March 11, 1904.
Before TOWNSEND, J., York, October, 1903. Reversed.
Action by John B. Moore against Catawba Power Co. for damages for personal injuries caused, as he alleges, as follows:
"5. That the injury to the plaintiff from said blast and explosion was due to the gross negligence and carelessness of the defendant, its agents and servants, in furnishing to the plaintiff defective, unsafe and unsuitable means, machinery and appliances for said work, and failing to inspect and keep said machinery and appliances in safe and suitable condition for its said work, in that; the said and defendant furnished to and for the said work, a battery for the purpose of exploding the blast, which battery was imperfect, defective, unsafe and worn; and the lead wire from the battery to the blast was defective and imperfectly insulated, and the insulation was off said wire in a number of places, and the wire was too small to carry the current of electricity necessary to discharge the blast, and the same was second-hand, badly used and worn; moreover, the fuse wires leading from the lead wires to the blast holes and loads were defective, were kinked and broken, and the insulation thereof was imperfect; and by reason of the foregoing facts some of the loads which were placed in the holes for the purpose of making the blast, failed to explode when operated for that purpose, and it became necessary to clean out those holes which had exploded and those which had not, with a view to carrying on the work, and while so engaged an explosion of one of the holes which had failed to explode at the proper time occurred, causing the injuries above mentioned to the plaintiff."
The defendant moved that the complaint be made more definite and certain in the following particulars:
"I. That the lines four and five of paragraph 5 thereof, alleging that the plaintiff was furnished with `defective, unsuitable and unsafe means, machinery and appliances,' so amended as to show what machinery, means and appliances were unsafe, or unsuitable and defective, and the particulars or respects wherein they were so.
"II. That further down in said paragraph were the plaintiff alleges that the battery furnished him for exploding the blasts was `defective, unsafe, imperfect and worn,' be so amended as to show in what respect the said battery was imperfect, unsafe and defective and worn.
"III. That further down in said paragraph, where the plaintiff alleges that the wires leading from the battery to the blasts were defective, and also where he alleges that the fuse-wires were defective, the said complaint be amended so as to state any defects to said wires and the respects wherein they were defective; and in case no other defects are claimed as to said wires except those already stated, then the complaint to be so amended as to limit the allegations to those already alleged and stated.
"IV. For such other and further relief as may be just."
The Circuit Court granted the motion on the second and third grounds in following words:
"It is, therefore, ordered, that the defendant's second and third grounds of motion herein be granted; and that the plaintiff be required to amend the fifth paragraph of his complaint, where he alleges that the battery furnished to him was 'imperfect, defective, unsafe and worn,' so as to set forth the respect wherein said battery was imperfect, defective and so forth; that is, to set out the facts constituting such imperfections and defects. And also that the amend his said complaint further down in said paragraph, where he alleges that the lead-wire and fuse-wires were defective, and proceeds to set forth certain defects in said wires by alleging any other defects that he may claim existed in said wires; or if no other defects in said wires are intended, than those already alleged, then the plaintiff can so amend this portion of his complaint as to show that the defects he refers to and intends are those he has alleged."
From this order plaintiff appeals.
Messrs. Geo. W. Hart and D.W. Robinson, for appellant. The former cites: 45 S.C. 280; 83 Ala., 381; 75 Wis. 224; 81 Wis. 358; 66 S.C. 487; 15 S.C. 456; 170 U.S. 670.
Mr. Robinson cites: 60 L.R.A., 630; 27 N.W., 662; 191 U.S. 26; 170 U.S. 665; 58 L.R.A., 340; 66 S.C. 487, 13; 65 S.C. 223; 53 Fed.R., 306; 35 S.C. 383; 60. C., 73.
March 11, 1904. The opinion of the Court was delivered by
We do not think this case can be distinguished in principle from Lynch v. Spartan Mills, 66 S.C. 12. The views there expressed are in accord with the decisions of other Courts. Monahan v. Northwestern Contracting Co., 84 Wis. 586, 54 N.W., 1025; Carey v. Ry. Co., 67 Wis. 608, 31 N.W., 163; Ry. Co. v. Templeton, 87 Tex., 42; 26 S.W. 1066; Cox v. Providence Gas Co., 17 R.I. 199, 21 Atl., 344; Preston v. R.R. Co., 64 Vt., 280, 25 Atl., 486. The motion to make the complaint more definite and certain should have been refused.
The judgment of this Court is, that the judgment of the Circuit Court be reversed.