Covington v. . Furniture Co.

Connor, J., after stating the facts: ’ The correctness of the judgment of nonsuit depends upon the application of some well settled principles of law. .Taking the plaintiff’s evidence and all inferences to be draAvn therefrom most favorable to his view, the question arises whether there was any breach of legal duty on the part of the defendant in respect to the engine and its relation to the machine which he operated. He says that it did not have sufficient capacity to move steadily and without variation all of the machines in the shop; that when the heavy planer was attached, it slackened the speed of the machine which he was operating, for a few minutes. One witness' says that in five minutes the *377 engibe would reassert itself. Tk-is condition was known to tlie plaintiff for two months prior to bis injury. Without conceding as a matter of law that this condition constituted negligence on the part of the defendant, but assuming for the sake of the argument that it did, we proceed to consider the duty which arose on the part of the defendant. He says that he knew the effect produced upon his machine and the increased danger when the heavy planer was attached. He further says that on the occasion upon which he was injured, he saw the belt thrown upon the heavy planer and saw his machine slacken. Notwithstanding this, he continued to push the board upon the knives which, he says, he knew was dangerous, although ha did not realize the full extent of the’ danger. He says that in this condition a person would get hurt oftener or that the chances of getting hurt were greater than of not getting hurt. There is no question involved in this case in respect to the duty of the plaintiff to quit the employment upon discovery of the incapacity of the engine. What was his duty when he saw the condition by which he was confronted and knew that it was dangerous % If he had waited for a few minutes, not exceeding five, before pressing the board upon the knives, the engine, reasserting itself, would have moved steadily. Was it not his duty in the exercise of ordinary care and prudence to have done so ? The general riile of law is “that when the danger is obvious and is of such a nature that it can be appreciated and understood by the servant as well as by the master or by any one else, and when the servant has as good an opportunity as the master or any one else of seeing what the danger is, and is permitted to do his work in his own way and can avoid the danger by the exercise of reasonable care, the servant cannot recover against the master for the injuries received in consequence of the condition of things which constituted the danger. If the servant is injured, it is from his own want of care * * * This rule is especially applicable when the *378 clanger does not arise from the defective condition of the permanent ways, works or machinery of the master, but from the manner in which they are used, and when the existence of the danger could not well be anticipated but must be ascertained by the observation at the time.” Labatt, 333. The same principle may be stated in the usual formula that where there is a safe and a dangerous method available for the performance of the work in hand and the servant selects the latter method with actual knowledge of the fact that it is dangerous, he cannot recover. We think that an application of these well established rules to the evidence sustains • the judgment below. Without entering upon the many and difficult questions arising out of cases involving assumption of risk, contributory negligence and proximate cause, we think that but one conclusion can be drawn from the evidence in this case. A very slight consideration upon the part of the plaintiff, especially in view of his knowledge of the conditions and his experience in operating,that machine, would have suggested retaining the plank for a few minutes until the machine could reassert itself and the danger pass away. Carter v. Lumber Co., 129 N. C., 203. His witness states that there was more danger in getting cut when the jointer was running slow, that the chances were a person would get hurt. , This the plaintiff knew. He should not have taken chances. in the presence of an obivous, apparent and well known danger; if he did so and was hurt, he cannot cast upon his employer the blame or responsibility. Elmore v. Railroad, 132 N. C., 865. There is No Error.