Kinsey v. Colleton Cypress Co.

110 S.E. 393, 118 S.C. 234, 1922 S.C. LEXIS 7

• Court: Supreme Court of South Carolina
• Decided: January 25, 1922
• Docket: 10824
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is an action for damages for a death by wrongful act.

Grady Kinsey was at work cutting down trees for the defendant company. He had only a few days’ experience in cutting down trees. The men who cut down the trees worked in pairs. The deceased and another new man worked together for a few days. They came to the conclusion that it was better to get coworkers of experience, and the deceased took J. H. Varn as his coworker. The cutters were assigned certain territory in which to cut. These workers selected the trees they were to cut and the order in which they were to be cut. They came to a place where there was a live tree to be cut and near it a dead tree. They cut the live tree, and when it started to fall Varn ran west as the tree was falling to the east. The deceased ran. For some unaccountable reason the dead tree fell on him and crushed his head. The administrator brought suit for his death.

At the close of the plaintiff’s evidence the defendant put in no testimony, but moved for a directed verdict. This motion was refused.

1 There are a great many exceptions, but, in the view that this Court takes of the case, only one question need be considered: Was there any, evidence of negligence as the proximate cause of the death of the deceased? The plaintiff is required to prove only one specification as the proximate cause of the death.

2 (a) The first specification of negligence is the failure of defendant to instruct the deceased of the danger. Varn, the experienced and instructed coworker chosen by the, deceased on account of his skill and experience, apprehended no danger. There is nothing in the case to even suggest in any way that the fullest instruc-. tion would have prevented the accident. The instructions to which the testimony referred were instructions that would enable the cutter to avoid injury from the tree that was being cut down. There is no presumption of negligence here. The injury in this case was not from the tree that was being cut down, but from the dead tree. The testimony in the case utterly failed to connect the fall of the dead tree with the fall of the tree that was cut down. The plaintiff’s witness, Varn, said he did not know what caused the dead tree to fall. Indeed, the appellant’s argument frankly states “the cause of the falling of the dead tree being unknown.” This specification is not made out.

(b) The next allegation of negligence is like the first— a failure to warn the deceased of the dangers of felling trees. What .is said above determines this specification, and it cannot be sustained.

(c) This also complains of want of instruction to an inexperienced servant, and is not sustained by the evidence,

3 (d) That the negligence consisted in not furnishing the deceased with a safe place to work. The plaintiff emphasized the danger of felling trees. It is conceded in this case that felling trees is a dangerous business, and that the deceased knew it. It is not suggested that it is the duty of the master to free the woods of dead trees before his employees should be allowed to enter upon their work. The master-is liable for negligence in failing to- provide a reasonably saf;- place, considering the nature of the .work. When the plaintiff failed to connect the fall of the dead tree in any way with the felling of the tree, she failed to make out her case, and a verdict should have been directed.

Judgment reversed'.