The complaint alleges: "That at the times hereinafter mentioned, the defendant was carrying on the business of manufacturing cotton cloth in its cotton mill in Richland county, in the State of South Carolina, and commonly called the `Duck Mill;' and the said B.F. Tindal, plaintiff herein, was in the employ of the said defendant in its cotton mill, and was at work engaged in making and repairing boxes and sawing planks and boards by means of a circular saw when he was wounded, injured and made sick by the negligence, carelessness and wantonness of the defendant, as follows: On or about the 22d day of January, 1907, plaintiff was engaged in making and repairing boxes and sawing planks and boards by means of a circular saw, and while thus engaged the said circular saw, which the plaintiff was operating, caught the thumb of plaintiff's left hand and cut it off, and he was seriously injured thereby, his nervous system severely shocked, and he was made sick and suffered great bodily pain and mental anguish, was permanently injured for life, and suffered the loss of his left thumb. That the defendant company, not regarding their duty to the plaintiff, conducted themselves so carelessly, negligently, wantonly and unskillfully in this behalf: They provided an unsafe and defective piece of machinery in that (1) the saw was unnecessarily exposed, and without adequate guards; (2) the saw should have been provided with a carriage to convey planks and boards and hold them in place while being sawed."
In the sixth paragraph of the answer, the defendant sets up assumption of risk as follows: "Further answering, defendant alleges that the injury done to plaintiff was caused by one of the ordinary risks of his employment at the machine from which he received his injury, at which *Page 279 he had been working for some time previous, and the conditions of which were well known to him, and that he assumed this risk and all other ordinary risks by taking and keeping employment at this machine."
There was evidence that the circular saw which cut off the plaintiff's thumb was without a feeder or carriage, and that some circular saws were made safe by having feeders and carriages attached. But the evidence on the part of the plaintiff was that the danger of operating this saw was perfectly obvious; that he had been specially warned of the danger by the foreman of the shop, and that he had been operating it for three weeks before the accident happened. Under these facts it seems to me impossible to escape the conclusions that the plaintiff assumed the risk of the operation of the saw. In James v. FountainInn Mfg. Co., 80 S.C. 238, 61 S.E. 391, the Court said: "Assumption of risk rests in the law of contract and involves an implied agreement by an employee to assume the risks ordinarily incident to his employment, or a waiver after a full knowledge of an extraordinary risk of his right to hold the employer for a breach of duty in this regard.Bodie v. Charleston etc. Ry. Co., 61 S.C. 468,39 S.E., 715. Under the law governing this subject, an employee may exercise the utmost care in the situation and yet be held to have assumed the risks incident to his employment. On this point rests the strength of the appeal. The testimony will not admit of any other reasonable inference than that plaintiff, with full knowledge of the danger, assumed the risks involved in voluntarily operating the machine."
This well established rule of the common law as to the assumption of risk has been recently elaborated and applied by the Supreme Court of the United States in Butler v.Frazee, 211 U.S. 459, 53 L.Ed., 281. This was the doctrine on which the Court decided Martin v. Royster GuanoCompany, 72 S.C. 237, 61 S.E., 680, and Wofford v.Clinton Cotton Mills, 72 S.C. 346, 51 S.E., 918. Unless *Page 280 these cases are to be overruled, it seems to me that the plaintiff assumed the risk, and that the nonsuit should have been granted on that ground