Blevins v. Erwin Cotton Mills

Hoke, J., after stating the case: We have carefully considered the exceptions noted in the record, and find no reversible error-to plaintiff’s prejudice. It is very generally held that an employee is an incompetent juror for the trial of a cause involving the rights or interests of the employer, and the plaintiff’s objection should have been sustained. Railroad v. Mitchell, 63 Ga., 173; Railroad v. Mask, 164 Miss., 738. But the juror was challenged peremptorily, and it does not appear that the plaintiff’s rights were in any way prejudiced by this ruling of the court. We have uniformly held that this right of challenge is given to afford a party litigant fair opportunity to remove objectionable jurors, and was not intended to enable them to select a jury of his own choosing. In State v. Gooch, 94 N. C., 987, the doctrine is stated as follows: “The fight to challenge jurors is not a right to select such as the prisoner may desire, but is only the right to take off objectionable jurors and to have a fair jury to decide the cause.” On the admission of testimony as to the condition of the machine not long before the trial of the cause and twenty-two months after the occurrence, the authorities are very generally *498 to tlie effect that when the condition of an object at a given time is the fact in issue its condition at a subsequent period may be received in evidence, when the circumstances are such as to render it probable that no change has. occurred. There are decisions which hold that after a long period the subsequent conditions should be rejected as a circumstance too remote (Railroad v. Eubanks, 48 Ark., 460), but this qualification of the principle does not obtain when there is direct evidence, as in this case, that no change in the meantime has occurred. Wigmore on Evidence, sec. 437; Thompson’s Commentary on Negligence, sec. 7870. It may be well to note that the doctrine we are now discussing refers to the objective conditions, where, from the facts and circumstances, it is reasonably ■ probable that no change has occurred, and must not be confused with the position which obtains with us, that voluntary changes made by an employer after an injury to an employee, and imputed to the employer’s negligence, are not, as a rule, relevant on the trial- of an issue between them. Myers v. Lumber Co., 129 N. C., 252. This position involves facts and considerations’ of a different character, and in this State, as stated, has been subjected to a different ruling. On the trial below the court imposed on the defendant the duty of providing for its employees a reasonably safe place to work and supplying them with machinery, implements and appliances safe and suitable for the work in which they are engaged, and such as are approved and in general use, etc., and charged the jury, in effect, that if the plaintiff was injured by reason of a breach of duty in the respects indicated the issue as to the defendant’s negligence should be answered “Yes.” This position is well-recognized and is in accord with numerous decisions of the Court. Fearington v. Tobacco Co., 141 N. C., 80; Hicks v. Manufacturing Co., 138 N. C., 325; Lloyd v. Hanes, 126 N. C., 359. In .response to prayers for instructions, preferred by defendant in apt time, the court, among other things, charged the jury as follows: (a) “Even if you should find it was the duty of the plaintiff *499 to strip cards at the machine at which he was injured, and that he was engaged in the line of his duty at the time he was injured, and that the catch was defective, but should also find that the defendant had had no notice of the defective catch or that it had not been defective long enough for the defendant to have constructive notice of this defect, and that this defective catch was the cause of the plaintiff’s injury, you will answer the first issue No.’ (b) “Before the plaintiff can recover, it is necessary for him to show that his injury was due to a defect in the machine at which he was working for the defendant, and that the defendant had notice or could by reasonable care have had notice of the defect’ in the machine.” These positions, also, are fully supported by our cases on the subject. Nelson v. Tobacco Co., 144 N. C., 418; Ross v. Cotton Mills, 140 N. C., 115; Hudson v. Railroad, 104 N. C., 491. Again, at the request of the defendant, the court charged the jury as follows: (c) “The plaintiff alleges in his complaint and contends that his injury was due to a defective catch upon the machine at which it was his duty to work, and but for this he would not have been injured. The defendant denies the catch was defective, and insists that it was sound then and is in the same condition now. If you find from the evidence in this case that the catch or door lid referred to was not defective, then you will answer the first issue No,’ for the plaintiff does not contend there was any other defect about the machine at. which he was injured.” This is the exception chiefly urged by plaintiff for-error in the charge of the court, and is raised in different ways by several other exceptions noted in the record; the objection being that in this portion of the charge his Honor below entirely ignores the evidence of plaintiff, tending to show that there was no stripping stick in place at -the time of the injury, and its probable effect in producing the result; but the objection cannot, in our opinion, be sustained. The negligence charged in the complaint, and the only negligence chargeable to defendant on *500 tbis testimony, is in reference to a defective fastening to tlie door; and if there was no default in tbis respect, no responsibility should attach. If the door was improperly opened by the plaintiff himself, or a coemployee, the defendant company would not be liable, for our statute on the subject, by which coem-ployees are made vice principals of the employer, in reference to injuries arising from their negligence, only applies to railroads (Wade v. Contracting Co., 149 N. C., 177) ; and this stripping stick, to which reference is more especially made in the exception, was not a safety appliance, and there is no evidence whibh showed or tended to show that plaintiff or any of the employees were accustomed to use or rely on.it as such, as in* Wallace v. Railroad, 141 N. C., 646. It was only an implement for greater neatness, or perhaps for greater convenience, in gathering or removing the- waste cotton rejected by the cards and thrown from the machine. All.of the testimony is to the effect that this stripping stick had no connection with the door, and that if this door was in proper place and the fastenings in proper condition no danger was to be apprehended. If there was no negligence, therefore, imputable to the defendant as to the door, the absence of the stripping stick should not be allowed to affect the question. No action should arise by reason of negligent default, unless there had been a breach of some legal duty which leads to the result in continuous and natural sequence, “unless a person of ordinary prudence could foresee that the result complained of would naturally and probably ensue.” Brewster v. Elizabeth City, 137 N. C., 392. The, court did right, therefore, in directing the'minds of the jury to the real question at issue and excluding irrelevant matters from their consideration. "We find nothing in the rulings, or charge of the court on the last three issues, which is in any way calculated to confuse or mislead the jury in their determination of the first -issue; and, this being true, the exceptions as to the disposition of these last three issues have become immaterial and have not been further considered. After a fair and impartial trial, the jury have determined the real and controlling question in dispute between the parties — the condition of the door and its fastenings — in favor of *501 defendant, and we find no error wbicb would warrant or permit that tbe Court should' disturb tbe conclusion they have reached. The judgment for defendant is therefore affirmed. No Error.