Butner ex rel. Butner v. Brown Brothers Lumber Co.

Clabe;, O. J.,

dissenting: It needs no authority to sustain the proposition that on a motion for nonsuit the Court should consider the evidence only in the aspect most favorable to the plaintiff and with the most favorable inferences that the jury can draw from the evidence, for reason that the jury'whose sole province it is to weigh the evidence, or to draw inferences therefrom, might take that view.

Applying this familiar and just rule, the defendant company operated a large band sawmill which, besides the large band saw, had four sets of saws running — seven saws in one set, four in another, eleven in another, and one in the other. There were two sets of live rolls and two others. .Nearby was the mill village where the employees of the mill *617lived close around tbe mill. In tbis village there were forty young boys, and it was tbe custom of tbe boys to play in tbe mill and around tbe saws, cogs, and rolls above mentioned, and it was not only tbe custom for tbe children to play in tbe mill, but to go near tbe dangerous machinery and get strips of wood that bad been sawed off and carry them home. Tbe defendant not only permitted tbe children to play in tbe mill and to come there for strips, but also employed children at work in tbe mill.under tbe statutory age, among them tbis plaintiff, as was testified to by tbe president of tbe defendant. One of tbe witnesses for tbe defendant (McMahan) testified that be bad seen children in tbe mill, bad never seen them ordered out; that be bad seen them come in, pick up and carry away strips; that it was not unusual for children to go between tbe machines, and that there were no printed notices for tbe ■children to stay out. Another witness testified that be bad worked in tbe mill, that be repeatedly saw children there; that no one ran them out; that there were no orders to keep them out; that they came to get-strips and “when these were not thrown out for them, they would go where tbe plaintiff got hurt; I have gone there myself, and have seen other children go there for strips.” He added that be was under 14 at tbe time of tbe trial and that be bad worked in tbe mill two years previously." Dan Hunnicutt testified to tbe same effect; also Carl Eobert-son, who testified that be was an employee in tbe mill when be was 13 years old.

Tbe plaintiff, a boy 11 years of age at tbe time of tbe injury, went to tbe mill that day to get some strips which tbe mill superintendent bad agreed with tbe plaintiff’s father to have thrown out. Tbe plaintiff testified, and bis testimony must be taken as true on tbis motion, as well as tbe above, that tbe mill was running, and that tbe man who was running tbe edger where these strips were thrown off, called him in and told him to go and get tbe strips out, that be was too busy and could not help him. And be (the plaintiff) being used to going into tbe mill, did not think that there was any danger in going where be was told, and went in to get tbe strips; that tbe strips were lying beside tbe machine, and as be stooped down to pick them up bis sleeve was caught in tbe cogs and his arm being drawn in, was ground off above tbe elbow; that they bad to stop tbe machine and take it apart to get him out; that be was sent to tbe hospital, where bis arm was amputated near tbe shoulder.

He also testified that be bad been in tbe habit of playing in tbe mill for a long time and that be had been going there a long time to get strips; that nobody bad ordered him out of tbe mill; that be and tbe other children were allowed to play there, and liked to do so, and that no one bad ever warned him of any danger being incident to tbe machinery there operated.

*618The cogwheel in which the plaintiff’s arm was cauaght was a bevel gearing about 6 inches in diameter and the president of the defendant testified that the covering came down half way on the side.

■ There was a conflict of testimony as to who was running the edger that day. The defendant introduced the deposition of Corliss Rishell that he was running the edger, and instead of letting the plaintiff in, he told him to stay out. But the plaintiff and his father testified that Joe Rishell was running the edger and Joe does not testify to the contrary, but this is immaterial for under this motion the testimony for the plaintiff must be taken as true that Joe Rishell was running the edger, and that he told the 11-year-old child to come in and get the strips and (as the plaintiff testifies) that he and the other boys were accustomed to play there, that he had not been warned of any danger and had repeatedly gotten strips at that place, that he had never been ordered out of the mill, and that he and other children had been allowed to play there.

Whether the above evidence was true, or that of the defendant, which was only contradictory in part, was a matter which the plaintiff was entitled to have the jury decide and the court on this motion for nonsuit was compelled to take as true and properly refused the motion for' nonsuit. This case is very much similar to Ferrell v. Cotton Mill, 157 N. C., 528, where Judge Walicer clearly stated the principle applicable to this case.

This little child of 11, with his fellows living immediately around the mill in the company’s houses and inlaying in the mill for months without any objection, had been to the exact spot where the little plaintiff had lost his arm, he had not been warned of any danger, and when he was told by the edger to go there and get strips which the edger said he was too busy to get himself, since this would require the stopping of the machine, he was not even a technical trespasser. The entire conduct of the defendant was negligent, and there was no negligence whatever on the part of the plaintiff, taking, as we must, the evidence for the plaintiff to be true, and the jury found it to be true.

Besides the above, which was sufficient, it was the grossest negligence for the defendant to case only the upper half of a 6-inch bevel gearing, revolving rapidly, leaving the lower half of this dangerous instrumentality entirely uncovered. The draft made by the saw or between the door and the window, or by some other cause would readily and naturally drive some of the little child’s clothing into this rapidly revolving and unprotected gearing.

The negligence of the defendant is further enhanced by the fact that 'not only the children of its employees in the adjacent houses were allowed to play in the mill but in open defiance of law, the defendant employed some of these very children, including the plaintiff, to work therein when under the age prescribed by law.

*619It is difficult to see bow tbe trial judge could bave directed a nonsuit on tbis evidence, wbicb shows habitual and continued negligence of tbe defendant and tbe absence of any negligence on tbe part of tbe plaintiff.

If tbe defendant bad evidence wbicb could overthrow tbe above testimony for tbe plaintiff, tbe jury did not believe it, and it was not within tbe jurisdiction of tbe judge to do so. Very many cases are authority wbicb forbade tbe judge to direct a nonsuit, among them Ainsley v. Lumber Co., 165 N. C., 122, and Starling v. Cotton Mills, 168 N. C., 230. Tbis child, 11 years old at tbe time, must go through life with one arm gone. He gave bis account bow it happened. Tbe jury said be told tbe truth; can we say tbe contrary ?