Norris v. Holt-Morgan Mills

Allen, J.,

after stating tbe case: We have been aided very much in tbe examination of tbis case by tbe full statement of facts contained in tbe briefs of tbe appellant and tbe appellee. Rule 34 requires tbe appellant to make sucb statement in bis brief, and its observance in all cases would do nmcb to quiet tbe complaint sometimes beard that some fact bas been overlooked.

Tbe exceptions are numerous, but it is unnecessary to discuss eacb one of them, as many involve tbe same question. Tbe exception to tbe question asked tbe jurors, “Is there any member of tbe jury who bas an interest as agent, or otherwise, ^in tbe Maryland Casualty Company, an insurance company?” is without merit. We must assume tbe question was asked in good faith, and tbe defendant says in its brief: “Tbe Maryland Casualty Company bad insured tbe defendant in respect to tbe plaintiff’s accident.”

In Blevins v. Cotton Mills, 150 N. C., 497, it was held that an employee of tbe defendant was incompetent as a juror, and tbe Casualty Company was practically a defendant. In any event, it does not appear that the question prejudiced tbe cause of tbe defendant. No person was excused on account of bis connection with tbe Casualty Company, and tbe defendant did not exhaust its challenges.

The evidence of the absence of the oil cups after tbe injury would ordinarily be incompetent, but it was made competent in this case by tbe evidence of the defendant that the machinery bad not been changed, and that the oil cups were on the machinery at the time of tbe injury and at the trial. Tise v. Thomasville, 151 N. C., 282.

Tbe defendant resisted a recovery principally on tbe following grounds:

(1) That tbe fact that tbe door was fastened on tbe outside was not tbe proximate cause of tbe injury, contending, on tbe plaintiff’s evidence, tbat be bad no difficulty in getting out, and was not" delayed by tbe manner of fastening tbe door.

(2) Tbat if tbe room in wbicb tbe plaintiff was working was unsafe, tbis was not tbe cause of bis injury, and tbat tbe real cause was an accidental fire.

(3) Tbat if tbe fire was tbe result of negligence, it was tbe negligence of a fellow-servant, for wbicb tbe defendant would not be liable.

(4) Tbat if plaintiff was delayed in leaving tbe room, it was because of tbe negligence of a fellow-servant in failing to open tbe door when be called.

(5) Tbat tbe fire was accidental.

(6) Tbat tbe plaintiff assumed tbe risk.

(7) Tbat there was no evidence of negligence.

All of these contentions, except the last, are dependent upon tbe findings of tbe jury, and we think bis Honor submitted them to tbe jury under instructions of wbicb tbe defendant cannot complain.

After stating tbe duties imposed upon tbe plaintiff and defendant, be explained tbe meaning of tbe term “accident,” and instructed tbe jury tbat tbe plaintiff could not recover if bis injuries were' tbe result of -an accident; tbat tbe doctrine of res ipsa, loquitur did not apply and tbat tbe burden was on tbe plaintiff to prove tbat tbe defendant was negligent and tbat tbis negligence was tbe proximate cause of bis injury; tbat proof of an accident was not proof of negligence; tbat if tbe fire was caused by tbe negligence of a fellow-servant in failing to lubricate tbe machinery, tbe plaintiff could not recover; tbat if tbe fan was of approved make and such as was in general use, and was frequently inspected by tbe defendant and no defect was discovered or could be discovered by a reasonably careful inspection, and tbat tbe defendant did not know of any defect in tbe fan, and tbat tbe fire originated in tbe fan from an unknown cause or through tbe negligence of a fellow-servant, there would be no actionable negligence; tbat tbe defendant would not be responsible for failure to discover a latent defect in the fan; tbat there was no evidence tbat tbe defendant was negligent in the preparation of the cotton and the feeding it into the pipes for delivery through the 'fan into the storeroom; that if the fan and the apparatus for delivering cotton in the storage-room were of standard make, known and approved and in general use, the defendant was not negligent in respect to furnishing said fan and apparatus, although there was a fan of later and more improved make which was frequently used; that if such fans occasionally got hot from rapid revolutions, but not hot enough to ignite cotton, it was not negligence to continue the use; that if fans like the one used by the defendant usually vibrate and make noises as described by the plaintiff, but perform their functions safely, this would not be evidence of a defective fan; that if the door of the storage-room was fastened, but the fastening did not impede or prevent the plaintiff from emerging from the room, the fastening of the door would not render the defendant liable; that the defendant was not required to provide against a possible accident which would not be expected or foreseen by a reasonably prudent man; that it was as much the duty of the plaintiff as of the defendant to anticipate an accidental fire; that if the fan had been operated ten years without getting out of order or accident, and had been operated without repairs and no accident since the injury to the plaintiff, this would be evidence that the defendant had no notice of a defect in the fan, if it existed, and that the fan was not defective; that if plaintiff knew of the conditions, the defendant was not required to warn him; that if defendant failed to provide the plaintiff a safe place to work and the plaintiff had equal knowledge with the defendant, or the same opportunity of discovering the dangerous position or liability to risk he would occupy in his employment, the plaintiff assumed the risk as to the place where he was working.

We also think there was evidence of negligence to be submitted to the jury.

The brief of the appellee, from which we quote, states wdth accuracy the duties imposed upon the employer.

“It is universally held at this day that it is the master’s duty to furnish, the servant reasonably safe machinery. If he fails to do so he exposes the servant to extraordinary risks and hazards. The failure to exercise due care in furnishing such machinery is a breach of duty which the master owes the servant.” Moore v. R. R., 141 N. C., 113.

“It is accepted law in North Carolina that an employer of labor to assist in the operation of railways, mills, and other plants where the machinery is more or less complicated, and more especially when drawn by mechanical power, is required to provide for his employees, in the exercise of proper care, a reasonably safe place to work, and to supply them with machinery, implements, and appliances reasonably safe and suitable for the work in which they are engaged, and'such as are approved and in general use in plants and places of like kind and character; and an employer is also required to keep such machinery in such condition, as far as this can be done in the exercise of proper care and diligence.” Hicks v. Mfg. Co., 138 N. C., 325-326.

“Where there is evidence tending to show that an injured employee did not have a reasonably safe place to work, or was not instructed as to the danger attending the act he was told to do, the question whether it was a reasonably safe place to work or whether the failure to warn him of the danger was the proximate cause of the injury should be submitted to a jury. The evidence that there was a safe way to do this act did not warrant the withdrawal of the case from the jury in view of the evidence in the case. When more than one inference can’ be drawn as to the negligence or proximate cause, it is for the jury to determine. Dorsett v. Mfg. Co., 131 N. C., 254; Marks v. Cotton Mills, 138 N. C., 401.” Holton v. Lumber Co., 152 N. C., 69.

“It is the negligence of the employer in not providing for his employees safe machinery and a reasonably safe place in which to work that renders him liable for any resulting injury to them, and this negligence consists in his failure to adopt and use the approved appliances which are in general use and necessary -to the safety of the employees in the performance of their duties; and this rule applies, it is said, even as between carrier and passenger.” Marks v. Cotton Mills, 135 N. C., 290.

“A master owes to a servant the duty to carefully inspect, at reasonable intervals, the machinery, ways, and appliances provided for the use of the servknt in the performance of his work, and it is not essential to his liability for an injury to the servant that he should actually know of the defect causing the injury.” West v. Tanning Co., ante, 44 (69 S. E., 687); Womble v. Grocery Co., 135 N. C., 486.

“Generally speaking, an employer is bound to warn and instruct his employee concerning dangers known to him, or which he should know in the exercise of reasonable care for their safety, and which are unknown to them, or are undis-eoverable by them in the exercise of such ordinary and reasonable care as in their situation they may be expected and required to take for their own safety, or concerning such dangers as are not probably appreciated by them, by reason of their lack of experience, their youth, or through general incompetency, or ignorance; and unless the servant is so warned or instructed, he does not assume the risk of such dangers; but if he receives an injury without fault on his part, in consequence of not having received a suitable warning or instruction, the master is bound to indemnify him therefor.” Thompson on Negligence, sec. 4055.

There was evidence of a failure to perform these duties, and this is negligence. The plaintiff offered evidence that he had been in the employment of the defendant six months and had not known the machinery to be inspected and had not been warned of danger; that the machinery was bolted to 2-inch flooring and that the flooring was unsteady; that another machine used by the defendant was on a concrete floor and did not shake; that when the machinery was installed there were two oil cups fastened to it as a part of it, which oiled it automatically to avoid friction, and that one of these cups was gone and the other broken; that these oil cups, when on the machine, oiled the bearings; that the fire originated at the bearings; that.fine lint cotton was on the pipes and machinery; that plaintiff was reqtdred to work in a room bolted on tbe outside, and tbat tbe only mode of exit after completing bis work was to burrow tbrougb two or three feet of cotton to tbe door and wait until some one from tbe outside beard bim and opened tbe door.

Tbe charge to tbe jury was, we think, in some respects more favorable to tbe defendant than it was entitled to, and particularly as to tbe doctrine of assumption of risk, as tbe employee never assumes tbe risk of an injury caused by tbe failure of tbe employer to perform a duty which be cannot delegate, and tbe duty to provide a reasonably safe place to work is one of them.

We find no error in tbe trial.

No error.