Leathers v. Blackwell's Durham Tobacco Co.

• Decision Date: 16 April 1907
• Citation: 57 S.E. 11,144 N.C. 330
• Parties: LEATHERS v. BLACKWELL'S DURHAM TOBACCO CO.
• Court: North Carolina Supreme Court

57 S.E. 11

144 N.C. 330

LEATHERS v. BLACKWELL'S DURHAM TOBACCO CO.

Supreme Court of North Carolina

April 16, 1907

Appeal from Superior Court, Durham County; Moore, Judge.

Action by Gaines Leathers against the Blackwell's Durham Tobacco Company. From a judgment for plaintiff, defendant appeals. Affirmed.

In suing for a penalty, it is not necessary to refer to the statute if facts are set out which bring the case within the statute.

This action is prosecuted by plaintiff, appearing by his next friend, for the purpose of recovering damages for injuries sustained while in the employment of defendant. In his complaint he alleges: "(1) That the Blackwell Durham Tobacco Company is a corporation duly organized under the laws of New Jersey; but having an office and its factory in the city of Durham. (2) That the plaintiff is a minor, now about the age of 14 years. (3) That some time in the year 1905 plaintiff went to work at defendant's factory in the city of Durham as a packer of small sacks of tobacco in boxes for shipment, a work attendant with no danger. That on or about the 1st day of May, 1905, defendant's overseer directed plaintiff to go to work as a tier of tobacco sacks in the automatic packing room. That there are a number of automatic packing machines in this room. That these machines are very complicated in their structure. That the machine is a dangerous machine, and if the sack is not tied on the second and removed, the boy's fingers are liable to get caught and crushed. That there are now, and have been for the past six or eight years, a large number of these automatic packing machines in use at defendant's factory, and also at the Duke factory in the city of Durham. That during this time a number of boys and young men working at said automatic packing machines have been seriously injured and maimed for life. That defendant well knew, or ought to have known, the dangerous character of said automatic packing machine, and the danger to which plaintiff was exposed when he was put to work by its overseer to tying tobacco sacks at said machine but defendant carelessly and negligently allowed, permitted and required plaintiff to work thereat, thereby exposing him to the danger of being maimed for life, and, although defendant knew, or ought to have known, that by reason of his youth and inexperience and small strength, due to his size and age, that plaintiff could not appreciate the danger of said machine and could not properly guard against the same yet it negligently failed to warn him of said danger and give him the necessary instruction in order to avoid same. (4) That on the fourth day after plaintiff was put to work by defendant's overseer, as aforesaid, as tier at said automatic packing machine, the plaintiff was busily engaged tying at said machine and doing his best to perform his work in a proper manner and to keep pace with said machine, when, without any default or negligence on his part the plaintiff's middle finger on his right hand was caught between the block and the slides of said machine and his said finger was cut off at the second joint. That plaintiff suffered great pain and mental anguish therefrom, and was kept from his work for several weeks."

Defendant, answering the complaint, admitting its corporate capacity, and that "plaintiff is now about the age of 14 years," says: "The defendant admits that the plaintiff worked for defendant in the early part of 1905, and that the first work done by the plaintiff was as a packer of small sacks of tobacco in boxes for shipment, and some time about the last of April or the 1st of May plaintiff changed his employment and was tying tobacco sacks at an automatic packing machine. It also admits there are several machines in the room where plaintiff worked, and that they are delicate machines and complex, in the sense that they have various parts, but the defendant denies that the description of this machine, as contained in article 3 is correct. It also denies that they are dangerous machines. It admits that some boys and young men working in its factories, just as other boys and young men working in other factories, have been hurt; but it denies that during the past three or four years, or at any other time, any number of boys or young men have been hurt through any negligence on its part, or by reason of the dangerous character of the machine described, or that it knew or ought to have known of any dangers in said machines to those who were properly using them, or any danger to which plaintiff was exposed, about which he was not fully aware. It denies that it requested the plaintiff to work at any machine, but, on the other hand, alleges that the plaintiff, desiring to do labor at which he could earn more pay, was changed at his own request, and was working under a competent foreman, who had explained to him (the plaintiff) the character of the machine, and the work he was to do, and also cautioned him that he must do his work in a particular way, and not place his hands [on] any part of the machine where they are liable to be caught. The defendant also denies that the plaintiff, by reason of youth, inexperience, small strength, size, age, or for want of caution, was not aware of or did not fully appreciate the danger incident to his work. The defendant denies that it carelessly and negligently allowed, permitted, or required the plaintiff to work at the machine referred to, and thereby exposed him to the danger of being maimed for life. And it further denies that it negligently failed to warn plaintiff of any danger to which he was subjected or exposed, and to give him the necessary instruction to avoid the same, and, as except as herein admitted, the allegations of article 3 of the complaint are denied. The defendant admits that the plaintiff was at work tying sacks on an automatic packing machine at the time he was injured, but denies that plaintiff was doing the work under compulsion or without his own consent, and denies that plaintiff was properly attending to his duties at the time of his injury, and that the injury occurred without any default or negligence on the part of the plaintiff. The defendant admits that part of one of his fingers on the right hand was caught between the block and slides of said machine, and was cut off, and that plaintiff suffered some pain, and lost two weeks' time by reason of said injury. That the said machine was a standard machine in general use, and was in good and safe condition, and was equipped with all safety devices known. That the plaintiff well knew of the dangers attending the work of the machine in question, and he voluntarily assumed the risk of said work, well knowing at the time every element of danger incident to the work, and the plaintiff was not ignorant of the danger of his employment, but, on the contrary, not only had had experience in the working of the machine and its operation, but was fully aware of all dangers incident to its use and alleges these had been thoroughly explained to the plaintiff by the defendant. That the defendant further avers that the plaintiff by his own negligence and want of care contributed to his injury, in that, contrary to the warning and instruction given him by the defendant, he attempted to tie tobacco sacks after the chain carrying said sacks had revolved over the plate, where it was proper for the plaintiff to tie them, and had moved down below the plate, and that way the injury was caused; that the plaintiff was not attentive to his duties at the time of the injury, and by reason of his lack of attention and care he did not tie the sacks at the proper time, though he had ample opportunity to do so, had he given attention to his work."

The following issues were, without objection, submitted to the jury: "(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Ans. Yes. (2) Did the plaintiff voluntarily assume the risk involved in operating the automatic packing machine, as alleged in the answer? Ans. No. (3) Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? Ans. No. (4) What damage, if any, is the plaintiff entitled to recover? Ans. $500."

The plaintiff testified regarding the time, manner, and circumstances of his employment, use of the machine, and his injury. No exception is taken to any portion of his testimony, save wherein he says that "the boys were sometimes docked for letting sacks go under there untied." The exception is not noted or pressed in the brief. Plaintiff introduced his mother, who testified that he was born on May 12, 1893; that he went home with his hand in a sling, his finger was cut off, etc.; that it was the day on which Mr. Washington Duke died. Plaintiff introduced several witnesses who testified that they had worked at the machine at different times. Some of them were injured in same way as plaintiff. To the admission of all of this testimony defendant excepted. To the testimony of witness Cothran defendant excepted for the further reason that his injury occurred after plaintiff was injured. His honor instructed the jury: "If you find from the evidence by the preponderance or greater weight thereof, the burden of proof being upon the plaintiff, that the plaintiff was less than 12 years of age at the time he was injured, if you find that he was injured, and believe the evidence relating to the employment of the plaintiff by the defendant, the work which he was required to do, the character of the machine at which he was required to work, and the injury which the plaintiff alleges that he sustained, and further find from the evidence that the plaintiff was injured by the machine while engaged in the work which he was employed to do, you should answer the...