Lloyd v. Hanes

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: Lloyd v. Hanes, 126 N. C. 359, 35 S. E. 611 (N.C. 1900)
• Decision Date: 10 April 1900
• Parties: LLOYD v. HANES et al.

35 S.E. 611

126 N.C. 359

LLOYD

v.HANES et al.

Supreme Court of North Carolina.

April 10, 1900.

MASTER AND SERVANT—MACHINERY—SAFETY APPLIANCES—ASSUMPTION OF RISK.

1. There is no "assumption of risk" merely from an employe operating a machine which he knows is lacking in safety appliances which have come into general use.

2. "Assumption of risk" is a matter of defense, and it must be shown not only that the employee worked on, knowing the danger, but that he voluntarily assumed the risk.

3. It is not negligence for an employer to fail to supply an improved appliance, unless it is one in general use.

Appeal from superior court, Forsyth county; Robinson, Judge.

Action by James R. Lloyd against P. H. Hanes & Co. Judgment for defendants. Plaintiff appeals. Affirmed.

J. S. Grogan, for appellant.

Jones & Patterson and Watson, Buxton & Watson, for appellees.

CLARK, J. We cannot agree with the defendants' counsel that, if an employe operates a machine which is lacking in safety appliances which have come into general use, this is an "assumption of risk" which releases the employer from liability. That would be simply to hold that, if such appliances are not used, the defendant is negligent, but, if the pressure of circumstances forces some unfortunate man to accept service with such machine, it releases the employer. This negatives the liability of the employer by the very fact of his negligence; and that, as to the class most needing protection, —those whose urgent need compels them to take work wherever they can get it. As was said in Sims v. Lindsay, 122 N. C. 678, 30 S. E. 19: "It is not to be held as a matter of law that operatives must decline to work at machines which may be lacking in some of the improvements or safeguards they have seen upon other machines, under penalty of losing all claims for damages from defective machinery. It is the employer, not the employe, who should be fixed with knowledge of defective appliances, and held liable for injuries resulting from their use. It is only where a machine is so grossly or clearly defective that the employe must know of the extra risk that he can be deemed to have voluntarily and knowingly assumed the risk." To illustrate: If a railroad company fails to use automatic couplers, it is negligence per se. Troxler v. Railway Co., 124 N. C. 189, 32 S. E. 550; Greenlee v. Railway Co., 122 N. C. 977, 30 S. E. 115. If one should take service upon a railroad not having such appliances, this would not absolve the railroad from liability for its negligence in not using such life and limb saving device. The doctrine of "assumption of risk" is more reasonable, and extends no further than that, if a particular machine has become injured or dangerous, and the employe, seeing the danger, does not report its condition, but goes on with his work in disregard of It he assumes the risk. The difference between "knowledge of the danger, " in the first case (absence of safety appliances which should be in use), and "assumption of the risk" (by working without protest at a machine which has become defective and dangerous), is pointed out, among many other cases, in a late decision in the house of lords, —Smith v. Baker [1891] App. Gas. 325, —in a discussion of the difference between the maxims, "Scienti non fit injuria" and "Volenti non fit injuria, " the former not being law, for which Lord Halsbury cites Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. Div....