Sibbert v. Scotland Cotton Mills

OoNNon, L, after stating the facts: It may be conceded that the frames at which plaintiff was put to work were of *310 proper construction and in good condition; that there was no evidence on the part of defendant, either in respect to the frames or the travis gear; that defendant was guilty of no negligence in failing to instruct plaintiff in his work. It may be further conceded that his sleeve getting caught in the travis gear was an accident for which defendant was not responsible, or that plaintiff did not exercise due care to avoid the danger of getting caught in the cogs. The question arises, whether there was negligence in permitting the levers of the shifters, provided for the purpose of starting and stopping the frames, to be “out of fix,” and whether such negligence was the proximate cause of the injury. It appears that the wheels, upon which were the cogs of the travis gear, move slowly, and that, if the shifters had been in good repair and had performed the office for which they were intended, the frames could easily have been stopped by pushing the lever, throwing the belt from the tight to the loose pulley, and plaintiff would not have sustained any injury further than tearing his shirt sleeve. The plaintiff, assuming, as we must do, the truth of his testimony, was pursuing instructions— working as directed by the “head boss.” There is always more or less danger that employees working in mills, even when the machinery is in proper repair, .will become entangled in the wheels, cogs, etc. This is one of the dangers incident to the employment. Where there is no negligence in respect to the construction, repair of the machinery, or in failing to give instruction as to the manner of operating the machine, an injury sustained ‘by the employee is attributed either to accident or the negligence of the employee. The risk of such injury is assumed. Recognizing the danger of such accidents, employers use such safety appliances as are in general use, either to avert the danger or to stop the machine in the event that an injury is imminent. Defendant had attached to the frames, upon which plaintiff was employed, shifters controlled by levers, easily operated, by which *311 in an emergency the frames could be stopped. It was the duty of defendant to use reasonable care, by proper construction and frequent inspection, to have and keep them in working order. If it failed to do so, there was a breach of duty to plaintiff. He says that, after his sleeve was caught in the cogs, there was ample time to have stopped the frame, if the shifter had not been “out of fix.” This is evident from the fact that plaintiff’s sleeve was caught near to his wrist, while the injury sustained was at his armpit, showing clearly that, if the shifter had worked, the injury would have been avoided. It seems that he and those who came to his relief did all in their power to stop the frame, but failed to do. so because of the defective condition of the shifter or the lever to it. If the jury find that the injury, notwithstanding preceding conditions, would not have been srcstained but for the defective condition of the shifter, such defective condition would be the proximate cause of the injury — the last, real cause. This question, in the light of the evidence, should have been submitted to the jury. We concur with his Honor’s ruling upon the questions of evidence presented upon the record. The fact that at one other mill the wheels of the travis gear were boxed does not tend to show that it was usual or customary to do so. Marks v. Cotton Mills, 135 N. C., 287. Nor do we think that the proposed evidence of the condition of the lever after the injury was competent. The only questions presented by this record are whether the shifter was a safety appliance, and whether it was in proper repair and condition, and if not, whether the defective condition was known or ought by proper inspection to have been known to defendant’s servants whose duty it was to inspect it, and whether such defective condition, if found by the jury, was the proximate cause of the injury. These were all questions for the jury. Wé do not perceive any evidence in the case, as now presented, of contributory negligence. If the shifters got in defective condition after plaintiff began work, he was not required to *312 abandon bis employment — be did not assume tbe risk incident to danger by reason of sucb negligence. Sims v. Lindsay, 122 N. C., 618; Lloyd v. Hanes, 126 N. C., 359; Marks v. Cotton Mills, 138 N. C., 406. In directing judgment of nonsuit there was error, for wbicb there must be a new trial. New Trial.