While I agree in the main with the disposition by Mr. Justice Graydon of the various exceptions in this case, I do not deem it necessary to discuss any other point in the appeal than the tenth exception. I think that the defendant was clearly entitled to a charge of his second request, as it was presented, and that its modification was reversible error. .
The request was this: "I charge you that the plaintiff cannot stupidly, recklessly, or even carelessly obey an order of a superior, requiring him to do an obviously dangerous act, and if plaintiff knows, or as a reasonably prudent man should have known, the act which he was ordered to do was dangerous, he cannot hold the defendant responsible for a *Page 189 resulting injury, for in doing the act plaintiff would be guilty of contributory negligence." The modification consisted in striking out the word "for," and inserting in lieu thereof the word "if"; thus entirely changing the proposition advanced by the defendant, from one of law, into the submission of that issue as one of fact to the jury, completely denaturing it, and depriving the defendant of a right which I think it unquestionably had.
The plaintiff strongly contended that Reeves was his superior officer, and had ordered him to leave the north side of the larry, where he was perfectly safe, some 8 or 10 feet from the deadly "bus bars," and go to the south side, where he came in contact with the current. There is not question but that he knew of the activity of the current and of its danger, for he himself testified that he asked Reeves to cut it off as they started up to repair the larry. It was of vital importance, therefore, to the defendant, to show that the place to which he claims Reeves ordered him was dangerous, and known so to be the plaintiff; if so, the defendant was entitled to the charge requested, based upon this state of facts hypothetically presented.
The request was manifestly taken, word for word, from the opinion of this Court in the case of Stephens v. R. Co.,82 S.C. 542, 64 S.E., 601, 603, by Mr. Justice Woods. In that case the plaintiff was injured while jumping from a moving engine at the direction of the engineer, upon a mission personal to the engineer. The question was considered, regardless of the question whether under the circumstances the engineer in giving the order was acting within the scope of his occupational authority; and, assuming that he was, the question was considered in reference to the obedience by the servant of an order involving an act of obvious peril. The Court said: "The rule that the fireman shall obey the engineer is manifestly limited by the other rule that the fireman shall refuse to obey an order which exposes him to known danger." *Page 190
The necessary inference is that, if he obeys such an order, he has no cause of action against the master as a matter of law, not an issue for the jury. The Court further said: "The true meaning of the rule is that the employee must refuse to obey orders known to him to be dangerous beyond the peril to be regarded reasonably incident to his employment." A similar inference is justifiable from this declaration. Then to put the matter beyond all question as one of law, and not of fact, for submission to the jury, the Court said: "But, aside from the company's rules of caution above mentioned, the plaintiff could not stupidly, recklessly, or even carelessly obey an order of the engineer requiring him to do an obviously dangerous act, and hold the defendant responsible for a resulting injury; for in doing so he would be guilty of contributorynegligence."
Beyond the express authority for the proposition contained in the Stephens case, many others may be cited justifying it. In Lyon v. Railroad Co., 84 S.C. 364,66 S.E., 282, 285, the following charge was approved: "Was the order of such an obviously dangerous character, the execution of which involved such a plain and obvious danger as that a man of ordinary prudence and caution would not have attempted to execute it, would have refused to execute it, would have told the conductor that he could not execute it, and would not have attempted to execute it at all? Now, if the order was of that character, gentlemen, if it involved that obvious danger, and the plaintiff went on, nevertheless, and attempted to carry it out, and from the standpoint of a man of reasonable caution and prudence you would say he was careless in doing it, that he should not have done it, then he would not have been entitled to seek or claim the protection of the order as against his carrying it out in a negligent manner."
In Lowe v. Railroad Co., 85 S.C. 363, 67 S.E., 460,464, 137 Am. St. Rep., 904, the Court said: "* * * But the servant cannot recklessly * * * obey an order of *Page 191 his superior requiring him to do an obviously dangerous act."
In McBrayer v. Co., 89 S.C. 387, 71 S.E., 980, 981, the Court said: "In Stephens v. Railway, 82 S.C. 549,64 S.E., 604, the rule as to when a servant will be guilty of contributory negligence in obeying an order of the master is thus stated: "To show contributory negligence, it is not sufficient that the employee receiving the order should have misgivings, and believe the act required to be hazardous, unless the danger is so imminent and obvious that a man of ordinary prudence would not incur it."
In numerous cases it has been held that, if the injured servant had the choice of two ways to perform a duty, one entirely safe and the other obviously and greatly dangerous, and adopted the dangerous way whereby he was injured, he, as a matter of law, not of fact, would be guilty of contributory negligence which would bar a recovery. Hunter v.Alderman, 89 S.C. 502, 71 S.E., 1082; Lyon v. RailroadCo., 84 S.C. 364, 66 S.E., 282; Lowe v. Railroad Co.,85 S.C. 363, 67 S.E., 460, 137 Am. St. Rep., 904; Doverv. Lockhart, 86 S.C. 229, 68 S.E., 525; Lewis v. Gallivan,87 S.C. 210, 69 S.E., 212. If the present case had been one involving this principle, would it not have been error to charge that under these circumstances it was a matter for the jury to say whether the conditions constituted contributory negligence or not, when a request in conformity with this principle had been preferred?
In Pinckney v. Railroad Co., 92 S.C. 528,75 S.E., 964, 977, the Court said: "Disobedience of rules by a servant which combined with the negligence of the master proximately causes him injury, will generally be held by the courts to be contributory negligence as a matter of law." If the present case had been one involving this principle, would it not have been error to charge that under these circumstances it was a matter for the jury to say whether the conditions constituted contributory negligence or not, when *Page 192 a request in conformity with this principle had been preferred?
Again, it has been held that, where the complaint on its face shows facts from which contributory negligence must necessarily be inferred, it is demurrable. Smith v. RailroadCo., 80 S.C. 1, 61 S.E., 205; Jarrell v. Railroad Co., 58 S.C. 491,36 S.E., 910; Elkins v. Railroad Co., 64 S.C. 563,43 S.E., 19; Cooper v. Railroad Co., 69 S.C. 479,48 S.E., 458; Branham v. Mill, 61 S.C. 491, 39 S.E., 708;Jones v. Boykin, 70 S.C. 309, 49 S.E., 877. Talbert v.Railroad Co., 72 S.C. 137, 51 S.E., 564; Bamberg v. RailroadCo., 72 S.C. 389, 51 S.E., 988; Lyon v. Railroad Co.,77 S.C. 328, 58 S.E., 12; Steinmeyer v. Corporation, 142 S.C. 360,140 S.E., 695.
In Lyon v. Railroad Co., 77 S.C. 328, 58 S.E., 12, the Court held that there could logically be no difference between sustaining a demurrer to the complaint upon the ground that it showed upon its face contributory negligence on the part of the plaintiff, and granting a nonsuit upon the ground that no other reasonable inference could be drawn from the evidence than that the plaintiff was guilty of such contributory negligence as would bar a recovery, and in many cases nonsuits and directed verdicts have been ordered upon this ground. So it appears that, in whatever form the question is presented, whether by demurrer to the complaint, by motion for a nonsuit, by motion for a directed verdict, or by a request to charge based upon a hypothetical state of facts, the question, whether or not the plaintiff was guilty of contributory negligence becomes one of law for the court, and not an issue of fact for the jury, where the facts from which the inference of contributory negligence alone can be drawn are stated, proved, or assumed.
It is suggested in the opinion of Mr. Justice Graydon that the exception cannot be sustained, for the reason that, as the verdict was for punitive damages, which implies a finding of wanton injury, the contributory negligence of the *Page 193 plaintiff is no defense. It is very true that the contributory negligence of the plaintiff is no defense to a wanton injury by the defendant, but there is not a particle of evidence in the case tending to show any foundation for a finding of wanton wrong. It is not suggested that the plaintiff was ordered by a superior servant recklessly into a place of danger, or with the intent that he should be injured, and there is no reason to infer that, because the verdict was large, it necessarily included punitive damages.
I think, therefore, for the reasons stated, the judgment of the Circuit Court should be reversed, and a new trial ordered.