Grainger v. Greenville, S. & A. Ry. Co.

The first opinion was delivered by Mr. Chief Justice Gary. This is an action for damages, alleged to have been sustained through the wrongful acts of the defendant in causing the death of plaintiff’s intestate. The third and fourth paragraphs of the complaint, are as follows: “That on Friday, November 22, 1912, Abell Grainger, who was a minor, 19 years of age, and inexperienced in the work in which he was engaged, was in the employ of defendant company, as a laborer on a construction gang, a few miles from the city of Greenville. He had been engaged in this work for about two weeks, and before that time, plaintiff had had no experience in such work; the gang during the time said Grainger had been in its employ, had been engaged in general construction and building work, excavating, filling, etc. Said Abell Grainger was working under Mr. Musselwhite, who was foreman of the gang, and had the right and power to direct and control his services, and the services of the gang, and all work and acts herein referred to were done under the orders and directions of said Mussel-white, and all instructions and orders herein referred to were given by said Musselwhite and by defendant company, through its representatives, officers and duly authorized agents. On Thursday, November 21, 1912, said Abell Grainger, along with the gang, was put to work by defendant company at the work of quarrying-and removing soft stone or *82 gravel from a pit in a cut on defendant’s line of road, which was new and unusual work for both him and the gang, he having never done such work before. That the overhanging roof of the pit was composed of soft and seamy strata of soil, gravel, etc., and that it had been further rendered seamy and unsafe, by the blasting and other work that had been done there by the defendant company, by the percolation of water, etc., rendering the place dangerous; but that the danger was latent and not known to said Grainger, although the defendant knew, or by proper inspection, or by the exercise of proper care and diligence should have known, and could have easily avoided said dangers. While engaged in said work a large amount of earth caved and fell in upon said Abell Grainger, and his fellow workmen, and crushed and injured him, so that a few days thereafter he died.” ' In the fifth paragraph of the complaint, the proximate causes of the injury are alleged, one of which is that the defendant negligently, recklessly and wantonly failed to provide a safe place for Abell Grainger to work. After denying certain allegations of the complaint, the defendant set up the following defenses: 1. Negligence of a fellow servant; 2. Contributory negligence, and 3. Assumption of risk. The jury rendered a verdict in favor of the .plaintiff for $3,000.00 (but did not state how much thereof was for actual, or what part was for punitive damages), and the defendant appealed. 1 The exceptions numbered 1, 2, 3, 4, 5 and 6 are overruled, for the reason that even if there was error, it was not prejudicial. 2 The next question that will be considered is whether there was error on the part of his Honor, the presiding Judge, in refusing defendant’s motion for the direction of a verdict, on the ground that there was no tes *83 timony tending to sustain the cause of action, based on negligence. There was testimony tending to sustain the allegations in paragraph 4 of the complaint, as to the dangerous condition of the place where Grainger was at work when injured. When there is testimony to the effect that there was a failure on the part of the master to provide a safe place for the servant to work, it makes out a prima facie case of negligence against the master; and if there are reasons why the master should not be held liable for his failure to discharge this primary duty to the servant, he must rely upon them as a defense. “The allegation' on the part of a servant that he has sustained an injury while in the service of the master, by reason of the neglect of a duty which the latter owes to the former, unquestionably states a cause of action, for, as said above, the omission of such duty affords at least prima facie evidence of negligence, and while it is true that such prima facie evidence showing may be rebutted by evidencé tending to show that such omission of duty on the part of the master was not owing to his want of care and diligence, but was due to other causes which he could not control, yet until such prima facie showing is rebutted, it will be conclusive. For instance, the master may show that he did not know, and could not, by the use of due care and diligence, have ascertained, that there was any such defect in the machinery or other appliances furnished the servant, as would be likely to cause the injury complained of; but until this is shown, the failure to perform an acknowledged duty stands unexcused and renders the master responsible. 3 It seems to us, therefore, that want of knowledge on the part of the master of the defect in the machinery, being a matter of excuse for the failure on his part to perform an acknowleged duty, constitutes matter of defense, and is not an element in the cause of action. Branch v. Ry., 35 S. C. 405, 14 S. E. 808. *84 These principles were subsequently approved, in the following cases: Mickle v. Company, 41 S. C. 399, 19 S. E. 725; Farley v. Company, 51 S. C. 222, 28 S. E. 193, 401; Hicks v. Ry., 63 S. C. 559, 41 S. E. 753; Richey v. Ry., 69 S. C. 387, 48 S. E. 285; Willis v. Company, 72 S. C. 126, 57 S. E. 538; Green v. Ry., 72 S. C. 398, 52 S. E. 45, 5 A. & E. Ann. Cas. 165; Trimmier v. Ry., 81 S. C. 211, 62 S. E. 209; Strauss v. Ry., 94 S. C. 324, 77 S. E. 1117; Staunton v. Corporation, 97 S. C. 403, 81 S. E. 660. 4 It will thus be seen that his Honor, the presiding Judge, could not have ruled the prima facie evidence of negligence was rebutted by the testimony upon which the defendant relied to sustain its defense without invading the province of the jury. The next question to be determined is, whether there was error on the part of his Honor, the presiding Judge, in refusing the motion for the direction of a verdict for the defendant, on the ground that the only inference to be drawn from the testimony was, that Grainer assumed the risks incident to his employment. 5 There was testimony to the effect that the injury was. caused by the failure of the defendant to provide a safe place to work, which was one of the primary duties resting upon the master. It is unnecessary to cite authorities to sustain the proposition that the failure of the máster to discharge this primary duty is not one of the risks assumed by the servant. 6 The last question presented by the exception is, whether his Honor, the presiding Judge, erred in refusing the defendant’s motion for the direction of a verdict, on the ground that there was no testimony tending to show that the plaintiff was entitled to punitive damages. There is no testimony tending to show that the defendant had actual knowledge of the dangerous condition of the place where the intestate was injured; nor did the witnesses upon whose testimony the plaintiff relied, give the defend *85 ant, or the foreman of the gang, any information as to the condition of the soil where Grainger was at.work; nor were their passing remarks sufficient to put the defendant upon inquiry, which, if pursued with due diligence, would have led to knowledge as to the dangerous condition of the soil. I think, therefore, there should be a new trial. Mr. Justice Hydrick delivered the following opinion: I think the judgment should be affirmed. The deceased was shown to be a young man, nineteen years of age, of good health, habits and character. A verdict for $3,000.00 for his death can hardly be said to include punitive damages. But if it did, there was evidence to sustain such a verdict. The workmen were ordered to dig back under a bank — a work obviously dangerous — if there had been no testimony tending to show that the attention of the foreman was drawn to the danger of the situation, his failure to take proper precautions for the safety of the workmen might be attributed to inadvertence, or negligence only. But the mind of the foreman evidently adverted to the probability of the overhanging bank falling upon the workmen, as shown by the fact that he put some workmen above to dig off the overhanging bank as the workmen below undermined it, and ordered them to the other side of the cut just before the accident. Besides this, within an hour of the time the bank fell on Grainger, the foreman’s attention was called to the workmen by two different persons, Mrs.'Ogden asked him if they were not in danger. He replied with a shrug, “I am obeying orders.” And Will Ashmore, an employee of defendant engaged with another squad of laborers working near by, passed by where deceased was at work, and said to one of the deceased’s colaborers, in the presence and hearing of the foreman, “I would not work in that hole for $1.25 a day.” Whereupon, the foreman told Ashmore to go on, that he (the foreman) was bossing that job. *86 I think this testimony warranted a reasonable inference of a conscious failure to observe due care for the safety of the workmen under the bank. In several cases this Court has held that if a tort is committed in such manner or under such circumstances that the jury may find that a person of ordinary reason and prudence would have been conscious of it as such, punitive damages may be recovered. Tollison v. R. Co., 88 S. C. 7, 70 S. E. 311; Eberle v. Ry., 98 S. C. 89, 79 S. E. 792. The judgment is, therefore, affirmed. Messrs. Justices Watts and Fraser concur in the opinion of Mr. Justice Hydricic.