June 1, 1910. The opinion of the Court was delivered by The plaintiff brought this action to recover damages for personal injuries alleged to have resulted from the negligence of defendant in allowing the cog gear to remain unguarded so that plaintiff's coat was caught in the same, thereby pulling his arm into the cog gear and so injuring the same as to necessitate *Page 124 amputation. The jury rendered a verdict in favor of plaintiff for seven thousand dollars.
As we are clearly of the opinion that there should be a reversal we will notice only certain of the exceptions which compel the same.
After the pleadings had been read, plaintiff's counsel stated that he would object to the introduction of any testimony in support of the defense of contributory negligence upon the ground that such defense was not sufficiently set forth in the answer. After argument the presiding Judge announced that in his opinion, contributory negligence was not sufficiently pleaded, and that he would exclude all testimony in support thereof. While there is now no specific exception to this ruling, the question is fairly presented in the ninth and eleventh exceptions, which are as follows:
9. "The presiding Judge erred in refusing to charge the fifth instruction submitted by the defendant: `If the employer is negligent in not providing a safe place in which his employee is to work, and the employee meets with an injury thereby, yet, if a proximate cause of the injury to the employee is the employee's own negligence, concurring and combining with that of the employer, and thus contributing to bring about the injury, he cannot hold the employer responsible.' Because, it is submitted, the answer of the defendant had sufficiently pleaded contributory negligence, and no demurrer to the answer or motion to make more definite and certain having been made, the defendant was entitled to have the issue submitted to the jury.
11. "The presiding Judge erred in charging the jury as follows: `The defense of contributory negligence is not to be considered by you. I charge you that you must conclude from this evidence, or, rather, if you do conclude from this evidence that the plaintiff was injured and damaged, if you conclude that he was injured and damaged on account of his own negligence, then, under the pleadings in this *Page 125 case, the defendant would not be liable; but if, although the plaintiff was guilty of negligence, and the defendant is guilty of negligence, yet if you believe that the defendant's negligence was the direct and proximate cause of the injury, the plaintiff could still recover.' Thus again withholding from the jury the issue of contributory negligence."
Under the ruling of the Court, the defendant was denied opportunity to offer evidence as to contributory negligence, and under the charge the jury were not allowed to consider the matter of contributory negligence arising under the testimony of plaintiff. No testimony was offered in the case, except that given by plaintiff himself. It seems manifest that this is reversible error, if the defendant interposed the plea of contributory negligence.
The answer besides a general denial was as follows: 3. "Further answering, this defendant alleges that the plaintiff was the engineer of the defendant, in charge of the machinery by which he was injured, and it was his duty to make safe the place at or near the machinery where employees worked, and if the place at which he was injured was not sufficiently guarded against danger, such condition was due to the plaintiff's negligence in failing to perform his duty.
4. "And further answering, this defendant alleges that the plaintiff was fully aware of the character and condition of the machinery and cogs at which he was injured, and of whatever dangers attended upon oiling the box, and that plaintiff voluntarily assumed the risk attendant upon such oiling of the box, and his injury was due to the risk he thus assumed.
5. "And further answering, this defendant alleges that even if it were negligent — which it denies — still the accident to the plaintiff was due proximately to his own negligence, in that he conducted himself in a careless manner and failed to observe caution in keeping his body from *Page 126 coming into contact with said cogs, which he could have done if he had used due care."
Paragraph five clearly states in effect that if defendant was negligent, plaintiff's own negligence proximately caused his injury, and the facts are stated from which plaintiff's contributory negligence is sought to be inferred. The insertion of the words "which it denies" ought not be given any greater force than is involved in the previous general denial of negligence. The omission of the words "contributory negligence" or "negligence of plaintiff concurring and combining with the defendant's negligence" was not such a fatal defect as to authorize the Court at that stage of the case to ignore the attempted plea of contributory negligence, especially when the facts are stated which it is claimed show contributory negligence. This was not such an entire failure to state the defense as to warrant the Court in excluding evidence of contributory negligence, but at most, it was a defective plea which should have been corrected on motion to make more definite and certain by amendment, in harmony with the rule stated. Pom. Code Rem., 548, and in Wingo v. Inman Mills, 76 S.C. 553.
Contributory negligence is entirely distinct from assumption of risk, although in certain phases they approximate each other. The fact that there is a dim twilight marking the close of the day and the beginning of night does not destroy the distinction between day and night. Our cases clearly recognize and enforce the distinction. Bodie v. Railway,61 S.C. 468, 39 S.E., 715; James v. Mfg. Co.,80 S.C. 237-8, 61 S.E., 391.
In Norramore v. Cleveland etc. R.R. Co., 48 L.R.A., 68, Circuit Judge Taft delivering the opinion of the Circuit Court of Appeals, said: "Assumption of risk and contributory negligence approximate where the danger is so obvious and imminent that no ordinarily prudent man would assume the risk of injury therefrom. But where the danger, though present and appreciated is one which many men are *Page 127 in the habit of assuming, and which prudent men, who must earn a living are willing to assume for extra compensation, one who assumes the risk cannot be said to be guilty of contributory negligence if, having in view the risk of danger assumed, he uses care reasonably commensurate with the risk to avoid injurious consequences. One who does not use such care and who, by reason thereof, suffers injury is guilty of contributory negligence, and cannot recover because he and not the master causes the injury, or because they jointly cause it."
In the case of Schlemmer v. Buffalo etc. R.R. Co.,29 Sup. Ct., 409, after calling attention to the broad sense in which "assumption of risk" was used in the statute under consideration, viz., as covering "dangerous conditions, as of machinery, premises and the like, which the injured party understood and appreciated when he submitted his person to them," the Supreme Court of the United States said: "Assumption of risk in this broad sense obviously shades into negligence as commonly understood. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended or foreseen. He is held to assume the risk upon the same ground. Choctawetc. v. McDade, 191 U.S. 64-68. Apart from the notion of contract, rather shadowy as applied to this broad from of the latter conception, the practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of risk. The act more immediately leading to a specific accident is called negligent. But the difference between the two is one of degree rather than of kind."
In a dissenting opinion in which Justices Brewer, Peckham, McKenna and Day concurred, it is stated: "That *Page 128 there is a vital difference between assumption of risk and contributory negligence is clear. As said by this Court inChoctaw etc v. McDade, 191 U.S. 64, 68, `The question of assumption of risk is quite apart from that of contributory negligence.' See also Union etc. v. Brien, 161 U.S. 451. This proposition, however, is so familiar and elementary that citation of authorities is superfluous."
We do not think the case of Schlemmer v. Ry., supra, justifies a conclusion that the difference between the defenses of assumption of risk and contributory negligence is so shadowy that one denied the right to show contributory negligence has no right to complain if he is permitted to show assumption of risk. If, indeed, these defenses are practically the same, then it would follow that defendant, having admittedly pleaded assumption of risk, should not have been deprived of the right to have the jury consider the facts with reference to contributory negligence.
The plaintiff alone testified, and giving his testimony the most favorable construction defendant was entitled to a nonsuit.
Plaintiff was head engineer of the defendant company, twenty-eight years old, and had been engineer for defendant for about a year before the accident. As engineer he had charge of the machinery with which he came in contact when injured and when it was out of order it was his duty to repair it or see that it was done. On December 2, 1907, the superintendent was near and heard the creaking of the machinery and directed plaintiff to fix it at once. This was merely telling plaintiff to perform a neglected ordinary duty. The machinery was creaking for want of oil which the plaintiff and his assistant had failed to apply. This machinery consisted of a small engine on the floor attached by belt to pulley on shaft about eight feet above, near the end of which shaft was a small cog wheel meshing with a much larger cog wheel on another shaft on which was the pulley driving the conveyor chain *Page 129 which carried fuel to the furnace. The machinery had no other connection with the main plant and could be stopped almost instantly without stopping the operation of the mill. It was the usual duty of the assistant under plaintiff to oil this machinery, but plaintiff had never seen the assistant attempt to do so with his coat on. The fireman being otherwise engaged at the moment, plaintiff climbed up to where the cog wheels were, ascertained that the boxes holding the shaft were dry, and in attempting to oil them his coat sleeve was caught in the meshes of the cog wheels and his right arm dragged in and crushed. The cog wheels worked inward on the upper side, and it was said that if the cog wheels had worked outward the injury would not have happened. The complaint did not allege negligence of the defendant in this regard, but it cannot escape attention that if the cog wheels worked inward above they necessarily worked outward below, or vice versa, so that a mere change in the revolution of the wheels would merely have changed the point of danger from above to below to a person carelessly working about the cog wheels with coat on. The danger arising from contact with moving cog wheels was manifestly one which any person of ordinary prudence, much more experienced engineer in charge, should have known called for care. Nevertheless, plaintiff failed to stop the gear, which he might have done in a moment and oiled with perfect safety. Choosing to risk the motion of the machinery he might have removed his coat as his assistant always did, so as not to run the risk of having it drawn into the cog wheels. Concluding to take these hazards, easily avoidable, he worked over the moving cog wheels with his coat on without paying any attention whatever to the danger of having his coat caught in the meshes.
Such is the testimony on cross-examination: "Q. Did you know if two cog wheels were revolving that way, if anyone got in them he would be dragged in? A. I never gave it any thought. Q. You don't know that? A. I know *Page 130 it now. Q. You don't know it now? A. Of Course, I know if you got in there. Q. I ask you if you don't know if you got in two cog wheels revolving together, it would crush the thing that got in it? A. I know it now. Q. Did you know it before? A. No, sir. Q. You mean to tell me that you are an engineer, head engineer of the Tuxbury Lumber Company, and you don't know that if a piece of cloth or anything else got in two cog wheels revolving in the same direction that it would be dragged between them? A. I know that. Q. Had you not always known that? A. If I had given it a thought and looked at it I would have known it, but I never paid any attention."
On redirect examination: "Mr. Armstrong, Mr. Miller tried to make it appear that you practically did not know that if two gears were working in opposite directions, as a matter of course, you know that a man would get hurt that way? A. Yes, sir."
If, therefore, it be concluded that the cog wheels could have been so guarded as to prevent an employee from coming in contact therewith, and that defendant was negligent in not so guarding them it is clear that plaintiff knew or should have known that they were unguarded, and that he must be held to have assumed the risk of oiling the machinery with a coat on while in motion. There is no element of inexperience or emergency to take the case out of the ordinary rule. The risk assumed was after full knowledge of the conditions, and was one incidental to performance of his work and arising during its progress. Martin v. RoysterGuano Co., 72 S.C. 242, 51 S.E., 680; Wofford v. CottonMills, 72 S.C. 348, 51 S.E., 918; James v. Fountain InnMfg. Co., 80 S.C. 332, 61 S.E., 391.
The judgment of the Circuit Court should be reversed.
MR. JUSTICE HYDRICK. I base my concurrence in the result on the ground that there was no evidence of negligence on the part of the defendant. The only allegation of *Page 131 negligence is that the cogs which injured plaintiff were not covered. According to the testimony, they were elevated on a frame eight to ten feet above the floor of the engine room, so that there was no danger of any one coming in contact with them, unless he got up on this frame. It appeared that it was not necessary for any one to get up there, except for the purpose of oiling the boxes which held the shafting, or perhaps to adjust or repair the cogs themselves. They could have been instantly stopped by turning a valve at the base of the frame. Under these circumstances, I do not think that ordinary prudence would have suggested to any one that they should be covered. It may be that, if they had been covered, the accident would not have happened, though that is by no means certain. But it is generally easy enough, after an accident has happened, to suggest some means whereby it might have been prevented. It does no follow, however, that we must, therefore, conclude that ordinary prudence would have suggested the adoption of such means in the first instance. In this view of the case, I deem it unnecessary to consider the defenses set up and attempted to be set up in the answer, for the defenses may properly be considered only after a prima facie case has been made out against the defendant.
This Court has stated in several recent decisions how the defense of contributory negligence should be pleaded. While no set form of words is necessary, the facts must be alleged from which a reasonable inference can be drawn that the injury was caused by the joint concurrent negligence of both parties as proximate causes thereof. No such allegation was made, and, therefore, the plea was objectionable, but the objection should have been taken by demurrer for insufficiency of the facts alleged to constitute the defense.
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