35 S.E. 611 | N.C. | 1900
The defendant denied all negligence on their part, and attributed plaintiff's injury to his own carelessness. The plaintiff was the only witness examined. He testified: "I am forty-two years old, and have been box-maker for ten or twelve years. In 1899 I was working for defendants in their shops in Winston. The shop is not joined to the tobacco factory, but is in the factory lot, and is operated (360) by steam generated from the main boiler in the factory. They own the machinery in the shop. I got part of my thumb cut off as I was sizing box timber. The saw came out of the table about one inch above the boards of the table. I was pushing the timber when the saw struck a knot, or gave way, and thrust my hand against the saw and cut off part of my thumb. It was an open saw without hood or screen. I had never seen or knew of a screen or hood operated in this manner before I was hurt. I have since seen such protection and hoods, especially in the factory of Bailey Brothers. (Hood here introduced and exhibited to the jury.) They make saws less dangerous. If there had been a screen or hood, and the saw had struck a knot or cross grain, it could have thrust my hand on the screen and not on the saw. I was required to size the timber down to a 32d of an inch, which was very careful work. I took particular pains to hold the boxing in place. I can not do the same, or as good work as then. I got $1 per day before I was hurt. I can not get so much now. I can not average over 60 cents per day.
"W. H. Woodward in the shop employed me. I never spoke to Hanes about my employment, and never saw either of the Hanes employ *220 or pay the hands in the several departments. There was a manager in each department in the factory, that employed and paid the hands. The bills for lumber were made out to P. H. Hanes Co."
Cross-examined, plaintiff testified: That he was employed by W. H. Woodward in the box shop, and paid by him. That he never spoke to the defendants about employment or his work, nor did his name appear upon their time book, but his time was kept by W. H. Woodward, who run the box shop, and paid for his labor. That the running of a saw of this kind was dangerous, and that he knew it (361) was dangerous. That his hands were cold the day he was hurt, and he knew it was more dangerous when his hands were cold. That at one time, before his injury, he had a contract to make boxes at Brown Williamson's factory, similar to W. H. Woodward's contract at defendant's factory. That he employed his own labor, paid his own hands, but they furnished the shop and power to run his saws, but had no control over his hands. That he used a saw similar to the one by which he was injured, without a guard. That he is now working at Taylor Brothers' factory under a contract and has a man hired to do his resawing, and this man uses a saw without a guard similar to the one on which he was hurt. In the tobacco factories in Winston there are managers of the different departments.
At the close of the plaintiff's evidence, his Honor intimated that the plaintiff, on his own evidence, was not entitled to recover:
1. Because his evidence showed that the sawing of box plank was dangerous, and that he knew it was dangerous, and that he had been engaged in similar work for ten or twelve years, and knew the character of the work.
2. Because his testimony did not establish any contractual relation between him and defendants.
The plaintiff, from this intimation, submitted to a nonsuit, and appealed to the Supreme Court.
We can not agree with the defendant's counsel that if an employee operates a machine which is lacking in safety appliances which have come into general use, that this is an "assumption (362) of risk" which releases the employer from liability. That would be simply to hold that if such appliances are not used the defendant is negligent, but if the pressure of circumstances forces some unfortunate man to accept service with such machine it releases the employer. This negatives the liability of the employer by the very *221
fact of his negligence, and that as to the class most needing protection, those whose urgent need compels them to take work wherever they can got it. As was said in Sims v. Lindsay,
To illustrate — if a railroad company fails to use automatic couplers it is negligence per se. Troxler v. R. R. Co.,
Besides, "assumption of risk" is a matter of defense, anaiogous [analogous] to, and indeed, embraced in, the defense of "contributory negligence," Rittenhouse v. R. R.,
But the plaintiff, in fact, failed to make out negligence on the part of the defendants upon the evidence because he failed to show that (364) the safety appliance which he alleges would have prevented the injury was a in general use, and, in fact, he shows the contrary. The rule laid down in Witsell v. R. R.,
It is unnecessary, in this view, to consider the other ground assigned, that the evidence did not establish any contractual relation between the plaintiff and defendants. It may be said, however, that as a general rule the negligence of an independent contractor is not chargeable to his employer. Engle v. Eureka Club,
Affirmed.
Cited: Coley v. R. R.,
(365)