June 30, 1913. 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 of the defendant.
The defendant denied the allegations of negligence, and set up the defense of contributory negligence and assumption of risk on the part of the plaintiff, and that the injury was the result of a risk, which was incident to his said employment, by which, it seems, was meant the negligence of a fellow servant.
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 one thousand dollars.
The defendant made a motion for a new trial, which was also refused.
The defendant then appealed upon numerous exceptions, which will be reported.
The first question that will be considered, is raised by the thirteenth exception.
The plaintiff testified as follows: "The date alleged in this complaint, about the 5th of December, 1910, where were you working? At the Hermitage Cotton Mills. What were you employed to do there? I was employed to help, at the time, Mr. Andrews, putting up frames. The morning of the injury, what work were you actually engaged in that morning? Putting up skeleton *Page 147 frames; I was helping them move boxes. Who did you say was there; whom did you work under? Mr. Andrews; working under Mr. Andrews at the time. Was Mr. Andrews present? Yes, sir. Now, Mr. Watts, were you injured there? Yes, sir. I wish you would tell the Court and jury how you received any injury there. Well, we were moving those boxes. Mr. Andrews had us to move the boxes from the back end. The first box had to go around the upper end of the frame and come between the wall and frame. As I passed Mr. Andrews I said, `Where will we put this box?' He said, `Set it up over there.' Pointed out the place to put it? Yes, sir. Who was bringing it? Us three — Noland, Ballard and myself. Where was Mr. Andrews? Standing in the alley, opposite between them and the other frames. You went up and asked him where to put the box? Yes, sir. And he told you where to put it? Yes, sir. Did you put it where he told you? Yes, sir. And you were instructed to set it up on the end? Instructed to set it up on the end. Did you place it where he told you? Placed it where he told me. Now, coming down to the actual injury; how did that occur? After we placed the box up there, I steadied it; I was on the other side of it, and the other two turned off in about the same time I did, I reckon, I think about that time; but we steadied it good before we let it loose where it was to stand. I just turned around. As I turned around I got far enough to keep the box from catching me anywhere except right here and it knocked me down. Could this box have been laid flat down on the ground? Yes, sir, could have been."
The Court: "What you mean is on the side and not on its end? Mr. Monteith: Yes, sir.
"If it had been laid that way, would have been flat down on the floor? Yes, sir. Could it have turned over that way? No, sir. Were you or not instructed to set it up on its end? I was. And you did so? Did so; yes, sir. Was this Mr. Andrews the superintendent of the mill? He was *Page 148 foreman of them frames; he was not superintendent of the mill. Who was superintendent of the mill? Mr. West was superintendent of the mill. Who told you to work with this man, Andrews? Mr. West. Told you Mr. Andrews was there in charge of putting up the frame? Yes, sir; he put me with Mr. Andrews that morning. And told you to do as Mr. Andrews told you to do? Yes, sir."
H.F. Andrews, a witness for the defendant, testified as follows: "Where were you at work? The Hermitage Mills. What was your business there? I came here to put up fly frames. Did you have anyone to assist you at that work? Three of the mill men. Was Mr. Watts one of those employed with you at the time? Yes, sir. Who furnished you the hands to do this work? The superintendent, Mr. West. Was Mr. West there while you were doing this work any time? He was in and out of the room. You did that; you directed what to do and how to do it? Yes, sir."
Redirect examination.
Mr. Mills: "Mr. Andrews, you were asked whether there was a reason for setting the boxes on end, and you said there was. Why? You set them on ends, square them around to get them out of the way to go by with the others and give more room. Are you accustomed to receiving boxes of that size and setting them up? Yes, sir. Was that the usual box? Yes, sir; with that stuff in it. It is customary for you to have those boxes set up that way, on end? Yes, sir. How many years have you been doing that? Thirteen years. You have done that in one mill, or in many mills? Several mills. Have you been doing that since that time? Yes, sir. It is not a common thing to set those boxes up that way? Yes, sir. And to receive them as you have stated? Yes, sir."
Mr. Blakeney: "You say for the reason to move them out; that's the reason that you set them up on end; more liable to fall that way than if laid down to be opened? *Page 149 Yes, more apt to fall. If you had laid it down as you did when you took it off of Mr. Watts, it could not have fallen on anybody? No, sir. If you laid it down flat it would be a safer way so far as falling? Yes, sir. There was plenty of room to lay it flat? Yes, sir. That is the safest way, as far as falling on anybody? Yes, sir."
P.L. West, the superintendent of the mill, thus testified as a witness for the defendant: "Did you hire Mr. Watts? Yes, sir. What had you hired him to do? Before that, I had him to do something else. I turned him over to Mr. Andrews and Mr. Andrews gave him instructions. I just told Mr. Andrews to take those men; he could have them to assist him."
It will be thus seen that P.L. West, the superintendent of the mill, placed the plaintiff under the direction and control of H.F. Andrews, with instructions to do whatever Andrews told him to do, and that he was injured while carrying out the orders of Andrews, which rendered the situation more dangerous than if the box had been placed on its flat surface.
It was the duty of the defendant to furnish the plaintiff with a safe place to work, and also a safe method of doing the work. Under the circumstances, Andrews was the representative of the master in ordering the plaintiff to deposit the box on end; and if, in giving such directions, he was guilty of negligence, which resulted in the plaintiff's injury, the defendant would be liable, unless the plaintiff was guilty of contributory negligence, or unless the injury was the result of a risk which he assumed.
McBrayer v. Chemical Co., 89 S.C. 387. In that case the Court said: "This case is distinguished from Martin v.Royster Guano Co., 72 S.C. 237, 51 S.E. 680, because in that case there was no testimony that the foreman ordered Martin to work at the particular place at which he was injured, or that he ordered him to remain there and work, *Page 150 after he became apprehensive of danger." This exception is overruled.
We proceed to the consideration of the fourteenth exception.
The record shows that the following took place at the close of the charge:
Mr. Smith: "Our contention is, all of these parties were fellow servants with the foreman, as well as Noland and Tom Ballard, and if they were fellow servants, the jury are to find it made no difference whether the foreman ordered him or not, the mill is not to be liable under the circumstances.
The Court: "I made my charge in response to your argument.
Mr. Smith: "We took that position this morning."
His Honor, the presiding Judge, had already charged the jury, as follows:
"If Andrews stood in the place of the master, that is, of the mill, and directed that box to be put there, and Tom put it there because Andrews, representing the mill, told him to put it there; if you conclude that is so, and that was a careless thing, a negligent thing, that a reasonably careful man would not have done that, would not have ordered a box of that character to be put at that place; if you come to that conclusion, then you conclude that the mill was negligent, and that is a matter peculiarly for you."
He also charged as follows: "The third defense is, if I catch the argument of counsel, is that Watts was a fellow servant with Tom Ballard — you know who Tom is, the black man. I do not think it will be disputed, I do not think there is any dispute about Watts and Tom being fellow servants; that is to say, they were together handling the box. If Watts came to his disaster by reason of negligence on the part of Tom, under the law the mill would not be liable, because they would be fellow servants, and when Watts went to work with Tom he assumed that risk, that *Page 151 Tom would be as careful as he would be and he would be as careful as Tom."
So that even conceding there was error, it was not prejudicial, as the defendant practically received the benefit of the request.
What has already been said disposes of the fifteenth, sixteenth, seventeenth and eighteenth exceptions.
The nineteenth exception cannot be sustained, for the reason that the defendant had set up as a defense that the injury was caused by the negligence of a fellow servant.
In such cases the rule is thus stated in Roberts v. ChemicalCo., 84 S.C. 283, 66 S.E. 298: "Evidence tending to prove that the plaintiff's injury was caused solely by his own negligence, or by the negligence of a fellow servant, would have been admissible under the general denial. It was, therefore, unnecessary for defendants to set up, as an affirmative defense, that the plaintiff's injury was caused by the negligence of a fellow servant. This fault in their pleadings very naturally led the Circuit Judge into the inadvertent error of charging the jury, that the burden was upon the defendants to prove the defense, for it was set up as an affirmative defense between the other two affirmative defenses, the burden of proof of which was upon defendants. Parties ought not to be heard to complain when their own faulty pleadings misleads the Circuit Judge."
Furthermore, it was not incumbent on the plaintiff to prove that he was not injured by the negligence of a fellow servant; and the defendant could not get the benefit of such fact unless it made proof thereof, which had to be established by the preponderance of the testimony in order to produce conviction on the minds of the jurors.
All the other exceptions relate to the sufficiency of the facts to sustain the plaintiff's cause of action, or to sustain the defense of assumption of risk, contributory negligence, *Page 152 or negligence of a fellow servant; and as shown by the foregoing testimony and for the reasons hereinbefore stated, cannot be sustained.
Judgment affirmed.
MR. JUSTICE FRASER concurs in the result.