe was defective. There were two ways of going from the engine to the pump used by the employees of the mill, one through the door and the other through a window. The plaintiff was injured on the way that led through the window; whereas, if he had gone through the door, the accident could not have occurred. The superintendent, Spencer, testified he had given both Gardner and Jennings specific instructions not to allow any one to use the way through the window. He denied the knowledge imputed to him by Gardner, the master mechanic, of the defects which were alleged to have caused the injury. There was evidence on the part of defendant to the effect that the pipe was stopped at its vent by clinkers dumped there by the fireman, who was working under the direction of the plaintiff, and that the steam and hot water would not have escaped and made the pool but for this stoppage.

The foregoing statement indicates the issues of fact with sufficient clearness for an understanding of the questions of law made by the appeal.

The record furnishes no ground for this Court to inquire whether there was any evidence to warrant a verdict for punitive damages. There was no motion for a nonsuit as to the cause of action for punitive damages, and no request to charge that under the proof the plaintiff was not entitled to such damages. In the absence of such action on the part of the defendant, it was not reversible error for the Circuit Judge to charge the general law applicable to that cause of action. This disposes of the 3d 6th and 13th exceptions.

The 2d and 4th exceptions fail because it is too manifest for anything more than mere statement that when the Circuit Judge said, "Where a person in the employment of another is injured through the default or neglect of the master who employs him, and the injury is due to said fault or neglect, then the party can recover," he announced a proposition of law and did not charge on the facts. Plaintiff's injury was no more in dispute than his name, and, as has been often said by this Court, it was not error for the Circuit Judge to assume the fact in his charge.

The 5th exception cannot be sustained, because the charge fully and clearly stated the law as to contributory negligence as requested by defendant.

The appellant fails to state in what respect the propositions taken from the charge in the 8th, 9th, 10th and 11th exceptions are erroneous. They are as follows:

"A master is liable for injury to his servant caused by his own negligence or the negligence of any person representing him, and the person employed to do anything which is the master's duty to do is the master's representative.

"If there is a defect in appliances, inclusive of a place to work, then whether a servant is guilty of contributory negligence by remaining in the employ of the master after knowledge of such defect, is a question for the jury.

"There can be no assumption of risk by an employee without knowledge of the risk, as the doctrine of assumption of risk depends upon agreement or waiver, which depends upon such knowledge.

"It is the duty of the master when a servant is set to work in a dangerous place or with dangerous machinery, material or other appliances, where he knows, or ought to know, that the servant is not aware of the danger, to notify him of the same."

No one will dispute that these are correct general statements of the law. If instructions were desired as to what constitutes representation of the master and what the duties of the master are, or when assumption of the risk may be presumed from remaining in the employment of the master after knowledge or notice of the defect and of the danger, and as to when such notice or knowledge will be imputed, requests should have been submitted covering the modification or elaboration desired. State v. Kendall, 54 S.C. 192; Croswell v. Association, 51 S.C. 103; State v. Adams, 68 S.C. 421, and authorities cited.

The defendant insists by his 12th exception that a charge on the facts was contained in the following instruction: "If the jury believe from all the evidence that the defendant is liable to the plaintiff for damages in this case, in estimating the same you may consider the following elements of damages if you find them to exist in this case: Loss of time to the plaintiff; expense incurred by reason of injury or sickness, if there was any; the physical and mental pain and suffering which the plaintiff has already endured by reason thereof, and also that which he is liable to experience in the future by reason thereof; the impairment of health resulting from such injury or sickness; the pecuniary loss sustained up to the trial of this case by reason of such injury or sickness, and the pecuniary loss to the capacity to earn in the future." As these elements of damage have universal judicial recognition, we can conceive of no view, and counsel have suggested none, in which this can be regarded a charge "in respect to matters of fact," the fact of injury not being in dispute.

The charge as to the duty of the master to use due diligence to discover latent defects quoted in the 14th exception is in accordance with the rule laid down inChase v. Electric Co., 64 S.C. 215, 41 S.E., 899.

The test of a master's duty in furnishing appliances is whether he furnished such as were reasonably safe and suitable, not whether they are "of the character ordinarily in use," and, therefore, the words just quoted from the defendant's request on this subject were properly stricken out. Lowrimore v. Palmer Mfg. Co., 60 S.C. 153,38 S.E., 430.

In the 16th, 17th and 18th exceptions, defendant complains of the admission and the exclusion of certain evidence, but no grounds are stated either in the printed case or the argument; hence we are unable to consider these exceptions, and infer they are regarded of no importance.

The Circuit Judge having already charged in effect that the master was not liable for an injury due to the ordinary hazards of the business, or the rashness or negligence of the servant himself, the failure to repeat the instruction as a modification of plaintiff's request as to the master's duty to furnish safe appliances and a safe place, obviously was not error. The 19th exception is overruled.

The 20th and 21st exceptions complain of error in not charging certain propositions of law. The Circuit Judge made a general and comprehensive charge, embracing all the issues as they had been made to appear to him in the course of the trial. He then charged every request submitted by the defendant, with the slight modification above referred to in discussing the 14th exception. These requests did not include the proposition which it is now submitted should have been charged. It is manifestly too late to submit them now.

The defendant strenuously urges that the 1st and 7th exceptions should be sustained. They are as follows:

"1. Except because his Honor erred in charging the jury that `it was the duty of the defendant company to keep the means and appliances and machinery in proper condition, to keep them in proper repair;' whereas, he should have charged the jury that it was the duty of the defendant company to furnish proper machinery and appliances to the engineer, to plaintiff herein, to enable him to operate the machinery; and it was the duty of the engineer to use said appliances in such manner as to keep the machinery and appliances in proper repair and in a reasonably safe condition.

"7. Because his Honor erred in charging the second request of the plaintiff, that is, `It is the duty of the master to provide suitable machinery and appliances and keep them in proper repair, and the employee has the right to assume that the master has discharged his duty in this respect, and is not bound to exercise care in ascertaining whether the master has so acted.' The Judge should have charged in this case that it was the duty of the plaintiff, acting as engineer in charge of this machinery and appliances, to keep the same in proper repair."

It might be sufficient to say that the modifications now suggested were not presented to the Circuit Judge. But if they had been, it would have been error to adopt them. The defendant's position is that it was the duty of the plaintiff to see that the pipes were in repair while he had charge. Assuming this to be the duty ordinarily incident to plaintiff's employment, manifestly the defendant as master would not be allowed to supply an appliance which it knew to be defective, and then escape liability for injury to its servant, the plaintiff, due to the defect, on the ground that he was intrusted with the repair of the appliance, and failed to discover the defect. Good faith in such case imposes on the master the duty to make known the defect. From the statement of the issues of fact made at the beginning of this opinion, it will be seen there was testimony to the effect that the defendant, through its superintendent, was fully advised of the defect, yet it failed to make the defect known to the plaintiff, and he was in entire ignorance of it. It is true, the superintendent denied the knowledge imputed to him, but upon this point the testimony raised a vital issue of fact. To have charged without qualification that it was plaintiff's duty to keep the pipe in repair, would have placed upon him responsibility to discover and repair a defect not known to him as servant, without respect to the duty of the defendant as master to impart to him as servant the actual knowledge of the defect imputed to it by some of the witnesses. These exceptions are, therefore, overruled.

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

THE CHIEF JUSTICE did not participate in this opinionbecause of illness.