*1 TEEM, SPRING O.] Magics Mills. v. Cottoic
its charter to the ordinance for violation of which pass defendant the term because prosecuted, “gift enterprise,” as used in the did not embrace the business of The -charter, words & Hutchinson only Sperry Company, they being in the counsel for the State and charter, as was admitted which could cоnstruction city, by any possible apply the case.
This as case, law declared the Court being and the defendant Hudson with a violation of being charged in that as merchant he received from ordinance, stamps and delivered them to one of his custom- stamp company who had from ers, him, to thе terms bought goods according of his contract with the it follows so company, doing committed criminal offense, he no the Court verdict him not special correctly adjudged guilty.
Affirmed.
MARKS COTTON MILLS.
(Filed 3, 1904). May
1. NEGLIGENCE —Evidence—Master and Servant. injuries caught
In an action for to a servant hand whose was open cog-wheels, testimony have incompetent. been covered was
2. NEGLIGENCE —Evidence—Master and Servant. an action injuries caught to a servant hand
In whose open cog-wheels, evidence that he had seen one machine with
such cogs competent. boxed in is not W. H. Marks the Harriet Cotton against Mills, ActioN heard O. H. Allen аnd a at October by Judge Term, jury, 1903, Court EuehaM Eroin Superior County. for the the defendant judgment plaintiff, appealed. IN THE SUPREME COURT.
Marks v. Cotton Mills. *2 Guthrie, & Guthrie for the plaintiff.
Winston & for Bryant, the defendant. J. Tbe ibis action to recover plaintiff brought Walker, for damages to have been the injuries caused alleged by defendant’s He that the defendant em negligencе. alleges him to one of the ployed machines in its cotton operate mill, called a and speeder, that he was ordered the boss or by foreman to clean the machine while it was that the running; cog-wheels were not boxed or cased as speeder should have been, that to its сondition it was dan owing gerous to run the a machine at as was done great speed, the defendant while the was all of plaintiff it, cleaning which was unknown to as he was an him, hand inexperienced and had not been warned of the or instructed how to danger avoid it. The excessive and the condition of speed exposed caused the hand to be plaintiff’s the wheels caught and severely injured.
In order to unsafe condition of the machine, the plaintiff introduced as a witness Ola who was Woodlief, permitted to the defendant’s testify, notwithstanding objec- tion, that the should have been covered оr cog-wheels encased. Similar was to be other wit- permitted given by nesses. It that we consider the only necessary of this as our competency to testimony, opinion regard it is adverse to the who plaintiff recovered the judgment below, matters not be at the may presented next if there is trial, one. The defendant’s motion to non- which suit, was denied Court, to which ruling exception taken, Avkich presents calls most careful consideration.' As the facts be varied if may the case is tried we refrain from again, expressing any opin- ion lest one or the other of the ruling, parties may be prejudicеd. thereby SPRING TERM, C.]
MARKS COTTON MlIXS. V. be stated as a rule, which of course subject this case is not exceptions, though them, within a witness can and it left facts, to the Court testify only and the to draw jury inferences conclusions and form opinions from the facts to witness testifies. He should not be permitted express opinion upon very quеstions be determined under instructions from the Court. This case furnishes illustration striking of the wisdom of the rule. is allowed to testify that the should have covered, it will seen that what he is the full of an says equivalent opinion *3 the defendant was of It was in guilty substance negligence.
the same as if he had testified that the accident wоuld not have occurred if the had been and that cogs encased, defendant therefore did do not what under the circumstances
it should have done. this is not a substantial declaration the witness that the defendant was it is negligent, barely removed from degree it. The in our witness, judgment, was to invade the permitted Court and the province in thus A witness should jury testifying. facts, state should find the and the jury facts, Court should declare and explain the law. The functions the three within their several are defined and spheres should clearly always and kept separate distinct. Whether the so was speeder constructed as that its wаs safe defendant’s operation was employees, which the very were question parties at issue and which the to decide. The impaneled witness’ was opinion upon incompetent plaintiff’s objection to it have sustained. of this
Authorities are abundant. We support ruling Railroad, need cite a few of them: Tillett v. 118 C.,N. only Arthur, Smith, N. C., 691; v. 112 Smith v. 1031; 117 Wolf Railroad, Summerlin v. 133 Bur C., 328; C., 550; N. N. Railroad, Sneed, 104 v. C., 118; Cogdell well v. N. 130 135-19 IN THE SUPREME COURT. Mills.
Marks Cottosst v. Railroad, v. 852; 132 N. B. 313; C., C., Cogdell Harley Co., C. M. 142 N. Y., that the machine
The witness who also testified Robertson, in addition say, “should have been boxed,” permitted an inter “he had seen after objection by defendant, also This was frame with these bоxed up.” mediate does not incompetent. guaranlee The employer an furnish them abso He is not bound to employees. to use work in, required simply safe place lutely He such place. reasonable care prudence piroviding machinery, to furnish the best known impale- bound fit and are such as reasonably ments but only appliances, He meets the requirements and as are in use. safe of the law selection machinery appliances, if, of ordinary pro- which man he uses that care degree if he were own to his use, safety, dence having regard It is culpable neg own use. them for his personal supplying error not a mere liable, makes the employer which ligence the rule this is substantially We believe judgment. one and recommended as the correct has been recognized accurately all cases. measures for our such guide *4 his fixes the limit of responsibility of the empaloyer duty Co., M. This B. C. supra. Harley to his employees. is some extent to danger has said that all machinery Court not of itself make is does the fact that it dangerous but ous, of the It is the negligence liable in owner damages. the machinery safe in for his employees employer providing rendеrs in to work that which safe reasonably place and this them, negli to for injury him liable any resulting use all approved in failure to adopt his gence consists to the in use which are general appliances duties, of their in the performance of the employees safety carrier and as between said, it is even and this rule applies, Dorsett Railroad, 557; N. C., 120 Witsell v. passenger. N. 1904. TERM, SPRING- 0.]
Marks v. Cotton Mills. Co., 131 v. Mfg. the is C., employer required to adopt new as soon as is known and every it appliance but before it approved, has come into it use, general involve him the at his upon duty, at once peril, securing the latest and of all best as which, also said appliances this Court, would too burden to great impose him, even though would be safety employee thereby Railroad, enhanced. Witsell v. The rule which calls supra.
for the care of the man prudent such cases the best and safest for one It is adoption. just to the perfectly employee and not unfair to his and is employer, outgrowth that elementary principle with certain employee, statutory exceptions, assumes risks and ordinary perils of the service in which he is but not the risk of his engaged, When negligence. to him injury results any employer’s from or risks it ordinary perils service, the misfortune of the and he must bear the employee loss, it damnum being injuria; but the must absque employer take care that risks and of the ordinary perils employment are not increased reason of on omission his part for provide of his To the employees. extent that he fails in he plain must answer duty, damages his for the latter employee any injuries sustain are caused proximately negligence.
The testimony he “had seen frame with the boxed was admitted violation of the up” we have rule as just stated, it was equivalent saying the defendant had not the best adоpted appliances safety, there was no use. though proof general The as collateral the issue. given that the suggested could not plaintiff the fact begin that the boxed machines are use this kind unless *5 admissible. This reason for testimony admitting is more than and real, we do not think apparent COURT. THE IN SUPREME Mills.
MaRks v. Cotton not in a case should all A it is at sound. presented point to reference but with be decided as an abstract proposition, and the case. The question the facts and actual state of case, admitted in this were not excluded but answer the plaintiff additional evidence offered by thеre was no one than the mills, other to show that tending are boxed. The perhaps mentioned by witness, plaintiff have use proving shown boxes might not them, attempt mills this he did a number of used to benefit of the to do. He had full right begin If the it. but failed it, complete did proof, begin in one mill is are boxed proof fact- that sрeeders to that then the evidence general usage effect, properly it is contended that admitted. can it be successfully But one ? There can be but evidence such general usage cannot answer to be established usage General question. . instances, of isolated proof сertainly of care instance. would be unsafe to test the degree defendant of what some per- required by proof not shown to be the ideally son done. The latter is have our is the standard for prudent guidance whose care man, rea- Another whose be followed. always example mаy of this evidence of the support admissibility son suggested of his require employer guarantee is said he should box the because as it employee, speeder are not less when the This exposed. danger there we from the rule of departure, think, responsibility a clear should be to do casеs. the employer required such free his machine from all danger everything no such as the assump- there would be thing his employees, no risk tion for there would be assume. The risk, argu- of the evidence that there admissibility ment in behalf which are boxed than in those danger speeders is less all leads to conclusion that boxed, are not speeders *6 SPRING TERM, 293 C.] Marks Cottox Mills.
should be without boxed, to the of care regard degree required of the employer. whether the use of cer- Again, a general tain device for the can proved be employees of different witnesses that it used in number as well mills, as that of one witness can who speak of his personal in to such knowledge regard use, is general quite different from the one we have in case, which is whether it was to let the hear con- proper sider evidence as its use in one mill. only the evidence was competent for the purpose beginning plaintiff’s when proof, he failed to add to it evidence of a like kind as to other mills, the Court should have had excluded what for in already admitted, view, it could any only as competent evidence of one of a series similar facts or as a first link in the chain of The error in proof. permitting the witnesses, against the dеfendant’s objection, testify as above forth set entitles latter to another trial. It is not Aveshould consider the other exceptions, as questions raise not be if the case presented should again come us. before
New Trial. I concur J., concurring result. with Douglas, Court the conclusion that, to our decisions, according I will have in which, some instances frankly say, too gone far, the defendant is entitled to a trial on new account of admission of the witness’ that the opinion
n beboxed. I do not concur of the Court wherein opinion it that it was error to the witness to says permit testify he “had seen a frame with the The boxed cogs up.’’ does to have best as to the appear expressed any opinion nor He appliance safety, fact as matter. fact which case. stated was material to the simple
merely else How could the boxed plaintiff begin IN THE SUPREME COURT. i>. Cottost Mills.
Marks had them who seen witnesses were in use except *7 in not that they other mills. Even сould prove experts own knowledge. knew the fact of their use unless general they of cogs may Whether are best method protecting boxes are in whether they gen- a but expert be of question opinion, not is eral one can testify. use is a fact to -which any difficult as it is witness, one it by any has man whо find one impossible frequently know the of mills to a number sufficient through as to may testify custom. hand, On mills. It can- as to other certain mills and other witnesses a is incompetent, of witness not be held that the testimony number as to a sufficient he does not testify because simply would always event the first witness because mills, excluded all witnesses would be be and so incompetent, the exclu- not in turn. the fact Moreover, general'use device. a a new and untried sive nor can be called test, box a man of ordinary pru- what The true test is the question due for the rights dence, having regard circumstances. Suppose would do undеr similar fellow-men, of constant danger a position cog-wheels, placed at covered small passers conveniently expense could be by, their efficiency, and without with materially interfering ? covered to have them would it not of the owner be duty mill in another saw boxed The fact that witness n wоuldbe could admissible as to show that they tending in other mills of similar and that were boxed they boxed, evidence kind. give What weight for them. Whether cogs another and one entirely with interfering be boxed without can position given determine; some their may require experience efficiency man for a knowledge it does require any expert surely when it to know there is less from machinery danger than there into get it, boxed so that he cannot possibly up TERM, SPRING C.] Arrikgdale. Gurus
is if it is left so that be it. open into There is may get less certainly a window when the clanger out falling blinds closed are fastened than when are securely open. I no see error the admission of that part testimony.
Clark, C. J., concurs the concurring opinion.
GILLIS v. ARRINGDALE. *8 1904).
(Filed 3,May Deeds—Fraud—Damages. 1. CANCELLATION OE INSTRUMENTS— In an grantee, action to cancel deed the fraud of for tlie grantor such damages grantee case entitled to as the might have done to land. Deeds—Damages—Improve- CANCELLATION OE INSTRUMENTS—
ments. deed, In an action for the cancellation of a grantee entitled damage to reduce the to the land value of the enhanced from improvements placed same thereon. Issues—Damages—Consid- 3. CANCELLATION OF INSTRUMENTS— eration.
In conveyance damages, this suit for the for cancellation of a agreed pаy
an issue as to consideration defendant what land properly submitted. Pleadings—Verdiot—Refor- 4. CANCELLATION OE INSTRUMENTS— mation Instruments —Deeds—Consideration. alleges the complaint
Where and the verdict finds that the considera- was, mistake, in a tion deed fraud than the or less amount agreed upon, judgment be for the reformation cancellation of the deed.