Noble v. John L. Roper Lumber Co

• Citation: 65 S.E. 622,151 N.C. 76
• Parties: NOBLE . v. JOHN L. ROPER LUMBER CO.
• Decision Date: 29 September 1909
• Court: United States State Supreme Court of North Carolina

65 S.E. 622

151 N.C. 76

NOBLE .

v.JOHN L. ROPER LUMBER CO.

Supreme Court of North Carolina.

Sept. 29, 1909.

1. Master and Servant (§ 105^*)—Appliances—Negligence.

A master was not negligent in failing to furnish a servant a reasonably safe appliance for removing shivers from a planing machine while in motion, where there was no kind of appliance adapted to such purpose in general use.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 185-191; Dec. Dig. § 105.*]

2. Negligence (§ 119*)—Personal Injuries —Pleading and Proof.

Where, in an action for injuries through negligence, two grounds of negligence are alleged, proof of either will support a verdict for plaintiff.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. §§ 203-216; Dec. Dig. § 119.*]

3. Master and Servant (§ 130*)—Method of Work—Duty of Master.

It is the duty of the master to furnish his servant a reasonably safe method as far as practicable for doing his work.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 264, 266, 2T6; Dec. Dig. § 130.*]

4. Master and Servant (§ 149*)—Injuries to Servant — Dangerous Appliances — Negligence.

Where the only safe method of removing a shiver from a planing machine was to disconnect the belt and momentarily stop the machine, defendant's foreman was negligent in forbidding plaintiff, a sen-ant, to stop the machine, and for injuries to plaintiff through trying to remove a shiver with a stick while the machine was in motion defendant was liable.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 291; Dec. Dig. § 149.*]

5. Master and Servant (§ 189*)—Vice Principal—Injuries to Servant.

Where a foreman representing the master is empowered to give orders to other servants, his negligence in directing the performance of dangerous work in an unsafe manner is imputable to the master.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 427^48; Dec. Dig. § 189.*]

6. Master and Servant (§ 245*)—Orders-Contributory Negligence.

It is the duty of a servant to refuse to comply with an order to do something obviously dangerous, and which a reasonably prudent mau under similar circumstances would not do.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 781, 782; Dec. Dig. § 245.*]

Appeal from Superior Court, Craven County; Cooke, Judge.

Personal injury action by B. E. Noble against the John L. Roper Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Moore & Dunn, for appellant.

D. L. Ward and W. D. Mclver, for appellee.

BROWN, J. The uncontradicted evidence in this case tends to prove these facts: Plaintiff was injured in November, 1906, while feeding the planing mill. He was working under one Chapman, who was the foreman of the machine. A shiver of wood became fastened under the guide. It was necessary to remove this. The grader, who was present, called plaintiff's attention to the fact that there was a streak on the board caused by the shiver. Plaintiff shut the feed off, and went to remove the shiver. The company did not furnish any appliance of any kind for removing such shivers of wood. It was customary to pick up a stick from the floor to remove them. The foreman had often done this in the presence of the plaintiff. Chapman, the foreman, had often told the plaintiff not to remove his belt and stop the machine when a shiver of wood got under the guide. At other times when plaintiff would offer to stop the machine to remove the shivers, and Chapman was not near enough to speak to him on account of the noise made by the various machines, he would wave his hand to the plaintiff not to stop.

There are two allegations of negligence set out in the complaint, viz.: (1) Refusing to permit plaintiff to shift the belt and stop his machine long enough to remove the shiver and directing him to remove it while running. (2) A failure to furnish a proper appliance with which to remove shivers. There were the usual motions to nonsuit, which were overruled. We find many exceptions in the record which in the view we take of the case it is unnecessary to discuss.

The principal exception is to the following charge: "The court instructs the jury that, in order to find the first issue in the affirmative, they must be satisfied by the greater weight of the testimony (1) that the foreman under whom he was placed to work directed him to remove the shiver without stopping the machine; (2) that the defendant failed to exercise reasonable care in furnishing to the plaintiff a reasonable safe appliance for removing the shiver while the machine was running." We agree with the learned counsel for the defendant that there is nothing to support the second...