Turner v. Goldsboro Lumber Co.

Avery, J.: Though the court instructed the jury that James Carpenter, the foreman, was a fellow-servant of the plaintiff, and there was no exception to that ruling, it has been suggested that none of the exceptions must be discussed for the reason that, in any aspect of the evidence, Carpenter was a vice-principal, and in ordering the plaintiff to put himself in peril relieved him of culpability and rendered the defendant company liable for his carelessness. The test of the question whether one in charge of other servants is to be regarded as a fellow-servant or a middleman is involved in the inquiry whether those who act under his orders have just reason for believing that the — 397 — failure or refusal to obey the superior will or may be followed by a discharge from the service in which they are engaged. Mason v. Railroad, 111 N. C., 482 ; S. C., 114 N. C., 718 ; Shadd v. Railroad, 116 N. C., 970 ; Patton v. Railroad, 96 N. C., 455 ; Logan v. Railroad, 116 N. C., 940, at p. 951. Though the authority to employ and discharge the laborers subject to him may be evidence to show that the fear of loss of employment, in case of disobedience of the orders of the company, is well founded, it is not essential that it should always appear that such authority is expressly given. Mason v. Railroad, supra. To concede that is to afford opportunity to evadejust responsibility by making the rule (where it neither will nor can be carried into effect) that the power to discharge shall be lodged in another than the immediate superior, though the latter’s recommendations of dismissal from service are always acted upon favorably. Mason v. Railroad, supra. The designation as foreman of the business or a branch of it does not, ex vi termini, import, as does the place of conductor or manager of an independent train and its crew, the existence of such authority as would of necessity inspire the fear of suffering such a penalty for disobedience. But, owing to the fact that the foremen of some establishments are clothed with different powers and sustain different relations towards their subordinates from those existing between superior and subordinate in other places, the circumstances in each case must be developed in order to determine whether the under-servant has acted in fear of losing his place on account of a disregard of the command of him who is above him in authority. Where a servant never comes in direct contact with, or receives orders or instructions from one higher in position or power than the foreman, he is justified in looking upon the foreman as the very embodiment of the authority of a corporation. Mason — 398 — v. Railroad, supra ; Bailey’s Master’s Liability, p. 341 ; McKinney, F. S., Sec. 41. There is therefore no inflexible rule, growing out of the name or term, that a foreman exercising authority over those who work in a manufacturing establishment is or is not a vice-principal, but the question whether he is a fellow-servant or alter ego of the company depends upon the proof in each case of the relations subsisting between the two. Wood, Master & Servvant, Sec. 450. Unless the relations of the two are a matter of universal knowledge, it devolves on him who would excuse carelessness on the ground that he was under the obligation to obey an order to show satisfactorily that his relations to the superior, under whose command he acted, were such as to inspire a well-founded fear of dismissal in case of disobedience. Wood, supra, Secs. 449 to 452. Where the servant or his representative meets this requirement the law holds the principal answerable. A corporation cannot stipulate against or make regulations to protect itself against the negligence of its servants without running counter to a well-defined rule of public policy. A fortiori, it cannot evade its responsibility for the negligence of one who represents the supreme authority of the body in a particular branch or in all of its departments by taking shelter under a published by-law of the company. Mason v. Railroad, supra ; Wood, supra, Sec. 278. Under the evidence developed in this case, it was not made to appear that the authority of Carpenter over the plaintiff was such as to raise the implication that the former represented the company as a vice-principal. The appeal therefore depends upon the merits of the other exceptions. As to the application of the doctrine that a servant of a company contracts to incur all risks arising out of the negligence of fellow-servants, the court further instructed the jury as follows: “ The evidence shows that the shav — 399 — ings hood while used was an absolute protection. If defendant gave positive instructions to keep the hood up while the machine was being used, it performed its duty, and you will answer the issue ‘No.’ If, however, the instructions were simply to use the hood for the purpose of carrying off the shavings, and if defendant failed to give plaintiff proper warning of the alleged hidden danger, it failed in its duty and was negligent.” The duty of the company to warn an inexperienced servant of hidden danger in the use of machinery was explained to the jury as follows: “If yorx are satisfied that plaintiff was inexperienced in the use of machinery, and that the knives were so arranged as to make them a hidden danger, such a danger as not to be obvious to inspection, then, if defendant, by the exercise of ordinary care, as will be explained hereafter, could have foreseen the happening of the accident, it became its duty either to provide an adequate protection against the knives or to give the plaintiff proper warning of the danger.” Under the instructions the jury evidently inferred from the testimony of the witness Ricks that the orders of the company were to keep the hood down, as was done while the knives were being adjusted and afterwards, till by running a plank through it appeared that they had been properly arranged. The adjustment was being tested by passing a plank through with t.he hood down, according to the testimony of Carpenter, and, taken in connection with that of Ricks, it was the order of the company to keep the hood down, as was done until the knives were shown by experiment to be in proper place. If the jury believed the hood was down under such orders when the plaintiff was injured, they were warranted in finding as they did, and the court did not err in giving the instruction under which they acted in doing so. — 400 — If, however, it did not appear that the testimony sent up in the transcript tended to show in any aspect that the hood was left down under the orders of the company, it is too late to take the exception here for the first time that there was in fact no evidence to sustain the charge. State v. Kiger, 115 N. C., 746; Holden v. Strickland, 116 N. C., 185. There was testimony from which the jury might have drawn the inference that the knives were so concealed from the view of one called upon to work as plaintiff was as to constitute a hidden danger, of which he had received no caution or warning, and had no actual knowledge. Where the servant has equal knowledge with the master of the dangers incident to the work, if the servant has sufficient discretion to appreciate the peril, he takes the risk upon himself on continuing in the employment. “ Where there are latent defects or hazards incident to an occupation of which the master knows or ought to know, it is his duty to warn the servant of them fully, and, failing to do so, he is liable for any injury which the latter may sustain in consequence of such neglect.” Wood, supra, (1st. Ed.,) Sec. 349. Where more than one inference may be drawn from the-testimony by fair-minded men as to the controverted questions, it is held in the more recent adjudications of this Court that, after instructing the jury at the request of counsel, if made, as to the law of negligence applicable to particular aspects of the evidence, the court may submit issues of negligence, with the instruction that it is the province of the jury to say whether the party whose conduct is in question has met the test rule of the prudent man. Hinshaw v. Railroad, 118 N. C., 1047 at p. 1054;, Russell v. Railroad, Ibid., 1098 at p. 1111. It is not error-in explanation of that rule to tell the jury that the law requires the exercise of such care only as would enable one401 to provide against danger that he has reasonable ground to apprehend, and that he can by due diligence avoid. A person isnot culpable and answerable at law for failure to avert or avoid peril that could not have been foreseen by one in like circumstances, and in the exercise of such care as would be characteristic of a prudent person so situated. It was not error to allow the jury, in thelight of the cither instructions given, to determine whether the defendant had used due diligence to protect the plain tiff, bv ordering the hood to be placed over the knives, or by warning the plaintiff against hidden danger. If the plaintiff had offered to prove that Faucette had been previously injured by a machine of a different kind operated by the defendant, the testimony would have been clearly incompetent. But where it appeared that the conditions were precisely the same as when he was injured, the circumstance was properly allowed to go to the jury as tending to show reasonable ground to apprehend like danger, if the knives should not be covered, when in motion at any subsequent time. Pomfrey v. Saratoga, 104 N. Y., 469 ; District of Columbia v. Ames, 107 U. S. 519 ; Quinland v. Utica, (74 N. Y., 603,) 11 Hun., 117 ; Emry v. Railroad, 102 N. C., 209, 228. The evidence tended to show that the shape or extent of the hood could have been readily changed. It was admitted that the witness Ricks was an expert machinist. He testified that if the bar had extended four inches further down, as other planing machines do, there would have been no danger of catching or injuring the plaintiff’s foot. If the testimony was material, it was clearly within the peculiar domain of an expert witness. The ' question whether a certain machine, or a given condition of the same machine, is dangerous is not so readily determined by untrained persons as by an experienced — 402 — machinist. ITe had peculiar means of knowing whether there was danger and how it could have been averted in operating a machine. The testimony was material, because it tended to show that the plaintiff could have removed the danger by a little alteration in the machine, and because his leaving the knives exposed with a knowledge that they weré more dangerous when uncovered than other similar knives, and that another servant had been injured in the same way, were circumstances from which the jury might have inferred a want of care. The defendant was not bound to procure the best machinery, but it was its duty to exercise greater care when that in use was known, or might by inquiry and inspection have been ascertained to be, dangerous than when it was comparatively safe under all circumstances. It is a well-settled principle that the care which the law requires of one who is using dangerous machinery becomes greater as the hazard increases. Upon a review of the whole statement of the case on appeal, we are of opinion that the judgment should be affirmed. Affirmed.