Pressly v. Yarn Mills.

Hoke, J.,

after stating the facts: In charging the jury on the first issue, the judge below properly stated the obligation of the employer to supply his workmen, in plants of this character, with machinery and appliances safe and suitable 'for the work in which they are engaged, and such as are approved and in general use. He charged in substance that if there was any negligent default in this respect, and this negligence was the proximate cause of the injury, they should answer the first issue “yes.” Witsell v. Railroad, 120 N. C., 557; Marks v. Cotton Mills, 135 N. C., 287.

The charge on the third issue as to assumption of risk is also supported by well considered adjudications of this court. Sims v. Lindsay, 122 N. C., 678; Lloyd v. Hanes, 126 N. C., 359.

In Hicks v. Cotton Mills, (at this term), tbe court bas beld that while the employee assumes all the ordinary risks incident to his employment, he does not assume the risk of defective machinery and appliances due to the employer’s negligence. These are usually considered as extraordinary risks which the employees do not assume, unless the defect attributable' to the employer’s negligence is obvious and so immediately dangerous that no prudent man would continue to work on and incur the attendant risks. This is, in effect, referring the question of - assumption of risk, where the injury is caused by the negligent failure of the employer to furnish a safe and suitable appliance, to the principles of contributory negligence; but it is usually and in most cases desirable to submit this question to the jury on a separate issue as to assumption of risk, as was done in this case. When the matter is for the jury to determine on the evidence, it may be well to submit this question to their consideration on the standard of the prudent man, in terms as indicated above. The charge on the third issue substantially does this, and the language used is sanctioned by the authorities. Coley v. Railroad, 129 N. C., 407; Marks v. Cotton Mills, supra. There is no error in the charge of the court as to assumption of risk.

On the second issue, that addressed to the question of contributory negligence, the judge charged the jury in substance that if they should find from the evidence that the injury would not have happened if the defendant had supplied the machine with a shifter, and this was the proximate cause of the injury, this would be continuing negligence and they should answer the second issue “no,” though the plaintiff may have been negligent in the use of the machine. As we have held in Hicks v. Cotton Mills, supra, this is not a correct proposition as to every negligent failure on the part of tbe employer to furnish a safe appliance by reason of which the injury occurs and is not the law in cases of the character we are now considering. The employee is not in such instances absolved from all obligation to act with reasonable care and prudence, and if' there is negligence on his part, concurring as the proximate cause of the injury, the plaintiff cannot recover. The charge therefore on this issue would be reversible error, but for the fact that in the opinion of the court there is no evidence offered which shows or tends to show contributory negligence, apart from the fact that the plaintiff continued to work on after knowing of the existence of the defect which caused the injury. This question as we have seen, was under a proper charge submitted to the jury on the third issue, and the defendant has had the benefit of every position which was open to him in the charge' of the court addressed to that issue. The only default imputed to the plaintiff, apart from the fact that he continued to work on, was, that he failed to push the belt entirely off both pulleys. But this, we think, is no such evidence of negligent default that it should be submitted to the jury as an additional defense.

The plaintiff (who was the only witness examined except as to character) testified that it was a very troublesome matter to replace the belt when it had been taken entirely off, sometimes requiring as much as one-half hour; that he had never been told by any one to take it entirely off and it was not usual to do it, and that he had never seen the machine start that way. And we do not think that, by any reasonable standard of conduct on the evidence in this case, the plaintiff was required to move the belt entirely from the pulley. The only defense therefore available to the defendant on the facts of this case, after its negligent default was established by the verdict on the first issue, was the fact that the plaintiff had gone on doing his work in the presence of a known defect, and this, as we bare said, was submitted to tbe jury under a correct charge on the issue as to assumption of risk.

We are not called on to determine whether any difference exists in principle between the cases where the defect complained of was known when the plaintiff entered on the service, and those where the knowledge was acquired afterwards. While many of the authorities draw such a distinction, there seems to be none in reason. But the facts of the present case do not require such decision, and many of the authorities therefore relied upon by the defendant do not apply.

The plaintiff testified that he entered on the service of the defendant in October, 1893, and was given a place in the spinning room, his duty being to overhaul the machinery, or spinning frames. He worked at that for five or six weeks, when he became a section hand, working in the same room, his duties being to overhaul the machinery, repair it, and look after the hands in that room. At the time the plaintiff became a section hand, there was evidently an increase of authority, but the occupation was at the same place and very similar in character, and there was no change in the contract of service or wages paid, so far as the testimony now discloses. So that, whether the knowledge of the defect came to the plaintiff before or after he became a section hand, it certainly came to him after he entered on the service, and it is fair to consider the case in that aspect.

It is suggested that if a negligent failure to furnish a shifter is declared to be the proximate cause of the injury on the part of the employer, by that same token, the employee, working on when aware of the defect, is also negligent, and such negligence should be held to be concurrent, and to hold otherwise would require the master to take more care of the servant than the servant takes care of himself. This position finds support in some of the decided cases, but the court does not think it is in accord with the better considered adjudications on the subject. The position had its origin in some of the older decisions rendered wben the employment of labor was much more restricted, and the implements and appliances were comparatively simple and attended with little danger. At that time, it was considered of little consequence wbat the employee assumed, and as a matter of fact be assumed the risk of almost everything that happened to him. As business enterprises, however, were enlarged and extended and machinery became more complicated, and larger numbers of men were being employed in its operation, it was found that the position here contended for was not a proper one by which to determine the relative rights and duties of employer and employee in regard to defective machinery and appliances. It was based upon an entirely erroneous conception that there was a perfect equality of position between the two to such defective appliances, but nothing is further from the fact, and for the reason, chiefly, that the employer controls the conditions in which the employees do their work. His duty to furnish machinery and appliances reasonably safe and suitable, such as are approved and in general use, in the exercise of a reasonable care, is absolute. As a rule, he buys the machinery from the manufacturer or dealers who are experts and can change when he desires; he selects and employs a superintendent and the skilled labor, and has the time and opportunity to inform himself as to the character of the machinery he buys and the hazards incident to its use; and, accordingly, the principle which holds the employee to an equality of obligation and responsibility in the respect suggested, is unsound and unjust, and has been rejected in the more recent and better considered cases. Beach on Cont. Neg., sec. 372; Lloyd v. Hanes, supra; Patterson v. Pittsburg, 76 Pa. St., 389; Kane v. Railroad, 128 U. S., 91; Smith v. Baker, Appeal Cases (1891), 325.

Again, it is urged that this man was injured in repairing the machine and in that aspect must be considered to have assumed the risk. In support of this position we are referred to the case of Spinning Co. v. Achord, 84 Ga., 14. In that case the plaintiff was stated to be a skilled machinist and carpenter who bad put up machinery, knew all about its conditions and defects, called attention to the lack of certain appliances which threatened its safety and remonstrated about its condition in this respect. The machinery having gotten out of order, the plaintiff was sent to repair the defect and was injured while so engaged. The injury was caused in part by the very defect he was called on to repair, and it might well be determined that it was one of the ordinary risks in the work he had undertaken to perform. But no such facts existed in the case we are now considering: The plaintiff was no skilled machinist, but an ordinary hand working at one dollar per day under an overseer in the same room, (a sort of machinist he called himself in one place). Ilis duty seems to have been to tighten bolts and adjust the gearing, as might be required from the ordinary wear of its work. “As good as the average man engaged in such work,” he says of himself. He was not endeavoring to repair the defect which caused the injury at all. This was beyond his skill and not within the line of his duty. He had notified the employer, or its representative, that four shifters were wanting and the same had not been supplied, and he was unable to make or supply them himself. This was done, it seems, not so much because he anticipated injury as because he was overlooking the' machine and considered it his duty to inform the employer of existing conditions. His duty called on him to work day by day in the presence of this defect and subject to its consequences, and which the jury, on the first issue and under proper instructions, have found to be an appliance which the employer negligently failed to furnish and which was the proximate cause of his injury. While engaged in his duties in adjusting some gearing at the end of the machine opposite the point where the power was applied, and by reason of the absence of the shifter the belt was in some way shifted from the loose to the tight pulley, and he was injured.

The jury have by their verdict, declared that the defendant was negligent in failing to provide the proper appliance and such negligence was the proximate cause of the injury, and that the plaintiff did not assume the risk. There was no evidence of contributory negligence imputable to the plaintiff, except what might exist from working on in the presence of an observed danger and this the jury have -determined against the defendant on the issue as to assumption of risk.

The court is therefore of opinion that there is no error in the record and the judgment below is

Affirmed.