Opinion
9898
January 30, 1918.
Before RICE, J., Spartanburg, Spring term, 1916. Reversed.
Action by J.A. Melton against Cohannet Mills. From judgment for plaintiff, defendant appeals.
Messrs. Nicholls Nicholls and John Gary Evans, for appellant, cite: As to proximate cause: 58 S.C. 493; 61 S.C. 494. As to assumption of risk: 191 U.S. 64-68; 86 S.C. 130; 55 S.C. 483; 79 S.C. 508; 79 S.C. 346; 21 S.C. 547; 55 S.C. 101; 55 S.C. 483; 72 S.C. 237; 22 S.C. 264; Labatt on Master and Servant, secs. 263, 264, 279; 102 S.C. 402; 87 S.C. 213; 61 S.C. 468; 80 S.C. 239; 107 S.C. 99.
Messrs. S.G. Finley and Sanders DePass, for respondent.
January 30, 1918. The opinion of the Court was delivered by
This was an action for damages for alleged personal injuries to the plaintiff, and was tried before Judge Rice, and a jury, at Spartanburg, S.C. April 4, 1916, and resulted in a verdict in favor of the plaintiff for $1,800 actual damages and $200 punitive damages. After entry of judgment defendant appealed, and by three exceptions imputes error and seeks reversal.
The first exception alleges error in not granting defendant's motion for a directed verdict in favor of defendant on the following grounds: (1) Because there is no evidence showing that any negligence existed on the part of the company which could in any manner be referred to as the proximate cause of any injury to the plaintiff; (2) because the undisputed evidence shows that the plaintiff was employed as a teamster, an entirely separate and distinct occupation, having no relation whatever to the work that he was performing when the injury occurred; (3) that the undisputed evidence shows that the plaintiff was a teamster, whose duties were outside of the ginhouse, the place of the accident, and that the plaintiff was not ordered by any superior officer to do the work which he was performing when he is alleged to have been injured; (4) that the danger to which the plaintiff was subjected, if at all, was obvious, easily seen, and to a man exercising due care and prudence no injury could have occurred, and, therefore, the servant assumed the risk, if any; (5) because the undisputed evidence in the case shows that the plaintiff knew of the condition of the gin upon which he is alleged to have been injured, and that the condition as he found it was assumed by him, or, rather, the risk was assumed by him in the circumstances. Defendant's counsel also moved separately for a direction of the verdict as to punitive damages, for the reason that there is no evidence in the case upon which punitive damages can be based. The evidence shows that the plaintiff was employed as a teamster; that he had no duties whatever in the ginhouse.
The evidence shows conclusively that the plaintiff was not engaged in the scope of his employment when he was injured. He was a volunteer, assisting a fellow servant. He was requested to get a pitchfork by a fellow servant. The servant was using it for the purpose of putting the seed in the gin, picking them up from the floor. The servant was requested to perform certain duties, removing the seed and putting them in the gin. The evidence shows that the moat board was not intended as a protection to feeding the gin, but to regulate the passage of the moats, and was behind the saws, and put there to carry the moats back to the rear. The absence of the moat board was not in any manner connected with the business which plaintiff was requested to perform, to wit, removing the seed. The moat board was not put there to be in any manner connected with the performance of that business, but was intended to regulate the passage of the moats and carry them back to the rear and was behind the gin saws. Moat boards are back of the saws, not in front. When plaintiff brought the pitchfork Bradley took it from him, and pitched the seed up in the gin from the floor. As Bradley left for another gin plaintiff dropped on his knees and went to throwing the remnant of seed left by Bradley into the breast of the gin. He found a moat with the seed, and, instead of throwing it with the seed into the gin, where the seed ought properly to be fed to the gin, he attempted to throw it into a hole underneath the gin, and, missing his mark, the saws caught his finger and inflicted the injuries. He knew the hole was there, and he knew the saws were there.
The testimony shows beyond dispute that the hole being there did not expose the saws or impair the safety of the gin. The act of plaintiff in throwing the moats under the gin had no connection whatever with the work that he was engaged in and employed to do. The master could not assume that, instead of feeding the seed to the gin he would poke his hand in a hole behind the saws past the moat board to put the moats in. Had plaintiff raked off the seed and threw them in where cotton goes in the gin he would not have been injured. The evidence conclusively shows that the proximate cause of injury was plaintiff's own carelessness and voluntary acts on his part in doing something that he was not required or requested to do. His Honor was in error in not directing a verdict in favor of the defendant.
The case is reversed, and complaint dismissed.
Reversed.