[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 30 May 23, 1928. The opinion of the Court was delivered by In April of 1926 this case was commenced for the recovery of $10,000.00 damages for alleged personal injuries inflicted by the defendant on the plaintiff's intestate, Peter Taylor, October 2, 1925, and his death therefrom October 9th following.
It is admitted that the deceased was employed as a card stripper by the defendant, and, at the time he received mortal injuries, was acting in the scope of his duties.
The complaint contains five items of negligence, to wit: In not having the belt as tight as it should be and in allowing it to be too loose; in failing to properly inspect belt and running it with a defective buckle; in failing to warn the plaintiff's intestate of the unsafe place, and unsafe tools and appliances for his work; in failing to furnish efficient fellow workmen to keep said belt tight and in proper place; and to require the plaintiff's intestate to do the work without warning, or instructions of its danger; that defendant knew, or should have known, that the belt was too loose, or slack, to stay in place, and that it had been giving trouble, and the defendant failed to repair the said belt, and caused the plaintiff's intestate to work in a dangerous place.
The complaint further alleges that the death of Peter Taylor was caused by the negligence of the defendant in the manner aforesaid. The amended answer sets up a general denial, sole negligence of the plaintiff's intestate, contributory *Page 33 negligence, and gross contributory negligence, and assumption of risk.
The case was tried before Judge Townsend and a jury at Winnsboro, S.C. October 11, 1926. Motion for directed verdict was overruled and the jury found for the plaintiff in the sum of $2,000.00, and a motion for a new trial was made and refused, and, from judgment entered on said verdict, the defendant within due time perfected his appeal to this Court.
The carding machines in the defendant's mill are placed on the floor of the mill driven by a belt extending from an overhead shaft which supplies the power. The belt revolves on a pulley fixed to the overhead shaft and on one of two pulleys fastened on the projecting shaft which passes through the center of the carding machine. One of the pulleys on the shaft that turns the carding machine is tight, and the other loose, and the belt on the tight pulley operates the machine, but when on the loose pulley operates the machine, but when on the loose pulley the machine is not supplied with power. The belt is shifted from one pulley on the projecting shaft to the other to stop or start the machine as desired, and this shifting is ordinarily done with an appliance in the shape of a fork with two prongs, and the belt passes through the prongs which hold it at its place on the carding machine.
The testimony tends to show that the belt should run tight, but on this occasion it was very loose and that it jumped the pulley several times that day, and Peter Taylor replaced it on the pulley, and finally he was carried up by the belt four or five feet and dropped to the floor, and thereby received mortal injuries; that this mill promulgated an oral rule forbidding card strippers to replace a displaced belt, but card strippers in the mill disregarded this rule and frequently flapped on the belt with their hands when it was displaced, and this was a custom in the mill; that the belt shifter was broken, and on said occasion did not serve the purpose for which it was made and used; that the card *Page 34 stripper was not instructed how to flap on the belt; that the belt slipped off the overhead pulley and as it hung from the drive shaft the plaintiff's intestate attempted to replace the belt on the overhead pulley by flapping it; that the belt could not be held in place because the machine was defective, and the shifter was broken off; that the card grinder had a number of belts to inspect, and although there was not a belt shifter on this machine it was not inspected that day, nor was it shown that it had been inspected within a reasonable time theretofore, in the circumstances; that there was an exigency on this occasion and plaintiff's intestate acted in the interest of the defendant; that the defendant had warned the plaintiff's intestate not to replace belt.
The defendant served three exceptions, viz.: (1) That his Honor erred in refusing to direct a verdict for the defendant upon the grounds that there was a total failure of proof that any of the acts of negligence contained in the complaint was the proximate cause of the injury and death of the plaintiff's intestate, etc.; (2) that his Honor erred in not directing a verdict for the defendant upon the ground, that under no construction of the testimony could it be considered any part of the duty of plaintiff's intestate to replace the belt, which had slipped off, and which he attempted to replace, etc.; (3) that his Honor erred in refusing to direct a verdict for the defendant, as the testimony showed that it was not the duty of the plaintiff's intestate to replace the belt which had slipped from the machine in question, and that it was conclusively shown by the testimony that the plaintiff's intestate voluntarily undertook to do so, and thereby assumed the risk of injury which was one of the ordinary risks of his employment, etc.
There is no exception to any testimony offered, nor is there any exception to the Judge's charge; and the three exceptions made are limited to the contention of the defendant *Page 35 that a verdict should have been directed in its behalf, and all three may be considered together. The only question raised by the exceptions is whether a verdict should have been directed for the defendant.
In Brooks v. Floyd, 121 S.C. 356;113 S.E., 490, this Court held:
"Under the well-settled rule, if there was any evidence tending to support the defense interposed by defendant, the trial Judge could not properly have directed a verdict. Under the equally well-settled rule, on such motion defendant was entitled to have the evidence considered defendant was entitled to have the evidence considered and construed most strongly in his favor."
In Richardson v. N.W.R. Co., 124 S.C. 326; 117 S.E., 514, this Court quotes from Wood v. Mfg.Co., 66 S.C. 482; 45 S.E., 81, as follows:
"The general rule is well known that questions of fact are to be submitted to the jury, and this includes not only cases when the facts are in dispute, but also when the question is as to inference to be drawn from such facts after they have been determined."
In Wilson v. A.C.L. Co., 134 S.C. 31; 131 S.E., 777, it is held:
"On motion to direct verdict, construction of evidence most favorable to opponent of motion must be adopted."
See, also, Anderson v. Hampton Branchville R. Lumber Co., 134 S.C. 185, 132 S.E., 47; Brogdon v.Northwestern R. Co., 141 S.C. 239; 139 S.E., 459.
Under the testimony could the trial Judge hold that only one inference could be drawn from the facts and circumstances in the case? Whether the belt was too loose so as to make it unsafe, and whether the belt shifter was broken, and, if so, was the place to work assigned by the master to the servant a reasonably safe place; and, if the appliances were deficient for those reasons, did the deficiency, or defects, constitute the proximate cause of the injury and death of the plaintiff's intestate? *Page 36
It is well settled in this State that proof of injury does not raise presumption of negligence on part of master (Wilson v. Railway Co., 134 S.C. 31;131 S.E., 777); and the same case holds that the master must exercise reasonable care to furnish a safe place to work, but is not a guarantor.
It is too well settled in this State to require the quotation of authorities to show that a master must exercise care to furnish his servant a reasonably safe place to work; however, the following cases sustain this principle: McKain v. Camden Co., 89 S.C. 378;71 S.E., 949. Thomason v. Manufacturing Co., 95 S.C. 239;78 S.E., 895. Mann, Administrator, v. Railway, 138 S.C. 251;136 S.E., 234.
The question of proximate cause is usually to be solved by the jury, certainly if more than one inference can be drawn from the facts and circumstances.
In Settlemeyer v. Southern Railway, 91 S.C. 147;74 S.E., 137, it is held:
"There may be a recovery upon evidence tending to show that an injury was caused by the negligence alleged in the complaint operating as a proximate cause in conjunction with another independent proximate cause not alleged."
See, also, Thompson v. Seaboard Air Line Railway, 78 S.C. 384;58 S.E., 1094. Blakely v. Laurens County, 55 S.C. 422;33 S.E., 503.
In this case we think the issue of proximate cause was properly left for the jury to decide. Of necessity the practice requires that the items of negligence relied on for recovery must be alleged in the complaint, and, if objection be made, no other act of negligence can be shown by the testimony; but, if the testimony does tend to establish other acts of negligence, and no objection be made thereto, the jury may consider the other acts of negligence, though, if objection is made thereto, the plaintiff *Page 37 should move to amend his complaint by inserting them without actually serving a new complaint, and this motion is addressed to the sound discretion of the trial Judge, and, if he allows the amendment, then the testimony may be admitted; if he disallows the amendment, the testimony will be excluded.
In Gowns v. Watts Mill, 135 S.C. 172; 133 S.E., 553, it was held:
"As a further reason why this assignment of error cannot be sustained, as to the charge of the Judge that the buckle was alleged to be defective, there was testimony introduced, without objection on the part of the defendant, tending to show that the buckle in question was defective and unsound. This, despite the lack of an appropriate allegation in the complaint, made an issue of fact to be submitted to the jury for their determination. See Davis v.Railway, 63 S.C. 370; 41 S.E., 468. Chafee v. Aiken,57 S.C. 507; 35 S.E., 800. Schwaninger v. McNeeley,44 Wn., 447; 87 P., 514; 38 Cyc., 1616, et seq."
In this case there was testimony tending to show that the defendant had promulgated an oral rule, but that it was customary for the servants to disregard the rule. This item of negligence was not alleged in the complaint, but it is in the record without objection, and was before the jury, and the jury had the right to consider it. See cases supra.
It was held by this Court in McAlister, Administratrix,v. Southern Railway Co., 130 S.C. 459; 126 S.E., 627, and affirmed by the Supreme Court of the United States (certiorari denied 266 U.S. 632; 45 S.Ct., 225;69 L.Ed., 478), that :
"The custom of a railroad in operating its road may be shown as a basis on which employee had a right to act and rely."
See Mann v. Railway, 138 S.C. 251; 136 S.E., 234.Vlasservitch v. Railway Co., 85 S.C. 291; 67 S.E., 306. *Page 38
If a rule of the master is disregarded by its servants, and this is known to the master, and it becomes a custom, then whether the rule was waived or not is a question for the jury. Wood v. Manufacturing Co., 66 S.C. 486; 45 S.E. 81. Matthews v. Industrial LumberCo., 91 S.C. 568; 75 S.E., 170; 45 L.R.A. (N.S.), 644; Ann. Cas., 1914-A, 45. Carson v. SouthernRailway, 68 S.C. 84; 46 S.E., 525.
The principle of assumption of risk is invoked by the defendant in this case. In Lorick v. Railway, 102 S.C. 282; 86 S.E., 677; Ann. Cas., 1917-D, 920, this Court held:
"It has also been held where there is a conflict of testimony as to the assumption of risk, it is a question to be decided by the jury."
See cases cited.
Contributory negligence was also set up by the defendant, but it has long been settled by the Courts of this country that, where more than one inference from the testimony may be drawn, this question must be left to the jury.
After a full consideration of this case, the Court is satisfied that his Honor committed no error in refusing to direct the verdict for the defendant, and in submitting the case to the jury, which rendered a moderate verdict.
For the reasons aforesaid, the judgment of the lower Court is affirmed.
MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur.
MR. CHIEF JUSTICE WATTS did not participate.