Cutter v. Mallard Lumber Co.

Trial. Continuance. Evidence. Argument. Charge. Practice. 1.Appeal and Error — Review—Discretion op Court — Continuance.— An exception to the overruling of a motion for a continuance will not be sustained, where the appellant fails to satisfy the Supreme Court that the trial Judge erroneously exercised his discretion in ruling, thereon. 2. Appeal and Error — Review—Discretion op Court — Exclusion op Evidence. — In an action for personal injuries to an employee from an alleged defective appliance, the exclusion, as irrelevant, of evidence offered by the master that no similar accident had ever occurred before, was not an abuse of the Court’s discretion which requires a reversal. 3. Witnesses — Cross-Examination—Bias op Witness.- — Wmere the trial Court permitted a negro employee of the defendant, who was a witness on its behalf, to be cross-examined to show that he was paid more than the white employees received, for the purpose of showing the bias of the witness, an exception that the questions showed that the testimony was brought out solely to prejudice the jury against defendant will not be sustained. Appeal and Error. — -Review—Discretion oe Trial Court — -Admission oe Evidence. — In an action for .injuries received by a sawmill employee while shifting a belt with a stick furnished to him for that purpose, the admission of evidence over defendant’s objections, that it was irrelevant that in other parts of the mill shift levers were provided and the pulleys covered, was not an abuse of the Court’s discretion which requires a reversal. 5. Trial — Instructions—Weight oe Evidence. — A charge that, when it appears that a servant is injured by defective machinery or appliances furnished by the master, it is presumptive negligence on the part of the master, does not take from the jury the question whether the machinery was defective. 6. Master and Servant — Injuries to Servant — Defective Place to Work — Knowledge of Master. — A master is liable for injuries to his servant resulting from defects in the place of work of which he would have known had he exercised due diligence, as well as from those of which he actually did know. 7. Continuance — Grounds—Absence of Attorney. — The trial Court did not abuse its discretion in refusing a continuance asked on account of the sickness of one of the defendant’s attorneys, where another attorney was present, prepared in all respects and fully capable of representing the defendants. 8. Trial — Requested Instructions — Modification.—In an action for injuries to a servant, it'was proper for the trial Court, in giving a requested charge that the plaintiff could not recover merely by showing that there was a defect in the machinery, but must also show that plaintiff’s injury resulted from such defect, to modify it by stating that he gave it in connection with what he had already stated as to the presumption of negligence resulting from defective appliances or machinery. 9. Trial — Instructions—Request—Delay in Presenting. — It was not error for the trial Judge to refuse a requested charge which was not presented within the time fixed by rule 11 of the Circuit Court. 10. Trial — Instruction—Requisites—Necessity.—The failure of the Court to charge that plaintiff could not recover if the evidence showed he received his injuries in a manner not alleged in the pleadings, is not error, where no request was made for such a charge, even though plaintiff’s attorney argued that plaintiff could recover if he received his injuries in that manner.

Before StcasK, J-, Kingstree, November, 1913. Action by Thomas B. Cutter against Mallard Lumber Company. From judgment for plaintiff, the defendant appealed. The charge of the Circuit Judge was follows : Mr. Foreman and Gentlemen of the Jury: You are judges —the sole judges of the credibility of the witnesses, and the force and effect to be given to' their testimony, and the conclusion that you may reach from that testimony. You are to give the defendant and the plaintiff a fair, square trial. You have no prejudices against either party to the transaction. For the time being you are judges in the highest sense of the word. You will, therefore, approach the consideration of this case in a judicial frame of mind, calmly, earnestly, honestly, to reach a proper verdict under the law and under the testimony as you understand it to be. You are to apply to the facts as you find them to be the law that I shall give you. Now, you want to know what we are trying, what are the issues. They are set forth in the pleadings, that is the complaint of the plaintiff and the answer of the defendant, and those two papers make the issues and frame the issues that you are to try in this case. Now, what is the complaint? What is the allegation of the complaint? that is, the plaintiff comes into Court and sets forth his claims that he contends gives him a right to recover damages. Then the particulars — he alleges that he was injured by the negligence of the defendant, Mallard Lumber Company, in failing and neglecting to furnish the said plaintiff a reasonably safe place to work and a reasonably safe appliance with which to work, in the’following particulars, to wit: in causing or allowing the plaintiff to use a stick for .the purpose of stopping the said machinery, and causing or allowing said belt to become worn so as to catch said stick and in failing to protect or guard the said machines as under the circumstances would have prevented injury to the plaintiff, and alleges that the defendants have failed in their duty to him in that particular, and also alleges that by reason of the negligence, carelessness and recklessness and wantonness of the defendant, its agents and servants, he had his leg broken, torn, burned and mashed to such an extent that it was obliged to be amputated above the knee; had his right leg badly cut in several places, and was also prevented from .attending to his duty or vocation and was otherwise hurt and injured, in the sum of ten thousand dollars. Now, that in brief is the gist of his complaint. The answer to that is a general denial, that is the basis of the answer.. The defendants denies the general allegations of the complaint. That puts the plaintiff on proof of all those allegations. If he has established them to your satisfaction by the preponderance of the evidence, then he is entitled to a verdict at your hands. If he has not established them to your satisfaction, then he is not entitled to a verdict at your hands. Now,» what is the law? You will notice that the complaint is based upon negligence. Therefore, it is your duty first to understand as near as you can the law of negligence. What-is negligence? You have a general idea of what negligence is, but the law says that negligence is the want of due care; that is, the want of that care that is due and owing under all the circumstances surrounding a given situation. It is a relative term. What might be negligence in one set of circumstances and under one situation might not be the same thing — might not be negligence in -a different place and under a different set of circumstances. You are to judge from all the circumstances and the conduct of the persons whose conduct you have under investigation, to say whether or not they observed due care, whether or not they observed that care that was due under the circumstances. A concise^ definition as taken from the lawbooks no doubt will give you a clearer understanding o E what negligence is, because that is the basis of the complaint. “Negligence is the omission to do something which a reasonable man actuated by the considerations which ordinarily regulate the conduct of human affairs would, do, or doing something which a prudent and reasonable man would not do. It is the absence of ordinary care; it is the want of that care which a man of common prudence and of common sense would ordinarily exercise in like employment. Inadvertence is the element which characterizes negligence, as the unintentional failure to perform a duty implied by law, whereby damages naturally and proximately result to another.” First, negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or the doing of what such a person under the existing circumstances would not have done. It is the absence of due care; therefore, gentlemen, if you come to the conclusion that the defendant did not observe the care that was due under the circumstances surrounding the plaintiff at the time, and that want of due care was the proximate cause of his injury and damage, then he is entitled to a verdict, and I instruct you that he must establish the allegations of the complaint in regard to negligence by the preponderance of the evidence, not necessarily by the greater number of witnesses, but by the greater weight of the evidence. When he has done that, he is entitled to a verdict at your hands. Now, the plaintiff, in law, is known as the servant, and the defendant, in law, is known as the master. There are certain rules of law that govern the relations of master and servant, and I charge you gentlemen that it is the duty of the master to furnish a reasonably safe place in which his servant can perform his work, and also to furnish him with a reasonably safe appliance — instrumentalities and tools, and things of that kind. When he has done that, he has performed his duty fully — the master has. It is for you to say whether or not in this case the master has furnished reasonably safe instrumentalities and reasonably safe and suitable place in which and with which the servant was to perform his chit}''. " I charge you gentlemen that where it appears that a servant has been injured by defective machinery, appliances and instrumentalities, the presumption is that the master is negligent, but that is a rebuttable presumption, and if the master shows that he observed due care in that regard, then'he is not liable. I charge you gentlemen that the master is not an insurer of the absolute safety of his servants. He is not in law an insurer, but he must furnish a reasonably safe place and a reasonably safe appliance and instrumentalities and matters of that kind, and also he must keep the place and instrumentalities in reasonably safe repair and good condition. I charge you, in order to get it before you, this: When it is made to appear that a servant is injured by defective machinery and appliances furnished by the master, it is presumptive negligence on the part of the master, and the burden is thrown upon the master to show that he used due care and diligence in keeping in repair the machinery and appliances. This presumption of negligence is rebuttable presumption, and if the master shows that he exercised due care and diligence in the premises, he is not liable. Now, there was a motion made by the defendant’s counsel to direct a verdict in regard to wilfulness and wantonness. At the time I refused it. At this time I grant it. After hearing the testimony argued on both sides, I will have-to charge you gentlemen that there is no wilfulness and wantonness proven in this case; therefore you cannot write a verdict for the plaintiff for punitive damages; that is to say, damages to punish the defendant-master. If you find for the plaintiff, you will only find such damages as he has actually suffered; that is compensatory damages — to compensate him for his loss and injury and damage. Now, counsel for both sides have requested me to make certain charges to you, which I now take up. Plaintiff’s requests: 1. “The jury is instructed that it is one of the first duties resting on the master to furnish his employee with a reasonably safe place to work and reasonably safe appliances to work with, and if the master fails to perform his duty, there is prima facie evidence of negligence.” I charge you that, gentlemen. I have already charged you that. 2. “The jury are .instructed that a servant performing work for his master has a right to assume that the place where he is put to work and the appliances furnished him to work with are reasonably safe and suitable, for it is the positive duty of the master to see that this is the case and if he fails to perform this positive duty to his servant then the master is prima facie guilty of negligence.” I charge you that. 3.“The jury are instructed that under the pleadings in this case if you believe that the master, defendant in this' case, was negligent, and if you believe that the plaintiff was also negligent, both negligent, then your verdict should not be for the defendant, but for the plaintiff, for the reason that the defendant in this case has not pleaded what is known as contributory negligence.” I charge you that. I instruct you, however, if you come to the conclusion that the servant through his own negligence injured himself, and it was not caused by the negligence of the defendant, then the plaintiff cannot recover. 4.“The jury are instructed that if they believe from the testimony that the defendant is liable to the plaintiff for damages, then in estimating such damages you may take into consideration the following elements: Toss of time to the plaintiff, if any; the physical and mental pain and suffering, which plaintiff has already endured by reason of such injury, if any; and also that which is reasonably certain will of necessity result in the future from such injury; the impairment of health resulting from such injury, if any; the pecuniary loss sustained up to the trial of this case, by reason of such injury, if any, and the pecuniary loss due to incapacity to earn in the future, if any. Mr. Lee hands up written request. Court: It is too late now. You,see I haven’t got time to consider the request, and it would be unfair to the Court to shove up a request at this late moment to read to the jury. Your requests are pretty full, nevertheless. The defendant asked me to charge the following propositions of law. I will state this, in a case of this kind or in any other case, for that matter, it is impossible for the Court to announce all the propositions of law in one sentence or one proposition; therefore, you will take the whole charge as a whole; the different propositions announced and the requests are not intended to be contradictory, but they may modify or qualify one another. The defendant asked me to charge you the following propositions: ' 1. “Negligence is a mixed question of law and fact, and is defined to be want of due and proper care under the particular circumstances.” I charge you that. I have already charged you that. 2. “In every case involving negligence there are necessarily three elements to its existence: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff from such failure of the defendant.” I charge you that, gentlemen. 3. “It, therefore, follows that the plaintiff in this case cannot recover merely by showing that there was a defect in the machinery operated by him; this must be shown, but in addition, the jury must be satisfied by the preponderance of the evidence that the plaintiff was injured as the result of such defective machinery so operated by him.” I charge you that in connection with what I have already charged you in regard to the presumption of negligence where injury results from defective appliances and machinery. 4. “I charge you that the defendant in this case was not required to furnish the plaintiff an absolutely safe and secure place to work, and absolutely safe and secure appliances with which to work. The law required it to furnish only a reasonably safe place to work and reasonably safe appliances with which to work. A suitable appliance is an appliance reasonably safe and proper, or reasonably flee from defects which render it dangerous to operate. If, therefore, the jury find from the testimony in this case that the defendant did furnish the plaintiff a reasonably safe and secure place to work and reasonably safe and secure appliances with which to work, then the verdict must be for the defendant, even though the jury find that the plaintiff was injured while operating said machinery, for the master is not an insurer of his servant against injury.” I will charge you that, gentlemen. I will have to refuse the fifth, Mr. Lee, because of my opinion of the law. 6. I charge you, “I charge you, further, as a matter of law, that a master is entitled to a reasonable time after he discovers a defect in machinery or appliances in which to repair the same before he can be held liable to his servant for injuries resulting from such defects, provided he has used due diligence and care in discovering such defects.” 8. “I charge you that an employer is required to furnish the servant a reasonably safe place to work and reasonably safe appliances with which to work, and if he does this, he may then expect the servant to call attention to any defects that may appear or any repairs that may become necessary so far as due care on the part of.the servant will discover them.” I charge you that. Now, gentlemen, this is a matter, I take it, that you understand, like I have charged you. If' you don’t, you must make your best efforts to understand it, and if after your own efforts you don’t understand it, it will be your duty to come back or rather report and come back and ask for further instructions, to understand any part of the charge. The form of your verdict will be, “We find for the plaintiff” so many dollars, writing it out in words and not in figures, remembering you cannot go beyond ten thousand dollars, because that is the amount asked in there; whatever amount you come to the conclusion he is entitled to under the law, if you find he is entitled to recover, you write it out in words and not in figures; or, “We find for the defendants.” Whatéver verdict you write, write it on this paper— this blue paper, and sign your name and add the word foreman under it. The exceptions were as follows : 1. Because his Honor erred, it is respectfully submitted, in refusing to continue this case on motion of one of the defendant’s attorneys, it having been made to appear to the Court that defendant’s senior counsel, John A. Kellej'-, Esq., who was experienced in such cases and was in thorough touch with this case, and was expected to have charge of the conduct of the trial, had suddenly taken seriously ill and was physically unable to leave his room, and thus prevented from attending the trial of the case. 2. Because his Honor erred, it is-respectfully submitted, in excluding the testimony offered by defendant to showr that no other accident like the one in question had ever occurred at defendant’s lumber plant under the same circumstances and conditions; it being respectfully submitted that such testimony was competent, relevant and material, as tending to show: Eirst, that the accident in question did not happen as alleged in the complaint; second, that the defendant was not guilty of negligence in allowing plaintiff to shift the belt mentioned in the complaint in the way it was shifted; and, third, that the appliance used by plaintiff in shifting said belt was reasonably safe. 3. That his Honnor erred, it is respectfully submitted, in requiring the negro witness, E. J. McCollum, over the objection of the defendant, to testify as follows: “Mr. Logan: Q. What are your wages there? Mr. Lee: That is irrelevant. Q. I don’t know whether it is or not. What are your wages? A. I don’t usually tell my wages unless asked. Q. You are paid more than the white men around there, aren’t you? A. I don’t know. Mr. Lee: I object. A. I don’t know what their wages is. Court: I think that would be competent; of course, I presume the object is to show that the witness is prejudiced. Mr. Logan: That’s it, your Honor. Q. I am asking you if you are not paid well by this lumber company? Aren’t you one of the highest paid witnesses down there? A. I don’t know what the white men get. Q. You don’t know what the white men get? A. No, sir. Q. You don’t know what they are getting now? A. No, sir. • Q. What do you get? I will show what they get. A. I don’t usually tell my wages. Court: You will have to answer. A. I get fifty-five dollars a month.” The error being that said testimony was totally irrelevant and immaterial and was brought out by plaintiff’s counsel solely for the purpose of appealing to the prejudice of the jury; it is apparent from the language used by plaintiff’s attorney in propounding his questions, that said testimony was not being brought out to show the bids of the witness, but on the contrary, that he was seeking to bring out said testimony for no other purpose than to show that this negro witness was paid higher wages than some of the white employees of the mill, and thus prejudice the minds of the jury against the defendant to its damage, all of which was incompetent and improper and should not have been allowed by the presiding Judge. 4. Because his Honor erred, it is respectfully submitted, in allowing the plaintiff, over the objection of the defendant, to testify as follows : “I want to ask you whether in that same mill they covered those places, the pulleys, and if they used or did not use a shifter or lever? At the sawmill machines they got down there they got places covered and fixed a shifter in it; ain’t a bit of danger or nothing in the world; ain’t got no stick to shove them off, but got levers to shift them from a place covered there. Cohrt: You mean a place covered over the pulleys ? A. The belts up here and the shifter covered, Q. And have the belt there and shifter? A. Yes, sir. Q. The belt covered and the shifter? A. Yes, sir. Q. Is that right? A. Yes, sir. Court: Shifter is working with a lever, isnt it? Mr. Davis: Yes, sir. Court: I wanted to get it in my own mind.” The error being that said testimony was incompetent and irrelevant relating as it did to the machinery in other parts of defendant’s plant, it not having been shown that the conditions and circumstances surrounding such other parts of the plant were the same as those which surrounded the machine at which plaintiff sitstained his injury. 5. Because his Honor erred, it is respectfully submitted, in charging the jury as follows-: “I charge you in order to get it before you, that when it appears that a servant is injured by defective machinery or appliances furnished by the master, it is presumptive negligence on the part of the master, and the burden is on the master to remove it,” etc.; it being respectfully submitted that no presumption of negligence on the part of the master arises from proof of injurjr from defective machinery or appliances in this case. 6. Because his Honor erred, it is respectfully submitted, in refusing to charge defendant’s fifth request, which is as follows: I charge you, further, as matter of law, that the defendant in this case is not liable to the plaintiff for injuries to him arising from defects in the place for work, or in the machinery or appliances, of which defect it had no knowledge prior to the time of the accident. In other words, if you find from the testimony in this case that the alleged defect in the belt in question did not exist prior to the time of the accident, or if it did and the defendant had no knowledge of it, then I charge you as matter of law that your verdict must be for the defendant. The reason of this is there can be no negligence where there is no knowledge of the defects on the part of the person charged with the negligence ; it being respectfully submitted that said request contains a sound proposition of law, applicable to the facts in this case, and his Honor should have so charged the jury. ■7. Because his Honor erred, it is respectfully submitted, in not granting defendant a new trial upon the first ground set'out in the motion for a new trial, as follows: Mr. Lee: The first ground of the motion for a new trial is that the Court should have continued the case upon the showing made, that Captain Kelley was engaged in the suit, and that the case should have been continued beyond this Court when Capt. Kelley was taken seriously ill during the term of the Court, and it further appeared that he advised with and was in charge of the case, and that I myself couldn’t go along without his assistance, co-operation and advice; it being respectfully submitted that his Honor, the presiding Judge, should have granted a new trial when it was made to appear to him that the case had been commenced recently; that defendant’s senior counsel, who was in thorough touch with the case and who was expected to have charge of the conduct of the trial, and suddenly taken seriously ill and was unable to attend the trial; that defendant’s other attorney was gravely embarrassed and labored under serious disadvantage, in the trial of the case on account of the absence of said senior counsel, which operated to the injury of the defendant and to the detriment of its case. 8. Because his Honor erred, it is respectfully submitted, in modifying defendant’s third request to charge by adding, “I charge you that in connection with what I have airead}' charged you in regard ,to the presumption o'f negligence where injury results from defective appliances and machinery;” the error being (a) that in so modifying defendant’s request his Honor completely annulled the force and effect of the same and, therefore, denied to the defendant the benefit of having the instruction contained in said request submitted to the jury unincumbered; (b) that said modification was wholly uncalled for and unnecessary and injured defendant’s case before the jury; (c) that in so modifying said request and in using the language quoted, his Honor indicated to the jury his opinion that the burden was upon the defendant to show that it was not negligent, whereas it should have been left entirely to the jury to say whether or not the plaintiff had made out a prima facie case, and (d) that said language contains an erroneous proposition of law. 9. Because his Honor erred, it is respectfully submitted, in allowing plaintiff’s attorneys in their arguments to the jury to vigorously reiterate and repeatedly stress the fact that the negro, E. J. McCullom, was paid by the defendant $55.00 per month as wages while some of defendant’s white employees received less than one dollar per day; it being respectfully submitted (a) that such argument was improper, unjust and unfair to the defendant; (b) that the testimony of McCullom was admitted by the Court for the stated purpose of showing the bias of the witness and was vigorously used by plaintiff’s attorneys to appeal to the passions of the jurors for the purpose of obtaining sympathy for the plaintiff, who was a white employee of defendant receiving, at the time of the accident, less than a dollar per day, and for the further purpose of creating in the minds of the jurors a strong prejudice against the defendant, and (c) that appellant verily believes that the said improper argument so used by plaintiff’s attorneys, had a tremendous influence upon the jurors, and that as a result of such argument, the jury, in rendering its verdict, was actuated by prejudice against the defendant. 10. Because his Honor erred, it is respectfully submitted, in refusing to receive and charge the following, written request submitted by defendant’s attorney, to wit: “I charge you that if you find from the testimony in this case that the plaintiff’s injury was caused by his stepping over a pulley while it was in motion, and not as alleged in the complaint, then your verdict must be for the defendant. For the plaintiff must recover, if he recovers at all, upon the cause of action alleged in the complaint, that is, he must satisfy you that he was injured in the manner and under the circumstances set out in the complaint, in order to justify you in finding a verdict for him.” The error being (a) that said request was suggested by the arguments of one of plaintiff’s attorneys and it was, therefore, not necessary that said request should have been submitted before, argument of the case was commenced as stated by the Court; (b) that said request contains a sound proposition of law applicable to the facts in this case and was submitted in direct response to the argument of plaintiff’s attorney; (c) that his Honor should have received said request and given defendant’s attorney an opportunity to explain why it was not offered before arguments were commenced, and (d) his Honor erred in not holding and in not receiving and charging the jury said written request. 11. Because his Honor erred in not instructing the jury that if they should find from the testimony that plaintiff’s injury was caused by his stepping over a pulley while it was in motion and not as alleged in the complaint, then their verdict must be for the defendant; it being respectfully submitted that plaintiff’s attorney having argued to the jury that they should find a verdict for the plaintiff even though they should conclude that he was injured by stepping over a pulley in motion and not as alleged in the complaint, it was the duty of the Court to charge the jury, in response to said argument, whether requested to do so or not, that plaintiff must recover upon the acts of negligence alleged in the complaint and that he could not recover if the jury should find that he was injured otherwise than as alleged in the complaint, and that his Honor erred in not so holding and in not so charging. submit: Refusal to continue case an abuse of discretion: SO S. C. 403; 4 Enc. PI. & Pr. 841. Testimony no accidents of the kind alleged that ever occurred zvith machinery in question: 44 S. C. 442; 26 Cyc. 1450; 32 So. 283; 56 N. Y. Supp. 275. Testimony as to wages of employee witness irrelevant: 69 S. C. 360; 32 S. C. 538; 92 S. C."236. Testimony as to machinery in other mills: 26 Cyc. 1433; 189 Mass. 498; 26 R. I. 180; 41 So. 856. Master's knowledge of defects essential: 35 S. C. 405; 15 S. C. 443; 26 Cyc. 1142; 29 Cyc. 430. Argument improper and prejudicial: 2 Enc. PI. & Pr. 744; 72 Tex. 643. Additional requests to charge under Rule XI of Circuit Court, was proper: Watson Damages 830; 91 S- C. 147. Duty of Court to declare the law: 52 S. C. 292. submit: Continuance was in proper discretion of the Court: 79 S. C. 85; lb. 548, 549. Exclusion of evidence not reversible error unless prejudicial: 90 S. C. 425. Whether relevant to be determined by trial Judge: 17 S. C. 129; Greenleaf Ev. (15th ed.), sec. 437. Objection to argument waived by failure to call attention to it at the time: 138 U. S. 361; 91 S. C. 144. Request not tendered until during the charge is too late under C. C. Rule ii: 88 S. C. 164; 92 S. C. 175; 94. S. C. 216.