Marks v. Harriet Cotton Mills
| Decision Date | 16 May 1905 |
| Citation | 50 S.E. 769,138 N.C. 401 |
| Parties | MARKS v. HARRIET COTTON MILLS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Durham County; Bryan, Judge.
Action by W. H. Marks against the Harriet Cotton Mills. From a judgment of nonsuit, plaintiff appeals. Reversed.
The plaintiff testified that he was 24 years of age. Was working for the defendant at Henderson, N. C., October, 1901. Was a speeder hand, running an intermediate machine, which had cogwheels on it, and was about 15 feet long and 5 feet high. There were 25 or 30 machines in the mill, about 2 1/2 feet apart. He was injured in October, 1901. Had to run it and get work off on it. Cog gear on front and back. Had worked the machine four or five months. When he first went there the rule was to stop at 5 o'clock to clean up. In about three months the defendant got behind, and was running short of hands. He was ordered to clean up while running. The usual custom was to stop while cleaning. Was hurt while running. The boss told the hands whet to do, and they had to obey. The second boss told him to clean the machine. He was carrying out the orders of the overseer. Thought he could do it safely. Was wiping off with waste. Cogwheels struck hand and cut off finger. Set screw knocked hand. Could not see set screw, and did not know it was there. Was not cautioned about it. Order to clean while in motion had not been on long. It was a new machine. At the conclusion of the evidence, defendant moved for a judgment of nonsuit. The motion was sustained, and plaintiff appealed.
Guthrie & Guthrie, for appellant.
Winston & Bryant and P. H. C. Cobell, for appellee.
CONNOR J. (after stating the facts).
When the plaintiff entered into the defendant's employment as a speeder hand, for three months thereafter it was the rule of the mill to stop at 5 o'clock and clean up. The defendant getting short of hands, the plaintiff, with other employés, was ordered to clean up while running. "The usual custom was to stop while cleaning." Without much knowledge of the construction and operation of the speeder it would seem manifest that cleaning while standing still was absolutely safe, whereas doing so while the machine was in motion was more or less dangerous. The measure of duty imposed by law upon the master in respect to the use of machinery is that, assuming the appliance to be free from defects, he shall furnish his employé a reasonably safe place in which to work, and that the machine shall be operated in a reasonably safe manner. This may be regarded as elementary. It is not always easy to establish the standard by which to measure the conduct of the employer and employé. Judges and text-writers have endeavored to do so, it must be confessed without marked success. The learned counsel, in his well-considered brief, says: "Neither a court nor a jury can set up a standard of their own, and be allowed to say how a machine shall be operated--whether it shall be cleaned standing or in motion." We concur with counsel in the proposition that courts and juries are not to set up a standard of their own; but, when they do so, we have made but little progress in solving the question, who shall set up the standard, and what shall it be? Probably the employer and employé would not concur in fixing a standard. They differ radically in this case. Yet this is but one of many constantly coming up in this and other courts, demanding that a standard shall be set so that both parties may "live up to it." After long and anxious consideration, and much conflict of opinion, this court, coming into harmony with many of the ablest courts of the Union, including the Supreme Court of the United States, adopted in all cases involving the question of negligence the standard of conduct followed by the ideal prudent man. When the facts are admitted, and but one inference can be drawn from them, the court will find, by this standard, as a matter of law, the existence or nonexistence of negligence. When the facts are not admitted, or when more than one inference may be reasonably drawn, the question is submitted to the jury to find whether or not there is negligence. Russell v Railroad, 118 N.C. 1098, 24 S.E. 512; Marks v. Cotton Mills, 135 N.C. 287, 47 S.E. 432. This, we think, the safest and most workable rule.
While it is true, in the case before us, the facts are admitted by the motion to nonsuit, it is not clear that but one inference can be drawn from them. The rule for cleaning the machine while in motion certainly must have increased the hazard and subjected the employé to danger of injury. Why the change was made is only shown by the plaintiff's testimony that the mill ran "short of hands." This would not be any legal excuse for making such change, if doing so unreasonably increased the hazard. There is no evidence as to the custom of mills in respect to the cleaning of machines--whether standing still or in motion. We find that in England certain persons are prohibited from cleaning a machine in motion, impelled by mechanical power. In Gideon v. Enoree Co., 44 S.C. 442, 22 S.E. 598, it is stated that the testimony on the part of the plaintiff showed that the universal practice in other mills in that section of country was to have the machinery fanned while running, and not to stop it for that purpose, and there was no evidence tending to show that such a practice was dangerous. It is true that the evidence in this case is slight, consisting of the fact that the usual custom was to stop while cleaning. Whether this was because it was regarded as prudent to do so is not stated, but we think that it is not an unreasonable inference that such is the case.
We are of opinion, upon the whole testimony, that the question of the defendant's negligence should have been submitted to the jury under proper instructions, to inquire whether it was a reasonably safe and prudent method of doing the work. Of course, it is open to both parties to introduce all competent and relevant testimony to aid the jury in measuring the defendant's conduct by the standard fixed by the law.
The defendant, however, insists that, admitting this to be true the plaintiff is barred of a recovery because he assumed the risk. The defendant's counsel says that the plaintiff was an experienced hand, familiar with this machine and its operation, aided in putting it up, and was the first man to "rope and work it," and had operated it for five months; that he made no complaint or objection, suggested no danger, but went back to the same machine and renewed his work. It is true that many cases hold that this conduct would bar the...
To continue reading
Request your trial