Avery v. West Lumber Co.

• Decision Date: 04 March 1908
• Citation: 60 S.E. 646,146 N.C. 592
• Parties: AVERY v. WEST LUMBER CO. et al.
• Court: North Carolina Supreme Court

60 S.E. 646

146 N.C. 592

AVERY v. WEST LUMBER CO. et al.

Supreme Court of North Carolina

March 4, 1908

Appeal from Superior Court, Craven County; Lyon, Judge.

Action by J. S. Avery against the West Lumber Company and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Civil action to recover damages for personal injuries sustained by the plaintiff through the negligence of the defendant at Dover, N. C., whereby the plaintiff lost an arm. The court submitted these issues: (1) Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? Ans. Yes. (2) Was the plaintiff guilty of contributory negligence? Ans. No. (3) What damage is plaintiff entitled to recover? Ans. $2,000. From the judgment rendered, the defendant appealed.

Where in an action for injuries to an employee while oiling a dangerous machine, the evidence showed that the employee could not oil the machine with the appliance furnished therefor without climbing up on the machine and leaning over it, an instruction that it was the duty of the employee to guard against accidents, and if he knew the manner in which the machine ought to be oiled or ought to have known that it was dangerous to get on top of the machine, and that by looking and using such care as a reasonably prudent person would use under like circumstances he could have seen the danger and failed to do so, he was guilty of negligence properly submitted the issue of contributory negligence.

Davis & Davis and W. D. McIver, for appellants.

W. W Clark and D. L. Ward, for appellee.

BROWN J.

We have considered the several exceptions and assignments of error set out in the record, and are of the opinion that no error has been committed which warrants us in directing another trial. Neither do we think that an extended discussion of exceptions would be of special value as a precedent. His honor seems to have carefully followed the well-settled principles of law applicable in cases of this character. The matters in dispute are largely those of fact, and the jury appear to have been impressed with the plaintiff's version of them. He offered evidence tending to prove that he was employed by the defendant to work in its lumber mill at Dover. He had been working around the mill about a year on the outside hauling slabs, and was an ordinary green hand with no knowledge of machinery. He was ordered to help Kennedy around the edger inside the mill, and had been working there for about two days when his arm was cut off by the saws of the edger. He was ordered to work under Kennedy who was boss of the machine. Kennedy told him to oil the machine, or that the machine needed oiling, and he testified that he felt compelled to obey or lose his job. There was no oil can, commonly called "squirt can," at the edger, and the only thing he could find to oil the machine with was a one-half gallon bottle. He could not oil the edger with this bottle without climbing up on the machine and leaning over it, as the mouth of the bottle was large, and he had to get close to the edger. The opposite side of the machine was blocked up with slabs, and he could not get up on that side. Kennedy was standing within three feet of him and saw him get the bottle and climb up on the machine, and did not warn him, although he knew Avery was a green hand, and had only worked on the machine about two days. Kennedy had oiled the edger with the same bottle that morning, and had used it repeatedly before that time in the presence of the plaintiff for a similar purpose. Plaintiff also offered evidence to the effect that a person could not stand on the side of the machine and lean over and hold a bottle in his hands and pour oil in the proper place; that he could safely stand on the ground and oil the machine with the usual squirt can, but not with a bottle; that the only way he could...