Deligny v. Tate Furniture Co

• Decision Date: 17 November 1915
• Docket Number: (No. 382.)
• Citation: 86 S.E. 980,170 N.C. 189
• Court: North Carolina Supreme Court
• Parties: DELIGNY. v. TATE FURNITURE CO.

86 S.E. 980

170 N.C. 189

DELIGNY.

v.TATE FURNITURE CO.

(No. 382.)

Supreme Court of North Carolina.

Nov. 17, 1915.

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

Action by John H. Deligny against the Tate Furniture Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff sued for damages for personal injury sustained while working in the factory of the defendant at High Point, N. C., on the 19th day of May, 1914, when plaintiff suffered a fracture of both bones in his right forearm. He alleged that, at the time of the injury, he was engaged in operating a belt sander, and properly described it as consisting of a table or bed, at each end of which was a pulley, around which ran a sand belt, which is a belt with one side sanded for the purpose of polishing material. The course of the belt, in one direction, is over the top of the bed and lengthwise thereof, and on its return it moves under the table. The bed is movable, both up and down, and back and forward across the line of the belt. The operation of the machine consists in placing the board, or other material to be sanded, on the bed, and then, after raising the bed to a proper height, pressing the sanded or underside of the belt down upon the material by means of a wooden weight in the shape of a flatiron applied on top of the belt. In order to cover the full surface of the material to be sanded the table is, during the operation, moved backwards and forwards across the line of the belt. The machine, at which plaintiff was working, had a wooden strip of about the thickness of the material under treatment nailed across the bed at right angles to the line of the belt, and near the end of the belt, toward which the belt tended to draw the material. This was placed there to resist the tendency of the belt to draw forward with it the material being sanded. In the side of this strip, and next to the material, were sharp iron points about an inch apart, protruding therefrom and parallel to the bed of the machine, thus forming a cleat, for the purpose of taking hold of the material when pushed against it and preventing it from rising above the cleat and being pulled forward in the direction of the belt. The pieces which the plaintiff was sanding at the time of his injury were quartered oak bed panels, 22 inches wide, about 4 feet long, and a quarter of an inch thick. The plaintiff charges the defendant with negligence in two particulars: First, in failing to "equip this machine or sander with the iron cleat of the character hereinbefore set out, " which the plaintiff alleged was in known, approved, and general use; and, second, in furnishing to the plaintiff and requiring him to work upon the said machine panels, which weremore or less warped and twisted and liable to escape from the fastenings.

The defendant admitted that the machine was not equipped with the iron cleat described, but denied that the said iron cleat was in known, approved, or general use, or that its use would be practicable on the machine in question, or that it would render said machine any safer, and alleged that the wooden cleat furnished served the same purpose as alleged in respect of the iron cleat, was just as safe, and was better adapted for sanders for thin material, where the use of the iron cleat was not practicable. The defendant denied, according to its knowledge, having furnished to the plaintiff, for his use in operating the machine and doing his work, warped and twisted panels, and alleged that it was a part of plaintiff's duty to select from the panels furnished him en masse such as were warped or twisted and lay them aside, to be sanded by hand. The defendant averred that if the plaintiff was injured because of a warped or twisted panel, such injury was the result of his own negligence in attempting, contrary to instructions, to sand such panel on the machine, and pleaded assumption of risks and contributory negligence.

So far we have taken our statement substantially from the brief of defendant's counsel, which we think, from a careful examination of the record, is perfectly correct in the main; but, as there is some disagreement between counsel of the respective parties as to what is the particular act of negligence charged against defendant and as to the true nature and construction of the "sander, " we will make some extracts from the plaintiff's complaint, for he contends that he has alleged, as specific acts of negligence, apart from the absence of a metal cleat, that the wooden cleat was itself an improper and insufficient appliance for the safe and effective operation of the machine, and that this is especially so if the planks or boards being dressed are bent or warped. These are his allegations, expressed almost in his own language:

(1) The defendant in operating its factory, used numerous and various kinds of machines and machinery, including a belt sanding machine, in its said factory at High Point, all of which were propelled by steam power, involving the use of shafting, pulleys, belts and other appliances.

(2) There is much danger attending the operation of many of said machines, including the sanding machine, which the plaintiff, on the occasion of his injury, hereinafter more fully set out, was operating, all of which was known to the defendant at the time of the employment of this plaintiff, and on the occasion of his injury.

(3) Plaintiff, on May 19, 1914, was, and for some time prior thereto had been, in the employ of the defendant, Tate Furniture Company, and on said date was engaged in the regular performance of his duties, in the operation of a sanding machine, which required him to sand or dress, by having the sand belt pass over and upon, pieces of plank, ordinarily known as "headboard" or "footboard" panels for beds, they being about 22 inches in width and 4 feet in length, and one-fourth to one-half inch in thickness.

(4) The sanding machine, if fully and properly equipped, consisted in part of two pulleys, one at either end of the machine, which are about 6 feet apart, and have under them the necessary supports, and over and around these pulleys passes a sand belt, or sanded belt, on horizontal lines, at approximately 500 revolutions per minute. The belt is made of heavy canvas, smooth on one side, and sanded on the other side. Under the upper side of the belt, as it revolves around the pulleys, there is a table about 6 feet in length and 18 or 20 inches in width, having a number of slats, with small or narrow spaces between them.

(5) In sanding lumber or timber upon this machine, it is necessary to lay the board upon the table, with the face to be dressed upwards, and approximately within 1 inch of the sand belt. That in order to bring the belt and the timber in touch with each other, and to produce the necessary friction for dressing or sanding the board, the plaintiff was using, on the occasion in question, as was usual and necessary and as required by defendant, a block weighing some eight pounds, which the plaintiff placed upon the top of the sand belt, and with his right hand and arm pressed the same down upon said belt, at the same time giving it a forward and backward movement, thus bringing the belt in contact with the timber for the full length thereof, and in this way the plank was sanded or dressed.

(6) A sander, of the character just hereinbefore described, when complete, has an iron cleat across the table, with bolts passing through it and also through the slots or spaces between the strips of the table and fastening on the under side thereof, this being made stationary, subject however, to be moved and adjusted to suit the length and character of the timber being dressed or sanded. One edge of the cleat or strip of iron fastened across the table is finished with teeth, somewhat like a saw.

(7) In operating the machine, the plank is placed upon the table with one end against the cleat, and with such force as to imbed the teeth of the cleat in it, and thereby secure it so as to prevent it from being drawn, by force of the friction, with the sand belt, while the latter is in motion over the pulleys.

(8) The cleat, or piece of iron above described, is and was at that time a necessary part of the sander, and was then and theretofore known, approved and in general use, though plaintiff was ignorant of the fact at that time, and does, in fact, make the opera-tion of the machine safe from injury to the operator; and no sander of the character described is complete or safe without the metal cleat.

(9) The sanding machine of the defendant, which the plaintiff was operating at the time of his injury, had no such cleat or device, but was provided with a thin strip of wood, or timber, nailed to and upon the top of said table, in such manner as that the same could be easily removed, from time to time, without injury to the table.

(10) That on the occasion of the injury to the plaintiff, hereinafter more fully described, and in consequence of the absence and lack of said iron cleat constructed and provided as aforesaid, the plank, upon which the plaintiff was engaged at work, by force and operation of the sand belt, was driven and hurled upon one of the pulleys of said machine and rebounded with great force, and in the rebound hit the pressing block, then in the plaintiff's hand, and thereby broke both bones in the plaintiff's forearm, whereby he was caused to suffer great pain for many days, and was permanently injured in his said right forearm; such injury having the effect to greatly impair the strength and usefulness of said arm and hand and disable the plaintiff from closing his right hand, all to his great damage.

(11) The defendant knew that this machine was not, on the day of the injury, equipped with an iron cleat, as described, but only with a flimsy, weak, and insufficient piece of timber, not secure in character, and not adapted to the use to which it was being put, and that the risk to the...