Howard v. Buckeye Cotton Oil Co.

Hoke, J. It was chiefly urged for error that the court overruled defendant’s motion to nonsuit, but, on the record, such a motion could not be sustained. There was evidence on the part of plaintiff tending to show that on 3 October, 1916, plaintiff, an inexperienced hand, as employee of defendant company, was engaged with‘others in operating the linters in defendant’s mill, these linters being machines whereby the lint cotton is removed from the seed, preparatory to their being manufactured into oil; that the linter, speaking generally, consisted of a saw cylinder, containing around its face large numbers of sharp, fine saws, and having a covering, called the under-breast, so constructed that by the revolutions of the saw cylinder, amounting, when in operation, to from 400 to 700 and 800 a minute, the lint cotton, as stated, was stripped from the seed; that' when these saws become dull the method is to remove the cylinder and insert another, this being done by raising the covering by means of a lever on the left of the machine, then lifting out the saw cylinder by hand, and the only safe way to do this is to stop the machine. The movement of the machine .is controlled by a lever on the right side, and one standing on that side is in a position to observe and note whether the machine is in motion; but on the left, termed by the witness “the blind side,” this could not be seen; that on this occasion, while plaintiff *653 was on tbe left or blind side of tbe machine, and bad raised tbe covering, preparatory to lifting out tbe saw cylinder, one Lew Jones, wbo bad taken part in clearing tbe machine for tbe purpose, and wbo stood towards plaintiff, in tbe position of vice-principal, standing on tbe right of tbe machine, where be could see and note whether tbe same was in motion, called to plaintiff, “Let’s get them in,” whereupon plaintiff extended bis band under tbe breást to' remove tbe saw cylinder, and, same being in motion, plaintiff’s band was lacerated, etc., from which be still suffers. Speaking directly to tbe occurrence, plaintiff, a witness in bis own behalf, testified in part as follows: “Just before I was hurt, I was sitting back there and bad finished my supper. It was about 4 o’clock in tbe morning. Lew bad called me and was ready to put in tbe saw cylinder, and I come down there and says, 'Which one,’ and be says, 'This one over here,’ and be come behind me and helped me to shake down tbe seeds, and then I moved back tbe chute, and be helped me take off tbe top piece of tbe breast and laid that aside, and be went on by, and I raised my lever from tbe saw cylinder, tbrowed tbe belt, and began to clear up tbe seed down' there, and Lew said, 'Let’s get them in,’ and I went to raise my breast with tbe book, and in just a minute my band was stuck, and Lew came up. Lew was standing on tbe right-band side of tbe other gin when be said, 'Let’s get them in’ — I reckon, about 4 or 5 feet away from me. He could see tbe pulleys on tbe right-band side. I was on the left-hand side, and be was on tbe right, and that is where this main pulley pulls them saw cylinders. I was working on tbe blind side of tbe pulley. After Lew and I took off tbe top breast, I raised tbe lever on tbe right-band side. That raised tbe under breast a little off tbe saw cylinder. After that under breast is raised, you can’t tell whether tbe cylinder is running or not; can’t see it at all. After tbe lever is raised up off of tbe saw cylinders it would be underneath, and you can’t tell they are running.” Accepting this testimony as true, tbe rule uniformly prevailing on motions of this character, it permits tbe inference that defendant was negligent and that plaintiff himself was free from fault, and bis Honor made correct decision in denying tbe motion to nonsuit. It is well recognized that, although the machinery and place of work may be all that is required, liability may, and frequently does, attach by reason of the negligent orders of a foreman, or boss, wbo stands towards the aggrieved party in the place of vice-principal. Ridge v. R. R., 167 N. C., 510; Myers v. R. R., 166 N. C., 233; Holton v. Lumber Co., 152 N. C., 68; Noble v. Lumber Co., 151 N. C., 76; Wade v. Contracting Co., 149 N. C., 177. On this testimony, it was a clear breach of duty in such a person to give an order naturally importing a direction to proceed when tbe *654 machine was in motion and when he was in a j)osition affording full opportunity to see and note the fact; and if, as defendant contends, the speech of the foreman did not amount to a positive direction to remove the cylinder, standing as he was, where he could see that the machinery was in motion, having just assisted in shaking down the seed, preparatory to removing the cylinder, it was a negligent breach of duty not to have warned plaintiff to desist till the -machine had stopped. In any aspect of the matter, therefore, the facts in evidence on the part of plaintiff -required that the issues be submitted to the jury. In Holton v. Lumber Co., supra, and on matters directly relevant to the question presented, it was held: “When an employee has been instructed by his superior to direct another, an inexperienced employee, in working at a dangerous machine, the instruction of the former is the instruction of the master; and where there is evidence that a negligent order was given by him, which a reasonably prudent man would not have given, which proximately caused the injury complained of, the case should be submitted to the jury.” And in Noble v. Lumber Co., 151 N. C., 76, supra: “The defendant is liable to the plaintiff, its employee, for an injury received while removing a shiver from a sawmill, in the course of his employment, when it appears that it was necessary for him to remove it, and that he was required by his foreman to do so when the saw was running, the only safe method being to stop the saw before doing so;' and such negligent 'act of the foreman was the proximate cause of the injury.” In our opinion, these cases are in full support of his Honor’s ruling, denying the nonsuit, and his judgment to that effect must be affirmed. The case of Mathis v. Manufacturing Co., 140 N. C., 530, cited and much relied upon by defendant, does not sustain his position. There, an employee, clearing away the sawdust around a circular saw, ran his hand on the saw when it was in motion and was injured. The movement of the saw could have been readily observed by the claimant, and there were no negligent directions from a vice-principal to mislead him to his hurt. The case is not apposite to the facts presented by this record, and judgment for plaintiff must be affirmed. No error.