July 5, 1905. The opinion of the Court was delivered by The plaintiff recovered judgment for personal injuries received from the slipping of a guy wire on a derrick in charge of the plaintiff as an employee of the defendant, and used by him at the time in hoisting a heavy piece of timber. The lower end of the guy wire was made fast by passing it through a staple driven into a rock or tree, reversing it and clamping it to the body of the wire by clips or cleats. The plaintiff undertook to prove these cleats were of insufficient strength, and that the accident resulted from the wire slipping through them. The first question raised by the appeal is whether there was error in refusing to grant a motion for a nonsuit made on the grounds: (1) that there was a total failure of evidence to establish these essential facts; and (2) that even if the injury was due to defective cleats, the defects were known to plaintiff, who was in charge of the work, and he assumed the risk. The testimony on both sides was to the effect that the accident was due either to the drawing of the staple or the slipping of the cleats. If nothing more had been proved, the plaintiff's case would have depended on the proposition that defect in machinery is to be presumed from the mere fact that it failed or broke in the use; and as this doctrine has been rejected in this State, a nonsuit would have been proper. Gentry v. Ry. Co., 66 S.C. 256,44 S.E., 728; Edgens v. Gaffney Manufacturing Co.,69 S.C. 530. But the plaintiff testified the cleats "were not large enough, and they were home-made clips and were not safe, in my opinion;" and there was no evidence whatever of any defect in the staples. When it is proved an injury occurred from the failure of one or the other of two appliances, and one of them was known to be defective, ground is furnished for the jury to draw a reasonable inference that it was probably the defective appliance and not the other that failed and caused the accident. Mahoney v.R.R. Co., 60 Hun., 586, affirmed in 30 N.E., 864 (N.Y.);Bromley v. Birmingham M.R. Co., 11 South., 341 (Ala.). *Page 102
It is true, plaintiff was in charge of all machinery of the company, but he was under the supervision of the superintendent, and could purchase supplies for the machinery department only through the superintendent, who was the representative of the company at the quarry. There was evidence that when plaintiff complained to the superintendent of the defective cleats, he was assured they were safe and instructed to use them. It was a question for the jury to determine whether the plaintiff was negligent in using the cleats after receiving this assurance from his superior. Mew v. Ry. Co., 55 S.C. 100,32 S.E., 628. For these reasons it would have been error to grant the motion for nonsuit on either ground.
When the whole charge is considered, it will be found the jury were instructed the defendant was required to furnish only reasonably safe and suitable appliances; that it is not in general the duty of the servant to ascertain whether the appliances furnished by the master are safe and suitable, but that a servant could not recover for injuries resulting from defects, when it was the servant's own duty, under the terms of his employment, to supervise and keep the machinery and appliances in repair. That this is a correct statement of the law will not be doubted. It is true, the main charge and the various requests relating to the same subject were not given in strict connection, but this, however desirable, is not always attainable; the failure to analyze and connect the numerous requests of the opposing counsel on the same subject, and indicate in logical sequence how they modify each other, does not afford ground for reversal. The second, third, fourth, sixth and seventh exceptions are, therefore, overruled.
The defendant submits there was error in refusing to charge: "The master is not bound to change his machinery in order to apply every new invention or supposed improvement in appliances. He may even use a machine or appliance shown to be less safe than another in general use, without being liable to his servant for the use *Page 103 of it." The jury had already been instructed: "The master is not bound to furnish his servant with machinery and appliances that are absolutely safe; nor is he required by law to furnish machinery or appliances of the latest or best pattern and design. The master's duty in law is fulfilled if he furnished such machinery and appliances to his servants as a reasonable and prudent person would ordinarily use under the same or similar circumstances." There was no error in failing to repeat the instruction in different words.
The most serious question arises under the charge as to contributory negligence. The plaintiff testified that it took from two to four cleats to hold each guy wire, and that he thought he had only two on when the accident happened. The witness, Beauchamp, foreman of the quarry, testified he had never seen a derrick put up with only two clips to each wire; that it was safer to use three clips and that he would never stop with less than that number. It will be seen, therefore, that the issue of contributory negligence was vital. On this subject the following instruction was given at defendant's request: "If the jury believe from the evidence that the plaintiff was in charge of the erection of the derrick on the day he was hurt, and if the jury further believe that sufficient clamps were not put on that wire to hold it, or that the clamps when put on the wire were not properly fastened and tightened, and that the neglect to properly attend to these matters, or either of them, in any degree contributed to or caused the accident to the plaintiff, then he cannot recover and your verdict will be for the defendant." The defendant could not have asked a more explicit statement of the law. After this, however, and near the conclusion of the charge, plaintiff's counsel arose and at his instance the following instruction was given: "If through the omission of the defendant to furnish reasonably safe machinery and appliances, the plaintiff was hurt, the company is liable unless he assumed the risk. Assumption of risk must be proved by the defendant. Contributorynegligence is not a defense to the master's duty *Page 104 to furnish safe appliances." The sentence we have italicized was directly contrary to the instruction before given as to contributory negligence, and in the circumstances it could hardly have failed to impress the jury as a change and correction of the previous instruction, taking from them the consideration of that defense. The proposition first charged was correct. Darwin v. R.R. Co., 23 S.C. 531;Bodie v. Ry. Co., 61 S.C. 484, 39 S.E., 715.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the cause be remanded for a new trial.