Lynch v. Dewey Bros.

Walker, J., after stating the case: The judgment of the court was correct. In passing upon a motion to nonsuit, we should consider the evidence in the light which tends to support the plaintiff’s case, rejecting all that tends to disprove it. There was, perhaps, evidence of contributory negligence on the part of the plaintiff, but it was for the jury [157] to determine tbe effect of it under tbe doctrine of tbe ordinarily prudent man, as it was not of sucb a nature tbat reasonable men would not differ in regard to it, and so as to assumption of risk, if tbat defense was presented in tbe case at all. It was for tbe jury to say whether tbe risk or danger was so obvious and imminent tbat a man of ordinary prudence, having due regard for bis own safety, would not have continued in tbe service or in tbe presence of tbe danger. Tbe essential facts are few. Tbe defendant kept a planer, or jointer, of an old and disused pattern, when there was a newer model approved by those engaged in tbe same kind of business, tbat is, planing, and in general use by them. It bad been operated in various mills for more than five years, and seems to have been well known, judging from tbe testimony of tbe experts. It was a safer machine in tbat while, if tbe board being planed should kick back it might- inflict an injury to tbe bands, it would not involve tbe loss of tbe band or fingers, but tbe wound would be slight. The plaintiff testified tbat this very difference between tbe two machines was what caused bis injury. It is strange tbat tbe defendant waited so long to install tbe new model, for tbe safety of its employees, if for nothing else, as it could, perhaps, have been done for a difference in tbe cost not exceeding tbe recovery in this one case. We do not say tbat defendants must be the “first by whom tbe new is tried,” but they should take care to see tbat they are not tbe “last by whom tbe old is laid aside.” Sometimes a little precaution is a good investment, and worth, in tbe long run, far more than its cost. There can'be no doubt tbat tbe plaintiff bad been permitted to use tbe machine, and tbe defendant will not now be beard to say tbat be was negligent in using it instead of dressing tbe timber by hand. Whether there was negligence in thus making bis choice of methods, was manifestly a question for tbe jury. We said in Dunn v. Lumber Co., 172 N. C., 129, 137: “It was not claimed tbat there was_ any defect in tbe bammer-dog itself, but tbat it was not sufficiently secured, or, if this- was not so, tbat a defect in tbe machine caused it to fly out and drop on tbe saw. If tbe plaintiff was not responsible for the movement of tbe bammer-dog, and tbe jury found that be was not, it must have been either improperly secured, or some defect in tbe machine, either in its original construction or in its needed repair, must have caused tbe bammer-dog to fall on tbe saw. It is not always a full performance of tbe master’s duty to provide merely for bis servant implements and appliances which are known, approved, and in general use. He will still be liable for any injury proximately resulting from a failure to perform tbat duty in any other respect. He is not permitted to put defective machines or appliances in the. bands of bis servants with which to do the work, even though they may be of [158] tbe requisite model, or type; and if be is negligent in so doing, and thereby causes injury to tbe servant, be must answer in damages for tbe wrong. Ainsley v. Lumber Co., 165 N. C., 122; Kiger v. Scales Co., 162 N. C., 133. Tbis rule bas frequently been recognized by us in negligence eases. It is a part of bis obligation to furnish appliances, ‘which are known, approved, and in general use,’ but not necessarily all of it, and if be complies with that part of it, and is otherwise negligent in not supplying a reasonably safe place for tbe work to be done, or reasonably safe machinery, tools, and appliances with which to do it, be falls short of the legal measure of bis duty.” And Justice Brown said, in Deaton v. Lumber Co., 165 N. C., 560: “We think that this version of the testimony would justify the jury in drawing the inference of negligence in the manner in which the saw had been placed in .its bearings. The manner in which the saw unexpectedly sprang out of its shield and injured the plaintiff, in the way testified by. him, is very conclusive evidence that there was something unusually wrong with it, and presents a case where the doctrine of res ipsa loquitur will carry the case to the jury. In this case the facts and circumstances attending the injury speak for themselves, and in the absence of explanation or disproof give rise to the inference of negligence. It is evident that the accident would not have occurred if the saw had not unexpectedly sprung out of its protecting shield. Why it did so is not very clear, but the circumstance calls upon the defendant for explanation.” There are many cases in our reports which set forth the duty of the employer toward his employee, and among them is Hicks v. Manufacturing Co., 138 N. C., 319, where Justice Hoke said: “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 when driven by mechanical power, is required to provide for his employees, in the exercise of proper care, a reasonably safe place to work and to 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; and an employer is also required to keep such machinery in such condition as far as this can be done in the exercise of proper care and diligence. Witsell v. R. R., 120 N. C., 557; Marks v. Cotton Mills, 135 N. C., 287. True, the employee is said to assume all the ordinary risks incident to the employment, but it is as well established that dangers attributable to the negligence of the master, when material to be considered, are usually classed under the head of extraordinary risks, and these the employee does not assume. ... To bring the knowledge of such observed conditions of increased hazard imputable to [159] the master’s negligence into the class of ordinary risks which the employee is said to assume, the danger must be obvious and so imminent that no man of ordinary prudence, and acting with such prudence, would incur the risk which the conditions disclose,” citing Labatt on Master and Servant, sec. 279a, and other sections; Beach on Cont. Neg., sec. 361; Sims v. Lindsay, 122 N. C., 678; Lloyd v. Hanes, 126 N. C., 359; Patterson v. Pittsburg, 76 Pa. St., 389; Kane v. R. R., 128 U. S., 95. In Lloyd v. Hanes, supra, it is held that there is a wide distinction between more knowledge of danger and voluntary assumption of risk. The latter is a “matter of defense analogous to contributory negligence to be passed on by the jury, who are to say whether the employee' voluntarily assumed the risk. It is not enough to show merely that he worked on knowing the danger, but further, it is only where the machinery is so grossly and clearly defective that the employee must know of the extra risk, that he can be deemed to have voluntarily and knowingly assumed the risk.” These principles have been approved and emphasized in more recent opinions of this Court as reported, one of which is very much in point here, Hux v. Reflector Co., 173 N. C., 97. In that ease the Chief Justice said: “Upon the above synopsis of the evidence the judge properly refused to nonsuit the case. The machine at which the plaintiff was injured was thirty-five years old; the cogs were exposed and not boxed in any way; there was no safety lever or any other kind of lever to stop the machine. The machine was more dangerous than new machines, and it was not in general use. The plaintiff was doing his duty at the time he was injured; and the defendant’s general manager and floor boss both knew the defective condition of the machine and had seen it at work. The case was properly submitted to the jury,” citing Ainsley v. Lumber Co., 165 N. C., 122; Steeley v. Lumber Co., 165 N. C., 27; Kiger v. Scales Co., 162 N. C., 133; Creech v. Cotton Mills, 135 N. C., 680, and other cases. If we reject that portion of the evidence which is unfavorable and accept that as true which is favorable to the plaintiff, there is sufficient to sustain his cause of action. There is sufficient testimony of his own for the jury as against the motion to nonsuit. Whether he exercised ordinary care in operating the machine, was not a question of law, but of fact, to be settled by the jury. We may select such testimony as will justify a verdict for him, as that which is true, and reject what is left, as untrue, because the jury may have done that very thing in passing upon the testimony. Whether he kept his hand upon the machine too long, and whether, if he did, it was negligence for him to do so, was plainly for the jury to decide. [160] It may be that upon a fair construction of the evidence, and giving tbe plaintiff the full benefit of that part of it which is favorable to him, the doctrine of res ipsa loquitur applies, and, if it does, the nonsuit was properly denied. We have given careful consideration to the case, and to the able argument of defendant’s counsel, and, after doing so, we-have been unable to discover any error committed by the court. No error.