Pritchett v. Southern Ry. Co.

• Decision Date: 15 November 1911
• Citation: 72 S.E. 828,157 N.C. 88
• Parties: PRITCHETT v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

72 S.E. 828

157 N.C. 88

PRITCHETT v. SOUTHERN RY. CO.

Supreme Court of North Carolina

November 15, 1911

Appeal from Superior Court, Rowan County; Lyon, Judge.

Action by J. E. Pritchett against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. No error. This action is to recover damages for the loss of an eye and other injuries caused, as the plaintiff alleges, by the negligence of the defendant in failing to furnish him a safe place to work, and in not providing a shield to protect him from brass chips falling from a boring mill. The defendant denies negligence and alleges that the injury to the plaintiff was an accident, or that it was caused by his contributory negligence, or was the result of one of those risks assumed as a part of his employment. All of the evidence is not set out, but enough to consider the motion of the defendant for judgment of nonsuit.

J. E Pritchett, the plaintiff, testified: "I am the plaintiff. I am 31 years old. Am a machinist." Here the defendant admitted that the plaintiff was in its employment as a machinist in its machine shops at Spencer, N. C., at the time he was injured. "I have served my apprenticeship and have been working at my trade as machinist for 15 or 16 years. I was employed by the Southern Railway Company in its machine shop at Spencer, beginning work on the 20th day of June, 1910. I reported for work, and my first work was on the rod job on the eastern side of the shops. After I had been at work on the rod job three-fourths of an hour that afternoon Mr. Daniels, defendant's shop foreman, came and told me that they were behind on the driving-box job, and that he wanted me to assist in the driving-box job in the place of the regular man, who was sick. Shop Foreman Daniels took me over there to the driving-box space, and introduced me to Foreman Hege, who was in charge of the driving-box shop that afternoon. Foreman Hege then laid off some oil grooves with chalk on some driving boxes in this driving-box space, for me to chip. I then went to work on those oil grooves, when I was instantly struck blind by something striking me in the eye. I had no warning of where it came from. Mr. Carver then took me in his arms. I could not see him, but I recognized him by his voice. Quite a number of men gathered round me, as I could tell by their voices. I do not know who pulled the brass out of my eye, but I am told that Foreman Daniels did it. This driving-box job space is 10x15 feet, and is located northwest of the rod-job space where I had been working. That driving box they put me to work on weighed from 500 to 700 pounds. Those driving boxes had been placed in that driving-box space before I got to that space. I did not help place them. I had chipped grooves on two or three of those driving boxes before I was hurt. The driving box on which I was ordered to work was about 10 or 12 feet from a boring mill. At the time of my injury I was about 10 or 12 feet in a northerly direction from that boring mill. I was facing towards the boring mill, with my right eye exposed to said boring mill. I had never worked in this driving-box space before. The boring mill was not in operation, but was idle, when I was carried there. The last time I noticed that boring mill was possibly a minute or a couple of minutes before I was hurt, and it was then idle. It was not running. When struck I was in a stooping position; the driving box in front of me. I had my air hammer in my right hand and my left hand over the barrel of it. At the moment I was struck, as well as my recollection serves me, I was trying to get control of this air throttle on the hammer. It was very stiff and would not work. When I first took hold of this hammer, I called Mr. Hege's attention to it, stating to him about the spring being very stiff. He said, 'That spring is too rigid and stiff, and the way we control it is we have to put our finger on it and push it and work with the right hand.' My best recollection is that at the time I was struck I had cramped my finger trying to get control of the hammer." The defendant objected to the witness testifying as to the defective condition of the air hammer on the ground that there was no allegation in the complaint of any defect in the air hammer. The objection was overruled, and the defendant excepted. "When I was first struck by the chip, it was like a man being shot. It dazed me; but I threw my hands up immediately to my eye to hold it apart, as it burned like fire. The brass chip went in the center of my eye, or very close to the center of it. I was facing the direction of the boring mill with my right eye exposed. It became necessary for a man to be standing like I was. Certainly a man could twist, wrestle, and pull one of those driving boxes around, and his back would be towards the boring mill, if he desired to do so. I could not have got help to move that driving box, as help was scarce."

C. S. Carver testified as follows: "I am a machinist. Have been a machinist 12 years. I was working for defendant at Spencer the day Pritchett was hurt. I had been keying up some brass. I was 35 or 40 feet from Pritchett. This boring mill was on a line with him and me, and I could see both Pritchett and the boring mill at the same time. I was watching Pritchett at the time he was hurt and was the first man to get to him. I was watching him at the moment he was hurt. At that moment he was sitting down looking at his hammer. There was no chisel in it. I looked at him to see what he was doing. He was looking at his hammer. He had his throttle in his right hand and end of barrel in his left hand. No chisel was in his hammer at the time he threw his hand to right eye. Pritchett was facing the boring mill in a northeast direction with his right eye more exposed to the boring mill. Up to one minute before he was injured, the boring mill was not in operation. I saw defendant's apprentice boy, Kizziah, walk up to the boring mill and start it. I do not think the boring mill made more than two or three revolutions before Pritchett was hurt. That boring mill makes about 50 or 60 revolutions per minute. Pritchett was injured possibly 30 seconds after Kizziah started the boring mill. A piece of brass entered his eye near the center, and was taken out by Daniels about two minutes thereafter. I got to him in several seconds after he was hurt, as soon as I could run to him. He was holding his right eye open with his hands, and said he was blind. The boring mill was still in operation when I got to where Pritchett was hurt and the cuttings still flying. They will fly 120 degrees in a circular bed. Most of them go to the northwest. At the time I went to catch Pritchett those cuttings were flying so that they could hit me. There was no shield between this driving-box space and that boring mill. Pritchett was facing towards the boring mill when hurt. When the brass cutting hit him, he dropped his hammer and staggered back. When I got to Pritchett, the boy had not shut off the boring mill, and the cuttings were still flying to him. That shield protects the driving-box space to some extent, but not enough to where he was standing. It does not protect where he was standing, but the other side. I worked in the machine shops at Rocky Mount, N. C., Waycross, Ga., two machine shops on the C. and O., Richmond, Va., and Huntington, W. Va., and American Locomotive Works, where boring mills are used like defendant's at Spencer. And I have been through and observed 10 or 15 more shops where boring mills are used. Some shops have sheet-iron shields, some have bags; but in those shops canvas shields are mostly in general use as a precaution to protect the employés from brass cuttings that fly from such boring mills. It was the custom for those shields to be placed between the operator, wherever the operator might be at work, and the boring mill. Some have two shields; some are V-shape to come around the mill. Those safety shields that were in general use around machine shops of such kind were six or eight feet square, on racks, with canvas backs tacked around them. Such a shield costs $2. If one of these shields had been placed between that boring mill and the driving-box space, it would have provided protection and safety to employés working within the zone of the cuttings that flew from that boring mill. Such a shield would not have interfered with the efficiency of any of defendant's machinery or hindered any of its employés. Defendant worked men in that driving-box space every day, and kept a man operating the boring mill pretty much all the time. Plaintiff's eye just after it was struck looked like it had been burned. That cutting was hot when it went in and his eye turned white. The kind of cuttings from the boring mill depend upon how the tools are ground, how much feed you have, how much cutting you have, and upon how deep the cuttings are you are taking. Cuttings from boring mills are hot. Cuttings from air hammers are cold on account of lack of friction. There was no shield between the driving-box space and that boring mill when Pritchett was hurt. In these machine shops it is customary to shield these boring mills with canvas shields. That is the proper kind of shield and answers the purpose. Yes, if defendant had had that kind of shield there the day Pritchett was hurt, and had had it large enough to come around the boring mill, it would have been the proper kind. Apparently plaintiff was looking down at the moment he was hurt. I could not see his eyeball."

J. B Donovant testified as follows: "Am a machinist at Spencer. I was working for Southern Railway Company in June, 1910, about 25 or 30 feet from where plaintiff was when he was injured. I did not see him at the time he was injured. Have operated this...