Eaker v. International Shoe Co.

• Decision Date: 10 September 1930
• Docket Number: 513.
• Parties: EAKER v. INTERNATIONAL SHOE CO. et al.
• Court: North Carolina Supreme Court

154 S.E. 667

199 N.C. 379

EAKER v. INTERNATIONAL SHOE CO. et al.

No. 513.

Supreme Court of North Carolina

September 10, 1930

Appeal from Superior Court, Burke County; Harding, Judge.

Action by Joe Eaker against the International Shoe Company and another. Judgment for plaintiff, and defendants appeal.

No error.

Circumstantial as well as direct evidence applies to both civil and criminal actions, and constitutes proper basis for charge.

This is an action for actionable negligence brought by plaintiff against the defendants.

The issues submitted to the jury and their answers thereto, were as follows:

"1. Was the plaintiff injured by the negligence of the defendant, the International Shoe Co., as alleged? Answer Yes.

"2. Was the plaintiff injured by the negligence of the defendant, Robey Small, as alleged? Answer: Yes.

"3. Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? Answer: No.

"4. What damage, if any, is the plaintiff entitled to recover? Answer: $18,000.00."

The necessary facts will be stated in the opinion.

A. Hall Johnston, of Asheville, and Self, Bagby & Patrick, of Hickory, for appellants.

B. T. Falls, of Shelby, and S. J. Ervin and S. J. Ervin, Jr., both of Morganton, for appellee.

CLARKSON J.

At the close of plaintiff's evidence and at the close of all the evidence, the defendants made motions for judgment as in case of nonsuit. C. S. § 567. The court below overruled the motions, and in this we see no error.

The plaintiff when injured was an employee and working in the bleachroom of the tannery plant of the defendant International Shoe Company. It was admitted that the defendant Robey Small was foreman and superintendent of said department and the immediate superior of plaintiff, and it was the duty of plaintiff to perform his work under the direction and in accordance with the proper orders of said foreman and superintendent. The evidence on the part of plaintiff tended to show that plaintiff when injured was taking out hides, crops, or bellies, as they were termed, from the drum or wheel. The machinery that turns the drum or wheel gets its source of power from the motor, which is transmitted by a belt from the motor to the power shaft; from the counter shaft, it is again transmitted by a belt to the clutch, and, when you engage the clutch, that starts the drum or wheel off, but, when the clutch is disengaged, the drum or wheel is idle. The power that turns this drum or wheel is brought to it by means of a shaft 2 7/16 inches, this shaft is fitted in a sleeve that is around the shaft and is fastened to the pulley with which the belt runs from the counter shaft, and also on this sleeve is fastened one-half of the clutch that is driven by the pulley. When the clutch is disengaged, half of the clutch is rotating; the shaft is not rotating, but the sleeve is rotating on the shaft, being pulled by the belt; the drum or wheel is idle and the shaft is idle, but half of the clutch which fastened around the sleeve is rotating. When the other half of the clutch which is fastened on the 2 7/16-inch shaft is engaged with the half which is running on this sleeve, it causes these two, the half that is fastened to the shaft, when that becomes engaged with the other half, causes the 2 7/16-inch shaft to rotate, which in turn, having a pin on the end of it, causes the drum or wheel to turn. The sleeve is running around the shaft all the time, while the motor is running, and the drum or wheel is standing idle. The function of the drums or wheels in the bleachroom were to oil the hides or leather. They are round like a drum, with flat ends; they are about ten feet in diameter and about six feet wide. They are used to put oil, salt, sugar, and other ingredients in to treat the hides. After the hides are put in, the clutch is shoved in and starts the wheel or drum revolving. The wheel or drum runs for about twenty minutes, and then the hides are taken out. About 75 hides are placed in one of these wheels or drums at a time for treatment. When taken out, they are handed to a helper and hung up. There is a door on the side of the wheel or drum, about 36 inches high and 42 inches wide, to put the hides in and take them out, and this is shut when the wheel or drum is revolving. The wheels or drums make about 21 revolutions a minute.

The plaintiff was unloading the hides from the wheel or drum about 4 o'clock in the evening, on May 26, 1928, when he was injured. At the time this wheel or drum was stopped and the clutch pulled out. A stick was placed on the floor under the wheel or drum to hold it stationary. Plaintiff had taken all the hides out of the wheel or drum except about 15. To get these out, it was necessary to put his body from his hips up inside the wheel or drum to reach them, and the wheel or drum started to revolve and the door hit him, and he was thrown in the wheel or drum, and while it was revolving was thrown out, and rendered unconscious and permanently injured.

The evidence was to the effect: That the clutch became engaged without any act on his part or those working with him. That there was some defect that started the drum revolving. That the clutch became engaged and started up the machinery, by reason of the fact that the sleeve within which the shaft operating the machinery worked, became hot and tight, and by reason of not being properly oiled, and that this was due to the closing up of the grease channels, which conveyed the oil or grease to the shaft within the sleeve, causing the sleeve to turn with the shaft and engage the clutch. There was evidence that this sleeve within which the shaft turned became so tight that it had to be cut in order to remove it from the shaft, and there was also evidence that this sleeve had not been removed and inspected for a period of two years, and that the inside of the sleeve and the shaft was gummed up with dried oil or other material, and that the oil in the cup could not properly reach the inside of the sleeve, as the channel which should have conveyed it was to some extent closed up. On the other hand, the defendants offered evidence tending to show that the reason for the accident was that some hard substance had gotten into the oil cup, and from thence through the grease channels into the sleeve, and this without fault on its part, and that this caused friction which rendered the sleeve tight, causing it to turn with the shaft, and that this caused the clutch to become engaged and start the machinery, the wheel or drum, to revolve, and the plaintiff to be injured.

Among the duties of defendant Small was to oil the machinery by means of the oil or grease cup. When the clutch is disengaged there is a space of about an inch between the two portions thereof, and, when these two portions of the clutch are brought together, or engaged, the communicated power turns the shaft and the wheel or drum.

Defendants contended that plaintiff set forth in the complaint that the clutch was defective, which, if established as a fact, would warrant the contention that there was failure to make proper inspection, or failure to make repairs after knowledge or implied notice of such defective condition; whereas, if the actual cause of the "running away" of the wheel or drum was not a defective clutch, but the presence of some hard foreign substance in the grease for which defendants were not accountable, such contention on the part of plaintiff was ill-founded. Further that there was no evidence that the clutch was defective.

Plaintiff specifically alleges in his complaint that the injuries of the plaintiff herein complained of were directly and proximately caused by and due to the negligence and carelessness of the defendants in failing to inspect said oil wheel or drum and clutch and the machinery and appliances connected therewith, and in failure to keep said oil wheel or drum and clutch and machinery and appliances in reasonably safe condition and repair, and in ordering the plaintiff, who was ignorant of such defects, to unload said oil wheel or drum when the defendants well knew that such defects existed and that said oil wheel or drum in all probability would suddenly begin to revolve about said penetrating shaft and "run away" and injure the plaintiff, and in failing to furnish and provide for the plaintiff a reasonably safe place in which to work and reasonably safe tools and machinery and appliances with which to work.

We think that, from the admitted facts, the principle of res ipsa loquitur applies.

The case of Ross v. Cotton Mills, 140 N.C. 115, 52 S.E 121, 122, 1 L. R. A. (N. S.) 298, is similar to the case at bar. In the Ross Case the plaintiff had stopped the machine. He testified that when it was stationary "I put my hand over feed roll into beater bars to get cotton out. Machine started by some means, and tore off my arm to my elbow; knocked me numb or paralysed." The court in that case, at page 119 of 140 N. C., 52 S.E. 121, 122, 1 L. R. A. (N. S.) 298, said: "To prevent any misconstruction of the circumstances under which or the manner in which this principle applies in the trial of causes, we wish to restate what was said in Womble v. Grocery Co., 135 N.C. 474, 47 S.E. 493: 'The principle of res ipsa loquitur in such cases carries the question of negligence to the jury, not relieving the plaintiff of the burden of proof, and not raising any presumption in his favor, but simply entitling the jury, in view of all the circumstances and conditions as shown by the plaintiff's evidence, to infer negligence and say whether, upon all of the evidence, the plaintiff has sustained his allegation.' It does not in any degree affect or modify the elementary principle that the burden of the issue is on the...