September 17, 1906. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff through the wrongful act of the defendant, in failing to furnish safe appliances. The allegations of the complaint (except the formal portions thereof) are substantially as follows:
That on the 17th of June, 1903, the plaintiff was employed by the defendant as a laborer, in repairing a section of its track; that in discharging the duties of his employment, under the direction of the section master, it became necessary for him to take hold of a spike-bar, for the purpose of bracing a steel rail, that was being cut; that while holding the spike-bar, another employee was holding the cleaver, with which the rail was being cut, by a third employee striking *Page 197 the same with a sledge hammer; that when the cleaver was being struck by the driving sledge a piece of said cleaver flew off, and struck the plaintiff in the eye, causing him permanent injury; that the injury resulted from the negligence of the defendant, in not supplying a safe and suitable cleaver for use by its employees in cutting said rail; that the cleaver furnished for cutting that particular rail was utterly unfit and unsafe for that purpose, within the full knowledge of the defendant and its representative, or the defendant could and should have known the fact, and that the plaintiff did not have knowledge of such fact nor was he warned of the danger. The jury rendered a verdict in favor of the plaintiff for $2,500.
The defendant made a motion for a new trial, which was refused, whereupon it appealed upon exceptions, which will be set out in the report of the case. The first four exceptions raise the question, whether his Honor, the presiding Judge, erred in permitting the witnesses to testify as to conversations which they had with the section master, prior to the injury, in reference to the unsuitable condition of the cleavers, including a statement made to them by the section master, that he had made a requisition for new cleavers. The only object of this testimony was to show that the defendant had notice of the unsafe condition of the cleavers. This fact was not in dispute, as will appear by the following statement set out in the fourth exception, to wit: "This testimony at best, could only tend to prove the section master's knowledge of the condition of the cleavers, which fact from the testimony was well known to him, without information from the section hands." The testimony was admissible, for the purpose of showing knowledge of the unsafe condition of the cleavers on the part of the defendant. But even if there was error in admitting such testimony, it was not prejudicial, as the fact was not in dispute.
The fifth and sixth exceptions present the question whether the statement of the section master: "If they had *Page 198 sent me the cleaver I had sent in requisition for, there would not have been anything of this matter," was admissible as part of the res gestae. The witnesses testified that the section master was about fifty steps, thirty or forty or 100 yards distant from the plaintiff, when he was injured.
The record discloses the following, while the witness Jeter was on the stand:
"You started to say something that Mr. Reynolds said, when the accident happened — when Mr. Young was hurt. What was it that he said at the time Mr. Young was hurt? Mr. Glenn: Witness didn't say anything. I object to his going on and stating what Mr. Reynolds said. Mr. Barron: I think we can prove it was an admission, and I think it is clearly competent under the doctrine of res gestae. (Objection overruled.) Q. State whether or not Mr. Reynolds made any admission immediately after this accident? Mr. Glenn: Your Honor understands that I am still objecting to this. Court: Yes, sir. Witness: Well, he said, `If they had sent me the new cleaver I made requisition for, that would not have happened.'"
The plaintiff also testified as follows: "Q. State whether or not, after that piece struck you in the eye, Mr. Reynolds made any admission as to the condition of the cleaver? Mr. Glenn: We object. Court: Same ruling. Q. Did he make any admission? A. He told me after I got quiet and was easy; he said, `If they had sent me the cleaver I had sent in requisition for, we would not have had anything of this matter.'"
As said by his Honor, the presiding Judge, the object of this testimony was to show the bad condition of the cleaver, and the knowledge of that fact by the defendant, through its agent, which fact was not in dispute. Therefore, the testimony was not prejudicial to the appellant. But in any event it was a part of the res gestae. Gosa v. Ry.,67 S.C. 347, 45 S.E., 810; State v. McDaniel, 68 S.C. 304, *Page 199 47 S.E., 384; Nelson v. Ry., 68 S.C. 462,47 S.E., 722.
The seventh exception assigns error on the part of the presiding Judge in ruling that testimony to the effect that the defendant forced the plaintiff to leave its employment, because he would not sign a release of his claim for said injury was admissible. The reasons assigned by the presiding Judge for said ruling were as follows: "The fact of their having discharged him would have no bearing on the question of damages, unless they had discharged him because of this injury. I think it is proper to the railroad as well as to the plaintiff, that he state that he lost the position on the road, and show that it was not as a result of this injury rendering him inefficient, but for some other reason. I don't know that it is strictly in place in the case, but it has come in and I will allow the question."
Under the ruling of the presiding Judge, the jury did not have the right to consider this fact as an element of damages, unless the plaintiff was discharged because of the injury, and it is not contended that the jury disregarded said instruction. We, therefore, fail to discover any prejudicial error.
The eighth exception was abandoned.
The ninth exception relates to a motion for a new trial upon grounds which have already been considered. One of the grounds for a new trial was based upon the ruling that the introduction in evidence of the declarations, set out in the fifth and sixth exceptions, was erroneous. In disposing of this ground the presiding Judge said: "Even if both declarations were incompetent, still those facts are amply established by the testimony of the witnesses, Moore Young Jeff Shelton and Walter Jeter, as to the condition of the cleaver and the knowledge of the section master, and notice to him and to the defendant through him, by the complaints of those witnesses, and also by the fact that the section master had made requisition for new cleaver, all of which was fully testified to by these witnesses in chief. Garrick v. R.R. *Page 200 53 S.C. 451." These reasons and those already assigned, show that the motion for a new trial was properly refused.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.