Cochrell v. Langley Mfg. Co

• Decision Date: 22 December 1908
• Docket Number: (No. 1,081.)
• Citation: 5 Ga.App. 317,63 S.E. 244
• Court: Georgia Court of Appeals
• Parties: COCHRELL . v. LANGLEY MFG. CO.

63 S.E. 244

5 Ga.App. 317

COCHRELL .

v.LANGLEY MFG. CO.

(No. 1, 081.)

Court of Appeals of Georgia.

Dec. 22, 1908.

1. Negligence (§ 121^*)—Trial (§ 139*)—Master and Servant (§ 278*)—Res Ipsa Loquitur— Nonsuit—Evidence — Sufficiency.

The doctrine expressed in the maxim res ipsa loquitur is simply a rule of circumstantial evidence. In this state the philosophy of the doctrine is embraced in, and its practical application authorized by, section 5157 of the Civil Code of 1895. "In arriving at a verdict, the jury from facts proven, and sometimes from the absence of counter evidence, may infer the existence of other facts reasonably and logically consequent on those proved."

(a) Under the facts proved in this case, the jury would have been authorized to infer the existence of some one or more of the specific acts of negligence alleged in the petition. Consequently the nonsuit was improperly awarded.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 218, 225, 271; Dec. Dig. § 121;* Trial, Cent. Dig. §§ 338-340; Dec. Dig. § 139;* Master and Servant, Cent. Dig. §§ 954-972, 977; Dec. Dig. § 27S.*

For other definitions, see Words and Phrases, vol. 7, pp. 6136-6139; vol. 8, p. 7787.]

2. Master and Servant (§ 289^*)—Injuries to Servant—Questions for Jury.

Whether an employe has knowledge of defects in the machinery with which he is required to work, and which caused his injury, and whether such knowledge amounts to contributory negligence, are generally questions to be determined by the jury. In this case the evidence of contributory negligence is not conclusive.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1106-1112; Dec. Dig. § 289.*]

3. Master and Servant (§§ 124, 235*)—Duty of Servant to Observe Defects—Duty of Master to Inspect and Repair.

A servant is under no duty to observe changes resulting from the gradual wear and tear of machinery until tliey become obvious to any careful man. A master's duty is to find out such changes by constant inspection, and to repair them, and to warn the servant of their existence.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 235, 710; Dec. Dig. §§ 124, 235.*]

4. Evidence (§ 514*)—Opinion Evidence-Starting of Machine.

Where one of the questions to be determined was the cause of the sudden, automatic starting of machinery of a certain kind, the opinion of a witness familiar with the construction and operation of similar machinery, describing a condition of the machinery which would be likely to cause such sudden movement, would be admissible testimony.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2319, 2320; Dec. Dig. § 514.*]

(Syllabus by the Court.)

Error from City Court of Richmond County; W. F. Eve, Judge.

Action by Ave Cochrell against the Lang-ley Manufacturing Company. Judgment for defendant, and plaintiff brings error. Reversed.

Cochrell sued the Langley Manufacturing Company to recover damages for injuries received by him while in its employ. The trial court excluded certain testimony offered by the plaintiff, and at the conclusion of plaintiff's evidence granted a nonsuit. The writ of error challenges the correctness of the ruling excluding the testimony and the judgment of nonsuit.

The petition alleges the following facts: On March 20, 1907, plaintiff was working for the defendant corporation as a card grinder, and while so engaged in his work it became necessary for him to repair a carding machine, and for this purpose he brought the machine to a full stop by shifting from the tight pulley to the loose pulley the belt winch transmitted power. While the machine was stationary, he put his hands inside to ascertain the trouble with the carding apparatus, and, while he was so engaged, the machine suddenly and without previous warning started, and before he could withdraw his hands his left hand was caught in the machine and mashed to such an extent as to necessitate the amputation of his left arm between the wrist and the elbow. He alleges that it was usual and customary to work on the carding machines while the belt was on the loose pulley as the belt would continue to run on the loose pulley unless the machine was in a defective condition. He further alleges that the sudden starting of the machinery was not caused by his act or that of any co-servant, but was due solely to the following defective condition of the machine: (a) The belting had become stretched on one side, and, as is customary in such cases, had a tendency to creep, and actually did creep towards the tight side, (b) The pulleys on the carding machine were not set true to the pulley upon the power shaft, (c) The pulley upon the power shaft was not set true towards the pulleys upon the machine, (d) There was no guard upon the belt to prevent it from creeping from the loose pulley onto the tight pulley. If the machine had been in proper condition and not defective in the particulars enumerated, the belt would have run on the loose pulley indefinitely, and the machine would never have started as it did. Plaintiff had no concern with the belting, pulley, or shafting, and was not warned of the defective condition in which they were in, and assumed, as he had a right to do, that they were in good condition, and that the belt would not creep, but would stay where it was put, and but for these defects he could have performed his work in perfect safety with the belt running on the loose pulley. Defendant did know of the defects and should have known of them, but failed to give plaintiff any warning.

Plaintiff, in support of the allegations of his petition, ' testified as follows: "I was a card grinder, and they had a card tore up.

* * * By 'tore up' I mean It got a stripping run through it and tore up the cloth, which is inside the casing. This has nothing to do with the belts and pulleys. * * * I stopped it by shifting the belt off the tight pulley myself. Then I taken my hand and was pushing the cylinder around to come to the jammed up place to scratch it up. While I was doing that, it started up in some way, and snatched my hand in, and ground it to pieces. * * * At the time I went in there I was not working on the belts, pulleys, or shafting. It was not my duty to look after that unless it was reported to me that something was out of fix by one of the operatives, and that was not reported to me at all.

* * * The loose pulley is on there to stop the machine without throwing the belt clean off. When you want to stop the machine, you don't take the belt all the way off. You just shift it onto the loose pulley. The conduct of the belt, If it is put on the loose pulley of a machine in good condition, is that it will stay there. I know this because I have put many a one on there and it has stayed. I and other people have worked on the inside of cards with the belt runningon the loose pulley. That is the regular way to do it. * * * Nobody had reported anything wrong with the belt or pulleys. * * * As far as I knew, it was all right. * * * Nobody was near me when this happened. * * * Those cards had been there ever since the mill had been running, I suppose. They were there when I went in there. * * * There was no shifter on this pulley. When hurt I was at the other end of the machine from the belt, pushing the cylinder around. * * * I was not an inspector of these machines. Nobody had called my attention to the fact that this machine was out of repair. I am an ignorant man—cannot spell my own name."

The plaintiff was not permitted to prove by an expert witness the usual conduct of a carding machine when in good condition, and what ordinarily causes a belt to travel from the loose pulley to the tight pulley; and was not permitted to testify in his own behalf that he had worked with these cards and other cards, and knew what would cause the belt to go from the loose pulley onto the tight pulley, or what would cause the belt to shift from one pulley to the other, or to give testimony of a similar character showing the operation of this machinery when in a good condition and when in a defective condition, and the operation of similar machines under similar conditions.

A. L. Franklin and Austin Branch, for plaintiff in error.

Wm. H. Barrett, for defendant in error.

HILL, C. J. (after stating the facts as above). 1. The main question arises on the grant of a nonsuit. Does the evidence for the plaintiff, most favorably considered, show any evidential facts, or inference reasonably deducible from evidential facts, tending in any appreciable degree to establish his right to recover? If so, there is "proof to support the plaintiff's allegations, " and a nonsuit is erroneous. Corcoran v. Transportation Co., 1 Ga. App. 743, 57 S. E. 962; Vickers v. Atlanta & W. P. R. Co., 64 Ga. 307. It is an elementary principle of law that the duty of inspection is one of the absolute duties of the master. The law commands the master to inspect, and to continue to inspect, dangerous machinery in order that he may discover any defects in construction, or such as are likely to be caused by wear and tear of operation, and, when discovered, to promptly remedy them, or give timely warning of the consequent danger to his servant. The duty of inspection is affirmative, and must be continuously fulfilled and positively performed. Southern States Cement Co. v. Helms, 2 Ga. App. 308, 58 S. E. 524; Buzzell v. Laconia M. Co., 48 Me. 113, 77 Am. Dec. 212. "It is the duty of a proprietor of a mill to inspect * * * the machinery and appliances under his control, * * * to anticipate and provide for the wear and tear of belts and pulleys, to test them at regular intervals, and to ascertain whether they are running true or not, * * * and, in the case of pulleys, fast or loose, to observe whether they are in good order and fit to be relied upon to perform their work properly and without unnecessary danger to servants." Petrarca v. Quidnick Mfg. Co., 27 R. I. 265, 61 Atl. 648.

In the light of these legal propositi...