Hill v. Broad River Power Co.

*282 The opinion of the Court was delivered by Mr. Justice Beease. This suit, growing out of the alleged wrongful death of plaintiff’s intestate, N. B. Hill, was tried in the Court of Common Pleas for Richland County before Hon. H. F. Rice, Circuit Judge, and a jury. There was a directed verdict in favor of the defendant as to punitive damages. Defendant’s motion for a directed verdict as to actual damages was refused. The jury returned a verdict in favor of the plaintiff for actual damages. The appeal is by the defendant from that verdict and the judgment thereon. The exceptions all relate to the trial Judge’s refusal to direct a verdict as to actual damages. These charge error on the part of Judge Rice in refusing to direct the requested verdict on these grounds: (1) That there was not sufficient evidence of actionable negligence; (2) that the only reasonable inference to be drawn from the evidence was that plaintiff’s intestate assumed the risk of the work he was engaged in; and (3) that the deceased was guilty of contributory negligence. This Court has been much impressed with the statement of facts and the argument of counsel for the respondent, and we think these cover and set forth all that is necessary for us to say in this case. We have, therefore, with appropriate changes, adopted that statement and argument as the opinion of the Court. The plaintiff alleged that, while her intestate was working for the defendant as foreman of one of several squads of laborers engaged in clearing up a right-of-way for a line of power wires, a tree fell upon him, and he was killed. As to the cause of the falling of the tree, the plaintiff alleged: “6. That on April 1, 1927, and for several days prior thereto, the defendant company had a squad working under another foreman, the servant and agent of the defendant, on the right-of-way hereinabove mentioned, at a point between the Broad and Saluda Rivers and about three miles west of the City of Columbia, where there was a very thick and *283 heavy growth of trees and bushes. That said squad of men in opening said right-of-way carelessly and negligently and with willful disregard of the rights of others having to pass along said right-of-way, nearly severed and cut a large tree from its stump and roots but left the same standing with its gaping wounds concealed in a growth of bushes, briars and weeds; the said defendant knowing that to leave said tree so standing would greatly endanger the lives of those passing along said right-of-way, and also well know-in that plaintiff’s intestate and others would be passing that way in the discharge of their duties.” “9. That the death of the plaintiff’s intestate was due to the carelessness, negligence, willfulness and wantonness of the defendant, its servants and agents in cutting and leaving said tree, which fell upon the plaintiff’s intestate, standing, but liable to fall at any minute; in failing to furnish the plaintiff with a safe place to work, the place being unsafe by reason of the cut, but unfelled tree, standing in a concealed place and in failing to warn the plaintiff of the latent danger of working at said place under the circumstances.” By its answer, the defendant pleaded a general denial, contributory negligence, and assumption of risk on the part of the plaintiff’s intestate. It appears that, when the appellant served its proposed transcript of record, there was in it the following statement: “Under this general head the defendant argued : “(a) That deceased was sole representative of the master, was in Charge of the work, and hence responsible for the condition under which the cutting was being .undertaken; “(b) He assumed the risk of the work; “(c) That he was guilty of contributory negligence. “(After argument, the Court sustained the motion as to punitive damages, but overruled the motion as to the second ground of the motion and submitted the case to the jury.)” As amendment of the proposed transcript, the respondent suggested that the statement above quoted should be stricken *284 out and the stenographic record of the motion for a directed verdict by the defendant inserted in lieu thereof. The amendment was not agreed to, and the case was submitted to Judge Rice for settlement. By his order settling the case, Judge Rice ordered: “That the proposed amendments of respondent be and the same are hereby allowed and that the proposed case as amended shall constitute the case for appeal, with leave to the appellant to set out the foregoing matter in an appendix to the case, if it deems advisable.” The matter which Judge Rice gave leave to have printed in the appendix is that part of the proposed case, which his Honor ordered should be stricken out of the record. From the order settling the case, or transcript of record, the appellant did not appeal. This Court, then, can consider as having transpired at the trial of the cause only that which the Court stated took place. And in this connection we note that the only questions raised on the motion for a directed verdict were as to the sufficiency of the evidence to sustain a verdict of actual and punitive damages. See Southern Pine Lumber Co. v. Martin, 118 S. C., 319, 110 S. E., 804; Glenn v. Southern Railway Co., 145 S. C., 41, 142 S. E., 801; Kneece v. Hall, 138 S. C., 157, 135 S. E., 881. No question as to the assumption of risk or contributory negligence then having been made in the motion for a directed verdict, the appellant cannot now complain that the Court erred in not directing a verdict for the defendant on account of the plaintiffs assumption of risk or contributory negligence. See Gilliland v. Railway, 86 S. C., 137, 68 S. E., 186, where at page 140 (68 S. E., 187) it appears that: “At the close of the plaintiff’s testimony, the defendant’s attorneys made a motion for a non-suit, on the grounds that there was no evidence of negligence on the part of the defendant, and that the testimony showed that the plaintiff was guilty of contributory negligence.” On appeal from a judgment rendered for the plaintiff in that case the *285 Court said: “We have not discussed the question whether it appeared from the evidence, that the plaintiff assumed the' risk which caused the injury, as this was not made a ground for non-suit, or for a new trial.” See, also, Thomas Drug Store v. National Surety Co., 104 S. C., 190, 88 S. E., 442; Hill v. Railway Co., 67 S. C., 548, 46 S. E., 486; Mims v. Hair, 80 S. C., 460, 61 S. E., 968. By the only exception, then, which assigns error to any ruling by the Court below, the appellant says that there was not sufficient evidence of actionable negligence to warrant the case being submitted to the jury. Since one cannot recover damages of another unless the second has failed to discharge a duty which he owed to the first, and since in this case the plaintiff alleges that the defendant cut the tree, and left it standing as above described, the inquiry is: Did the defendant owe the plaintiff’s intestate the duty not to so cut and leave the tree ?■ The duty which one owes to another under' such circumstances is declared in verses 33-34 of the Twenty-first chapter of Exodus, as follows: “33. And if a man shall open a pit, or if a man shall dig a pit, and not cover it, and an ox or an ass fall therein; “34. - The owner of the pit shall make it good, and give money unto the owner of them; and the dead 'beast shall be his.” It is a long cry from Moses to the present day, but there has been little change in the law in the meantime, as shown in the case of Bradford v. Woolworth Co., 141 S. C., 453, 140 S. E., 105, where, quoting from 20 R. C. L., 55, 56, it was said: “The authorities are entirely agreed upon the proposition that an owner or occupant of lands or buildings who directly or by implication invites or induces others to go thereon or therein owes to such persons a duty to have his premises in a reasonably safe conditioñ and to give warning of latent .'or concealed perils. In the language o'f -a recent' opinion: ‘Thé *286 law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them.’ If there are hidden dangers upon the premises he must use ordinary care to give warning thereof. While the rule has. been applied in innumerable situations, it has been invoked most frequently, perhaps, in the case of injuries from unguarded excavations, unprotected stairways, hatchways, trapdoors, turnstiles, revolving or swinging doors, and collapsing buildings. The facts of the particular case are, of course, controlling upon the question of negligence, and the decision thereon is properly within the sphere of the jury.” 20 R. C. L., 55, 56. And in the same case Mr. Chief Justice Watts, basing his conclusion on the cases of Grainger v. Rwy., 101 S. C., 73, 85 S. E., 231; Branch v. Ry., 35 S. C., 405, 14 S. E., 808; Lasure v. Graniteville Mfg. Co., 18 S. C., 275; Trimmier v. Railway, 81 S. C., 203, 62 S. E., 209, said: “The law imputes to the master knowledge of latent danger in his instrumentalities and casts on him the burden of proving that he could not have discovered the danger by the exercise of due diligence. Trimmier v. Railway, 81 S. C., 203, 62 S. E., 209.” Two cases involving death or injury from falling trees have been in recent years before this Court. Kinsey v. Colleton Cypress Co., 118 S. C., 234, 110 S. E., 395, and Grier v. Winyah Lumber Co., 144 S. C., 10, 141 S. E., 685. In the Kinsey case, the plaintiff alleged that the death of her intestate was due to the carelessness of the defendant in (a) failing to instruct the deceased of the danger, (b) in failing to warn the deceased of the danger in felling trees, (c) in failing to warn an inexperienced servant, (d) in not furnishing the deceased with a safe place to work. In disposing of specification (a), the Court said: *287 “The instructions to which the testimony referred were instructions that would enable the cutter to avoid injury from the tree that was being cut down. There is no presumption of negligence here. The injury in this case was not from the tree that was being cut down, but from the dead tree. The testimony in the case utterly failed to connect the fall of the dead tree with the fall of the tree that was cut down. The plaintiff’s witness, Varn, said he did not know what caused the dead tree to fall. Indeed, the appellant’s argument frankly states/the cause of the falling of the dead tree being unknown.’ This specification is not made out.” In disposing of specification (b), the Court said: “(b) The next allegation, of negligence is like the first — a failure to warn the deceased of the dangers of felling trees. What is said above determines this specification, and it cannot be sustained.” In passing on specification (c), the Court said the same was not supported by the evidence. As to specification (d) ■ — failing to furnish the deceased a safe place to work — the Court said: “The plaintiff emphasized the danger of felling trees. It is conceded in this case that felling trees is a dangerous business, and that the deceased knew it. It is not suggested that it is the duty of the master to free-the woods of dead trees before his employees should be allowed to enter upon their work. The master is liable for negligence in failing to provide a reasonably safe place, considering the nature of the work. When the plaintiff failed to connect the fall of the dead tree in any way with the felling of the tree, she failed to make out her case, and a verdict should have been directed.” The case at bar is readily distinguishable from the Kinsey case by the fact that, while in the latter case the defendant did nothing whatever to cause the tree which fell on the deceased — a dead tree standing in the forest- — to fall, in the case at bar, the defendant by almost severing a live, grow *288 ing tree, and leaving it standing in that condition, caused the tree to fall. The two cases are also distinguishable by the fact that in the Kinsey case the deád tree was plainly visible - — a patent danger, while that which caused the tree to fall in the case at bar was latent, or concealed — the hacked place on the tree concealed in undergrowth and bushes. And further, while in the Kinsey case the defendant did nothing to render a dangerous place more dangerous, in the case at bar the defendant increased the danger. In the Grier case, the cause of action was based on the alleged negligence in failing to furnish the plaintiff a safe place to work; the plaintiff alleging that the defendant was at the time engaged, through its servants and agents, in cutting down a large tree which was in close proximity to the place where the plaintiff was at work splitting logs, and in failing to warn him of the danger to which he was exposed. As shown by the evidence in the case at the time of his injury, the plaintiff Grier was engaged in splitting logs while two other laborers were sawing down a tree near where he was working, and the tree which these two laborers were cutting down fell on the plaintiff. These laborers, however, were in plain view of the plaintiff, who both saw and heard them at work. With reference to the law and facts in that case, the Court said: “1. Was there any evidence showing negligence on the part'of the defendant in failing to furnish the plaintiff a reasonably safe place to work ? We think hot. As said in Brabham v. Telegraph Co., 71 S. C., 53, 50 S. E., 716, ‘the place and character of such work (felling and removing trees) necessarily involved some danger as an incident of th’at kind of employment.’ The plaintiff had had several years’ experience in logging, and must have known of the existence of •such danger,' which was open and- obvious, and could as readily have been known' and appreciated by him as by the defendant'. As in Wofford v. Cotton Mills, 72 S. C., 346, 51 *289 S. E., 918, there was no ‘evidence of disability or lack of experience or ordinary intelligence. The risk was obvious, and could not fail to be comprehended by a person of meager, not to say ordinary, understanding.’ “The nature of the work and the circumstances of the employment being taken into consideration, the place of work was safe enough in the first instance. Whatever danger there was arose during the progress of the work, but unless it arose through the negligence of some one performing non-delegable duties of the master to the plaintiff — ‘in charge for the master,’ as said in Leopard v. Beaver Duck Mills, 117 S. C., 122, 108 S. E., 190 — its existence cannot be imputed to negligence of the master. The evidence admits of no other inference than that Avant, Goude, the plaintiff, and Haselden were engaged in a common undertaking, and that, in sawing the tree which fell on the plaintiff, Avant and Goude were engaged in the performance of the ordinary duties of their employment, and not in the performance of any duty owing by the master to the plaintiff, and were therefore fellow-servants of the plaintiff.” Counsel for appellant takes the position that the plaintiff’s intestate, and Derrick, the other foreman, were fellow-servants engaged in a common enterprise. But the evidence shows that they were not; at least that there was evidence to go to the jury oh that question. While the evidence shows that they were both engaged in doing the same kind of work, they were not working together, nor at the same place. Derrick testified that the squad with which he was working, and which cut and left the tree standing, left the same three days before the tree fell on Mr. Hill. This being true, it would indicate that Derrick and Hill were not fellow-servants. The danger did not arise by an act of omission or commission of the foreman, Derrick, omitted or committed while he and the deceased were engaged in a common enterprise, but the dangerous condition grew out of an omission of duty that the master owed not only to the deceased, *290 but to all having any business upon the premises as servant, licensee or otherwise. The fact that the deceased was at work for the defendant at the time he was killed merely shows that he had the right to be where he was. Moreover, the question of assumption of risk was properly submitted to the jury under the case of Kirkland v. Railway Co., 128 S. C., 47, 52, 121 S. E., 594, 596, in which case the Court, quoting from Railway Co. v. Horton, 233 U. S., 504, 34 S. Ct., 640, 58 L. Ed., 1062; L. R. A., 1915-C, 1, Ann Cas. 1915-B, 475, said: “Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it, unless defect and risk alike, are so obvious that an ordinarily prudent person under the circumstances would have observed and appreciated them. These distinctions have been recognized and applied in numerous decisions of this Court.” See, also, Kelly v. Keystone Lumber Co., 107 S. C., 96, 91 S. E., 978, where the Court said: “Assumption of risk is an affirmative defense, and his Honor, Judge Shipp, could not have directed a verdict.” In Pinckney v. Railway Co., 92 S. C., 528, 75 S. E., 964, the Court said: “In order to escape liability on the ground of negligence of a fellow-servant, it must appear that the master was not negligent at all as to any of the proximate causes of plaintiff’s'injury.” In Elms v. Power Co., 79 S. C., 502, 60 S. E., 1110, the Court approved this instruction to the jury: “The servant *291 assumes the dangers incident to his employment, but does not assume the dangers of defective machinery, methods or surroundings, unless he knows it, or unless a man of ordinary prudence, reason and sense, placed in cimilar circumstances, ought to have known.” The judgment of this Court is that the judgment of the lower Court be, and the same is hereby, affirmed. Mr. Chiee Justice Watts, and Messrs. Justices Sta-beER and Carter concur.