Charlie Bradley was employed by the appellant, National Box Company, and suffered a serious injury by having his clothing caught on a part of the machinery, dragging him onto the machine, and inflicting the injury. His theory of how the injury occurred was that there was a set screw protruding from one inch to one inch and one-half, and that the apron which he wore in his employment caught on said set screw and pulled him onto the rapidly revolving shaft, resulting in his injuries. He testified that the shaft was about two and one-half feet above the floor, and that this set screw should have been either covered or sunk, or a different type of set screw used, and that it was customary in business of this kind to have such set screws sunk into the shafting, or covered, or fixed in such manner that employees working around such screw would not be caught in the revolving shaft, and that he had worked at a number of places where covered or sunken screws were used, and that was the usual and proper way for such machinery to be operated. He went to work on the morning of the injury at seven o'clock, and was injured at fifteen minutes past seven o'clock.
Witnesses for the appellant testified and the appellant pleaded that the injury was occasioned by the appellee standing upon a block by the machinery with his hands *Page 23 lifted up for another employee above him to trim his finger nails, and that the appellee was not, at the time of the injury, employed in and about his master's business. It was also the theory of the appellant that the machinery was four and one-half feet above the floor, breast high to the employees.
The appellee's employment was to assist in handling and fixing cuts of wood from which veneer was to be made over and onto the knives which cut strips from logs; these logs being cut into lengths of approximately three feet.
There was testimony to the effect that the nurse employed by the appellant to give first aid to injured employees rendered first aid to the appellee, called a physician, and took appellee's statement, in which statement she claimed that he stated he was standing on a block leaning over the machinery having his finger nails trimmed. The appellee denied this statement.
When the evidence was concluded, the appellee made a motion for the court and jury to go to the plant of the box company and inspect the place where the injury occurred and the machinery which inflicted the injury. The machine which inflicted the injuries had been removed from the place where it was operated, another machine had been installed, and the situation and condition of the place where the injury was inflicted were not the same as when it occurred. This motion was objected to and overruled by the court. The attorneys had gone into a room to prepare the instructions in the case when the members of the jury asked the special judge presiding, the regular judge having recused himself, to be permitted to go and view the place where the injuries occurred. The attorneys were called into the room and the jury's request communicated to them, and, in view of this request, the judge granted the motion. At the time this was done, no objection was made. Vehicles or automobiles *Page 24 were secured, and the jury was divided and placed in three cars with a deputy sheriff in each car, the attorneys for the appellee going in one car, with the trial judge and the stenographer, and the attorneys for the appellant in another car, but on this trip the circuit clerk did not go with the court. In granting the request to view the place, the trial judge told them that no testimony would be taken at the place, nor until the jury was returned to the courthouse. No objection was made at the time in court, but one of the attorneys for the appellant, at some time during this trip, communicated privately to the trial judge that he would take objections, and on the return to the courthouse dictated into the record his objections to the judge's ruling permitting a view of the place of the injuries, including in his objection the complaint that the order did not permit testimony to be taken at the appellant's plant showing the location and condition of things at the time of the injuries.
The first question to be determined, and the one which we think is controlling here, is whether it was error, and, if so, whether it was reversible error, for the judge to make the order permitting the jury to view the plant and machinery.
It appears that the circuit judge and deputy sheriffs who attended court were present with the jury, and that the jury viewed and discussed among themselves somewhat the situation of the plant, both as to the place of the injury and as to the machinery. The place and the machine were pointed out by some employee and one attorney for the defendant, but no questions were asked and no objections made by any person.
We think it was improper for the judge to permit the jury to go to the place of the injuries, because it was not in the same condition as at the time of the injuries. However, this is not reversible error because no objection *Page 25 was made at the time, and we think it was necessary for this objection to be made in open court, at the time the order was made. The parties litigant have the right to know of objections made in a case, and to be informed of all proceedings as they take place, and it is not permissible for one of the parties privately to state to the judge that he will object later. In the case before us, if it was not agreeable for the jury to view the plant and machinery, objections thereto should have been made in open court, where all the parties concerned could be informed of such objections and the reasons therefor. A party might change his attitude in the light of objections, and might not be disposed to take the risk involved.
The view of the place and the machinery being, in legal effect, agreed to, it would afford an opportunity for the jury to better determine the conflicts in the evidence. Just how the machinery was set up, and things of that kind, would throw a light upon conflicts in the evidence, although the situation was not exactly the same. In view of the fact that the jury had the advantage of an ocular demonstration of the machinery, the case made for the appellee, plaintiff below, might be strengthened. The evidence for the plaintiff was contradicted by a number of witnesses, and it is argued that the verdict should not be allowed to stand because of such contradictions, and that a peremptory instruction should have been granted because the evidence for the plaintiff was insufficient to sustain his theory. We think the evidence for the plaintiff, if taken as being true, is sufficient to make a case of liability.
There might be some doubt as to whether the judgment should be set aside on account of the weight of the evidence without the view. The rule is to be applied with caution, because the jury is ordinarily the judge of the credibility of the witnesses. Some features of the evidence for the appellant are not very convincing, and, *Page 26 with the view had by the jury, it might be discredited. We are therefore of the opinion that the evidence is not so overwhelmingly in favor of the appellant as to warrant us in setting aside the verdict on that ground.
It is argued that the judgment should be reversed because the court went to the scene of the accident without having the circuit clerk accompany it, and that this should have been required. It seems to have been overlooked by all parties. The circuit clerk said nothing was said to him about going. Of course the clerk should have accompanied the court and the jury, but this error, not contributing to the result or not resulting in any prejudice to any of the parties, will not be counted as reversible error. No testimony was to be taken, and nothing was done which would have required the presence of the circuit clerk. It was therefore error without prejudice or harm.
We have considered all the instructions, and find no reversible error in them, and the judgment will therefore be affirmed.
Affirmed.