Hassell v. . Daniels

HoKE, J. This cause was before us on a former appeal by plaintiff from a judgment sustaining defendant’s motion for nonsuit, and it was held that such judgment was erroneous, and “that the same be set aside in order that the matters in Controversy be submitted to the jury.” See *38 Hassell v. Daniels, 176 N. C., 99. Accordingly, on tbe present bearing tbe issues arising on tbe pleadings were submitted, tbe jury bave rendered a verdict against tbe plaintiff on tbe principal issue as to defendant’s negligence, and we find nothing in tbe record that justifies tbe Court in disturbing the results of tbe trial. It is urged for error, chiefly, that on tbe evidence, if believed, tbe jury should bave been directed to find this first issue against tbe defendant, and that tbe court, in effect, so held on tbe former appeal. It is true that in delivering ■ that opinion tbe Court said: “Tbe plaintiff was injured while performing a duty for tbe defendants under orders from bis superior,’ and be was required to stand above tbe floor, on a ledge about 3 inches wide, made slippery by tbe dripping oil, and to lean forward, with an oil can in one band and a funnel in tbe other, both necessary implements in tbe performance of bis duty, and pour oil in cups between a piston-arm and drive-wheel, each making 70 revolutions a minute, and when be necessarily came within 3 or 4 inches of tbe moving machinery, and this cannot be held to be a safe place to work, as a matter of law.” In that utterance, however, tbe Court was only following our uniform rulings that “on a judgment sustaining defendant’s motion for nonsuit, it is proper and permissible to consider only tbe evidence which makes in favor of plaintiff’s recovery, interpreted in tbe light most favorable to him.” While there is evidence of plaintiff, in tbe present trial, tending to establish tbe facts suggested in this excerpt from tbe Court’s opinion, there is also testimony coming from defendant, and tending to show that “it was not necessary for plaintiff to have taken a position on this ledge, 3 to 4 inches wide, but that be could bave well performed tbe instant duty of pouring tbe oil in tbe cups when standing on tbe floor of tbe room, and so escaped tbe dangers that threatened, and of which be complains, and, furthermore, that there was a box there and available, 8 inches high,' affording a method of oiling machine in comparative safety.” These opposing aspects of tbe testimony relevant to tbe issue, and pertinent to tbe only source of negligence charged against defendant, were submitted to tbe jury under proper instructions, and, as stated, they bave by their verdict exonerated tbe defendant from liability. It was further insisted that bis Honor made an erroneous ruling in permitting tbe witness, William Harnley, to testify, over plaintiff’s objection, that a man five feet eight inches high could very handily stand on a box eight inches high and oil tbe cups of tbe machine. (Five feet eight being tbe assumed height of plaintiff, and eight inches being *39 tbe beigbt of tbe box there, and available for tbe purpose.) He further said that be bad oiled the machine standing on tbe floor, and be was six feet tall. This witness was shown to be an experienced and trained machinist, familiar with this type and kind of machine, both as to its operation and upkeep, and bad made personal observation of tbe conditions at this plant and tbe very machine in question. "While to some extent in tbe form of an opinion, this testimony is really tbe statement of a fact, but whether tbe one or tbe other, tbe witness having personal observation of conditions, and being qualified by opportunity, training, and experience to give an opinion that would aid the jury to a correct conclusion on tbe subject, tbe testimony was in our opinion properly received. Caton v. Toler, 160 N. C., 104; Murdock v. R. R., 159 N. C., 131; Tire Setter Co. v. Whitehurst, 148 N. C., 446; Britt v. R. R., 148 N. C., 37; 1 Elliott on Ev., sec. 675; McKelvey on Ev., pp. 230-231. On careful examination, we find no- error which gives tbe plaintiff just ground for exception, and tbe judgment for defendant is affirmed. No error.