Rogers v. Whiting Manufacturing Co.

Clark, C. J. This is an action for damages for an injury sustained while operating a lathe machine for the defendant. The plaintiff contended that the proximate cause of his injury was the failure of the defendant to furnish a guard or shield to go over the saws to prevent their throwing splinters and -pieces of wood back, by reason of which defect the plaintiff was injured. It is settled law in this State, “That an employer of labor to assist in the operation of railways, mills, and other plants where the machinery is more or less complicated, and more especially where driven by mechanical power, is required to provide for the employees in the exercise of proper care a reasonably safe place to work, and supply them with machinery, implements, and appliances reasonably safe and suitable for the work in which they are engaged and such as are approved and in general use in plants and places of like kind and character.” Hicks v. Manufacutring Co., 138 N. C., 325, citing Witsell v. R. R., 120 N. C., 557, and Marks v. Cotton Mills, 135 N. C., 287, and which is itself cited and approved in Helms v. Waste Co., 151 N. C., 372. The first nine of the defendant’s exceptions are to the introduction of evidence tending to show that guards or shields were *486 in general use in machines of like character or kinds. But such evidence is competent, and in this case it was shown that the witnesses had seen nine different mills in which such guards were in use. This was sufficient to justify the court in leaving it to the jury to find whether the defendant had been guilty of negligence in not having a protection of this kind, and it was not error to refuse a prayer, “Even if the jury shall find a mill in Georgia, one in Tennessee, one in Andrews, and one in Swain County has machines upon which were shields or hoods, this is not sufficient to show a general custom.” The prayer was properly refused, for the evidence was there were at least nine mills as to which the evidence showed use of these shields over saws, though it is true that as to some of them the lathe machines were not in use in a sawmill, as was the case here, but that was immaterial. Nor was it error to refuse the defendant’s prayer to charge that “Unless the plaintiff has shown by the greater weight of evidence that these hoods or shields were in general use, the jury could not consider as proximate cause any injury caused by a chip flying out and striking the plaintiff.” If the flying out of the chip was caused by the absence of the shield or hood, and the jury should further find that this would have been prevented by the use of the shield or hood, and the failure to provide such was want of reasonable care “on the part of the defendant, it would be liable. Mason v. R. R., 111 N. C., 482. The plaintiff in his brief restricts himself to'the first ten assignments of error, thus under the rule abandoning the others, which hence need not be discussed. This case, in its general features, resembles Sims v. Lindsay, 122 N. C., 678, which has been often cited, see notes in Anno. Ed. No error.