Ausley v. American Tobacco Co.

• Decision Date: 04 March 1902
• Citation: Ausley v. American Tobacco Co., 40 S.E. 819, 130 N.C. 34 (N.C. 1902)
• Parties: AUSLEY v. AMERICAN TOBACCO CO.
• Court: North Carolina Supreme Court

40 S.E. 819

130 N.C. 34

AUSLEY v. AMERICAN TOBACCO CO.

Supreme Court of North Carolina

March 4, 1902

Appeal from superior court, Durham county; Councill, Judge.

Action by W. B. Ausley against the American Tobacco Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Clark J., dissenting.

Where a machinist who had constructed certain machinery continued in the employ of the owner thereof for the purpose of operating and was injured by coming into contact with the cogwheel which it was alleged was negligently left without box or hurdle, plaintiff, being familiar with the dangers and continuing in his employment, assumed the risk.

Manning & Foushee, for appellant.

P. H C. Cabell and Winston & Fuller, for appellee.

FURCHES C.J.

It seems that plaintiff was in the employment of defendant, a corporation, in November or December, 1899, when he was seriously injured by the machinery in the defendant's dry house, and brings this action for damages. It appears that there is what is called the "dryer," about 18 feet wide, 7 feet high, and 120 feet long, in a large building. This dryer has a number of crossbeams on top of it, and the process of drying seems to be done by means of fans operated by machinery, consisting of shafting, cogwheels, belt-wheels, and belting. The motive power for operating this machinery was electricity, conveyed to it from a battery across the street. The plaintiff was injured by having his pants legs caught in the cogwheels on top of the dryer. This cogwheel is placed on top of the dryer, only some six or eight inches above it, and was not boxed or covered. The plaintiff, in attempting to adjust one of the belts for the purpose of starting the fan that had stopped, stumped his toe against one of the crossbeams, or in some way stumbled, lost his balance, and fell, and his clothing, as described above, caught in the cogwheel, and he was injured. The plaintiff was a machinist; knew all about this machinery; helped put it up; was then employed to operate, keep in order, and run the same. The plaintiff alleges that it was negligent in defendant not to box or hurdle this cogwheel, and that negligence was the cause of his injury. These are substantially the facts of the case as shown by the testimony of the plaintiff himself, and he introduced no evidence more favorable to his right to recover than his own. The defendant offered no evidence, and the court intimating the opinion that the plaintiff could not recover, taking his evidence to be true, the plaintiff submitted to a nonsuit, and appealed.

It is difficult to see the defendant's negligence, and that the negligence of the defendant was the proximate cause of the plaintiff's injury, if it can be held that there was negligence. It might have been safer if this cogwheel had been hurdled, and, if it had been, it may be that the plaintiff would not have been injured. But it can hardly be negligence--negligence per se--in the defendant not to have hurdled such a wheel placed on top of the dryer seven feet above the floor of the building, and where no one would have anything to do with it but the machinist in charge, employed to keep it in order and to run it. It seems to us that a man of ordinary prudence would not have done more than the defendant did. But to our minds there is another reason why the plaintiff cannot recover, about which there seems to be no doubt.

The plaintiff is a machinist, was employed to assist in putting up this machinery, and did assist in putting it up; says that those engaged in putting it up did not know how to do it. And after it was put up the defendant employed him to run and keep it in order. He knew everything about it--more probably than any one else, and, after having this knowledge, he entered into this contract with the defendant, and in doing so he assumed the risks incident to such employment. There was no hidden or unknown defects--unknown to the plaintiff--about this machinery. This being so, he cannot recover. Crutchfield v. Railroad Co., 78 N.C. 300; Johnson v. Same, 81 N.C. 458; Cowles v. Same, 84 N.C. 312, 37 Am. Rep. 620; Hudson v. Railroad Co., 104 N.C. 501, 10 S.E. 669; Pleasants v. Railroad Co., 95 N.C. 195; Coley v. Railroad Co., 128 N.C. 534, 39 S.E. 43, and on rehearing 129 N.C. 407, 39 S.E. 43, 40 S.E. 195. This doctrine, we think, is well settled in this state, as well as in many other jurisdictions. Where there is no dispute but what the party knew all about the machinery and its defects (if any) before he contracted and entered upon his work, he assumes the risk, and cannot recover. In this case there is no dispute about this. The plaintiff admits that he knew all about it, and there is no evidence that the defendant was informed of any defect, and promised to remedy it. Indeed, there is no evidence that the defendant knew of any defect.

The defendant not being a railroad, the act of 1897 (chapter 56, Priv. Laws) does not apply to this case.

There was one exception to the ruling of the court upon the evidence. The plaintiff wanted to prove that the cogwheel had been moved higher on the shafting since the injury. This evidence was objected to, and ruled out by the court. There was no error in this ruling, as it has been repeatedly so held.

As we find no error in the judgment of the court below, it is affirmed.

DOUGLAS, J.

I concur in the result only because I doubt whether there was evidence of negligence to go to the jury; but I cannot agree that the court can under any circumstances find, or direct the jury to find, the facts of assumption of risk, which has repeatedly been held by this court to be an affirmative defense, in the nature of confession and avoidance. Neither can I fully approve of Crutchfield's Case.

CLARK J. (dissenting).

The plaintiff was put to work where one of his duties was to replace a belt which had been "thrown" by the bandwheel, whereby the fan was stopped. The bandwheel was on a shaft within 3 inches of the powerful cogwheels which ran the machinery, and which rose 8 to 10 inches above the floor. These wheels were not covered or boxed, and in attempting to adjust the belt back upon the wheel the plaintiff stumped his toe, fell, his clothing was caught in the revolving cogs, and he was injured. All his clothing was torn off of him, and only by great presence of mind and by a providential dispensation he was saved from being literally ground up. It was negligence to have such dangerous machinery unboxed in dangerous proximity to a bandwheel in a place where an employé might be called at any moment to replace a belt "Res ipsa loquitur." The plaintiff was not allowed under the rules of law, to show that defendant has since boxed these cogwheels, but he offered to show it, and if defendant has not yet boxed them its negligence is certainly very gross. It was in evidence, without objection, that since the plaintiff's injury the band wheel has been moved upon the shafting, further away from the cogwheels. The court not only erred in refusing to let this evidence go to the jury upon the issue of negligence, but should have told them that if they believed the evidence they should find that leaving unboxed cogwheels so powerful as to do what the testimony showed that these wheels had done was negligence. The law was well stated by Montgomery, J., at last term, in Myers v. Lumber Co., 129 N.C. 252, 39 S.E. 960, as follows: "An employer owes to his employé the duty to be reasonably careful, to provide sound and safe appliances and machinery, and also to see that the place prepared for...