50 S.E. 769 | N.C. | 1905
This is an action for the recovery of damages for personal injuries. The plaintiff testified that he was 24 years of age, was working for the defendant at Henderson, N.C. October, 1901, was a speeder hand, running an intermediate machine which had cogwheels on it and was about 15 feet long and 5 feet high. There were 25 or 30 machines in the mill about 2 1/2 feet apart; he was injured in October, 1901; had to run it and get work off on it; cog gear on front and back; had worked the machine four or five months. When he first went there the rule was to stop at 5 o'clock to clean up. In about three months the defendant got behind and was running short of hands; he was ordered to clean up while running; the usual custom was to stop while cleaning; was hurt while running. The boss told the hands what to do and they had to obey; the second boss told him to clean the machine; he was carrying out the orders of the overseer; thought he could do it safely; was wiping off with waste; cogwheels struck hand and cut off finger; setscrew knocked hand; could not see set-screw and did not know it was there — was not cautioned about it; order to clean while in motion had not been on long; it was a new machine. "I was the first (403) person to rope this machine; had cleaned it off a few times; could stop my machine without stopping other machines; took about 15 minutes to clean it; the set-screw is about one-third as large as the cap on a buggy wheel, was a necessary part of the machine; 300 or 400 set-screws on machine. I run a speeder at Roanoke Mills; did not use lever to stop machine, because I would get a discharge if I did not obey orders; I had to get on my knees to clean it."
At the conclusion of the evidence defendant moved for a judgment of nonsuit. The motion was sustained, and plaintiff appealed. After stating the facts: When the plaintiff entered into the defendant's employment as a speeder hand, for three months thereafter *290 it was the rule of the mill to stop at 5 o'clock and clean up. The defendant getting short of hands, the plaintiff with other employees was ordered to clean up while running. "The usual custom was to stop while cleaning." Without much knowledge of the construction and operation of the speeder, it would seem manifest that cleaning while standing still was absolutely safe, whereas doing so while the machine was in motion was more or less dangerous. The measure of duty imposed by law upon the master in respect to the use of machinery is that, assuming the appliance to be free from defects, he shall furnish his employee a reasonably safe place in which to work and, that the machine shall be operated in a reasonably safe manner. This may be regarded as elementary. It is not always easy to establish the standard by which to measure the conduct of the employer and employee. Judges and text-writers have endeavored to do so, it must be confessed, (404) without marked success. The learned counsel in his well-considered brief says: "Neither a court nor a jury can set up a standard of their own, and be allowed to say how a machine shall be operated, whether it shall be cleaned standing or in motion." We concur with counsel in the proposition that courts and juries are not to set up a standard of their own; but when we do so, but little progress has been made in solving the question, "Who shall set up the standard, and what shall it be?" Probably the employer and employee would not concur in fixing a standard. They differ radically in this case. Yet this is but one of many constantly coming up in this and other courts, demanding that a standard shall be set so that both parties may "live up to it." After long and anxious consideration, and much conflict of opinion, this Court, coming into harmony with many of the ablest courts of the Union, including the Supreme Court of the United States, adopted in all cases involving the question of negligence the standard of conduct followed by the ideal prudent man.
When the facts are admitted and but one inference can be drawn from them, the court will find, by this standard, as a matter of law, the existence or nonexistence of negligence. When the facts are not admitted or when more than one inference may be reasonably drawn, the question is submitted to the jury to find whether or not there is negligence. Russellv. R. R.,
While it is true, in the case before us, the facts are admitted by the motion to nonsuit, it is not clear that but one inference can be drawn from them. The rule for cleaning the machine while in motion certainly must have increased the hazard and subjected the employee to danger of injury. Why the change was made is only shown by the plaintiff's testimony that the mill ran "short of hands." This would not *291
be any legal excuse for making such change, if doing so (405) unreasonably increased the hazard. There is no evidence as to the custom of mills in respect to the cleaning of machines, whether standing still or in motion. We find that in England certain persons are prohibited from cleaning a machine in motion impelled by mechanical power In Gideon v. Enoree Co.,
We are of opinion upon the whole testimony that the question of the defendant's negligence should have been submitted to the jury under proper instructions, to inquire whether it was a reasonably safe and prudent method of doing the work. Of course, it is open to both parties to introduce all competent and relative testimony to aid the jury in measuring the defendant's conduct by the standard fixed by the law.
The defendant, however, insists that, admitting this to be true, the plaintiff is barred of a recovery because he assumed the risk. The defendant's counsel says that the plaintiff was an experienced hand, familiar with this machine and its operation, aided in putting it up and was the first man to "rope and work it," and had operated it for five months; that he made no complaint or objection, suggested no danger, but went back to the same machine and renewed his work. It is true that many cases hold that this conduct would bar the plaintiff's action upon the theory of his having assumed the risk incident to the mode of cleaning. This Court in Sims v. Lindsay,
If, as is sometimes said, the employee's continuance in the employment after the discovery of the conditions, resulting in the injury is contributory negligence, the same principle would apply because, in order to constitute contributory negligence, the plaintiff must show a course of conduct inconsistent with that of an ideal prudent man under like circumstances. Hicks v. Mfg. Co., ante, 319.
The duty of the employee, when a change in conditions respecting his safety arises after the contract of employment, has (407) undergone much discussion in the courts during the past twenty years. The doctrine has to some extent been modified as industrial conditions have changed. In Mahoney v. Dore,
Mr. Labatt is of the opinion that in later cases the Massachusetts court repudiated the English rule. Labatt on Master and Servant, 376. However this may be, and without undertaking to reconcile the numerous cases in other jurisdictions, this Court in Lloyd v. Hanes, *293 Sims v. Lindsay, and Hicks v. Mfg. Co., supra, has adopted and followed the rule laid down in Smith v. Baker, certainly so far as it applies to the facts in this case.
The question whether the plaintiff assumed the risk or, as it may be stated, was guilty of contributory negligence, was peculiarly for the decision of the jury. In the decision of it they are entitled to have all of the testimony throwing light upon the inquiry (408) whether the danger was so obvious and the risk so imminent and so well known and appreciated by the plaintiff, or should by the exercise of reasonable care have been known and appreciated, that a prudent man under like conditions would have continued the service. This rule applies to the employer and employee alike and is fair to both.
Smith v. R. R.,
When this case was before us upon the former appeal (
To prevent misconception, we desire to say that our decision in this case, based upon the admitted facts, is simply that the allegation of negligence in ordering the machine to be cleaned while in motion should be submitted to the jury; that if they find the issue for (409) the plaintiff, the question of assumption of risk or contributory negligence, alleged to arise out of his remaining in the service, should also be submitted to the jury.
We have noted the many cases cited in the defendant's well-considered brief. Most of them arose out of injuries sustained while operating the machine. We find no evidence in this record of any defect in the construction or condition of the machine, nor do we think the size, *294 condition, etc., of the set-screws indicate any defect. If the plaintiff had, upon his testimony, been injured while operating the speeder, we should be unable to find any evidence of negligence. The two questions are:
1. Whether the change in the manner and time of cleaning unreasonably enhanced the danger and risk, or whether thereby the defendant failed in its duty "to take care that ordinary risks and perils of the employment are not increased by any omission on its part to provide for the safety of its employees," and whether such omission was the proximate cause of the injury. Marks v. Cotton Mills, supra.
2. Whether, if the method adopted was dangerous, such danger was so obvious and so well-known to and appreciated by the plaintiff, or by the exercise of reasonable care should have been so known and appreciated that a reasonably prudent man, under like conditions, would have continued in the employment.
The legal rights and liabilities of the parties will depend upon the Facts as found by the jury upon these controverted questions. There must be a
New trial.
Cited: Jones v. Warehouse Co., post, 553; Shaw v. Mfg. Co.,
(410)