Midgette v. Branning Mfg. Co.

• Decision Date: 24 March 1909
• Parties: MIDGETTE v. BRANNING MFG. CO.
• Court: North Carolina Supreme Court

64 S.E. 5

150 N.C. 333

MIDGETTE v. BRANNING MFG. CO.

Supreme Court of North Carolina

March 24, 1909

Appeal from Superior Court, Tyrrell County; Ward, Judge.

Action by B. S. Midgette, administrator of W. S. Leary, against the Branning Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The truth of the testimony, together with the reasonable inferences to be drawn therefrom, is for the jury.

The plaintiff, administrator, alleges: "That plaintiff's intestate, Leary, as he is informed and believes, was employed and working in the mill of the defendant company under its direction as assistant engineer on and before the 18th day of December 1900. That on the 18th day of December 1900, the said W. S. Leary was killed in the mill of the defendant company by reason of the negligence of said company, in that its machinery and belts were not safe and were in a rotten and unsecure condition and unfit for the operation of the said mill. That the said mill of the defendant company was not in a safe condition. Its machinery was in bad condition, unsafe, and dangerous. That the same was old and secondhand, having been carried from another old mill and placed in the mill at Columbia. That the building was badly and negligently arranged, with not sufficient room for operating said machinery and repairing same, which facts were known to the defendant company. That the plaintiff's intestate Leary, while in the employ of the defendant company, and under its directions, was ordered to repair one of the belts running the machinery of the said mill which had broken, and he was required to do this work while the mill was running which was dangerous and unsafe." That while so engaged in discharging the duties imposed upon him by his employer to wit, "mending one of the belts," one of them broke, and intestate was killed. Defendant denied that it was, in any respect, negligent, or was guilty of any breach of duty to intestate in the premises. It alleged that plaintiff's intestate was guilty of contributory negligence. It also alleged that intestate well knew of the condition of the machinery when he entered upon the employment there a month before his death and assumed the risk incident thereto. The following issues were, without objection, submitted to the jury: "(1) Was the death of plaintiff's intestate caused by the negligence of the defendant, as alleged? (2) Did said intestate, by his own negligence, contribute to his death? (3) What damage, if any is plaintiff entitled to recover of defendant?"

There was evidence tending to show: That the mill was running at night-8 or 9 o'clock-to make up lost time, when intestate was killed. That it was in bad condition. That it could not make time without running on "and stopping often." That it was an old secondhand mill. That the "hog," a machine which grinds up slabs, runs by 2 belts having a cylinder, with 12 knots, making 1,600 revolutions a minute. It was in bad condition, out of balance, had poor foundation, and was, on that account, shaking. There was evidence, on the part of defendant, tending to contradict this evidence. The direct testimony in regard to the manner in which intestate came to his death comes from C. H. Leary, who testified: "That on the day intestate was killed, we had worked part of the time and started up again at 7 o'clock at night to make up lost time. He was killed between 8 and 9 o'clock that night. I was upstairs talking with the sawyer, and he said to me that one of the 'hog' belts was broken; there being a belt on each side of the cylinder. I went down to repair the broken belt. I found it torn in two and took it off, putting a piece of edging between the belt and pulley. I then went down to work on the belt, but soon found that the edging which I had put in had shaken out. Had the 'hog' been in place, it would not have shaken, and the piece would not have come out. It came out because it was shaken so bad. Deceased was helping me to fix the belt. I directed him, and had the right to direct him. He was under my direction. I sent him up to the 'hog' to put the piece back. The 'hog' was eight feet higher than where we were standing. He walked up on conveyor box, which conveyed sawdust to the platform. This was the only way he could get up to it without going over conveyor box and through belts. I did not see him after he got up. It was not more than a minute. When he got tip, the belt got foul around the pulley. It was slipping. It struck him on the hand. When it first got foul, the sawdust was so thick I could not see him until engine was slowed down. I saw him then hung up in the belt that caused his death. If the engine had been shut down when he went up to repair the belt, there was no danger. There would have been no danger if the 'hog' had been balanced. The pulley was badly worn, about played out. The belt was unsound and had been burned. It was two feet between where I was working and the conveyor belt." Witness was here asked by plaintiff what was the space condition of the room where he had to work. Defendant objected to this question and to the answer to the same. Objection overruled. Witness answered: "Did not have room. If there had been more room, could have gone around." To the admission of this question and answer defendant excepted. Witness said on cross-examination: "When machinery ought to stop, it was the duty of both myself and my brother to stop it. My brother had been at the mill some little time. W. T. Campen employed us both and paid us both. The 'hog' was approached by a ladder. To get to the ladder my brother had to come out underneath the belt or go through it. After he got out he could have gone up the ladder. After he got up to pulley, he would have been safer going up by the ladder which was provided by the company. If the engine had been stopped, there would have been no danger. The cause of danger was that my brother went up there when the engine was in motion. When I was there, it was my duty to stop the engine. When we were at work on the pulley the safer was to go up by the way he went."

Plaintiff was permitted, over defendant's exception, to show by one Walker: That the "hog" would shake a great deal, that the mill broke down often, and that "we could seldom make a day." The breaking of the conveyor chain was the cause of the delay. That there was no safe way to go up into this machinery while the mill was running. Witness had worked at the mill, but had not seen the "hog" for three months before the accident. Leary was recalled and testified that "to go around the shaft there was only 12 inches space, and that he would have to go all around the mill."

Defendant introduced W. T. Campen, who had charge of the mill. He testified upon the question of negligence and contributory negligence that: "I instructed the hands never to repair the mill unless it was shut down. I gave this instruction to the deceased and his brother, Howard Leary. *** There was greater danger going up the way the deceased went than if he had gone up the steps which were provided by the company. Deceased had been working with the company six weeks when he was killed. Brother of the deceased said it was his own fault that he was killed." There was contradictory evidence upon this point. Witness also testified that: "The mill and machinery were in as good condition as mills generally are, and was kept in good condition. No 'hog' could be run for 20 hours in balance, owing to the great strain upon them, but this 'hog' and machinery were in a condition usual with mills." Defendant introduced other testimony to same effect. It was admitted that the mill belonged to defendant. For the purpose of showing that plaintiff's intestate was not employed by it, defendant introduced W. T. Campen, who testified: "That in December, 1899, he was employed by the Branning Manufacturing Company to take this mill and run it. By the contract he was to keep up all repairs and do all the work. He was to receive the timber from the log cars of the Branning Manufacturing Company, cut the logs into lumber, and deliver it to the Branning Manufacturing Company, thus manufactured for shipment on its cars, for which the Branning Company was to pay him $1.75 per 1,000 feet. We were to give each other 30 days' notice before either could give up the contract. I took charge on the 15th day of January. Later, and before the accident, I became dissatisfied with the contract and gave notice that I would quit. Whereupon Mr. Branning, president of the company, had an interview with me, and told me he would pay me what I could make, and he indemnified me that I should make $150 per month. Under the contract I was to have entire charge of the mill. I was to hire the hands and to discharge them, and no one else had anything to do with them. I remained in charge two years and one month. If I made more than $150 per month which he guaranteed I should make at $1.75 per 1,000, I was to have it. *** I kept no office and kept no books. I made out the pay rolls and sent them to Edenton, and the money was charged to me. The Branning Company employed an inspector to keep the amount of lumber I cut. This was agreed upon when I made the bargain, and this was the only person about the mill that the Branning Company hired or paid. It was also agreed, when the contract was made, that the Branning Company should keep the books and should furnish the cash for the purpose of paying the hands upon the pay rolls furnished by me. This was done because I had no facilities for bookkeeping, and because there were no banks in Columbia from which I could get money. There was some trading done by my laborers at the store of the Branning Manufacturing Company. This credit was given them at my request. ...