[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 404 September 28, 1915. The opinion of the Court (reciting the foregoing statement of facts) was delivered by The question of defendant's negligence was withdrawn at the hearing in this Court.
1. The next question is, was there indisputable evidence of contributory negligence, so that there should have been a nonsuit or an instructed verdict?
There was not. It is true that when there is a safe way and an unsafe way, the doing of the thing in the unsafe way is negligence. The record fails to show that there was a safe way provided. There was evidence that it would have been difficult to use the rake for the purpose of removing this lint, and also that if the rake was caught in the "licker-in" the rake itself would have been a source of danger to the plaintiff.
The contributory negligence that arises from a violation of instructions was not admitted. It is true the plaintiff only said that he did not recollect the instructions, but there was evidence to contradict the witness who testified to instructions not to use his hand. The witness said: "I told the plaintiff not to use his hand." The contradiction was, "all that I told him was to be careful." This was a direct contradiction and not merely an incomplete statement.
Judge Shipp well said, the question in such a case was, did Mr. Middleton warn the plaintiff not to use his hand?
That was a question for the jury. *Page 409
2. Was there such incontrovertible evidence of an assumption of risk as to warrant a nonsuit or a direction of a verdict?
There being no question of the master's negligence, then the master assumed the burden of proving its affirmative defense of assumption of risk. The master is not liable for obvious risks caused by his negligence, or those of which the servant knew. The servant assumed the risk of those. The question was, what was the risk in wiping off the machine? Was it the thrusting of the hand too far into the machine, or was it that the hand would be jerked into the machine? The plaintiff admitted that he knew that if he thrust his hand too far into the machine he would be hurt. He did not admit that he knew that his hand was liable to be jerked into the machine, and there was no proof that he knew or ought to have known or assumed this risk.
The plaintiff testified that his hand was jerked in; was it? That was a question for the jury. If the plaintiff knew that his hand was in danger of being jerked in and injured, and notwithstanding that knowledge, used his hand, he assumed the risk.
If the jury believed that the danger that was obvious or known was that the plaintiff would thrust in his hand too far, and he was not injured by his voluntary act, then he avoided the obvious risk. Of course, if the plaintiff was warned that there was danger, the specific danger not being stated, and forbidden to use his hand in any event, then he assumed any and all dangers that were revealed. That warning and that prohibition was, as we have seen, a question for the jury and prevented a nonsuit or a direction of a verdict.
3. The next question is as to his Honor's charge: Error of the presiding Judge in charging the plaintiff's first request to charge, which was as follows: *Page 410
`From the mere knowledge of a defect in a machine the inference should not be drawn as a matter of law that the plaintiff assumed the risks of working on a machine or was guilty of contributory negligence in so doing unless it is made to appear that the danger was so obvious that no person of ordinary prudence would have attempted to perform such service;' and in adding thereto the following: `If a person knows that machine is dangerous, knows it is so dangerous that a person of ordinary prudence, knowing its condition, would not have worked on it, he could not recover; if he continued after full knowledge of that fact to work on the machine in that condition, why, then, he could not recover in this case.'"
"Specifications: This is an erroneous conception and declaration of the law of assumption of risk. Its application does not depend upon the question of the negligence of the servant, as the charge requires. It involves an implied agreement by the servant 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 master for a breach of duty in this regard. Under the law governing this subject; a servant may exercise the utmost care in the situation and yet be held to have assumed the risk incident to his employment or an extraordinary risk after full knowledge. The charge was inconsistent with those principles which have been declared by this Court."
If that statement was inaccurate, it was cured by appellant's first request to charge, which was as follows:
"1. `If the jury believe from the evidence that the plaintiff knew that the plate was off the machine upon which he was at work; that the effect of this omission was to accumulate lint in the opening; that to remove this lint with the hand while the machine was in operation was dangerous; that the teeth of the licker-in were liable to catch his hand; and knew of the location of the licker-in in dangerous proximity; I charge you that the plaintiff assumed the risk of *Page 411 injury and is not entitled to damages.' If you find those facts to exist from the testimony, the burden of the proof being on the defendant to show by the greater weight of the testimony that that was one of the risks that he took, then I charge you that to be the law; but the defendant does not have to put up witnesses in his own behalf, because he has the right to rely on the testimony furnished by the plaintiff. If he can make out his defense by the plaintiff's own witnesses he has the right to do that."
This request was charged and did not restrict the defense to the risk that was obvious, or to the general unsafe condition of the machine, or the effect of a warning or no warning.
The Horton case, 233 U.S. 492, 34 Sup. Ct. 635,58 L. Ed. 1062; 56 L.R.A. (N.S.) 1915c, 1; 36 A. E. Ann. Cas. 1915b, 475; cited in the case of Padgett v. R. Co.,99 S.C. 364, 83 S.E. 633, relied upon by appellant, contains the following:
"If, however, there be a promise of reparation, then, during such time as may be reasonably required for its performance or until the particular time specified for its performance, the employee relying upon the promise does not assume the risk unless at least the danger be so imminent that no ordinarily prudent man under the circumstances would rely upon such promise."
Here there was no evidence of a promise, but there is evidence that the defendant had been warned of the danger of leaving these places open and that new plates to cover them had been ordered and were on the way.
Appellant claims that his Honor confused contributory negligence with assumption of risk; that they are entirely separate and distinct, and that a man may have assumed the risk, even though he acted with the utmost care.
They may be and then they may not be. *Page 412
Neither the Horton case nor the Padgett case entirely separate them.
In working with defective machinery the assumption of risk is based upon contributory negligence in working with defective machinery at all.
The judgment is affirmed.
A petition for rehearing in above case having been filed, the Court, after considering same, made the following order:
November 26, 1915.
The Court understood the appellant to admit negligence on the part of appellant and the writer of this opinion so noted it on his brief.
When the learned counsel, who prepared this petition, says that he did not admit it, then this Court must be mistaken, because counsel is not only accurate, but absolutely trustworthy.
It can make no practical difference, however, because the jury found the negligence and there was ample testimony to sustain it.
This opinion does not ignore the difference between assumption of risk and contributory negligence. Even though, as the authorities say, they are as different as day and night, yet it is also true, as the authorities say, there is a twilight where the day shades off into the night.
The petition is dismissed. *Page 413