126 S.E. 110 | N.C. | 1925
The only question involved is whether, on all the evidence, taken, as in a case of nonsuit, most favorable to plaintiff, the court below should have granted a nonsuit at the close of plaintiff's evidence and at the close of all the evidence. *90
The plaintiff's contention was that the defendant furnished and required him to use a box for the purpose of carrying out spools from the thread machine which was too cumbrous and heavy for one man to lift and carry, and negligently failed to furnish him with a helper to do the work; that defendant knew the situation, and plaintiff informed the defendant's boss, Mr. Lyda, after he started carrying out the big box, that they were putting too much on him. He was ruptured and seriously injured in doing the work. When he first went to work they were emptying the spools in small boxes, 10 or 12 inches high. That after he had worked some time, Mr. Lyda, the boss of the mill, put him to carrying a box which was about 6 feet long and about 12 or 14 inches at the top and weighed 75 or 100 pounds. He got ruptured lifting that box. The evidence showed that there was no danger of hurt when two men were carrying the box. Plaintiff complained to the boss regarding this work. When he first went to work he was measuring up yarn. He worked there some three or four months, and was later required to remove the box. The box before mentioned was placed under the machinery, and operatives would drop empty spools in it when they had finished with them, and he was required to replace these empty spools in a bin made for that purpose.
"I had carried these boxes eight or ten nights. All except Mr. Allman helped me one or two nights. There were four or five boxes, and I carried them out once a night. I made four or five trips every night with these boxes that were just alike."
The record discloses no assignments of error as to the competency of the evidence in the court below. The charge of the court below is not in the record.
The only issues submitted to the jury, and the answers thereto, were as follows:
"1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: `Yes."
"2. What damage, if any, is plaintiff entitled to recover of defendant? Answer: `$1,000.'"
There are no exceptions to these issues, and no issues tendered by defendant.
Judge M. H. Justice, long years a Superior Court judge, a man of unusual common sense, in Pigford v. R. R.,
Justice Walker, in a well considered opinion in that case says: "The duty of defendant to supply help sufficient for the safe performance of the work allotted to the plaintiff is not questioned by the appellant, but it is contended that if it failed to do so, the plaintiff was guilty of such negligence in going on with the work, after the refusal to comply with his request, as bars his recovery, it being an act of contributory negligence on his part, which was the proximate cause of the injury to him. We cannot assent to this proposition, except in a qualified sense. The doctrine of assumption of risk is dependent upon the servant's knowledge of the dangers incident to his employment and the ordinary risks he is presumed to know. But extraordinary risks, created by the master's negligence, if he knows of them, will not defeat a recovery, should he remain in the service, unless the danger to which he is exposed thereby is so obvious and imminent that the servant cannot help seeing and understanding it fully, if he uses due care and precaution, and he fails, under the circumstances, to exercise that degree of care for his own safety which is characteristic of the ordinarily prudent man. 26 Cyc., 1196-1203. We consider the rule to have been settled by this Court in Pressly v. Yarn Mills,
In Tull v. Kansas City So. R. Co. (Mo.), 216 S.W., p. 572, a case similar to the case at bar, the Court said: "It is not enough that plaintiff has reason to believe that there was an insufficient number of men to do the work, and that his strength was not equal to the task. For if the danger or risk of doing the work was not such as to threaten immediate injury, and plaintiff by reason of the order of his foreman was led to believe that he would carry his part of the load by the use of care and caution, and he proceeded to do the work with the exercise of such care, he is not barred from recovery from the master for the injury received."
This Court, in Medford v. Spinning Co.,
The presumption of law from the record is that the court below charged the law correctly bearing on the evidence as testified to by the witnesses on the trial. Indemnity Co. v. Tanning Co.,
We think the evidence was sufficient to be submitted to the jury. In law there is
No error. *93