Ainsley v. John L. Roper Lumber Co.

Decision Date11 March 1914
Citation81 S.E. 4,165 N.C. 122
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Beaufort County; Brogaw, Judge.

Action by W. M. Ainsley, administrator, against the John L. Roper Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

An employer is not protected, as a conclusion of law, because he operates a machine which is "known, approved, and in general use," but where its operation subjects servants to obvious and unnecessary danger which might be easily remedied, such operation, if known and allowed to continue may permit the inference of his culpable negligence.

Where the only inference that can reasonably be drawn from the evidence is that the master conformed to the general usage among prudent and skillful employers in well-regulated concerns in respect to the adoption or use of an appliance he may be declared, as a matter of law to have been in the exercise of due care.

Civil action to recover damages for the alleged negligent killing of plaintiff's intestate. It was proved that, on or about August 4, 1912, the intestate, a boy of 14 years of age, was killed while operating a lathing machine, as employé of the defendant company; that this machine had two circular saws which revolved towards the operator; over the saws was a hood for the purpose of preventing sawdust and pieces of timber from being thrown back towards the operator, and, to a certain extent, was efficient for the purpose. There was also an iron spring curving towards the saw, 1 1/2 inches wide designed primarily to hold the bolts of wood to the guide or side boxing as same were moved onto the saws; that this spring had also some effect in protecting the operator but owing to its size, there was an opening left, and, through this, pieces of timber were not infrequently hurled back with great violence, threatening the safety of the employé, and that marks and dents on the wall, 20 feet back, made by these timbers, gave evidence of this condition, and that it had been going on since the machine had been in operation, for a good length of time, and that the intestate was struck and killed by a piece of timber thrown back in this manner. There was testimony also to the effect that, by making the spring slightly wider, as much as five or six inches, it would have closed the gap or opening, and afforded full protection to the operator, and that this could have been done at very small expense, and without in any way impairing the efficiency of the machine. There was evidence on the part of the defendant, uncontradicted, so far as the record discloses, that this was a good specimen of machine of a type that was known, approved, and in general use. A motion to nonsuit, made in apt time, was overruled, and defendant excepted. In the course of his honor's charge, the jury were directed as follows:

"The only allegation of negligence in this case is the use of this lathe machine with the spring not high enough to act as an obstruction or guard to prevent the hurling back to and through the front of the machine pieces of wood which might be inside. In this case I charge you that plaintiff has not shown that the defendant has been negligent in failing to use a machine such as was known, approved, and in general use in mills of that kind at that time, and upon that question and allegation you would not be justified in answering this first issue in the plaintiff's favor.

The plaintiff contends that after the defendant installed this machine, in its operation it hurled missiles out of the front, to the danger of the man or boy feeding it, before the injury to Ainsley, sufficiently frequent and for such a length of time for defendant to have known of this, or in the exercise of ordinary care to have learned it, and that in the face of this knowledge defendant continued to use it with the narrow spring, when they could have corrected it by using a wider spring, and have thereby prevented missiles or slivers or pieces of wood from being thrown back through the front end to the danger of the feeder of the machine.

(I charge you that, unless you are satisfied by the greater weight of the evidence, the burden being upon the plaintiff, that this machine had, previous to the injury to Ainsley, thrown out missiles or pieces of wood with such force, frequency, and for a sufficient length of time prior to this injury to Ainsley that defendant knew of it, or in the exercise of reasonable care and diligence could have known it, you should answer the first issue, No. The only evidence of negligence in this case, if any, to be considered by the jury upon the first issue is the failure of defendant to have a spring of additional width or height, and, unless you find by the greater weight of the evidence that such spring would have prevented the injury, and that the defendant, in the exercise of ordinary care ought to have provided the same, you are instructed to answer the first issue, No.) To that part of the charge in parenthesis the defendant excepts. This constitutes defendant's exception 7.

It was not the duty of the defendant to furnish the best or most improved machine that could have been gotten or devised, but only such as was in general and approved use at the time, and the failure of defendant to have any particular appliances or devices on this machine is not actionable negligence. The basis of defendant's negligence in this case, if any, depends upon whether it exercised that degree of care which a reasonably prudent man would have exercised in the same situation, and this test is made if you are not satisfied from the evidence that the machine and appliances in question were such as were in general and approved use at the time, or such as a reasonably prudent man in the same situation would have provided, and, if you so find from the evidence, you would answer the first issue, No.

If you find from the evidence by its greater weight that the defendant was negligent in respect alleged, you must further find, before answering the first issue, Yes, that such negligence was proximate, that is, the real or moving cause of the injury. In other words you must find from the evidence by its greater weight, not only that this defendant was negligent in the manner alleged, but that the injury would not have occurred otherwise, and if you are not satisfied, then you are instructed to answer the first issue, No.

(But if you are satisfied by the greater weight of the evidence that after defendant had installed this machine, in its operation it threw pieces of wood out of the front end next to the feeder, subjecting the one feeding it to danger from these flying missiles in the proper discharge of his duty, these pieces flying over the top of this spring, and you further find by the greater weight of the evidence that this could have been corrected and prevented by the use of a spring of sufficient width to obstruct and turn these flying pieces and that this could have been done without impairing the efficiency of the machine or...

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