Patterson v. Nichols, 157 N.C. 406

Patterson v. Nichols

157 N.C. 406 | N.C. | 1911

Allen, J.

The motion for judgment of nonsuit was properly overruled.

There was evidence for the consideration of the jury that the place where the plaintiff was required to perform his duty was not, under all the circumstances, reasonably safe, and that this was the cause of the plaintiff’s injury, and if so, there was evidence of negligence.

The absence of a shifter, the presence of a projecting setscrew, the fact that a ladder had to be used, that the ladder had to be set against the wall, that the plaintiff had to go up the *413ladder in a space of 2 feet between the shaft and the wall, with his back to the screw, and had to reach over the pulley to put on the belt while the machinery was in motion, are all circumstances, if found to exist, which enter into the .question of a reasonably safe place.

We are also of opinion that his Honor correctly charged the jury on the second issue that, “Before you can answer the second issue £Yes,’ you must be satisfied by the greater weight of the evidence that the plaintiff knew the danger which he was incurring or in the exercise of reasonable care could have known it, and that the work required of him by the defendant was obviously so dangerous that a man of reasonable prudence would not have engaged in it, or that in the performance of his work he did not exercise reasonable care for his own safety. Unless the jury so find, that the plaintiff was negligent as herein stated, you will answer the second issue No/ ” and that he could not, as a matter of law, direct the jury to answer the second issue “Yes.”

We think, however, there is error in the instructions on the first issue which entitles the defendant to a new trial.

"When the charge on the first issue is considered as a whole, there are inconsistent directions to the jury, which must have left them in doubt as to a correct finding upon the issue.

To illustrate: His Honor charged the jury to answer the first issue “Yes,” if they found that the defendant was negligent in not supplying the plaintiff with a safer appliance on which to stand while in the performance of his duty, and to answer it “No” if they found .that a collar with a projecting screw was in common use. Suppose the jury found both facts to exist, how should the issue be answered?

When several acts of negligence are relied on by the plaintiff and there is evidence to support them, it is proper to submit separate charges as to each, presenting the contentions of the plaintiff, upon which the issue of negligence may be answered in the affirmative, and telling the jury that if they do not find the facts as contended, that the defendant would not be negligent in that respect.

*414The charge upon the use of the ladder as a safety appliance is not free from doubt. If by proper construction it was intended to leave to the jury the question of a defect in the- ladder, we would bold it erroneous, because no evidence of such defect was introduced; but we think a fair interpretation of the language leads to the conclusion that his Honor was speaking of the ladder as an appliance, and of its safety for the purpose for which it was being used.

We also think there was error in the charge as to the use of a shifter, upon the ground that there was no evidence to support it.

It is the duty of the employer, “where the machinery is more or less complicated, and more especially when driven by mechanical power, to provide for his employees, in the exercise of proper care, a reasonably safe place to work, and to supply them with machinery, implements, and appliances reasonably safe and suitable for the work in which they are engáged, and such as are approved and in general use in plants and places of like kind and character; and an employer is also required to keep such machinery in such condition as far as this can be done in the exercise of proper care and diligence. Witsell v. R. R., 120 N. C., 557; Marks v. Cotton Mills, 135 N. C., 287.” Hicks v. Manufacturing Co., 138 N. C., 326.

■ The rule is well stated by Justice Wallcer in Wesi v. Tanning Co., 154 N. C., 47: “The master does not guarantee the safety of his servant while engaged in the discharge of his duties. He is not an insurer, and is not bound to furnish him an absolutely safe place to work in, but is required simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best-known machinery, implements, and appliances, but only such as are reasonably fit and safe and in general use. He meets the requirements of the law if, in the selection of machinery and appliances, he uses that degree of care which a man of ordinary prudence would use, having regard to his oAvn safety, if he were- supplying them for his own personal use. It is culpable negligence which makes the employer liable, not a mere error of judgment.”

*415In determining whether the place is reasonably safe, evidence as to the appliances used is competent, but if shown to be such as are approved and in general use, may not be conclusive, and it may be that in the absence of evidence that shifters were in .general use, circumstances might arise in which it would be' proper to submit the question of negligence to the jury upon proof that no shifter was used, as in cases where the employee is working at the machine and is required constantly, in the j)erformance of his duty, to shift the belt; but these conditions do not exist here.

The plaintiff was injured at a pulley 10 or 12 feet from the floor, and there is no evidence that it was practicable to use a shifter at a pulley so located, or that one had ever been used in any plant for any purpose, or that any employee of the defendant, except the plaintiff, had ever been required to touch the pulley, and the plaintiff does not show that he had done so, except when doing the work of extending the shaft, immediately before his injury.

In the absence of evidence, it was erroneous to submit this view of the case to the jury. ’ Burton v. Manufacturing Co., 132 N. C., 17; Joines v. Johnson, 133 N. C., 487; Stewart v. Carpet Co., 138 N. C., 61.

There is also an exception to the charge on damages, which it is not necessary to consider; but we call attention to the fact that the rule as-to the measure of damages stated in Wallace v. R. R., 104 N. C., 451, is full and .comprehensive, and that elements of damage embraced therein, as to which no evidence is offered, should be eliminated.

For the errors pointed out, there must be a new trial.

New trial.