6843

#### ELMS v. SOUTHERN POWER CO.

1. Waiver. — Jurisdiction of the person is waived by answering to the merits.

2. Jurisdiction. — If there be more than one defendant, the action may be tried in any county in which one or more of them reside.

3. Master am Servant — Negligence—Issues.—-Whether the projection of a brace for an inch and a half over the rim of the bull-wheel of a derrick is an obvious danger or extraordinary or unusual is for the jury.

4. Evidence. — Under allegations here evidence as to wealth of defendant company was properly admitted.

5. Master and Servant.- — Charge as to care in selecting servants and providing safe place for servant to work was harmless, as no question of selection of servants was made.

6. Master and Servant — Fellow Servant — Negligence.—Charge as to rule of liability of master where his negligence and that of a fellow servant combines and commingles to produce injury to a servant approved.

7. Ibid. — Risks.—Charge that a servant assumes only known risks or such as would be known by a person of ordinary prudence, reason and sense, placed in the same circumstances, approved.

8. Punitive Damages. — If there was no motion for nonsuit as to punitive damages, or no request to charge that there was no evidence to *503support them, this Court can not consider if there was any such evidence.

9. Exceptions assigning error in refusing to charge request only set out in argument will not be considered.

Before Wiuson, J., Lancaster,

October Term, 1907.

Affirmed.

Action 'by John M. Eilms against Southern Power Company and Jamies P. Rosamond. Eromi judgment for plaintiff, defendants appeal.

*Messrs. Morrison &*Whitlock, *Francis I.*Osborne, *Russell G. Lucas, W. C. Hough*and *Norman A. Cocke,*for appellants.

*Messrs. Morrison & Whitlock*

cite: *Plaintiff assumed the risk, and is guilty• of contfibittory negligence:*5'8 S'. E., 10; Shearman & Red. Neg., Secs. 212, 217. *Only negligence complained of was done by Rosqm\ond:*56 S'. EL, 9; 2 Labi., Secs. 506, 514, 515, 519, 586; 4 Thomp. on Neg., 933; 72 Si C., 237; 71 S. €., 53; 74 S. C., 419; 39 S. E., 708; 18 S. C., 270; 22 S. C, 557; 23 S. €., 526; 39 Si E., 510; 51 Si C., 96; 1 Q. B„ 58; 145 N. Y„ 190- 44 N. Y. Suppi, 1; 86 Pa., 439; 32 Midi., 510i *What makes out case of punitive damages:*38 S'. E., 240- 39 S. E., 351. *Jurisdiction as to Rosamond:*11 S. C., 122; 25 S. C., 385. *Servant assumes obvious dangers:*20 Ency., 312; Shear. & Red., Sec. 212- 26 Cyc., 1217. *Servant can not recover for negligence of fellowt-servant:*56 S. E., 9; 72 S. C., 237 ; 71 S. C., 53; 74 S. C, 419; 39 S. E., 708. *Servant repairing machinery assumes risks growing out of defects:*39 S. E., 708. *If servarit chose dangerous w\ay master is not liable:*54 S. E., 110.

*Messrs. Francis I.*Osborne, *Russell G. Lucas*and *Norman A. Cocke*

cite: *This Court should inquire if there is any**504*evidence to support plaintiff's charge:*58 S'. E., 13; 59 S. E., 365. *Defendant did not fail to- perform cm-y of the duties of the master:*61 S'. C., 491; SO Ency., 132; 41 S. C., 388; Lab. on M. & S., Secs. 29, 268. *Safe place:*61 S. C., 491; 20 Ency., 119, 132; 41 S, C, 388; 1 Eab. on M. & S., Secs. 335, 862, 865; 59 S. E., 365; 61 S. C., 491; 110 Ill., 340; 67 Mick, 61; 53 Wis., 661; 58 W'is., 1; 7 Wlask, 178; 39 S-. E., 507. *Plaintiff was injured by :act of fellow-servant and defendant company not liable:*79 S. C., 452; 58 S, E., 1019, 12; 56 S. E., 18; 71'S. C., 53; 75 S. C., 487; 72 S, C., 264; 74 & C., 419; 70 S. C., 96; 39 S. C„ 507; 18 S. €., 262; 25 & C., 128; 18 S. C., 270; 23 S. C, 526; 39 S'. C., 510; 51 S. C., 79; 71 S. C„ 53; 72 S. C., 237. *Plaintiff tms injun'ed by risks he had assumed:*22 S. C., 227; 59 S. E., 365; 20 Ency., 111-2, 115, 117; Lab. on M. & S'., Sec. 30a.; 26 Cyc., 1196, 1203, 1263; 72 S. C., 237, 264, 346; 74 S. C., 419; 70 S'. C., 470; 55 S. C., 483 ; 75 S. C„ 487; 70 S. C., 242; 27 S. C., 71; 21 S. C., 547; 66 S. C., 91; 58 S'. E., 12; 56 S. E., 18. *ATo duty on defendant to warn of danger:*55 S. C., 483; 72 S. C., 346; 58 S. E., 13; 27 S'. C., 71; 26 S. C, 490; Lab. on M. & S'., Secs. 237-S, 391, 600^1, 609; 4 Tbomp. on Neg\, Secs. 4061, 4074, 4076; Bail. Per. Inj. M. & S'., Secs. 796-800, 2871, 2707-S, 2718; 20 Ency., 97; 72 S. C., 264. *Injury due to plaintiff’s ozvm negligence or Ms contributory negligence:*58 S’. E., 13; 59 S. E., 365; 56 S, E., 18; 77 S. C., 432; 72 S. €., 97; Lab. on M. & S'., Secs. 258, 331, 333, 335; 20 Ency., 139, 144, 145, 146, 148; 140 Mass., 201; 123 N. Y., 280; 113 Mick, 476; 58 Minn., 333; 82 la., 286; 58 S. C., 413; 20 Cyc., 1249, 1263; 70 S. C, 470; 71 Minn., 150'. *Defendant company being nan-resident cui%d Rosmnond being resident of*Greenville, *Court had no jurisdiction:*7 Eney., 694; Clark & Marshall on Corp., 352; 64 S. C., 162, 139; Code of Proo., 144-7; 54 S. E., 657, 218; 25 S. C'., 385; 11 S. €., 122; 22 S. C., 276; 24 S. C, 392 ; 28 S. C., 313; 26 S. C., 70'; 53 S. C., 118. *There being no evidence of wilfulness, evidence of Wealth of defendant compmuy- was improperly ad**505*mitted:*75 S. €., 136, 116; 71 S. C., 1; 72 S'. €., 350'; 69 S. C., 160, 131; 60 S. C., 67; 57 S. C., 317; 13 Cyc., 212; 65 Minn,, 173; 67 N. W., 1119; 30 Mo. App,, 335; 73 Ga„ 119; 26 la., 363. *Plaintiff can not recover merely upon proof of the accident:*75 S. C., 102; 72. S. C., 398; 39 S. C., 39; 69 S. C., 529; 2 Ea'b. on M. & S., S'ec. 837; Bail. Per. In'j., Sec. 363; 16 S, C, 111. *Master is not liable if he shows servant to do work in safe zmy cmd he does it in dangerous w\ay:*58 S. C., 513; 56 S. E., 18; 59 S'. E., 365. *Risk assumed by servant in repairing machinery:*11 S'. C., 388; 20 Ency., 132; 69 S. C., 191; 11 S. C„ 388. *Master may delegate superintending running machinery abou,t which servant is engaged:*5'6 S'. R., 18; 39 S. C., 507. *Servant assumes all risks in repairing machinery of dangers within his knowledge:*10 S. E., 449; 20 Ency., 132; 11 S, C., 3-88; 96 N. Y., 211; 1'6 Cal., 219; 66 la., 305; 72 S'. C., 316; 31 Cal., 376.

*Mr. J. Harry Foster,*contra,

cites: *Duty of master to warn cmd notify:*Tab. on M. & S,, Secs. Ill, 120; 1 Am. St. R., 221; 16 Id., 775; 18 Id., 36; 10 Id., 827; 11 Id., 930; Elliott on Ry., Secs. 1283, 2023, 2021; 7 Am. S't. R., 133; 60 Id., 117; 89 Id., 325; 31 Id., 319; 58 Id., 511; 33 Id., 908; 50 Id., 200>; 72 S, C., !20¡; T-homp. on Neg-., Secs. 1065, 3811, 1126, 1129; 55 Am. R., 169; 8 Ami. St. R., 215; 21 Id., 722; 1 Id., 515; Cool, on Touts, 551. *Master must furnish safe place:*72 S'. C., 130'; 69 S. C., 391; 73 S, C., 557 ; 3 Elliott on R. R.; 107 Am. S't. R., 567; 64 Id., 38. *Master is liable for dangerous conditions of which he is cognizant:*Eab. on M. & S., Secs. 122, 129, 119. *In cases of exemplary damages evidence of wealth of defendant is competent:*Bl'liott on E>v., Sec. 1697; Thomp'. on Neg., Sec. 7171; 5 'Am. St. R„ 117; 2 Id., 287. *Matter excepted to and appearing only in exceptions will not be considered:*76 S. C., 125, 128; 27 S. C, 229; 36 S. C., 600; 37 S. C., 377. *Master is liable for failure to perform Ms duty or a non-assignable duty:*72 S. C., 120: 18 S'. C., *506270'; Elliott on R. R., 20, 24. *Master must exercise due care in selecting servmts:*71 S'. C., 57; 72 S'. C., 271; 34 S. C, 211; 38 S'. C., 211; 61 S. C, 468; 35 S. C., 406; 72 ■S. C., 130; 52 S. C, 446; 32 S. C, 302; 63 & C., 576. *There is na assumption of risks without knowledge of them:*72 S. C., 420; 63 S. C, 576; 53 S¡. C., 360'; 73 & C, 503; 52 S'. C., 443; 60 St C., 14; *Bortey*v. *Railway,*66 S, C., 48 S. C, 384; 53 S. C., 360; 71 S'. C., 81. *Master is liable if his negligence, commingled with that of servant, earned injury to a servant:*Lab. on M. & S'-., Secs. 814, 813 pp. 2248-9; Tfaomp, on Neg., Sees. 4932', 4856, pp. 886, 888, Sec. 4866; 44 Am. St. R., 118; McKinney on Eellow-Servants, Sec. 16; 42 Ami. St. R., 915; 32 Id., 621; 19 Id., 526; 15 Id., 180'; 5 Id., 861; 1 Id., 26; 4 Id., 263; 100 N. Y., 516'; Elliott on R. R., 2062; 110- Aim'. St. R., 700'; 61 Id., 332; 28 N. E., 1091; 16 Am. St. R., 248; 109 Id., 300; 106 U. S., 702; 72 Am. St. R., 392; 103 Id., 361; 92 Id,, 862; 94 Id., 263; Tfaomip. on Neg., Sec. 3850; 100 Am. Sit. R., 886; 18 R. A., 173; 50 L. R. A., 506 ; 47 S. E., 932.

April 2, 1908.

The opinion of the 'Court wlas delivered by

Mr. Justice Gary.

This i'S an action for damages alleged to have ¡been sustained by the plaintiff through the negligence and wilfulness of the defendants,

Thle complaint alleges that the plaintiff, while in the employment of the defendant company, in the capacity of a mechanic or laborer, was working under the defendant, Rosamond, the foreman or superintendent, when a shive wheel of one of the derricks got out of repair; that the defendant, Rosamond, directed the plaintiff to cut out the shive whe'éí and repair the same; that Rosamond declined to stop the running of the derrick, and that plaintiff, in order to repair the shive wheel, was forced to put his foot between the shive wheel and the bull wheel; that when his foot was *507in .the narrowi space between the said wheel®, his leg was caught iby a brace on the -bull 'wheel, which projected beyond the rim, and was 'carried between ¡the wheell and the framlework of the derrick, and seriously injured.

The -complaint alleges that the defendants were negligent in the following particulars:

In fumishinig dangerous and- defective machinery; in. failing to provide a safe place for the -plaintiff- ¡to work; by reason of the fact that the bull -wheel did not run level and was not -properly constructed; in that the bull ¡wheel of the derrick had -certain braces across it, which proij ec-t-ed beyond th-e rim of the wheel, -one of which projecting -ends c-augh-t plaintiff’s leg and- pulled it between the bull wheel and' the framle of th-e derrick; in that the defendants failed to- notify the -plaintiff of the projecting braces-; and in- that Rosamond refused to stop the derrick whle plaintiff was making the repairs, but ordered him to- ¡make the repairs while the derrick was in motion.

It is alleged that these acts were wilfully, wantonly, recklessly and negligently committed jointly and concurrently by the -defendants.

The defendants denied the -allegations of negligence and wilful misconduct, and set up- th-e defenses of assumption of risk, -contributory negligence, -and ¡that th-e negligence, if any, that 'caused- the injury was of a fell'ow^servant oif the plaintiff.

The jury rendered a verdict in favor of the plaintiff for $5,000.00, and-the-defendants'appealed-.

The first question that will be considered is relative *to*the jurisdiction of the Circuit 'Court to hear the case.

1 At the March (1-907) term- of the Court, the defendants made a motion that the ease be removed to Greenville or Chester County, on the ground that neither of the defendants was a resident of Tan-caster County, ¡but that the Southern Power Company was a resident of Ohiester Co-unty, -and that Rosamond was a resident of Green-ville County. Th-e motion was granted, and the -order re*508quired the cause to be removed to Chester Oownty, but on appeal- this order was reversed. 'The cause was; tried at Lancaster, at the October' (1907) term of the 'Court, but before the trial commenced, the defendant’s- attorneys objected to the jurisdiction of the Court as to the defendant Rosamond, on the ground that he was not a resident of Lancaster Opunty.

The question of jurisdiction related *to*the *person*and was waived by answering to the merits. *Garrett*v. *Herring Co.,*69 S. C., 278, 48 S. E., 254.

2 Furthermore, Section 146 of the «Code provides that, “if there be more than one defendant, then the action may be tried in- any county in which one or more of the 'defendants to such action resides, -at toe time of the commencement of toe action.”

On toe former appeal in this case (78 S. C., 323), toe Court ruled that toe Court in Lancaster 'County had jurisdiction of the Southern Power Company. The case, therefore, comes within the provisions of said section, and the exception raising this question is overruled.

3 We proceed to' consider toe pivotal question in the case, to wit: whether the danger to; which the plaintiff was subjected was plain and obvious or extraordinary and unusual.

“The well-settled rule, as we'understand it, is, that it is toe duty of the master when a servant is- set to work at a dangerous place or with dangerous machinery or other appliances, to warn the servant of toe danger to which! he is exposed, where lie knows or ought to know that the servant is not aware of toe danger.” *Owings*v. *Oil Mill,*55 S. C., 483, 33 S. E., 511; *Jennings*v. *Mfg. Co.,*72 S. C., 411, 52 S. E., 113.

The plaintiff testified as follows: “I cut it nearly through and could not reach it, and I crossed over and found I could not cut down the bull wheel and the shive board, and would not be caught, and I only had a few licks- to make, and just as I finished up the engine started and something struck 'my *509leg, and I looked up right quick and I found out there was a projecting brace up across the wheel. I tried to pull! loose from’ the brace, but it held me. Q. Did you know that the brace was there? A. No, sir. I never had been up on the machine before. Q. If that brace had not been on there, what would have been the consequence? A. I never would have been caught. Q. Did be (Rosamond) say who put it there ? A. He said he bad' it done. Q. He knew it was on there? A. Yes, sir. Q. And he didn’t tell you it was on there ? A. No, sir; he told me this after I Was in -bed. Q. What part of the derrick was covered'? A. There wasn’t any part of the derrick that was covered, that I saw. I never saw a covered derrick. Q. All parts of it were visible to the eye? A. Yes, sir. Q. By an ordinary careful inspection you could have seen everything about that derrick in which you were injured, couldn’t you, Mr. Elms? A. Well, if I had taken the timle to look it over I could. Q. Tirare wasn’t any obstruction to the eye about any part? A. No, sir; I could not see from where they put me. Of course I wasn’t able to go around and inspect them to see if there was anything wrong. I was told to go¡ out -to the shive wheel and that is where I went. Q. Well, Mr. Elms-, what I want to know of 3rou, is, if if would not have been any trouble to see these projecting braces you have testified to at all if you had looked? A. Well, I do not know about that. Well, now — . A. Yes, sir; I suppose if a man had looked he could have seen- it. Q. He would have had no difficulty in seeing it ? A. There is more than one brace on the bull wheel, you know. This one went 'across on top, and there are a lot of braces in the wheel. Q. I understand, but these that projected and caused your injury— A. It is— *Q.*One minute until I give you your question; I ask you what there was from where you were working when Mr. Rosamond left you to obstruct your view of these projectingbraces? A. Well, there was nothing. Q. Well, then, if you had happened to have looked you would have seen those braces ? A. It wasn’t necessary for me to look. Q. *510Please don’t argue tibe question, with me; just answer the question. Oould you have seen them or not if you ted looked? A. No, sir; I do not expect I could. Q. You dom/t think you could? A. No, sir. Q. Haven’t you just testified that there wias nothing toi obstruct your view? A. Store I did. Q. Why 'couldn’t you have seen them if there was no obstruction ? A. If a man isn’t expecting anything — I wasn’t expecting anything toi 'be wrong about the bull wheel and naturally I did not look for any obstruction. Q. If you hlad happened to have looked could you have seen? A’. If I had been looking for something I could. Q. Well, sir, th'at projection there was an unusual one, I understand? A. Yes, sir. Q. And if you ted looked at i't, it would have attracted your attention? A. No>, sir. Q‘. It would not? A. No, sir; I 'do not think it would. Q. You, would not have known tlien that it did project if you ted looked? A. It is such a small! -projection — but I would have known sure if I had looted at it.”

The braces,, one of which injured plaintiff, were about six in number, and projected ¡over the rim. This 'was done to stiffen the wheel, and to prevent the wires from flapping and slipping- over the wheel. Rosamond knewi that the braces wlere there, but did not tell plaintiff. The braces were two inches wide, three-quarters of am inch thick, wlere m)ade of iron, and projected one and one-half inches over the rim. The braces were about seven feet long, and ran diagonally across the wheel. It was. unusual for these braces to be plllaoed upon a wheel, and when they projected over the rim they increased the danger.

The question whether the projection, 'which wias, an inch and a half over the riml, was an obvious danger or extraordinary and unusual, was properly submitted' to the jury.

This viewi of the testimony disposes of -the exceptions relating to' the motion for nonsuit and the defenses herein-before mentioned.

*5114*510The next assignment of error is because his Honor, the presiding judge, allowed the plaintiff to introduce testimlomy *511showing the wealth oif defendant company, when there was no evidence to warrant 'a recovery for exemplary damages. The testimlony was responsive to the allegations of the complaint, and therefore the exceptions presenting this question are overruled.

5 The thirteenth exception is as follows: “That his Honor erred in 'charging the jury as follows: 1st. ‘It 'is the duty of the master to exercise due care in- the selection of servants, to furnish appliances reasonably safe and suitable, to provide the servants reasonably safe and suitable place in which to work, and to- properly notify or warn the servant of known dangers existing in a place provided a servant to wbrk.’ The error consisting in his Honor’s 'failure to define who are fellow-servants; what are appliances; and what is a safe place to work, under the law; and in that there was no allegation in plaintiff’s complaint of negligence in the selection of servants-, -and that 'this question should not have 'been submitted to the jury; and there 'Was no allegation in plaintiff’s complaint of defective appliances and no evidence whatsoever of any defect in appliances, and that his Honor erred in the 1-a-w, as to ’the degree of care placed upon the master. The true rule in the discharge of the master’s duty being the ordinary care of a prudent man and not ‘due care,’ as stated by his Honor; and because there was no allegation in plaintiff’s complaint that defendant had furnished a dangerous -place in which to -w'o-rk, and there was no evidence that the place where the defendant placed the plaintiff to work w'as dangerous.”

No question as to the selection of servants was involved in -this case, and even if there was- -error, it ha-s not been- miad-e to appear that it Was prejudicial.

The 38th, 3-9th 'and 40th exceptions are as follows-:

> 6 “That his Honor erred- in giving plaintiff’s 'eighth request to charge, ‘which is as follows: 8th. ‘I-f the jury find from the evidence that the master was negligent in any of the particulars mentioned in the complaint, but such negligence standing alonewo-uld not have caused *512the injury, but that -the injury, if any, was the result of the fellow-servant’s negligence, concurring or containgling with the master’s negligence, -as alleged, the jury may render a verdict for the plaintiff.’ The error consisting in 'holding the master responsible for the negligence of a fellow-servant.

39th. “That his Honor erred in giving the plaintiff’s ninth request to charge, which is. as follows : 9th. ‘In order to relieve the master from liability, the negligence of the fel'low^servant must have been the Sole cause of the injury, if any, and not have commingled with or combined with the master’s negligence as a proximate cause of such injury.’ I charge you that. The error consisting- in holding the master responsible for the negligence of a felow-servant.”

40th. “That hi's Honor erred in giving the plaintiff's, tenth request to charge, which is as follows: 10th. ‘If the jury find from the evidence that the negligence of the fellow-servant to the plaintiff, if any, unmixed with the defendant’s negligence, if any, would not have caused the alleged injury, blut commingled with the defendant’s negligence as an efficient cause, they will render a, verdict for the plaintiff.’ The error consisting in holding the master responsible for the negligence of a fellow-servant.”

The rulings of the presiding judge are so fully sustained by the numerous' authorities cited in' the argument of the respondent’s attorney, that we do not deem it necessary to cite others.

7 The 42d exception is as follows: “That his Honor erred in giving the plaintiff’s twelfth request to charge, which is as follows: 12th. ‘The servant assumes the dangers incident ta his employment, ¡but does not assume the dangers of defective machinery, method's or surroundings, unless, he knows it, or unless a man of ordinary prudence, reason and sense, placed in similar circumstances, ought to have known.’ The error consisting in failing to instruct the jury in the standard of machinery required by the laiw, and in failing to. define the 'legal requirements as to *513method's or surroundings'; and in -charging the jury, ‘unless he knows it or uniless a man of ordinary prudence, reason and sense, placed in similar -circumstances, ought to have known-.’ The law being that the servant assumes all risks- of which he has knowledge, or of which- h-e -could’ have h-ad knowledge by the exercise of the ordinary care o-f a prudent man.”

So much of -the exception as assigns error for failure to charge the jury in the manner therein pointed out, can not be sustained, as requests- to that effect should have been- presented by the appellant’s 'attorneys-, if they desired to -make such failure a- ground o-f appeal.

That part -of the exception which assigns- error in -charging that “unless- he knows it, or unless- a -man of ordinary prudence, reason and sense placed in similar circumstances, ought to have known,” can not -be sustained, for th-e reason that it is practically the same proposition as- that w'hi-ch the appellants -contend should have -been- charged.

8 The forty-fourth exception assigns- error in charging die 1-aw as to- -exemplary or vindictive damages “-when there w&s not an iota o-f evidence upon -which the plaintiff should have been allowed to- recover vindictive damages, there being no evidence that plaintiff was wilfully, wantonly and maliciously or recklessly o-r negligently injured.”

The case of *Jennings*v. *Mfg. Co.,*72 S. C., 411, 52 S. E., 113, shows -that this exception can not -be sustained, as th-ere was no -motion for a nonsuit as to the -cause of action f-or punitive damages, nor a request to -charge that under th-e testimony the plaintiff was not entitled to- such damages.

9 The -exceptions assigning error or in refusing to charge th-e defendant’s requests- -can not b-e -considered, as they are not -set out in the record, -but only appear in the -argument of -the defendant’s attorneys. It has been ruled, time and time again, that this- is not -sufficient.

All the other exceptions have been -considered except those which are not argued by the appellants’ attorneys.

*514It is the judgment of this Cburt, that the judgment of the Circuit Court be affirmed.

Messrs. Justices Jones and Woods *concur in the result.*