March 23, 1928. The opinion of the court was delivered by The plaintiff, John Hopkins, Jr. (colored), an employee of the Southern Cotton Oil Company, received a fracture of his jaw while working in the Columbia mill of the defendant company on or about the 18th day of November, 1926. Thereafter, on February 2, 1927, the plaintiff filed his complaint in the County Court for Richland County, claiming damages for such injury in the sum of $3,000.
The defendant duly filed its answer setting up the following defenses: A general denial; sole, separate, and independent negligence; contributory negligence; and assumption of risk on the part of the plaintiff.
The case was heard at one of the spring terms (April, 1927) of the Richland County Court by Judge Whaley and a jury.
At the conclusion of all the testimony, defendant made a motion for a directed verdict in its behalf on the grounds that the testimony adduced in the case did not prove a single one of the alleged specifications of negligence, and that the testimony was susceptible of only one reasonable inference, and that is, no actionable negligence had been proven, and that the injury was caused by the defendant's own negligent act, or at least by his contributory negligence.
The motion was refused by his Honor, the presiding Judge. On defendant's motion, the jury was instructed not to bring any verdict of punitive damages; there being no testimony to support same.
The jury returned a verdict for the plaintiff in the sum of $834, actual damages.
A motion for a new trial was made by the defendant upon the grounds hereinafter set forth, and the same was refused. *Page 398
The exceptions, twelve in number, raise the following questions:
(1) Was there evidence of negligence on the part of the defendant in any of the particulars set out in the complaint such as would warrant the issue of its liability being submitted to the jury?
(2) Does the evidence show that plaintiff's injury was occasioned by his contributory negligence or his sole negligence?
(3) Was there error in rejecting or striking out the evidence referred to in the ninth exception?
His Honor was not in error in refusing to direct a verdict for the defendant and in submitting the issue of negligence to the jury.
There was evidence that the identical machine which was being operated by the plaintiff at the time he was injured had broken, or that the handle or lever of same had come off a comparatively short time before while being operated by another party in identically the same way and under the same conditions as it was being operated by the plaintiff when he was injured. The testimony of Eddie Perry and that of P.D. Richardson tends to establish the fact that the handle of the machine in question came off when operated by Charlie Morris, another employee of defendant, about four weeks before it came off and injured the plaintiff. It is true that the party operating same on that occasion, Charlie Morris, a witness for and employee of the defendant, sought to explain the flying off of the handle by stating that he failed to pull down the intake valve, as set forth, but his testimony in this respect is in direct conflict with that of the plaintiff's witnesses, Perry and Richardson, above referred to, and furthermore, is flatly contradicted by the testimony of the plaintiff's witnesses, Hopkins, Blackwell, and Perry, which is to the effect that Morris stated to them that he did pull down the intake lever and that the handle came off just *Page 399 as it did when operated by the plaintiff. Perry also testified that no repairs were made to the machine in question between the time of this happening and the occasion of plaintiff's injury. The testimony further showed that this was one of twelve identical presses in the defendant's mill, and there is no evidence or suggestion by any of the witnesses that any of the other machines ever broke or that the handles or levers of same came off in a like manner as did this particular one on the two occasions in question and such evidence of a former breaking of the machine raises the issue as to whether it was in proper repair, whether it was defective, whether it was a suitable appliance to be furnished by the master, and whether in placing plaintiff in charge of same he was given a safe place to work.
The rule as to evidence of a former breaking of machinery as evidence of the master's liability is thus set out in 4 Labatt's Master and Servant, § 1587-C, as follows:
"Occurrence of Accidents. — Where the sufficiency or safety of the instrument which is claimed to have caused the accident is in issue, evidence of similar accidents resulting from the same cause is competent. Such facts are in the nature of experiments to show the actual condition of the instrument and how it served its purpose when put to the use for which it was designed, and that the common cause of these accidents was a dangerous and unsafe thing."
Here was a clear-cut issue to be submitted to the jury; the testimony being conflicting as to whether the machinery was defective, and whether or not the master was chargeable with notice, and whether the master should have repaired the machine. I agree with Judge Whaley, the machine was not a simple tool. The admission of evidence of former occurrence was competent under McGill Bros. v. Railroad, 87 S.C. 178,69 S.E., 156, and Moore v. Atlantic Coast LineRailroad, 137 S.C. 319; 135 S.E., 473. *Page 400
The knowledge of the condition of the machine in question should have been known by the master, and, even if the defect was latent, this would not relieve it from liability. The following is quoted from the case ofChase v. Railroad, 64 S.C. 212; 41 S.E., 899:
"But as the law imputes to the master the knowledge of the danger, even though latent, in the use of the instrumentalities with which he provides his servant, he cannot escape liability by showing he was ignorant of this fact, unless he should further show that by the use of due diligence he could not have discovered the danger."
See, also, Dixon v. Manufacturing Co., 86 S.C. 435;68 S.E., 643. Timmier v. Railway, 81 S.C. 203;62 S.E., 209. Cutter v. Mallard Lumber Co., 99 S.C. 231;83 S.E., 595.
When the plaintiff showed that the instrumentality in question was not in proper condition, a prima facie case of negligence on the part of the master (the defendant) was made out, and he was entitled to have his case submitted to the jury. See Trimmier v. Railway, 81 S.C. 203;62 S.E., 209. Carter v. Oil Co., 34 S.C. 211; 13 S.E., 419; 27 Am. St. Rep., 815. Branch v. Railway, 35 S.C. 405;14 S.E., 808. Lasure v. Manufacturing Co., 18 S.C. 275.Bunch v. American Cigar Co., 126 S.C. 324;119 S.E., 828.
There is no evidence that the plaintiff knew of the former breaking, or had knowledge of the defect in the machine. He had a right to assume that same was safe and suitable without inquiry or examination.Lasure v. Manufacturing Co., supra; Carter v. Oil Co.,supra; Branch v. Railway, supra.
In the Carter case the rule is thus stated:
"But again, the rule is that it is the duty of the master and not of the servant to exercise due care and diligence to ascertain whether the appliances furnished are safe and suitable; and a servant has a right to assume, without inquiry *Page 401 or examination, that the appliances furnished him are safe and suitable."
The rule is recognized by our Court in the case of Lesterv. Railway, 93 S.C. 395; 76 S.E., 976, in which it was alleged that plaintiff was injured by the handhold or step at the top of a box car being loosely and insecurely fastened, of which fact the plaintiff was not warned, and the defendant failed to inspect the car, or to stop same before allowing plaintiff to climb upon it. From the opinion in the case it does not appear that the plaintiff offered evidence of or pointed out just what the defect was, but there was evidence sufficient to go to the jury of its defective condition and the Court speaking summed up the rule applicable very succinctly in the following language:
"Here, we have the proof of plaintiff's injury by some manner of defect in the appliance furnished by the master that at least furnished some prima facie evidence of negligence to go to the jury in the absence of any explanation or any rebutting evidence. This is sufficient to show an omission of duty on the part of the master to carry the case to the jury."
Also Wilson v. Atlantic Coast Line Railway, 134 S.C. 31;131 S.E., 777.
We see no error in submitting all of the issues to the jury as complained of by the exceptions.
The ninth exception is overruled under Lowrimorev. Mfg. Co., 60 S.C. 153; 38 S.E., 430.
"If the jury believe that the Palmer Manufacturing Company exercised such care as other well-regulated companies doing the like business ought to exercise, and as proper prudence demanded under the circumstances, nothing more can be required, and they are not responsible."
The Court's refusal to charge this request was made the basis of one of the defendant's exceptions. The Supreme Court, in an opinion by Chief Justice McIver, sustained the trial Court's refusal to charge said request and said: *Page 402
"The question, as the Circuit Judge very properly said, was whether the defendant used proper care in furnishing proper machinery and other appliances for the performance of the work required of its employees, and not what other well-regulated companies did or ought to have done."
All exceptions are overruled, and judgment affirmed.
MESSRS. JUSTICES BLEASE, STABLER, and CARTER concur.