Tyson v. Long Mfg. Co.

• Decision Date: 25 February 1959
• Docket Number: No. 97,97
• Citation: 78 A.L.R.2d 588,249 N.C. 557,107 S.E.2d 170
• Court: North Carolina Supreme Court
• Parties: , 78 A.L.R.2d 588 Myrna E. TYSON, by her Next Friend, Joab L. Tyson, v. LONG MANUFACTURING COMPANY, Inc.; and Frank Allen and W. A. Allen, t/a Farmville Implement Company.

Page 170

107 S.E.2d 170

249 N.C. 557, 78 A.L.R.2d 588

Myrna E. TYSON, by her Next Friend, Joab L. Tyson, v. LONG MANUFACTURING COMPANY, Inc.; and Frank Allen and W. A Allen, t/a Farmville Implement Company.

No. 97

Supreme Court of North Carolina.

Feb. 25, 1959

Charles H. Whedbee and James & Speight, Greenville, for plaintiff, appellant.

Sam B. Underwood, Jr., Greenville, and Henry C. Bourne, Tarboro, for defendants, appellees.

PARKER, Justice.

Plaintiff's thumb on her left hand was injured on 22 July 1955, while she was looping tobacco as an employee of Carlton Young on a Silent Flame Tobacco Harvester manufactured by the defendant Long Manufacturing Company, Inc., and sold to Carlton Young or his father by the defendant Farmville Implement Company.

Plaintiff's injuries occurred while the tobacco harvester being driven across a tobacco field by Carlton Young was in operation harvesting green tobacco leaves from the stalk. This machine was 12 1/2 feet high, and about 6 feet above the ground. It had a platform 10 feet wide and 14 feet long. Four people were on the machine under the platform pulling the tobacco leaves from the stalk. Plaintiff and Christine Hall were standing on the platform on opposite sides of the conveyor chain looping the tobacco leaves, when they reached them. The machine operated on a continuous chain principle. This conveyor chain made horizontal runs over a sprocket at the back of the machine to a sprocket at the front, passing by the loopers. When the four people on the machine under the platform pulled the tobacco leaves from the stalk, they put them in clips holding a bundle of tobacco leaves attached to the conveyor chain. The clips were about 20 inches apart on plaintiff's side of the conveyor chain. They alternated on the opposite side. A stick some 12 or 18 inches lower than the horizontal run of the conveyor chain was between it and the loopers. The loopers' work was done when the conveyor chain passed them on its horizontal run.

This is plaintiff's testimony as to how her injury occurred: 'It had been raining. * * * The chain was in motion at the time. The chain runs from the back to the front. I was looping. The duty of the looper is to take the tobacco out of the chain and put it on the stick. In doing that I pull the tobacco from the clip. I wrap a thread around it. After I pull the tobacco and wrap the thread around it I put it on the stick. There is a holder for the stick here, and another holder back there. There is a forked stick arrangement to hold the tobacco so there was a stick between me and the chain. The holder is provided for the stick. I was pulling the tobacco out of the clip, looping it and then putting it on this stick about in here. Then when the machine lurched, it kind of threw me off, over against the stick; I caught my finger, caught in the sprocket between the holder and the guard and there wasn't anything I could do to get it out without crushing it. This perforated sprocket which is admitted to be from a Silent Flame machine is the type of wheel in which I caught my hand. My thumb caught up in here like this. Like this and see that the guard just covers half of it or maybe two-thirds.'

Plaintiff at the time of her injury was 17 years old. She had been looping tobacco on a tobacco harvester or under a looping shed 3 or 4 years. She had worked on this tobacco harvester most of the summer in 1955, when they were putting in tobacco, and was familiar with its operation. She testified on cross-examination: 'I pulled the bundles off with my left hand and tied them with my right around the stick. * * * I was standing facing the chain and facing the tobacco as it came toward me. * * * The tying thread was behind me. * * * The bundle of tobacco I was reaching for was approximately where the paper bag is. When the machine lurched I fell up against the stick, and I got my finger caught there in the sprocket. The bundle of tobacco wasn't quite ten inches from it. * * * The tobacco was in the clip up against the guard on the sprocket. It just was. It just had gotten to it. I was far enough back that I could see the tobacco in this clip at the time I reached for it. I did see it. I could see the sprocket from where I was standing, but I was watching the tobacco; I mean I had never noticed the sprocket close enough to notice that it had holes in it. * * * If it had been a solid wheel or sprocket I never would have caught my finger, or if it had had a guard. It was not a solid sprocket, no sir. It did not have a guard all the way across it. It did not have anything there to keep me from seeing it. I understand the operation of that conveyor chain moving over the sprocket. It is a simple operation. The lurch of the machine threw me off balance and my hand into the sprocket.'

When the tobacco harvester is in operation in a tobacco field, it moves slowly.

In substance these are plaintiff's allegations of negligence: The Silent Flame Tobacco Harvester was negligently constructed in that it had a sprocket with holes large enough for a person's thumb to be inserted therein and inadequately guarded, that the sprocket and guard were so constructed that the imminent danger therein was not readily observable and appreciated by a reasonably prudent person, and constituted a concealed danger, which was the proximate cause of plaintiff's injuries. That such negligence of the manufacturer, Long Manufacturing Company, Inc., was imputed to the seller, its co-defendant Farmville Implement Company.

In Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, 803, the Court said: 'The cases establish that the manufacturer of a machine or any other article, dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. Accordingly, if a remote user sues a manufacturer of an article for injuries suffered, he must allege and prove the existence of a latent defect or a danger not known to plaintiff or other users. ' The first sentence quoted from this New York case is quoted by this Court in Kientz v. Carlton, 245 N.C. 236, 241, 96 S.E.2d 14, 18.

In the Campo v. Scofield case, plaintiff working on his son's farm, was engaged in feeding onions into an 'onion topping' machine, when his hands became caught in revolving steel rollers and were badly injured. He sued upon the theory that the manufacturer was negligent in not providing guards. The Court held that the complaint failed to state a cause of action. The gist of the holding is that a manufacturer is under no duty to protect the user against a danger which is perfectly obvious. The Court said: 'If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law's demands. We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof.'

In Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853, 856, plaintiff, a farm hand, was injured when he slipped without negligence and fell so that his fingers were caught in the unguarded rollers of a pick-up hay baler manufactured by the defendant. The supervisor of inspectors for the Industrial...