Hurt v. Savona Mfg. Co.

• Decision Date: 27 November 1929
• Docket Number: 481.
• Citation: 150 S.E. 632,198 N.C. 1
• Parties: HURT v. SAVONA MFG. CO. et al.
• Court: North Carolina Supreme Court

150 S.E. 632

198 N.C. 1

HURT v. SAVONA MFG. CO. et al.

No. 481.

Supreme Court of North Carolina

November 27, 1929

Appeal from Superior Court, Mecklenburg County; Shaw, Judge.

Action by Thomas M. Hurt against Savona Manufacturing Company and others. From an order of removal to federal court, plaintiff appeals. Reversed.

Petition for removal merely traversing facts of plaintiff's petition is insufficient.

The complaint sets forth, in substance, the following allegations of fact: That plaintiff was a loom fixer in weaveroom of Savona Manufacturing Company. That Will Fox was overseer and Lum Bruton was second hand of said weaveroom. That plaintiff in his employment, was subject to the orders and directions of the said Will Fox and Lum Bruton. That Will Fox, overseer and Lum Bruton, second hand, had charge of said weaveroom and of the machinery therein, and were responsible for keeping and operating the same in a safe and proper condition. That in said weaveroom the pulley on the overhead shaft was not in line with the loom pulley. That the connecting belt would not run on the face of the two pulleys, but would slip over and frequently slip off the overhead pulley and become wrapped around the shaft. That several times before April 2, 1929 said belt had slipped off while the machinery was in operation, and plaintiff called the attention of Will Fox overseer and Lum Bruton, second hand, to this condition. That each of them saw the said condition, acknowledged the danger thereof, and promised to have the pulleys put in line, and eliminate the danger. That on the Saturday before plaintiff was injured the dangerous condition of the machinery was called to the attention of Will Fox, overseer, at which time the plaintiff suggested that he be allowed to make the necessary changes, and thereupon said Will Fox, overseer, told the plaintiff to do his own work, which did not involve any work on the overhead shafting and machinery, and that he, the said Will Fox, overseer, would see that the position of the overhead pulley was changed so that it would be in line with the loom pulley; that was on Saturday afternoon. And that the said change was not made and the same condition was allowed to exist up to the time (Tuesday) the plaintiff was injured. That the connecting belt was thrown off the pulley with such force as to knock off the belt guide, which struck and injured the plaintiff, who was standing nearby; the machinery at the time being in operation and making 350 revolutions per minute or thereabout. That at the time plaintiff was injured he was engaged, or about to engage, in fixing a loom, and was under the directions of Will Fox, overseer, and Lum Bruton, second hand.

There is no dispute about the fact that the defendant filed its petition and bond in due time and that all formalities of law were complied with. The petition of defendant for removal to the United States court alleges, in substance: That the plaintiff, for five years prior to his injury, had been a loom fixer in the employment of the defendant, petitioner. At the time of his injury, the plaintiff was attempting to correct a belt which ran from a pulley to a loom. Instead of stopping the machinery, the plaintiff took a quill about 7 inches long and began working with the moving belt. He was doing this in his own way, free from the supervision or instruction of any one, and, while thus engaged, received the injury. The work in which the plaintiff was engaged at the time of his injury was that of plaintiff alone, and it was no part of Bruton or Fox's duties, and no part of their duties to furnish plaintiff a reasonably safe place to work. Neither of the individual defendants were present at the time of the plaintiff's injury, and neither of them were in any way, either directly or indirectly, connected with said injury.

The court below rendered the following judgment: "Upon hearing the petition and the appeal from the Clerk, and, upon the argument of this motion, the Court is of the opinion that this is a proper case for removal, and the petition of the defendant Savona Manufacturing Co., and the bond filed therewith, are hereby accepted, and this case is ordered removed to the United States District Court for the Western District of North Carolina, at Charlotte, and the order of the Clerk is reversed. It is further ordered that this Court proceed no further in this action." Plaintiff assigned error and appealed to the Supreme Court.

Stewart McRae & Bobbitt, of Charlotte, for appellant.

John M Robinson, of Charlotte, for appell...