Biggers v. Catawba Power Co.

The opinion of the Court was delivered by Mr. Justice Gary. This is an action for damages in which the complaint alleges: “That on the 10th day of November, 1903, the plaintiff was employed by the defendant as a laborer in and upon its construction works near Catawba River, in said county. And on said date, while so *268 employed, the plaintiff was directed by the agent, foreman and manager of the defendant, to leave certain work on which he was then employed, and, with other laborers of the defendant, to enter a deep excavation and assist in digging and removing earth therefrom. That said earth was removed by shoveling the same into a large and heavy iron bucket, suspended from a boom, and was made to swing around and to ascend and descend into' the excavation by ropes connected with a hoisting engine nearby. That shortly after beginning work in said pit or excavation, the large iron bucket suspended as aforesaid was, by direction of defendant’s agents and servants, specially charged with the movements of the same, let down into the pit or excavation where the plaintiff was at work, with such speed, force and want of control, and without warning to the plaintiff, that he was, without fault on his part, struck by the said heavy bucket, his leg broken and his body bruised and lacerated, whereby he suffered and continues to suffer great bodily pain and injuries, disabling him from earning a livelihood by his labor. , “That said pain, suffering and disabling injuries were caused by the negligence, gross negligence, and wanton and reckless conduct of the defendant, its officers and agents in: (1) Ordering and directing plaintiff to work in a place and premises known by it to be attended with great personal danger, without warning him, who was ignorant of the danger. (2) In employing dangerous and unskillful methods, machinery and appliances, in and about the said excavation work, and in using the same in a reckless, careless, and hazardous manner. (3) In causing and permitting the bucket used to remove the excavated material to be lowered with great speed and force into the pit where the plaintiff was working, and causing the said bucket to swing and oscillate over the bottom area of the said pit, and against the plaintiff’s person; whereas, if the defendant had caused the said bucket to be managed with reasonable care, plaintiff’s injuries may have been avoided. (4) In employing *269 and retaining reckless and incompetent agents and servants to manage and control the machinery for removing the excavated earth. (5) In not providing certain safe and sufficient control of the dangerous hoisting machinery and appliances used in and about the said excavation.” The defendant denied the allegations of negligence, and set up the defenses of contributory negligence, assumption of risk, and the negligence of fellow-servants. 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 $1,500. The defendant appealed upon exceptions which will be set out in the report of the case. 1 First Exception: The witness testified from' his personal knowledge of the facts which related to the question of time. It is only neessary to refer fi> the case of Easler v. Ry., 59 S. C., 311, to show that it was competent for him to give his opinion under such circumstances. 2 It will not be necessary to consider the other exceptions separately. It is the duty of the master: (1) To furnish safe and suitable machinery and appliances and to see that they are kept in proper repair. (2) To provide a safe place to work. (3) To employ a sufficient number of servants to perform the labors of their employment. (4) To select competent servants. When there is a failure to perform any of these duties, and a servant is injured as a direct and proximate result of such failure, it constitutes prima facie evidence of negligence on the part of the master. If it is necessary in order to conduct the work in a safe manner, for the master to employ serants to give notice of danger during the progress thereof, to other servants, and injury results from such failure, the master is liable for damages. But when the master employs competent servants to give notice of danger to the other servants, they are fellow-servants, and he is not responsible for their negligence in failing to give notice of *270 danger arising from the operation of the appliances, as this is one of the risks assumed by the servant. The servant likewise assumes the usual and ordinary risk incident to the operation of the machinery. But if the danger is latent or unusual, or the servant is youthful, or the master knows he is inexperienced, it is his duty to give warning of the danger. 3 In the present case there was testimony tending to show that the place where the plaintiff was required to perform the duties of his employment was dangerous, but he was fully informed of the danger, and therefore assumed the ordinary risk incident to the work. There was no testimony tending to prove that the machinery and appliances were unsafe and unsuitable; nor that the servants employed by the defendant were incompetent; nor that a sufficient number of servants were not employed to give notice of danger. The testimony tends to show that the injury was the result of negligence on the part of the servant whose duty it was to give notice of danger. The exception assigning error in refusing the motion for nonsuit must be sustained. The principles which we have announced dispose of the other exceptions. It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case remanded for a new trial.