Supreme Court of South Carolina, 1917

Kelly v. Keystone Lumber Co.

Supreme Court of South Carolina · Decided March 29, 1917 · Fraser

91 S.E. 978; 107 S.C. 96; 1917 S.C. LEXIS 76 (South Eastern Reporter)

Counsel

Mr. J.K. Owens , for appellant, distinguishes: 103 S.C. 102 ; 104 S.C. 452 and 411; 89 S.C. 387 . As to assumption of risk , cites: 18 S.C. 278 ; 102 S.C. 402 ; 85 S.C. 363 ; 233 U.S. 473 ; 55 L.R.A. (N.S.) 1915c, 47. The case at bar does not fall within the doctrine announced in the line of cases holding that with knowledge of the defect and of the danger the employee may continue in order to meet an extraordinary emergency: 66 S.C. 204 ; 18 S.C. 280 ; 48 S.C. 384 ; 52 S.C. 443 ; 61 S.C. 478. Nor does the case at bar fall within the rule recognized where the employee, knowing the defect, continues the work, relying upon the master's assurances of safety, or promise of reparation: 55 S.C. 100 ; 72 S.C. 346 ; 21 S.C. 547 ; 72 S.C. 264 ; 72 S.C. 102; 80 S.C. 232 ; 72 S.C. 237 . Messrs. Gibson, Muller Tison , for respondent, cite: As to assumption of risk: 13 Cyc. 761; 26 Cyc. 1196-1202; 191 U.S. 64 ; 233 U.S. 492 ; 99 S.C. 374; 102 S.C. 402 ; 80 S.C. 238; 61 S.C. 468 .

Opinion of the Court

The opinion of the Court (reciting the above statement of facts) was delivered by

Mr. Justice Fraser.

*99 The appliances were defective, and the plaintiff knew it. In Baldwin v. Piedmont Mfg. Co. 102 S. C., at page 409, 86 S. E., at page 381, we find:

“There being no question of the master’s negligence, then the master assumed the burden of proving its affirmative defense of assumption of risk. The master is not liable for obvious risks caused by his negligence, or those of which the servant knew. The servant assumed the risk of those. The question was, What was the risk in wiping off the machine? Was it the thrusting of. the hand too far into the machine, or was it that the hand would be jerked into the machine? The plaintiff admitted that he knew if he thrust his hand too far into the machine he would be hurt. He did not admit that he knew that his hand was liable to be jerked into the machine, and there was no proof that he knew or ought to have known or assumed this risk.”

There may be defects in a machine that impede its opera7 tion. There may be defects in a machine that are dangerous to the operator. There is not a word in the case (the defendant’s evidence is not in the record) to show that the operator had reason to believe that there was danger to himself.

Assumption of risk is an affirmative defense and his Honor, Judge Shipp, could not have directed a verdict.

The exception is overruled, and the judgment affirmed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.