Cochran v. . Mills Co. , 169 N.C. 57 ( 1915 )

After stating the case: It is our duty, in construing evidence a motion to nonsuit, to view it most favorably for the plaintiff, and when thus considered, if there is any evidence to sustain the charge of negligence in this case, the motion necessarily fails. We not only think there is some evidence of such negligence, but that, taken as an entirety, the evidence strongly supports the verdict. A simple narrative of the facts will make this clear. The plaintiff had been engaged in running the machinery at this mill for several years. When a belt dropped from the pulley he had always replaced it in the same way that he did on this occasion, when he was injured, that is, by climbing the improvised ladder described by him as being made of cross-pieces nailed to a post, and getting upon the bill, which was just above the motor and rested upon it. Then he stood and steadied himself by grasping an iron pipe overhead with the left hand, and with the other hand replacing the belt on the pulley. He had done this repeatedly without injury to himself, and it was the method he was (61) directed to use by his superiors, and often was done in their immediate presence and in full view of them. The jury have acquitted him of contributory negligence, and we think properly, as we can see no evidence of carelessness on his part, though the court submitted the question to the jury under fair and correct instructions, at least to the defendant. The only question then is, whether there was evidence of defendant's negligence. It appeared, and was, in fact, admitted, that the electric motor had a ground wire, which is always used with such motors "for protection and safety," and for the purpose of conducting the current to the ground. It was intended, it seems, or the jury might have so found, to prevent just such horrible accidents as this one, and if it be conceded that there was no evidence that the motor itself was defective, it still remains that an accident has occurred, which was unusual, and which did not occur when the ground wire was there and when care was used by the defendant. The jury had the right to infer that it was due to the absence of the ground wire. We do not mean to say that this was the only conclusion to be drawn from the evidence, but it surely was one of the legitimate inferences, and if so, it defeats the motion for a nonsuit. The only contention that suggests the opposite conclusion is one based upon the answer of an expert witness on cross-examination, when he said that the pipe might have become "alive," that is, as we understand it, charged with electricity, even if the ground wire was attached to the motor and the latter was in good condition, it depending upon the condition of the ground; for if it was damp, there would be no shock, but if dry and the pipe was a better "ground," there would be no shock, and the person handling it might get as much as 550, 600, 700, or 800 volts, regardless of the presence of the ground wire or the condition of the motor. But if this be so, defendant is then confronted with the principle that it would be evidence of negligence to permit such a condition of danger to exist, when its duty was to furnish a reasonably safe place for its employee to do his work, and especially without giving him some warning if the danger, so that he could avoid it, if possible. We have defined the master's duty, in this respect, to his servant in numerous cases: Marks v. Cotton Mills,135 N.C. 290; Patterson v. Nichols, 157 N.C. 407; Pigford v. R. R.,160 N.C. 93; West v. Tanning Co., 154 N.C. 48; Tate v. MirrorCo., 165 N.C. 273. We have held in a number of cases what is the measure of the master's duty towards his servant. Thus we said inSteele v. Grant, 166 N.C. 635, that "The duty of the master to provide reasonably safe tools, machinery, and place to work does not go to the extent of a guarantee of safety to the employee, but does require that reasonable care and precaution be taken to secure safety, and this obligation, which is positive and primary, cannot be avoided by a delegation of it to others for its performance. The master's duty, (62) though, is discharged if he does exercise reasonable care in furnishing suitable and adequate machinery and apparatus to the servant, with a reasonably safe place and structures in and about which to perform the work, and in keeping and maintaining them in such condition as to afford reasonable protection to the servant against injury. R. R. v. Herbert, 116 U.S. 642; Gardner v. R. R.,150 U.S. 349; R. R. v. Baugh, 149 U.S. 368; Steamship Co. v. Merchant,133 U.S. 375. This undertaking on the part of the master is implied from the contract of hiring. Hough v. R. R., 100 U.S. 213. The rule was stated and applied in Mincey v. R. R., 161 N.C. 467, citing the above authorities, and it has been frequently recognized in many other cases. The difficulty is not in the expression of the principle, but in the application of it to any given statement of facts. But this case does not present any such difficulty, as the facts are simple and practically uncontroverted." And so we say here, that this case is free from any difficulty in applying this elementary rule. The facts are simple and practically undisputed. There must have been a defect in the apparatus somewhere, either in the absence of a ground wire or in the electric motor itself, or in the general plan of construction of the complete machine, else the current would not have surcharged the pipe with electricity, making it a dangerous and deadly piece of the machinery for plaintiff, while performing, in the usual manner, the work assigned to him; and even if this was unavoidable, then it was plainly defendant's duty to warn him of this danger, so as to put him on his guard. The servant has the right to assume that his master will not needlessly or negligently expose him to danger. Mercer v. R. R.,154 N.C. 399; Britt v. R. R., 144 N.C. 253. "If an occupation, attended with danger, can be prosecuted by proper precaution without harmful results, such precaution must be taken, or liability for injuries will follow if they ensue; and if laborers, engaged in such occupation, are left by their employers in ignorance of the dangers incurred, and suffer in consequence, the employers are chargeable for their injuries." Woodv. McCabe, 157 N.C. 457. "Generally speaking, an employer is bound to warn and instruct his employee concerning dangers known to him, or which he should know in the exercise of reasonable care for their safety, and which are unknown to them, or are undiscoverable by them in the exercise of such ordinary and reasonable care as in their situation they may be expected and required to take for their own safety, or concerning such dangers as are not probably appreciated by them, by reason of their lack of experience, their youth, or through general incompetency or ignorance; and unless the servant is so warned or instructed, he does not assume the risk of such dangers; but if he receives an injury without fault on his part, in consequence of not having received a suitable warning or instruction, the master is bound to indemnify him therefor." Thompson on Negligence, sec. 4055;Norris v. Mills, 154 N.C. 474. There was evidence of a neglect (63) of duty by the defendant in both respects, especially when it is considered favorably for the plaintiff, as it should be, and it was for the jury to say what were the facts. But as plaintiff's evidence made out at least a prima facie case, the nonsuit was properly disallowed. We have recently so fully discussed the doctrine of res ipsa loquitur as applicable to cases of this kind that it would seem to be unnecessary to add anything to what has already been said upon the subject. In Shaw v. N.C.Public-Service Corporation (this defendant), 168 N.C. 611, we reviewed the authorities, and thus stated the principle: "When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have control of it use the proper care, it furnishes evidence, in the absence of explanation by the defendant, that the accident arose from want of such care," citing several cases, and among them, Ridge v. R. R.,167 N.C. 510. This rule of the law has been frequently applied to cases involving negligence in the management of electrical machines and appliances, as will appear by reference to Haynes v. Gas Co., 114 N.C. 203;Mitchell v. Electric Co., 129 N.C. 169; Turner v. Power Co., 154 N.C. 131;Harrington v. Wadesboro, 153; N.C. 437; Houston v. Traction Co.,155 N.C. 4; Starr v. Telephone Co., 156 N.C. 435; Hicks v. TelegraphCo., 157 N.C. 519; Ferrell v. Cotton Mills, 157 N.C. 528; Benton v.Public-Service Corporation (this defendant), 165 N.C. 354, and in some of these cases the defendants were held to be liable where the negligence was not as pronounced, or as clear, as it is in this case. It is not suggested that the fault was due to the electric company in supplying too strong a current or more voltage than the defendant's contract called for, even if this would tend to exonerate defendant. The fault was on the inside. The plaintiff knew nothing about the motor or its accessories, whether they were in order or not, but the defendant did know, or should have known by the exercise of proper care. We require a high degree of care in the use of such a deadly agency as electricity. The Court said in Mitchell's case,supra, and approved in Ferrell's case and Shaw's case, supra: "In behalf of human life, and the safety of mankind generally, it behooves those who would profit by the use of this subtle and violent element of nature to exercise the greatest degree of care and constant vigilance in inspecting and maintaining the wires in perfect condition."

Whether it was negligence on the part of the plaintiff, that is, contributory negligence, not to have shut off the current at the switch before going upon the sill and grabbing the pipe, was plainly a question for the jury, and it was submitted to them with proper instructions. In substance and in principle the case is not unlike Shaw v. N.C.Public-Service Corporation (this same defendant), 168 N.C. 611.

The questions to the expert were properly framed and were (64) supported by evidence. Summerlin v. R. R., 133 N.C. 554;Parrish v. R. R., 146 N.C. 125; Shaw v. N.C. Public-ServiceCorporation, supra. Besides, it appears that upon striking a general balance the advantage of all the questions and answers was largely in favor of defendant. If there had been error, no harm would have resulted to defendant.

A careful review of the facts constrains us to sustain the judgment.

No error.

Cited: Wooten v. Holleman, 171 N.C. 464; Dunn v. Lumber Co.,172 N.C. 136; Brown v. Mfg. Co., 175 N.C. 203; McMahan v. Spruce Co.,180 N.C. 643; Ramsey v. Power Co., 195 N.C. 791; Dempster v. Fite,203 N.C. 708; McClamroch v. Ice Co., 217 N.C. 108.