Pressly v. Dover Yarn Mills
| Decision Date | 16 May 1905 |
| Citation | 51 S.E. 69,138 N.C. 410 |
| Parties | PRESSLY v. DOVER YARN MILLS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; O. H. Allen, Judge.
Action by J. M. Pressly against the Dover Yarn Mills. From a judgment for plaintiff, defendant appeals. Affirmed.
Where plaintiff was injured by the starting of a machine while he was repairing it, caused by the absence of a belt shifter and testified that it was not usual to entirely remove the belt from the pulley to make repairs, that it was a very troublesome matter to replace the belt when entirely taken off, and sometimes required a half hour's time, he was not guilty of contributory negligence in failing to entirely remove the belt from the machine before working thereon.
Action for damages for negligence, tried before O. H. Allen, judge and a jury, at January term, 1905, of Mecklenburg superior court. Issues: (1) Was plaintiff injured by the negligence of defendant? (2) Did plaintiff, by his own negligence contribute to his own injury? (3) Did plaintiff voluntarily assume the risk? (4) As to damages.
There was evidence on the part of the plaintiff tending to show that at the time of the injury he was the employé of the defendant, working in the spinning room; that his position was that of section hand, and his duties were the overhauling and repairing the spinning frames, of which there were 18 in the room; that his wages were $1 a day, and he worked in the charge and under the control of one Michael, who was the overseer of the spinning and carding room; that while engaged in the performance of his duty his hand was seriously injured by reason of a defective appliance which the defendant had negligently furnished, the defect complained of being the lack of a shifter on the spinning frame. These frames were some 25 or 30 feet long, driven by mechanical power, and the same was applied at one end of the frame by means of a belt running on a pulley. There were two of these pulleys on a rod, one tight and the other loose. When the belt was applied to the tight pulley, the machine was put in motion for its work, and when it was desired to stop the machine the belt was moved to the loose pulley, in which case the power was withdrawn from the machine. These shifters were a mechanical appliance, a structural part of the machine, approved and in general use, by which this belt was pushed from one pulley to the other, and it also would hold the belt to the pulley where it was placed. On the machine in question the shifter was off. The same appliance was wanting in three other frames in this room. The plaintiff had discovered the absence of the shifters on this machine, and called it to the attention of Michael, the overseer, and told him there were some shifters needed, and the overseer replied that they needed many things they didn't have. On the day of the injury, being informed by the operator that the machine was out of fix, he got a wrench, and was in the act of fixing the gearing at the opposite end of the machine from the pulleys where the power was applied, and while so engaged the machine unexpectedly started, and the plaintiff was injured. The start was caused by the belt shifting from the loose to the tight pulley, and this would not have occurred if the shifter had not been lacking. The defendant, in its answer, admitted that there was no shifter on the machine, but denied the allegation of negligence, and also by way of defense alleged contributory negligence and assumption of risk. The defendant offered no testimony.
The court charged the jury, in substance, on the first issue, that it was the duty of defendant to furnish appliances reasonably safe and suitable, such as were approved and in general use; and if there was default in this respect, and it was the proximate cause of the plaintiff's injury, they would answer the first issue "Yes"; otherwise they would answer it "No." On the issue of contributory negligence the judge told the jury, in substance, that if they should find from the evidence that the injury would not have happened if the defendant had supplied the machine with the shifter, and that was really the proximate cause of the injury, this would be a continuing negligence, and they should answer the second issue "No," though the plaintiff may have been negligent in using the machine. On the issue as to the assumption of risk--the third issue--the court charged the jury that if they should find from the evidence that the plaintiff knew, or by the exercise of ordinary care he ought to have known, at the time of the injury, that the spinning frame which he was repairing was not provided with a shifter, and therefore the belt was liable to slip from the loose to the tight pulley, and should further find from the evidence that the act of the plaintiff in so attempting to repair the spinning frame was obviously so dangerous that in its performance the probabilities of danger were greater than those of safety, as where the machinery is so grossly and clearly defective that the plaintiff knew he was taking an extra risk, then he assumes the risk, and cannot recover; and "if you should find that his conduct was of that character in continuing to work there, and he was working with a machine clearly so dangerous that he must have known he was taking an extra risk, then you will find that he did assume the risk; but if you find it was not of that character, then you will find that he did not assume the risk, and answer the issue accordingly." Under the charge of the court the jury answered the first issue "Yes," and the second and third issues ""No," and awarded damages. There was judgment on the verdict for the plaintiff, and the defendant excepted and appealed.
Chas. W. Tillett and Shepherd & Shepherd, for appellant.
Burwell & Cansler, for appellee.
HOKE, J. (after stating the facts).
In charging the jury on the first issue the judge below properly stated the obligation of the employer to supply his workmen, in plants of this character, with machinery and appliances safe and suitable for the work in which they are engaged, and such as are approved and in general use. He charged, in substance, that if there was any negligent default in this respect, and this negligence was the proximate cause of the injury, they should answer the first issue ""Yes." Witsell v. Railroad, 120 N.C. 557, 27 S.E. 125; Marks v. Cotton Mills, 135 N.C. 287, 47 S.E. 432.
The charge on the third issue--as to assumption of risk--is also supported by well-considered adjudications of this court. Simms v. Lindsay, 122 N.C. 678, 30 S.E. 19; Lloyd v. Hanes, 126 N.C. 359, 35 S.E. 611. In Hicks v. Cotton Mills (at this term) 50 S.E. 703, the court has held that, while the employé assumes all the ordinary risks incident to his employment, he does not assume the risk of defective machinery and appliances due to the employer's negligence. These are usually considered as extraordinary risks, which the employés do not assume, unless the defect attributable to the employer's negligence is obvious, and so immediately dangerous that no prudent man would continue to work on and incur the attendant risks. This is, in effect, referring the question of assumption of risk, where the injury is caused by the negligent failure of the employer to furnish a safe and suitable appliance, to the principles of contributory negligence; but it is usually and in most cases desirable to submit this question to the jury on a separate issue as to assumption of risk, as was done in this case. When the matter is for the jury to determine on the evidence, it may be well to submit this question to their consideration on the standard of the prudent man in terms as indicated above. The charge on the third issue substantially does this, and the language used is sanctioned by the authorities. Coley v. Railroad, 129 N.C. 407, 40 S.E. 195, 57 L. R. A. 817; Marks v. Cotton Mills, supra. There is no error in the charge of the court as to assumption of risk.
On the second issue--that addressed to the question of contributory negligence--the judge charged the jury, in substance, that if they should find from the evidence that the injury would not have happened if the defendant had supplied the machine with a shifter, and this was the proximate cause of the injury this would be continuing negligence, and they should answer the second issue "No," though the plaintiff may have been negligent in the use of the machine. As we have held in Hicks v. Cotton Mills, supra, this is not a correct proposition as to every negligent failure on the part of the employer to furnish a safe appliance by reason of which the injury occurs, and is not the law in cases of the character we are now considering. The employé is not in such instances absolved from all obligation to act with reasonable care and prudence, and, if there is negligence on his part, concurring as the proximate cause of the injury, the plaintiff cannot recover. The charge, therefore, on this issue, would be reversible error, but for the fact that in the opinion of the court there is no evidence offered which shows or tends to show contributory negligence, apart from the fact that the plaintiff continued to work on after knowing of the existence of the defect which caused the injury. This question, as we have seen, was, under a proper charge, submitted to the jury on the third issue, and the defendant has had the benefit of every position which was open to him in the charge of the court addressed to that issue. The only default imputed to the plaintiff, apart from the fact that he continued to work on, was that he failed to push the belt entirely off both pulleys. But this, we think, is no such evidence of negligent default that it...
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