West v. Brevard Tannin Co.

• Decision Date: 14 December 1910
• Citation: 69 S.E. 687,154 N.C. 44
• Parties: WEST v. BREVARD TANNIN CO.
• Court: North Carolina Supreme Court

69 S.E. 687

154 N.C. 44

WEST v. BREVARD TANNIN CO.

Supreme Court of North Carolina

December 14, 1910

Appeal from Superior Court, Buncombe County; Justice, Judge.

Action by H. N. West, administrator, against Brevard Tannin Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The evidence on a motion to dismiss must be construed most favorably to plaintiff, and every fact which it tends to prove, and which is an essential of the cause of action must be taken as established, as the jury, if the case had been submitted to them, might have found such facts from the testimony.

Merrick & Barnard, for appellant.

Jones & Williams and Craig, Martin & Thomason, for appellee.

WALKER J.

This action was brought to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of the defendant. The defendant moved for judgment as of nonsuit, which motion was refused, and the only question for our consideration is, Was the evidence sufficient to be submitted to the jury, who found by their verdict that there was negligence which was the proximate cause of the injury, and that the intestate did not, by his own negligence, contribute to the injury which caused his death? In passing upon the single exception, we are restricted to a certain view of the evidence by a well-settled rule of law which we have formerly stated as follows: "Where a motion to dismiss an action is made under the statute, the evidence must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove, and which is an essential ingredient of the cause of action, must be taken as established, as the jury if the case had been submitted to them, might have found those facts from the testimony." Cotton v Railroad, 149 N.C. 227, 62 S.E. 1093; Brittain v. Westhall, 135 N.C. 492, 47 S.E. 616; Freeman v. Brown, 151 N.C. 111, 65 S.E. 743; Deppe v. Railroad, 152 N.C. 79, 67 S.E. 262.

The statement of a few of the salient facts which the evidence tends to establish will suffice for the purpose of testing the soundness of the position taken by the defendant's counsel in support of the motion for a nonsuit. The defendant, at the time of the injury to the intestate, was a corporation engaged in the business of extracting tannic acid from chestnut wood, by means of machinery and other appliances. The process by which this was done was fully explained by the witnesses. The wood is chopped very fine and boiled in large vats or tubs 14 feet in diameter, the tops of which were about 30 inches above the level of the floor of the defendant's leech house. Over tub No. 1 there was a platform 8 or 9 feet square, on which rested the machinery, consisting of sprocket wheels, belting, shafting, chains, and gearing. The platform was surrounded by a beam which stood above it about 10 inches, thereby forming a rim at its outer edge; the space between the beam and the machinery was in width about 10 or 12 inches, barely leaving room for a person to step between the sprocket wheel and the beam. This was the walkway for the use of the intestate in performing his work. There was no railing around it. The gangway and beam were covered with oil and grease, and were very filthy and slippery. There was no lid or covering to the vat, the temperature of the liquid in which ranged at times from 200 to 210 degrees Fahrenheit. There had been a lid on the vat, but by long usage and the effect of the acid on the wood of which it was made, it had fallen off from decay. The intestate was employed by the defendant as oiler of the machinery. He was 16 years old, and, to perform the duty assigned to him, he was required to go upon the platform at the point directly above the vat. While engaged in leaning over and oiling a part of the machines on July 19, 1905, and as the jury found, without any fault on his part, his foot slipped over the greased surface of the platform and beam, and he fell in the seething cauldron below, after struggling to save himself, and was so badly scalded that his death soon followed from the injuries he received. We cannot adopt the suggestion of the defendant that the intestate did not slip from the platform, but fell in the vat in some other way, because there is abundant evidence to show that, while no one saw the intestate when he fell, there were footprints and handprints indicating that intestate had slipped and attempted to catch himself as he fell from the platform. Upon this showing by the plaintiff, and we have not stated even the substance of all the evidence, the defendant contends that there is no sufficient proof of negligence. The plaintiff, on the contrary, imputes negligence to the defendant in two respects: (1) That it failed to cover the vat of boiling liquid, when by the relative position of the vat and the platform over it and the peculiar construction of the latter, especially with reference to its width, the position of an employé required to use it in performing his work was rendered dangerous (2) that it neglected to provide a reasonably safe platform where the intestate could stand while oiling the machinery, and allowed the one it did provide to become saturated with oil and grease so that it afforded but a very precarious footing for the intestate and other employés, for whose use it was erected, and that they were thereby unnecessarily exposed to danger when performing their work.

The master does not guarantee the safety of his servant while engaged in the discharge of his duties. He is not an insurer and is not bound to furnish him an absolutely safe place to work in, but is required simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best-known machinery, implements, and appliances, but only such as are reasonably fit and safe and in general use. He meets the requirements of the law if, in the selection of machinery and appliances, he uses that degree of care which a...