Bryan v. Hilton Lumber Co.

• Decision Date: 05 April 1911
• Citation: 70 S.E. 936,154 N.C. 485
• Parties: BRYAN v. HILTON LUMBER CO.
• Court: North Carolina Supreme Court

70 S.E. 936

154 N.C. 485

BRYAN v. HILTON LUMBER CO.

Supreme Court of North Carolina

April 5, 1911

Appeal from Superior Court, New Hanover County; Whidbee, Judge.

Action by Ed. M. Bryan against the Hilton Lumber Company. Judgment for plaintiff, and defendant appeals. New trial.

In an action for injury to plaintiff while trying to remove an obstruction from a planing machine which he was operating where plaintiff admits that he undertook to stop the machine before removing the obstruction, and where there is evidence that he thrust his hand in among the cogs twice before the machine was stopped, and was caught in the moving cogs, the defendant is entitled to a requested charge that, if the plaintiff shifted the lever so as to stop the machine from feeding, but before the machine stopped put his hand in between the cogs and was injured, he was guilty of contributory negligence.

Davis & Davis and E. K. Bryan, for appellant.

John D Bellamy & Son and Geo. L. Peschau, for appellee.

BROWN J.

The plaintiff was an employé of the defendant, and engaged in operating a planing machine used in planing planks, and while so engaged his hand and arm were drawn into the cogwheels and severely injured.

The grounds of negligence alleged in the complaint and supported by evidence are: That the cogs to the machine were negligently left by defendant unboxed, and that the feed gear or shift by which the power was applied and shut off was defective; that defendant's attention was called to the defective feed gear some time before the accident and defendant negligently omitted to repair it.

The plaintiff gives this account of his injury and how it occurred: "I was feeding the machine with boards, and when one went through it broke some pieces off one end, I guess, of the board, and that choked it up so I couldn't get a board through it; and I shut off the feed gear and waited until it stopped before I went around to remove the choke. I pulled the lever back, and that released it from running--released the cogwheels from rolling. When I pulled the lever back, that had the effect of running the cogwheels when you pulled the lever back it released the feed gear, so that it would not run. It did this by taking the pressure off of the shafting. It worked with a feed clutch and stopped the machine. The pulling of the lever released the belt, so that it was not tight enough to run the feed gear. After the cogs stopped, I went around to remove the choke on the left-hand side. It had a large cog on the right-hand side, to prevent one from reaching over to remove the choke from the machine. There was no way of getting to that part of the machine to unchoke it, except the way I did--to lean over the cogs. I had to stand on tiptoe to reach over the machine; it was so high. I went around to remove the choke. I took a small piece of board that was laying on the floor to raise up the chip breaker, trying to remove the board which had choked the machine; and while reaching over to remove it the cogs started up in some manner--I don't know what. I took a small piece of board and went to the place and lifted up the chip breaker, attempting to lift it up; and while I was over there attempting to remove the board the machine started up, and the exposed cogwheels caught me by the coat sleeve and snapped my arm in it right at my elbow."

There is much evidence pro and con in the record as to whether boxed cogs were customary and in general use on such a machine, and in charging the jury on that feature of the case his honor followed the uniform adjudications of this court.

The defendant's witness, Alfred Robinson, gives a very different account as to how the plaintiff was injured. He testifies as follows: "I am 14 years old, and was working at the Hilton Lumber Company when Mr. Bryan was hurt. I saw him when he was hurt. He was feeding No. 4 machine. I was tying behind the machine at that time when he called me. I was at the other end of the machine. He called me to hold up the chip breaker. Mr. Bryan called me. When he called me I got a little piece of flooring off of the floor to hold the chip breaker. A piece was partly under the chip breaker and partly under the roller, and he raised the roller a little bit to get it out. He raised it with his hand. He didn't have anything in his hand when he raised it. He reached over to get it one time, and jerked his hand out, and he reached over again, and he didn't pull it out any more. The rollers were running. They were turning both times he reached with his left hand. Both times he reached with his...