James v. Gaffney Mfg. Co. , 158 S.C. 386 ( 1930 )

I do not think that an authority can be found anywhere that sustains the charge referred to in the third exception, to the effect that, if an appliance, supplied by the master, contains a latent defect, which is not obvious "and can't be seen," it is the duty of the master to warn the servant of such latent or hidden defect.

The law as I understand it, is as laid down in the case ofTexas P.R. Co. v. Archibald, 170 U.S. 671,18 S.Ct., 777; 42 L.Ed., 1188, cited and quoted from at length, with approval, in the case of Wood v. Mfg. Co., 66 S.C. 482,45 S.E., 81, 82: "The elementary rule is that it is the duty of the employer to furnish appliances free from defects discoverableby the exercise of ordinary care. * * * The employee * * * has the right to rest on the assumption that appliances furnished are free from the defects discoverableby proper inspection." (Emphasis added),

The logical effect of the charge complained of is that, if there is a defect in an appliance, latent, not obvious, "that could not be seen," regardless of the plainly circumscribed duty of the master above set out, to exercise reasonable care in detecting it, the master is liable for the consequent injury.

A recent discovery is claimed of an alloy that will make impossible the presence of air bubbles in all kinds of cast iron appliances, wheels, shafting, rods, etc. There cannot be conceived a defect that would be less obvious, "that could not be seen." Under the rule announced, the master would be charged with the duty of warning a servant of the presence of such a defect, when it would be impossible with the exercise of superhuman care to discover it.

It seems to me that the law is perfectly plain and simple and adequately protects a servant injured in the use of an appliance furnished by the master. It the appliance, causing the injury, be shown to have been defective, the presumption of negligence attaches to the master, and the burden is cast upon him to show as a defense that he had exercised due care in the inspection of the appliance and had not discovered the defect. The charge imposes upon him the absolute duty of warning the servant of the unseen defect regardless of the legal defense that it had not been discovered after the exercise of due care under the circumstances. I can find nothing in the charge which relieves the error.

In Roberts v. Co., 84 S.C. 283, 66 S.E., 298, the Court held that, where latent dangers are or should be known to the master, and he knows, or should know by exercising ordinary care, that a servant does not know of them, he must warn the servant of such dangers.

In Berley v. Tel. Co., 82 S.C. 360, 64 S.E., 157, the Court held that an employer is bound to notify an employee of risks arising from hidden or secret causes, where he knows of them himself, or by the exercise of ordinary care ought to have known of them.

The foundation of the master's liability is not simply the presence of a defect in an appliance, but it is in his negligence in not discovering it and then warning the servant of its presence. While, as stated, evidence that the servant was injured by reason of a defective appliance throws the burden of exculpation upon the master, the exculpation becomes complete when he shows that by the exercise of ordinary care the defect could not have been discovered.

In Turner v. Mfg. Co., 97 S.C. 112, 81 S.E., 430, the Court said: "The doctrine is well settled here that, in a case like this, the untoward event which works injury does not of itself raise the presumption of a defective machine, and therefore of negligence by the master; but there must be other testimony, direct or circumstantial, that the loom injured the weaver because it was defective in its parts, and that such defect was the result of the master's neglect."

The charge eliminated all possibility of the defendant showing the absence of negligence, assuming proof of the defective appliance, and that it caused injury.

The fact that the lumber for the "horse" was supplied by the defendant, and the appliance was framed by its employees, has no bearing upon the correctness or incorrectness of the charge. It would have a bearing upon the question whether due care was exercised to discover the danger from the alleged defect — a matter for the jury.

It was also a matter for the jury whether the knot in the plank constituted such a defect as would naturally and probably cause a break of the support.

For these reasons I think that the judgment should be reversed.