Brown v. Cook-Lewis Foundry Co.

OlaeK, C. J. This was an action for personal injury sustained by the alleged negligence of the defendant. The plaintiff’s allegation and proof was that while acting as general helper in the foundry he was called on by John Hartle, the head molder, to help turn a box which contained a mold and sand, the box being about 4% feet by 2 feet deep. The plaintiff testified that the box and contents weighed about 2,000 pounds, and he told Hartle that the three men were not enough to handle the box, but was directed to “go ahead.” He was then directed to go around to the other side to let it down, and it fell on his foot, crushing it. He says that he had never seen that work done before, and when he said to the molder, “There are not enough men here to handle this thing,” he replied, “Yes, there is; go ahead.” There were other witnesses who testified that it would require four men or five to properly handle the box; that three men could turn it only by hard straining, and that they were very cramped for space, only twelve or thirteen inches between this box and another, and when the box was let down it dropped on his foot. Hpon this evidence, it was error to direct a nonsuit. The facts are almost identical with those in Pigford v. R. R., 160 N. C., 93, where the plaintiff told the foreman that he needed more men to help him load, but the foreman said, as here, “Go ahead,” and Wallcer, J., in a very full and well-reasoned opinion, held: “When a servant is injured within the scope of a dangerous employment by the negligent act of the master in not furnishing him sufficient and competent assistance, and the master’s negligence is the proximate cause of the injury, the servant is not held to have assumed the risk of the master’s negligent act, and can recover unless his own negligence contributed to the injury as the proximate cause,” and in that case the Court sustained a verdict for the plaintiff. In this ease, the defendant contends that the injury was caused by the contributory negligence of the plaintiff or by the negligence of his fel *40 low-servants, or was an accident. It was an accident only in tbe sense that it was not intentionally done. If there was evidence of any negligence of tbe plaintiff or of bis fellow-servant, it was a master of defense and for tbe jury. Upon tbe plaintiff’s testimony, tbe injury occurred because of insufficient force to bold back tbe box in letting it down, as be was ordered to do, and upon a nonsuit tbe evidence must be taken in tbe light most favorable to tbe plaintiff. Morton v. Lumber Co., 152 N. C., 54. Tbe defendant introduced no evidence. Tbe plaintiff also excepted because tbe court refused to allow him to show by an expert, a foreman in another foundry, that “tbe proper way to handle these boxes was by a crane; that it was safer to do so with a crane, and it was not as safe to handle these boxes by band as by a crane.” Tbe judge refused this evidence, saying that “Factories do not have to keep up with Edison and bis inventive genius or George Westinghouse, but they have to use tbe safety appliances in general use.” In tbe exclusion of tbe evidence and in tbe reason given, tbe court erred. A crane is a mechanical device for raising heavy weights, in universal use for that purpose. It is not a recent invention of Edison or Westinghouse, but has been in general use for many centuries. Tbe evidence shows that there were “two cranes in this very factory, one on tbe inside and one on tbe outside, and that these boxes could have been filled in reach of tbe crane.” One of these cranes stood within fifteen feet of this box. So far from tbe crane being of recent invention, Livy tells us (Book XXIV, eb. 34) that at tbe siege of Syracuse by Marcellus, 2,100 years ago, Archimedes, by tbe use of cranes projecting over tbe seawall, dropped heavy grappling irons on tbe decks of tbe Roman vessels, which, breaking through, took bold of tbe timbers, and then, by means of bis cranes (in military Latin, "bolleno ” i. e., “lifter”), be drew tbe vessels up on end, and then, dropping tbe vessels, be dashed them to pieces. Smaller cranes bad doubtless been in use for ordinary purposes long before that time, and they have been in general use ever since. Tbe same incident is told by Plutarch in bis Life of Marcellus. Tbe evidence as to tbe failure to use tbe cranes, and that it was safer to use them, should have been admitted. Tbe judgment of nonsuit is Reversed.