Hicks v. Naomi Falls Mfg. Co.
| Decision Date | 09 May 1905 |
| Citation | 50 S.E. 703,138 N.C. 319 |
| Parties | HICKS v. NAOMI FALLS MFG. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; Shaw, Judge.
Action by Joseph Hicks against the Naomi Falls Manufacturing Company. Judgment for plaintiff. Defendant appeals. Reversed.
It may not be shown, as an admission binding plaintiff, that, in a prior action for the same injury to plaintiff in defendant's factory, his then attorney said in court that if the evidence was as stated by defendant's witnesses plaintiff had no case, and that he then suggested that each side select a man to go to the factory and examine the machines, and that if found to be as claimed he would take a nonsuit, and that, on return of the men selected, such attorney took a nonsuit.
Civil action for negligence tried before Shaw, J., and a jury, at January special term, 1905, of Guilford superior court. The plaintiff had formerly instituted a suit on the same cause of action in the superior court of Randolph county, in which a nonsuit had been taken, and subsequently instituted this action in the superior court of Guilford county, and this second action is the subject of the present appeal. Four issues were submitted to the jury: (1) Was plaintiff injured by the negligence of the defendant as alleged in the complaint? (2) Did plaintiff voluntarily assume the risk involved in cleaning the mote box while the lapper was in motion as alleged in the answer? (3) Did plaintiff by his own negligence contribute to his own injury? (4) What damage is plaintiff entitled to recover? There were allegations and evidence by the plaintiff tending to show that he was employed in the defendant's mill and operating a certain machine, known as a "lapper," and, while operating it, his hand was severely and permanently injured by being caught in the wheels and knives of the lapper; that this injury was caused by the negligence of the defendant in failing to provide the plaintiff with safe appliances and machinery for his use while he was in its employ as aforesaid; the negligence alleged against the defendant being that the lapper was unskillfully and dangerously made because of the fact that underneath the lapper the wheels and knives of the machine were unprotected and exposed, whereas in all properly constructed lappers approved and in general use, such wheels and knives are protected and covered; that in the proper use of said machine the trash and motes continually collected underneath it, and it was necessary for the plaintiff to keep that cleaned out in the proper working of the machine; that the plaintiff, in the exercise and performance of his labor as operator of this machine, thrust his hand under the same for the purpose of cleaning out the motes and trash which had collected there, and while carefully endeavoring to perform this duty, believing that said knives and wheels were properly protected, and unaware of the dangerous condition of the machine, the knives and wheels of the lapper, which were negligently left uncovered and unprotected by the defendant, caught and mangled his hand. The plaintiff further alleged and testified that the defendant negligently failed to furnish him any appliances such as were approved and in general use, for cleaning out the lapper without using his hand underneath the machine, and in close proximity to the knives and wheels of the same, by the operator thereof, and that, but for such negligent acts and conduct of the defendant, his injuries would not have occurred. The defendant denied these allegations, and offered evidence to show that the machine is in every way properly constructed, was a standard machine in general use in cotton manufacturing, was erected by a responsible and competent party, and in every way fitted for the work to be done by it, and in no way defective or out of repair, and that all appliances furnished were approved and in general use for the proper working of the machine. The defendant further offered evidence to the effect that the plaintiff assisted in putting up the machine, and was fully aware of the alleged defect of which he complains, and of all the dangers incident to its operation. There was further evidence on the part of the defendant to show that the plaintiff was guilty of contributory negligence, in that he attempted to clean the machine while in motion, contrary to the express directions of the superintendent; that, by reason of his assumption of risk and of contributory negligence, the plaintiff was barred of recovery. His honor explained the contentions of the parties upon the evidence, and on the law he charged the jury as follows: On the first issue, in substance, that if the defendant failed to furnish the plaintiff with machinery and appliances reasonably safe and suitable for the work in which he was engaged, and such as were approved and in general use, and this failure was the proximate cause of the plaintiff's injury, they would answer the first issue "Yes." But if the machinery and appliances were of this kind, there would be no negligence, and the jury would answer the issue "No." His honor further charged the jury as to the first issue: "Or if you find from the evidence that the superintendent of the defendant's mill instructed the plaintiff to stop the lapper while cleaning it out, and that the plaintiff disobeyed such instruction and was cleaning out the mote box while the lapper was running, and that the plaintiff was injured while so doing in violation of his instruction, and that such failure to obey the instruction was the proximate cause of the plaintiff's injury, then the court charges you that you should answer the first issue "'No."DDD' On the second issue, after declaring the law ordinarily applying to assumption of risk, his honor charged the jury as follows: "But when the master is guilty of continuing negligence, as in furnishing defective machinery, or in failing to furnish his servant with appliances in general use, the servant, in using such defective machinery, or in attempting to discharge his duties without implements in general use, will not be held to have assumed the risk in undertaking to perform a dangerous work, unless the act itself is obviously so dangerous that in its careful performance the inherent probabilities of injury are greater than those of safety." On the third issue his honor charged the jury that, if they answered the first issue "Yes," they would have found the defendant guilty of continuing negligence, and that they should answer the third issue "No." Under the charge of the court there was a verdict and judgment in favor of the plaintiff, and the defendant excepted and appealed.
W. P. Bynum and P. H. C. Cabell, for appellant.
R. C. Strudwick, for appellee.
HOKE J. (after stating the facts).
On cross-examination of the plaintiff, the defendant's counsel proposed to ask the witness if his attorney on the trial of the former case in Randolph county, and who is not now appearing for the plaintiff, had not said in open court that if the evidence was as stated by defendant's witnesses the plaintiff had no case, and, further, whether such counsel at said former trial had not suggested that each side select a man to go to the factory and examine machines, and if found to be as claimed he would take a nonsuit, and, on return of the men selected his then attorney had not taken the nonsuit. The evidence in the proposed testimony was held incompetent by the trial judge, and the defendant excepted. These declarations were not made at a place nor under circumstances where the plaintiff could be expected or permitted to protest or reply, and derive no force, therefore, from the fact that the plaintiff may have been present when the statement was made. If held competent, it must be on the ground that the plaintiff is bound in this instance by the admissions of his attorney.
Admissions of fact by an attorney only bind a client when they are distinct and formal, and made for the express purpose of dispensing with proof of a fact on the trial, and less formal admissions of counsel at a former trial are not evidence against a client at a subsequent trial. Admissions which occur in mere conversations, though they relate to matters at issue in the case, cannot be received in evidence against a client. Weeks on Attorneys, § 223, citing Wilkins v. Stidger, 22 Cal. 230, 83 Am. Dec. 64; Treadway v. County, 40 Iowa, 526; 1 Greenleaf, Ev. § 186. The admissions sought to be introduced in this case, however, can hardly be considered admissions of fact at all, but amount only to the attorney's opinion adverse to his client on facts as reported to him, and are clearly incompetent. Voorhees v. Porter, 134 N.C. 591, 598, 47 S.E. 31, 65 L. R. A. 736.
Recurring then, to the charge of the court--and it is to this that the remaining exceptions of the defendant are addressed--his honor properly stated to the jury the obligation of the employer to furnish appliances, etc., reasonably safe and suitable; but in charging the jury in reference to the plaintiff's disobedience of his employer's orders, we think there was error to the defendant's prejudice, which entitles it to a new trial. These orders were said to be that the plaintiff must never clean out the mote box without first stopping the machine, and his honor left it to the jury to determine whether there was disobedience of such orders, and also whether the same was the proximate cause of the injury. It is the law in this state that where, on the facts admitted or established, the question of the existence or absence of actionable negligence is clear, so that there can be no two opinions among fair-minded men in regard to it, then the court must say whether it does or does not exist, and this rule...
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