
    Acme Box Company v. Bascom Gregory, by next friend, and Acme Box Company v. J. L. Gregory.
    
      (Knoxville.
    
    September Term, 1907.)
    1. MASTER AND SERVANT. Safe place to -work; servant assumes risk of a known dangerous place or hole, when.
    It is th.e duty of the master to furnish the servant with a safe-place to work; but where the servant has full knowledge of the danger, and continues to work in the dangerous place, he-assumes the risk, as where the plaintiff knowing the exposed condition of a hole in the floor, continues to work there, he-assumes the risk. (Post, p. 541.)
    Cases cited and approved: Railroad v. Smith, 9 Lea, 685; Brewer v. Coal Co., 97 Tenn., 615; Brown v. Electric Co., 101 Tenn.,. 252; Corbett v. Smith, 101 Tenn., 368; Iron Co. v. Pace, 101 Tenn., 476, 486-489; Ferguson v. Cotton Mills, 106 Tenn., 236.
    2. SAME. Same. Master’s duty to inspect premises; no presumption of negligence from failure for a short time.
    It is the duty of the master to exercise reasonable care to inspect the premises and the place where his servants are-engaged, but no presumption of negligence will arise from his failure to inspect during the short period of four and one-half hours after a defect suddenly appeared by the patch, covering a hole in the floor, being torn off, and leaving the hole open and. unprotected, when no indication of anything wrong was communicated to him. (Post, pp. 541, 542.)
    3. NEW TRIALS. Overruled motion for a mew trial may be-embraced in bill of exceptions for review on appeal, when.
    A motion for a new trial overruled and refused may be brought to the supreme court in the bill of exceptions, where a written motion was filed stating the grounds on which a new trial was sought, where it appears on the minute hook that such a motion was made, and what disposition was made of it, with a reference made to the written motion so filed, and notation of the filing entered on the rule docket. (Post, pp. 542-547.)
    Acts cited and construed: Acts 1875, ch. 106.
    Cases cited and distinguished: Railroad v. Egerton, 98 Tenn., 541, 542, 543; Railroad y. Johnson, 114 Tenn., 632.
    4 PEREMPTORY INSTRUCTIONS. For verdict for defendant where plaintiff as employee assumed a known risk.
    Peremptory instructions for a verdict in favor of the defendant should he given, where the plaintiff as employee with full knowledge of the danger continues to work in the dangerous place; and the defendant as employer is guilty of no negligence. (Post, pp. 539-542.)
    
      5. SAME. Same. Dismissal of suit upon reversal for failure to give.
    Where a judgment in favor of the plaintiff is reversed upon the ground that the circuit judge erroneously refused to give peremptory instructions for a verdict in favor of the defendant, the supreme court will dismiss the suit. (Post, pp. 539-542, 547.)
    FROM HAMILTON.
    Appeal in error from the Circuit Court of Hamilton County.— M. M'. Allison, Judge.
    Smith & Carswell- and James H. Anderson, for Box Company.
    Shepherd & Frierson, for Bascom.
   Me. Justice Neil

delivered the opinion of the Court.

The first suit was brought by Bascom Gregory, a minor, to recover for personal injuries alleged to have been inflicted upon him by the negligence of the plaintiff in error, and the second was brought by his father to recover for loss of services of the son on account of the same injury. Both cases were tried at the same time, resulting in a verdict of $2,250 in favor of Bascom Gregory and $3,000 in favor of J. L. Gregory. Prom these judgments the plaintiff in error, after his motion for a new trial was overruled, appealed to this court, and has here assigned errors.

The errors assigned are: First, there is no evidence to sustain the verdict; second, the court erred in failing to sustain a motion for peremptory instructions, offered by the plaintiff in error, at the close of the testimony of the plaintiff below, and also at the close of all the evidence; and, thirdly, that the verdict was so excessive as .to indicate passion, prejudice, or corruption on the part of the jury.

We shall consider the first and second assignments together.

The defendant in error Bascom Gregory was a boy seventeen years old, and appears from his testimony to be a young man of average intelligence. He was employed by the plaintiff in error in the fall of 1905 to saw scraps of lumber into certain forms according to directions. The saw on which he was working was located on a table in front of him. Near by, to his rear, there was another saw of the same kind, worked by another boy. The two tables were distant from four to eight feet, as variously estimated by the witnesses. At the edge of the saw table just back of the defendant in error, there was a hole about sixteen inches square, which had been in the floor for many years, but up to the morning of the accident it was covered with pieces of plank nailed over it. Over this patch in the floor there was a box which was used for scraps falling from the saw of the boy just behind him. This box would get full and have to be emptied about every fifteen minutes, and it would require about ten minutes to take it out and empty it and get back with it. During this interval the patch in the floor would be exposed. The defendant in error had been in the employ of the company about a week, and his work went along without incident until the morning of the accident. On that morning it was discovered that the patch had come off, or been tom off —at least, was off — leaving the hole exposed, and nothing to protect it except the box, when the latter was resting over it. This situation was disclosed at 7 o’clock in the morning, and the defendant in error was hurt about 11:30. He was fully aware of the existence of the hole, and of the fact that it was dangerous when exposed, and that it was exposed, and would be exposed, say twice in every half hour,, during the day. It was a part of the defendant in error’s duty to go some distance from the saw that he was working on, and fill his arms with scraps of lumber, and go back to his saw, and place them on the table for use in sawing. On one snch occasion, during the day, about 11:30 o’clock, he went out to get the scraps, and came back with his arms full, and- placed them on the table at a convenient distance to pick them up as he would need them in sawing. As he placed the armful of scraps on the table he stepped back, and, for the moment forgetting the existence of the hole, stepped in it, and this threw his right arm over the saw on the table back of him and lacerated it so much that it had to be amputated. There is no testimony that the defendant in error, or any one else, informed the master that the patch had been torn off, and the hole exposed; nor is there testimony of the exposure of this hole.

The foregoing are the undisputed facts. The question is whether they make out a case of liability against the master.

We think they do not. It is the duty of the master, of course, to furnish the servant with a safe place to work; but where the servant has full knowledge-of the danger, and continues to work in the dangerous place, he is held to assume the risk. Iron Co. v. Pace, 101 Tenn., 476, 486—489, 48 S. W., 232; Ferguson v. Phoenix Cotton Mills, 106 Tenn., 236, 61 S. W., 53; Brown v. Electric Co., 101 Tenn., 252, 47 S. W., 415, 70 Am. St. Rep., 666; Corbett v. Smith & Co., 101 Tenn., 368, 47 S. W., 694; Brewer v. Tennessee, etc., Coal Co., 97 Tenn., 615, 37 S. W., 549; Railroad v. Smith, 9 Lea, 685. In the present case, if we assume that the master was in fault in not discovering the existence of the hole in question in so short a time, still the servant would he precluded from recovery, because the defect in the floor was perfectly obvious, and the risk or danger of it was also perfectly apparent to the sérvant. But we do not think that the facts show any negligence on the part of the master, since the defect was one that suddenly appeared, and it is hot shown that the master had any knowledge of it. It is? of course, the duty of the master to exercise reasonable care to inspect the premises and the place where his servants are engaged. But we do not think any presumption of negligence could arise from his failure to inspect during the 4| hours covering the period of the existence of the hole unprotected by the patch, when no indication of anything wrong was communicted to him by those under whose immediate observation the defect was; that is, the defendant in error and his fellow servants.

On the grounds stated, we think the peremptory instruction should have been given.

However, it is insisted in behalf of the defendant in error that the plaintiff in error cannot make the question above disposed of in this court, because his motion for a new trial in the court below was not entered at large upon the minutes of the court, but only in the bill of exceptions. In support of the proposition we are referred to Railroad v. Egerton, 98 Tenn., 541, 41 S. W., 1035, and Railroad v. Johnson, 114 Tenn., 632, 88 S. W. 169.

Before referring to these cases, it is proper that we should state the exact facts concerning the entries in the present cases. In each case, the following entry appears upon the minutes:

“Defendant’s motion for a new trial, heretofore filed in writing in this case, was heard hy the court and overruled, to which action of the court the defendant then and there excepted, and prayed an appeal to the next term of the supreme court to be held at Knoxville, which was granted to defendant on giving bond and security for costs and damages incident to the appeal.”

In each case there is an entry on the rule docket showing that a motion for a new trial had been filed, and another and later entry on the same docket showing that the motion had been overruled. In the bill of, exceptions the motion for a new trial was copied in ex-tenso., It likewise shows that it had been marked “Filed” by the clerk on the same day, as shown by the entry on the rule docket.

There is no order of the court below, contained in the present record, showing that that court has a rule requiring motions for new trial to be presented in writing, showing the grounds of the motion; but, in the view we take of the statute below referred to, this is immaterial.

As authority for incorporating the motion for a new trial in the bill of exceptions, we are referred by counsel for plaintiff in error to chapter 106, p. 189, of the Acts of 1875, which (omitting the enacting clause) reads as follows:

“That where a motion for a new trial shall be granted or refused, either party may except to the decision of the court and may reduce to writing the reasons offered for said new trial, together with the suhsta/nce of the evidence in the case, and also the decision of the court on said motion; and it shall he the duty of the judge, before whom such motion is made, to allow, and sign the same; and S'uch hill of exceptions shall he a part of the record m the case, and it shall be lawful for the appellant in such case to haye assigned for error that the judge in the court below improperly granted, or refused a new trial therein, and the supreme court shall have power to grant new trials, or to correct any errors of the circuit court, in granting or refusing the same.”

The italics are not in the act, but we have made the italics for the purpose of more convenient reference.

It is insisted for plaintiff in error that the language italicized, taken in connection.with the other language appearing in the act, requires that the grounds for a new trial shall be incorporated in the bill of exceptions.

It is insisted that this act applies, not only to bills of exceptions made up in cases where a new trial has been granted and the party against whom it is granted desires to make a record, in order that the propriety of the .judge’s action may be subsequently tested in the supreme court, after there shall have been a judgment in the court below against which that court refused to :grant a new trial, but that it applies to all motions for new trial; that is to say, it is insisted for the plaintiff in error that, ■when a motion for a new trial is either granted or refused, the party who considers himself aggrieved by the action of the court, either granting or refusing the motion, has the right to take a bill of exceptions in the manner provided therein, and to incorporate in such bill of exceptions the grounds of the motion; that this applies just as well in cases where the judge of a lower court refuses to grant a. new trial, and an appeal is taken from that action to the supreme court, as to cases where he grants the new trial against a verdict which the winning party on that trial seeks to maintain.

It is insisted that this statute was not referred to or .considered by the court in the case of Railroad v. Egerton, supra. In that case the court said:

“The defendant appealed in error; its motion for a new trial and in arrest of judgment being overruled, as it avers and as appears in the bill of exceptions. It does not appear, however, on the minutes- of the court that such motions were made, though the bill of exceptions recites the fact that they were made. We cannot, therefore, hold that any such motions were made at all. If made, it Avas necessary that they should have been entered on the minutes of the court, and even though they had been in' fact made, and the bill of exceptions presented to us be treated as showing that they Avere made, it is still indispensable that they should appear, with the action of the court thereon, on the minutes. It is not the office of a bill of exceptions to preserve minute entries, and take tbe place of tbe minutes of tbe court.” 98 Tenn., 542, 543, 41 S. W., 1035.

It does not appear in tbe case from which we have just quoted that there was any entry at all on tbe minutes. In the cases before tbe .court there were entries on tbe minute book, sboAving that a motion for a new trial bad been made and overruled, and tbe complete motion was filed in tbe office of tbe clerk, and notation made on tbe rule docket.

We have here a clear reference in tbe minutes to a designated paper where tbe exact language referred to therein could be found. We think this was fairly within tbe rule laid down in the Egerton Case.

Moreover, we are of tbe opinion that tbe statute above quoted not only requires that a motion for a new trial shall be filed, stating*tbe grounds on which it is sought to question tbe action of tbe court below, but that this motion may be brought up to this court in tbe bill of exceptions. It should, however, appear upon tbe minute book that such a motion has been made, and tbe disposition of it, and there should be at least a reference to tbe motion on file, such as was made in tbe cases now before tbe court. The better practice would be, also, as-laid down in Railroad v. Egerton, to set forth tbe whole motion on tbe minutes- of tbe court.

Tbe case of Railroad v. Johnson is not at all adverse to tbe present view. In that case, indeed, the court, in an opinion by Mr. Justice Shields, enforces by reason and authority tbe proposition that this court, in cases coming from the lower courts of law, can act only upon sucb matters as were passed on by such lowrer courts, and that there should be a motion for a new trial, pointing out specifically the objections to the action of the lower court, and that the case should be tried here upon the propriety of the ruling of that court in respect of the matters so complained of. In other words, the opinion in the case of Railroad v. Johnson arrives at the samé proposition in substance by a course of reasoning and! the use of general authorities which wre here hold is likewise acquired by the act of 1875. .The opinion in that case refers merely in passing to Railroad v. Egerton on the point that the motion must be reduced to writing and entered upon the minutes of the court. This remark is merely incidental in the opinion referred to, and the court did not have in mind the statute above copied. We do not think that either of the cases cited was intended to establish a rule different from that laid down in the statute, or can be treated as qualifying that rule.

On the grounds stated above, we are of the opinion that the judgment of the court below should be reversed, and the suit dismissed.  