Plunkett v. Clearwater Bleachery & Mfg. Co.

May 13, 1908. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff, through the negligence and wilful misconduct of the defendant, a corporation engaged in the business of bleaching cotton goods. The complaint alleges that the plaintiff, on the 14th of November, 1905, was in the employ of the defendant as a laborer, his duty being the steering in of cloth for the soaper, which is not a dangerous position, but that on said day the defendant transferred him to another room, with which he was wholly unacquainted, and failed to notify him of the danger, although he was only ten years of age; also that the defendant failed to provide suitable and safe appliances, but, on the contrary, furnished a piece of machinery consisting, in part, of a revolving shaft, the end of which protruded beyond the gudgeon, or socket which held the same, for a considerable distance, and which was battered and burred in such a manner as to make it dangerous. The defendant denied the allegations of negligence, and set up the defenses of assumption of risk and contributory negligence. The jury rendered a verdict in favor of the plaintiff for $3,000. The first error assigned is, that his Honor, the presiding Judge, allowed the witness Manning DeMedicis to testify *Page 312 that the defendant "did know that said piece of machinery was in the condition described by the witness, and that it was unsafe and dangerous to persons with any experience, and especially to a person of tender years, as the said Herman Plunkett was, at that time, to work in and around," on the ground that the witness should have been required to state facts showing the knowledge of the defendant company. This question arose as follows: "Manning DeMedicis if present would testify in substance as follows: `That the said Herman Plunkett, in attending to his duties, would necessarily have to go around and near the said dangerous part of the machinery, (and that the said Clearwater Bleachery Company did know, or would have known if they had exercised ordinary care, that the said piece of machinery was in the condition above described, and that it was unsafe and dangerous for persons of any experience, and especially such a person of tender years as the said Herman Plunkett was at that time, to work in and around; that he would further swear that immediately afterwards, on the same day, that said Manning DeMedicis, by the direction of the Clearwater Bleachery Company, ground off or helped to grind off the said burred edges of the piece of machinery above referred to, and that the other end of the machinery was also split, and the said machinery was soon after that accident thrown aside as being unfit for use).' "Counsel for defendant object to all of the statement included in the parentheses. "The Court admitted all of the statement, except the words within the quotation marks, 'or would have known, if they had exercised ordinary care.'" The objection fails to specify in what particular the testimony was inadmissible, and therefore is too general for consideration. Colvin v. Oil Co., 66 S.C. 61,44 S.E., 381; Gwynn v. Tel. Co., 68 S.C. 434; 48 S.E., 460;Pooler v. Smith, 73 S.C. 102, 52 S.E., 967. *Page 313 The second exception relates to the testimony of Manning DeMedicis, hereinbefore mentioned, relative to changes made in the machinery after the injury, but as already ruled, the objection was too general. Third exception is as follows: "That his Honor erred in allowing the witness, Henry Plunkett, the father of the plaintiff, when on the stand, to testify against the objection of the defendant as to the condition of the machinery in question after the accident, and what was done, by direction of the officers of the defendant company, to the machinery after the accident. In that it is submitted that the question to be considered in the case was not the condition of the machinery after the accident, but at the time of the accident, and that it is contrary to the law to permit testimony as to repairs that were made to machinery after the accident in question." The question under consideration arose during the examination of the witness, Henry Plunkett, as follows: "Q. What became of that, if you know, afterwards? A. Afterwards, it was ground off. Mr. Henderson: We object to that. The Court: He can state it was in a different condition. He can't state it was ground, unless he knows it. Mr. Henderson: May it please your Honor, it has been ruled that the condition of the machinery after an accident of this kind cannot be proven; that the question is its condition at the time. The Court: I think it is competent. Q. Did you examine that end immediately after he was hurt? A. I examined it that morning. Q. When did you see it next? A. The day afterwards. Q. The day afterwards, what condition was it in? A. Ground off; the burrs were ground off each end. Q. It was smooth then? A. Yes." William Fanning, a witness for the defendant, testified as follows: "Q. Will you look at that and tell me what that photograph represents? A. Yes; this represents what we call the analine black can, etc. Q. Was Herman hurt in your mill? A. Yes. Q. As to the place where Herman got hurt, what does that represent? A. This is a picture of *Page 314 it. Q. Were you there when the picture was taken? A. Yes. Q. Who took it? A. Mr. Cripps. Q. Did he take a picture of the frame at which Herman was hurt? A. This is the same frame. Q. Look at this and see if it represents the same frame and location or not? A. Yes. (Photographs marked No. 1 and No. 2) * * * Q. I understood you to say this represents the frame at which Herman was hurt? A. Yes. Q. On this occasion was the rod burred or not? A. Yes. Q. Plainly seen? A. Yes. Q. From where he was, was it or not in sight? A. Yes. Q. How far from the place that the burring was plainly seen did you put him to work? A. About 5 1/2 or 6 feet. Q. Good light in that room for him to see the burring? A. Yes. Q. Something has been said about the burring being filed off? A. I emeried it off. Q. When did you do that? A. I should say in the course of two weeks' time. The super came down and told me to have the thing smoothed down. * * * Q. You say this is the frame used at the time he got hurt? A. Yes. Q. But it is not the same spindle? A. No. Q. And the spindle he was hurt on, was burred at that time? A. Yes. Q. And you knew it? A. Yes. Q. How long before that had you known that spindle was in that condition? A. Perhaps four or five months. Q. And you never thought of grinding down that spindle until he was hurt? A. No, I never ground it down. Q. Then you immediately ground it down? A. In the course of two weeks. Q. Did you use it any more afterwards before it was ground down? A. Yes; in the soaper. Q. The same frame? A. Yes. Q. The same spindle the boy was hurt on? A. Yes. Q. And you are sure you did not grind it down the same day or the next day? A. I am certain." The record also discloses the fact that, in addition to the photographs, the machine which was being used at the time of the injury was introduced in evidence, but not in the same condition as when the plaintiff was injured. The exception should be overruled for the following reasons: *Page 315 First. The complaint alleges that the end of the shaft was burred at the time of the injury, and this allegation wasdenied by the answer. Testimony to the effect that the end of the shaft was emeried and made smooth, after the accident, tended to show that it was burred at the time of the injury, and such testimony was responsive to the allegations of the complaint. Therefore, the defendant did not have the right to object to the introduction of such testimony. Martin v. R.R., 70 S.C. 8, 48 S.E., 616. Second. As the testimony was competent for the purposes just mentioned, a general objection to it could not properly have been sustained. If the defendant desired a ruling by the presiding Judge, to the effect that the testimony could not be considered by the jury, in determining the question ofnegligence, then this should have been made a specific ground of objection. Third. Even if there was error in the said ruling, the objection can not be sustained, as similar evidence was introduced, without objection. Strickland v. Phillips, 75 S.C. 264,55 S.E., 453; Keys v. Granite Co., 76 S.C. 284. Fourth. After the photographs and machine were introduced in evidence, it was competent for the plaintiff to show that the condition of the machine was then different from what it was when the injury was sustained, otherwise the case would be determined upon subsequent facts, and not upon those existing at the time of the injury. The authorities cited in the argument of the respondent's attorneys fully sustain this proposition. In the fourth exception the appellant contends that there was error in charging the jury, as follows: "I have charged the law on both sides, and that means that counsel on each side have delivered the law according to their views of the facts. The plaintiff assumes the facts to be his way, and delivers it that way. The defendant assumes the facts to be their way, and states the law that way. So, if the facts be as the plaintiff assumes them to be you are bound to find for the plaintiff; and if the facts are *Page 316 as the defendant assumes them to be, you are bound to find for the defendant. Now, let me come midway betwixt them." The error assigned is, "that when the Judge charged the request to charge of the plaintiff as law, and the request to charge of the defendant as law, that was the law of the case, and to state to the jury what he was going to charge them was midway betwixt them, tended to mislead the jury, and make them believe that the request to charge was not the law." It is not contended that the presiding Judge thereafter charged any erroneous proposition of law, and the appellant has failed to satisfy this Court that, even conceding there was error, that it was prejudicial. Judgment affirmed. MR. CHIEF JUSTICE POPE concurs.