On Application for Rehearing.
Watkins, J.The application is made solely on the ground that the court erred in finding the facts, in certain enumerated particulars, which are stated in the brief of complainant’s counsel, from which we make the following extract, viz:
“And now into court comes the plaintiff, and moves the court to “ grant a rehearing in this case, for the reasons hereafter assigned, “ to-wit:
“1. Because the court has erred in finding the facts in this: It is- “ conceded that the plaintiff, Jenkins, was injured in the defendant’s- “ mill, on the day stated in the petition, while in the performance of a “ duty out of the line of his usual employment, specifically imposed “ upon him at that moment by this special order of his master, and “ under the master’s eye. The specific order was to remove the flats “ from a machine which had been rendered highly dangerous by a “ change in its condition, by the order of the master. The changed “ condition from one of safety to one of danger was known to the “ master.
^The court finds as a matter of fact, that an unsafe manner was- “ resorted to and uses these expressions, namely:
“ ‘We have not found that even skilled mechanics attempt to remove Xl the flats from the rear of the machine when the fly-plate is removed “ and the machine is stripped. In order to ascertain if ever me- “ ehanics removed flats when the machine is stripped and in operation, “ we read the record with close and painstaking care, and did not find *1020“ that such risks were taken. The record does not disclose why the “ unsafe manner of removing the flats was resorted to.’
“Here the court has overlooked the fact, that, never in the history “ of the mill was it attempted to remove a flat when the card was “ stripped; when the fly-plate was gone. The situation was a new one, never presented to Jenkins before, one created by the master, “ the overseer, Lucas, existing within his view, under his immediate “ supervision and control, and yet he ordered 3 enldns to perform an '“ act out of his line of duty in connection with this machinery in this “ novel situation,
“2. Because the court finds that there was adequate supervision “ of the mill when every fact in the record points to a different con- “ elusion, and the whole record is a mathematical demonstration to “ the contrary.
“3. Because the court finds that there were safe ways of removing “ the flats.
“There could be no safe way with the machinery in the condition “in which it was when Jenkins was sent to work upon it.
“4. Because it was non sequitur that if Jenkins stripped the ma- “ chine the day before, under the orders of the overseer, and knew “that its condition had been'changed; that, therefore, afterward, in “ obedience to any order that the overseer might give, Jenkins as- “ sumed any and all risks.
“Wherefore, the plaintiff now humbly prays" that this Honorable “ Court set aside its decree, and grant him a rehearing, and that the “ fowner decree be reversed, and that there be judgment for the plaintiff, as in his petition prayed for.”
The plaintiff was employed by the defendant as a card-grinder, and had been engaged at the defendant’s works for about three and one-half years. Under his employment, he had nothing to do with anything else.
The fly-plates had been removed by the plaintiff on the day preceding the accident, and under the immediate direction of the overseer. He admits, as a witness, that he was standing at the time of the acci-. dent, on the outside of the frame of the machine.
The plaintiff was quite accustomed to removing the flats. Other card-grinders make similar statements. The plaintiff was a head-grinder, or sub-overseer, and was always furnished with an assistant when one was required.
*1021The superintendent states that he assisted plaintiff from the grasp-of the machine, after the accident happened, and that he was inside of the card-frame, and between the frame and the cylinder..
Another witness testified, that the plaintiff, at the time of the accident, was not at the side of the machine, but at the back of it, where he should not have been.
These, with other facts of the ease, which are cited in our opinion, to say the least,’put the plaintiff partially in fault.
He acted, in a great measure, upon his own judgment and responsibility.
Our investigation of this case has only served to reassure us of the correctness of the opinion at first entertained.
Our attention has, however, been arrested by what appears to us to be some very censorious observations which are contained in the brief of plaintiff’s counsel, and amongst the number, are the following, viz:
“This Honorable Court has attempted, and it does in its opinion “seek, to exempt the company from the operation of this rule, and “ from the performance of a plain, simple duty. There is nothing oc- “ cult or mysterious about this rule. It is not unjust or unphilosoph- “ ical; it is good and right, and universally applicable.
“To avoid the force of this, to find an avenue of escape for the de- “ fendant, this court says that it has not found that skilled mechanics “ attempt to remove flats from the machine when the fiy plate is re- “ moved and the machine is stripped.” Brief on rehearing, p. 5.
Again:
‘‘Will the court presume that a sane man, of ordinary endowments, “ would deliberately -thrust his right hand and forearm between re- “ volving cylinders and flats clothed with steel wires, to have that hand “ and forearm torn into a space of seven one-thousandths of an inch, “ and shreaded as the cotton is carded ?” Id. P. 6.
Again.:
“The rule' that a servant accepts the usual risks of his employment “ is by the court in this ease stretched to cover not only usual employ“ment, but unusual employment; because, forsooth, they say, a skilled ‘‘ mechanic would have known of. the danger.” Id. p. 8.
Again:
“So, then, to say that at this moment, that there was adequate super- “ vision of this mill, is, as if one, standing under an August sky in the *1022“open sunlight, while all about him was bathed in the brilliancy of “ the noonday sun, were to close his eyes and declare that there was no “ evidence that the sun was shining.” Id. p. 9.
While this court is, at all times, willing to accord the largest latitude — liberty, if you will — to the losing counsel in a cause, to be heard on briefs upon application for rehearing, and approve and applaud their earnestness and eloquence in argument; yet, it cannot permit them to pass the proper and legitimate bounds of criticism of its opinions.
Knowing counsel as well as we do, and taking cognizance of the pleasant relations they have always sustained to the court, we feel impressed with the belief, that the censure which is reasonably to be inferred from the foregoing remarks, was, rather, the expression of undue zeal in the cause of their client.
The friction thus brought about by counsel, is equally unfortunate for them and the court; but we feel disposed to pass the matter by, in the earnest hope and belief, that we shall have no occasion to mention the subject again.
Rehearing refused.
Monroe, J., takes no part, as he was not a member of the court when the case was submitted.