Opinion
June 15, 1904.
Before KLUGH, J., Anderson, February, 1904. Affirmed.
Action by James Robert Hix against Belton Mills. Defendant appeals from Circuit order refusing motion to require plaintiff to make his complaint more definite and certain.
Messrs. A.T. Smythe, Tribble Prince and Bonham Watkins, for appellant. The latter cite: Where defect complained of is not hidden or latent, and plaintiff knows what it is, he should specify: 45 S.C. 278; 83 Ala., 831; 81 Wis. 60 L.R.A., 630; 65 S.C. 228; 81 Wis. 356.
Messrs. C.J. Hunt and M.F. Ansel, contra. The latter cites: Matter involved has been recently decided: 66 S.C. 12; 68 S.C. 201.
June 15, 1904. The opinion of the Court was delivered by
This is an appeal from an order refusing a motion to make the complaint definite and certain by setting out and specifying the particulars in which the alleged negligence in the construction and repair of the window, as set out in paragraphs 3 and 4 of the complaint, consisted. Those paragraphs of the complaint are as follows:
"3. That on the 27th day of September, 1902, the plaintiff received orders from James Grubbs, the boss of the card room of the said mill, who represented the said defendant company and had authority over the plaintiff, and whose orders the plaintiff was required to obey, to wash certain windows in said card room of said mill; that plaintiff was ordered to do this work by the agent of the said defendant company, and in obedience to said orders proceeded to do so; that said windows were so constructed that they would open inwardly from the top, but fastened to the other portion of said window by hinges; that plaintiff was required to use a stepladder to do this work; that one of the said windows had been negligently and carelessly allowed to become out of repair and to remain so and was not kept in repair, the same not opening and shutting as it would have done if it had been carefully kept in repair; that this plaintiff knew nothing of this defect in said window, and after having washed one side of the glass in the said window and in an attempt to close the window, the same would not close without great effort on the part of the plaintiff; that in attempting to close said window and using all the care and prudence he could, he was thrown from the stepladder on which he was standing to the floor, some six or eight feet, striking his back against some machinery, breaking his right leg near the groin, dislocating his right hip joint, tearing the ligaments loose which surround the hip joint and otherwise injuring his back, inflicting upon him permanent injury.
"4. That the injury to the plaintiff by being thrown from the said stepladder was solely due to the negligence and carelessness of defendant company, its agents and servants, in this, that said window had been so negligently allowed to become out of repair that it would not open and shut easily upon its hinges; that in allowing said window to be in a condition in which it would not open and shut without an effort, and by further allowing said window to remain in said defective condition, and in not giving notice of the same to the plaintiff when he was ordered to wash said windows as aforesaid."
Our construction of the complaint is that it, in effect, alleges that the window was defective. Having reached this conclusion, the cases of Bolin v. Ry. Co., 65 S.C. 222; Lynch v. Spartan Mills, 66 S.C. 12, 44 S.E., 93; and Moore v. Catawba Power Co., 68 S.C. 201, are controlling.
It is the judgment of this Court, that the order of the Circuit Court be affirmed.