McAtee v. Branning Manufacturing Co.

WalkeR, L. In stating the case as above we have selected those portions of the testimony which tend to establish the defense and to overthrow the case of the plaintiff, although the invariable rule is, upon a motion to nonsuit or its equivalent, a request for a peremptory instruction to find for the defendant, to reject such evidence and consider only that which makes for the plaintiff and tends to sustain his cause of action. Hodges v. Wilson, 165 N. C., 323. But in no view of the evidence and the charge of the court do we see anything except a pure question of fact for the jury. There certainly was evidence to show that the defendant had been negligent in furnishing the blackjack for oiling the belt, instead of the ordinary belt dressing, and that this failure of duty on its part was the proximate cause of the injury, even though it may have combined with .some other cause. If the plaintiff’s testimony is accepted as stating the real facts, the defendant was negligent in this respect, and thereby caused the plaintiff to lose his arm after it had been horribly mangled. The charge was in exact accordance with the law as to the legal duty of each of the parties. It was well conceived, carefully prepared, and clearly delivered, and fully covered every phase of the case. It leaves the impression that the learned judge who presided was absolutely and unqualifiedly fair and just to the defendant, omitting nothing that could possibly aid the jury in giving intelligent consideration to its contentions. If either party has any right to complain of the charge, it is not the defendant, though there is no room for any criticism by either of them. *456 Tbe evidence bore strongly against tbe defendant, even some of its own being unfavorable to it. Tbe duty of tbe master to furnish a reasonably safe place for tbe servant, while at bis work, has been so frequently stated as scarcely to need repetition here. Tbe latest expression, of tbe Court upon this subject in Ammons v. Manufacturing Co., 165 N. C., 449, is as follows: “It is established by repeated adjudications in this State that an employer of labor, in tbe exercise of reasonable care, must provide for bis employees a safe place to do their work and supply them with machinery, implements, and appliances (reasonably) safe and suitable for tbe work in which they are engaged, and to keep such implements, etc., in safe condition as far as this can be done by tbe exercise of proper care and supervision,” citing Pigford v. R. R., 160 N. C., 93, and other recent cases. There was evidence that blackjack was sticky and not tbe proper material for oiling, and on account thereof plaintiff’s band was caught in it and injured by tbe belt and shafting. Tbe negligence of defendant consisted in furnishing defective material and an old and worn belt which was in such a bad condition that it bad broken three times in one morning. Negligence should not be declared by tbe court as matter of law, where more than one inference may legitimately be drawn from it, or where two fair-minded persons of equal intelligence may differ in regard to it and form different conclusions of fact, one of which inferences or conclusions is favorable to the plaintiff. Alexander v. Statesville, 165 N. C., 527, citing Ramsbottom v. R. R., 138 N. C., 38; Graves v. R. R., 136 N. C., 3; Russell v. R. R., 118 N. C., 1112; Spruill v. Insurance Co., 120 N. C., 141. Whether plaintiff should have reported the bad quality of the material supplied for oiling to the master depends somewhat upon his own knowledge of it, and also upon the master's existing knowledge. In the state of the evidence, the jury may well have found that the master knew more about it than his servant. The president of the defendant himself seems to have entertained some doubt as to its adaptability for the purpose of oiling the belt. *457 Whether the plaintiff selected a safe way to do his work, in the qxercise of proper care, when two ways were open to him for the purpose, one safe and the other dangerous, was manifestly a question for the jury, as was also the question whether the bad quality of the belt dressing furnished by defendant was the proximate cause of the injury. ' It is true that no cause of action can arise by reason of a negligent default, unless there is some breach of a legal duty which leads to the result in continuous and natural sequence, and which a person of ordinary prudence could foresee would naturally and probably ensue. Brewster v. Elizabeth City, 137 N. C., 392; Blevins v. Cotton Mills, 150 N. C., 500; Ramsbottom v. R. R., supra. There must be cause and effect — a breach of a legal duty and resultant injury, with causal connection between the two, so that the one flows directly from the other; but it is for the jury to say how this is, and whether this relation which the law requires between the alleged cause and the damage really existed, unless both in the case of the negligence and its proximity to the consequent injury the facts so appear that there can be but one opinion or conclusion with regard to it, in the minds of two equally intelligent persons ; and that is not the case here, but the contrary. Harvell v. Limber Co., 154 N. C., 262. From the description given by plaintiff of the blackjack, viz., “it was sticky as tar,” the jury might reasonably infer that it was dangerous to one handling a rapidly moving belt and using it for oiling or dressing purposes, and there was evidence for the plaintiff which clearly warranted the conclusion that this sticky blackjack proximately caused the injury. It would be useless to prolong the discussion. The burden was upon the defendant as to contributory negligence and assumption of risk, and there was ample evidence to support the finding of the jury upon those issues. We cannot say, as matter of law, that the evidence showed the risk and danger of using the blackjack to be so obvious that a reasonably prudent man would not, under like circumstances, have undertaken to do the particular work, and this question, therefore, was properly left to the jury. Lloyd v. Hanes, 126 N. C., 359; Smith v. Balter, L. R. App. Cases, 891. *458 In tbe case last cited, Lord Halsbury said: “In order to defeat a plaintiff’s right to recover by the maxim relied on (volenti non fit injuria, anglice, ‘assumption of risk’), the jury ought to be able to affirm that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself.” The present Chief Justice, commenting on this passage in Lloyd v. Hanes, supra, said: “The distinction is wide between mere ‘knowledge of the danger’ and ‘voluntary assumption of the risk.’ Besides, ‘assumption of risk’ is a matter of defense, analogous to and, indeed, embraced in the defense of ‘contributory negligence’ (Rittenhouse v. R. R., 120 N. C., 544), and it is an error to direct a nonsuit. Cox v. R. R., 123 N. C., 604. The jury, as Lord Halsbury says, must pass upon the question whether the employee voluntarily assumed the risk. It is not enough to show merely that he worked on, knowing the danger.” The charge of the court was a clear and correct statement of the principles of law applicable to the facts as the jury might find them from the evidence, and the motion for a nonsuit and the requests for instructions were properly denied. No error.