Kiser v. Hot Springs Barytes Co.

CLARK and DOUGLAS, JJ., dissenting. The plaintiff in a civil action is required to set out in his complaint a plain and concise statement of the facts which constitute his cause of action. On the trial he must make good his allegations by competent evidence. The defendant is supposed to state in his answer his defense to the allegations of the complaint, and to be prepared at the trial with evidence to make good his defense. It seems to us, from a careful reading of the complaint, that the plaintiff offered no evidence to sustain his allegations. The plaintiff, a young man nineteen years of age, in the original complaint alleged that he was employed by the defendant company in January, 1897, to operate what is known as the dryer in the defendant's business of manufacturing lumber, and that he continued in that line of work until 19 April, 1899, when he was transferred, by order of the superintendent, to work on the planer in the cooper shop of said defendant's works; that the machinery was dangerous, and that he was ignorant of the dangers attending the operation of the machinery he was put to work upon; and that the (608) defendant company "grossly and carelessly neglected to inform him of the danger connected with the operations of said planer, and carelessly and negligently permitted the said Thomas A. Kiser to attempt to run and operate said machinery, as he had been ordered to do as aforesaid, without instructing him in regard to the correct manner in which the said machinery should be operated and managed." He further alleged in the complaint that on account of the said negligence *Page 431 of the defendant he, while attempting to carry out the instructions of his employer, received a severe and dangerous wound in his hand, to his great damage. In the complaint there was the further allegation that the defendant had permitted, carelessly and negligently, the planer to become encumbered and choked with shavings, so that it concealed from view the knives of the planer and impeded its operation, and that while in that condition the defendant, through its superintendent, ordered the plaintiff to aid in its operation, and negligently failed to instruct the plaintiff in the manner of operating the machinery and to point out its dangers.

And further, that the plaintiff was ignorant of the manner of operating the planer, and unable to see the dangerous parts of the machine on account of the accumulation of shavings, and that the plaintiff received his injury through the negligent failure of the company to instruct him and inform him in the operation of the machinery, and in negligently failing to point out its dangers. Afterwards the plaintiff filed another complaint, with two causes of action, the first of which contained the same allegations as were set forth in the original, but with the addition that the father of the plaintiff made the contract with the defendant company for the employment of his son, the plaintiff, and that it was expressly stated at the time of the contract of employment that the plaintiff should not be required to work in any department of the said defendant (609) company's establishment where there was danger of receiving injury from the operation of the machinery; that under that agreement and contract the plaintiff entered the service of the defendant and operated the dryer until 19 April, 1899, when he was transferred to the cooper shop to work on the planer, and received the injury of which he complained. The second cause of action was for damage for a violation of the contract of employment, the breach complained of being the transferring of the plaintiff to the work on the planer from his work at the dryer.

All of the evidence tended to show that the plaintiff was not put to the work of manipulating or operating the planer, but was engaged in bearing off to a convenient place the dressed lumber as it came from the machine. In fact it does not appear clearly that the plaintiff was directed to work at the machine. In his own testimony he says: "I went up to help make barrels, and that (getting out some timber with which to make the barrels) was the first thing I saw that needed to be done. I saw that there was no lumber planed and that Mr. Sowers was back there. I could see that there was no lumber planed when *Page 432 I went up, and that is why I went to work at the planer. My brother did not tell me to go to the planer and Terry did not tell me anything, only to go up to the factory and help make barrels. I never had any order from any one to work at this particular machine. I never talked to my brother or Terry about any machine in the cooper shop. I can't be mistaken about this. I do not remember that Terry was in the factory that day or the evening before. I did not go to the machine voluntarily and commence work exactly."

His own testimony showed that no instructions about the dangerous character of the machine was necessary. He knew the knives were there and that they were dangerous. It would have been of no service to him to have been told by the (610) company's superintendent to be careful and not to come in contact with the knives. This is not a case like that of Sims v. Lindsay, 122 N.C. 678, where the plaintiff, a young girl wholly inexperienced and not having been instructed in the care of the machine, on being required by her employer to operate with her hands an ironing machine, which was dangerous in its construction and operation, was injured in the performance of her work. As to the allegations that the contract was made with the defendant by the father of the plaintiff, the proof was all the other way. The father testified that the contract he made was with another operator of the machinery, a man by the name of Doherty, although, as we have already stated, it had been alleged in the complaint that he had made the contract with the present defendant. His exact language was as follows: "Never had any contract with any one but Doherty about how my son was to be worked; contract with Doherty on or about January, 1897, as near as I can recall; contract was my son was not to be put anywhere where skill was required; no doubt about this; do not know that the word `skill' was used, but he was not to be put anywhere where there was any danger of being hurt; I knew the concern changed hands; my son continued to work after the change; I made no contract except with Doherty; son got 75 cents or 80 cents under him; after the change got little more, 85 cents to 87 cents." On that point the plaintiff testified as follows: "Terry paid me 87 cents, and Doherty 75 cents per day; I was working at the mill when it was sold, and after sale was off two or three months; I then went back and commenced work for Terry; I engaged to work for him myself; first work was unloading ore off of railroad cars; this lasted a day or two; I made no special contract to run the dryer." Terry said: "When I took charge as manager I found William Kiser there, and continued him in *Page 433 his work. I employed Thomas Kiser, the plaintiff, at the instance of his father and brother William. Both asked (611) me to give him work; think that William told me Tom had worked at the mill before; won't be positive; Tom was not employed for any specific work."

The plaintiff and the manager of the company at that time, months after Doherty had ceased to control and the business had been discontinued, both agreed that the contract was made by and between them, the father not being privy to it. This view of the case makes it unnecessary to discuss the question as to the defendant being negligent or whether the plaintiff contributed to his own injury, so ably argued by the counsel. There was no evidence going to support the allegations of the complaint, and judgment as of nonsuit ought to have been entered against the plaintiff, agreeably to defendant's motion.

Error.

The plaintiff in a civil action is ree quired to set out in his complaint a plain and concise statement of the facts which constitute his cause- of action. On the trial, he must make good his allegations by competent evidence. The defendant is supposed to state in his answer his defense to the allegations of the complaint, and to be prepared at the trial with evidence to make good his defence. It seems to us, from a careful reading of the complaint, that the plaintiff offered no evidence to sustain his allegations. The plaintiff, a young man nineteen years of age, in the original complaint alleged that he was employed by the defendant company in January, 1897, to operate what is known as the dryer in the defendant’s business of manufacturing lumber, and that he continued in that line of work until the 19th of April, 1899, when he was transferred, by the order of the superintendent, to work on the planer in the cooper shop of Said defendant’s works; that the machinery was dangerous, and that he was ignorant of the dangers attending the opera*608tion of the machinery he was put to work upon; and that the defendant company “grossly and carelessly neglected to inform him of the danger connected with the operations of said planer, and carelessly and negligently permitted the said Thomas A. Kiser to attempt -to run and operate said, machinery, as he had been ordered to do as aforesaid, without instructing him in regard to the correct manner in which the said machinery should be operated and managed.” He further alleged in the complaint that on account of the said negligence of the defendant, he, while attempting to carry out the instructions of his employer, received a severe and dangerous wound in his hand, to his great damage. In the complaint there was the further allegation that the defendant had permitted, carelessly and negligently, the planer to become encumbered and choked with shavings', so that it concealed from view the knives of the planer and impeded its operation, and that while in that condition the defendant, through its superintendent, ordered the plaintiff to aid in its operation, and negligently failed to instruct the plaintiff in the manner of operating the machinery, and to point out its dangers.

And further, that the plaintiff was ignorant of the manner of operating the planer, and unable to see the dangerous parts of the machine, on account of the accumulation of shavings, and that the plaintiff received his injury through the negligent failure of the company to instruct him. and inform him in the operation of the machinery, and in negligently failing to point out its' dangers. Afterwards, the plaintiff filed another complaint, with two causes of action, the first of which contained the same allegations as were set forth in the original, but with the addition that the father’ of the plaintiff made the contract with the defendant company for the employment of his son, the plaintiff, and that it was expressly stated at the time of the contract of employment that *609the plaintiff should not be required to work in any department of the said defendant company’s establishment where there was danger of receiving injury from the operation of the machinery; that under that agreement and contract, the plaintiff entered the service of the defendant and operated the dryer until the 19th of April, 1899, when he was transferred to the cooper shop to work on the planer, and received the injury of which he complained. The second cause of action was for damage for a violation of the contract of employment, the breach complained of being the transferring of the plaintiff to the work on the planer from his work at the dryer.

All of the evidence tended to- show that the plaintiff was not put to the work of manipulating or operating the planer, but was engaged in bearing off to a convenient place the dress'ed lumber as it came from the machine. In fact, it does not appear clearly that the plaintiff was directed to work at the machine. In his own testimony he says: “I went up to help make barrels, and that (getting out some timber with which to make the barrels) was the first thing I saw that needed to be done. I saw that there was no lumber planed, and that Mr. Sowers was back there. I could see that there was no lumber planed when I went up, and that is why I went to work at .the planer. My brother did not tell me to go to the planer, and Terry did not tell me anything, only to go up to the factory and help make barrels. I never had any order from any one to work at this particular machine. I never talked to my brother or Terry about any machine in the cooper shop. I can’t be mistaken about this. I do not remember that Terry was in the factory that day, or the evening before. I did not go to the machine voluntarily and commence work exactly.”

His own testimony showed that no instructions about the dangerous character of the machine was necessary. He knew the knives were there, and that they were dangerous. *610It would have been of no service to him to have been told by the company’s superintendent to be careful and not to come in contact with the knives. This is not a case like that of Sims v. Lindsay, 122 N. C., 678, where the plaintiff, a young girl wholly inexperienced, and not having been intrusted in the care of the machine, on being required by her employer to operate with her hands an ironing machine, which was' dangerous in its construction and operation, was injured in the performance of her work. As to the allegations that the contract was made with the defendant by the father of the plaintiff, tire proof was all the other way. The father testified that the contract he made was with another operator of the machinery, a man by the name of Doherty, although, as we have already stated, it had been alleged in the complaint that he had made the contract with the present defendant. His exact language was as follows: “Never had any contract with any one but Doherty about how my son was to be worked; contract with Doherty on or about January, 1897, as near as I can recall; contract was, my son was not to be put anywhere where skill was required; no doubt about this; do not know that the word ‘skill’ was used, but he was not to be put anywhere where there was any danger of being hurt; I knew the concern changed hands; my son continued to work after the change; I made no contract except with Doherty; son got 75 cents or 80 cents under him; after the change got little more, 85 cents to 87 cents.” On that point, the plaintiff testified as follows: “Terry paid me 87 cents, and Doherty 75 cents per day; I was working at the mill when it was sold, and after sale was off two or three months; I then went back and commenced work for Terry; I engaged to work for him myself; first work was unloading ore off of railroad cars; this lasted a day or two; I made no special contract to run the dryer.” Terry said, “When I took charge as manager, I found William Kiser there, and continued him in his work. *611I employed Thomas Kiser, the plaintiff, at the instance of his father and brother William. Both ashed me to give him work; think William told me Tom had worked at the mill before; won’t be positive; Tom was not employed for any specific work.”

The plaintiff and the manager of the company at that time, months’ after Doherty had ceased to control and the business had been discontinued, both agreed that the contract was made by and between them, the father not being privy to it. This view of the case makes it unnecessary to discuss the question as to the defendant being negligent, or whether the plaintiff contributed to his own injury, so ably argued by the counsel. There was no evidence going to support the allegations of the complaint, and judgment as of nonsuit ought to have been entered against the plaintiff, agreeably to defendant’s motion.

Error.

dissenting. The complaint alleges that the plaintiff, a minor at the time of the injury, was' employed by the defendant under a contract with his father; that he was “to operate the dryer, a position in which no special skill or knowledge of machinery was required,” and that it was expressly agreed “that the plaintiff should not be required to work in any department * * * where there was danger of receiving injury from the operation of machinery, * * * the defendant being informed that he was unskilled in the use of machinery and ignorant of the dangers attending its operations.” That the defendant had a planer which it failed to provide with proper appliances' to insure the safety of its employees, which was also defective and out of repair, so that it became clogged, and that the defendant negligently ordered the plaintiff to assist in operating said planer, and negligently failed to inform him of its defective and danger*612ous condition, or to instruct him in its use, and plaintiff being ignorant thereof, and of the dangers attending its operation, and knowing if he refused to obey he would be discharged, began work at said planer when ordered, and his right hand becoming caught in the machine, all the fingers and part of the thumb were cut off, permanently disabling the plaintiff. This is the substance, somewhat condensed, of the complaint.

J. A. Kiser, the plaintiff’s father, testified that his contract was that his son was not to work where there was any danger from machinery, and that his son was moved without his knowledge or consent and put to work in .cooper shop, where his fingers were cut off by the knives of the planer.

William Kiser testified that he was ordered by Superintendent Terry to make thirty-two barrels that day, and asked for more help, and two men were sent him and commenced work, one of them the plaintiff; that he knew the plaintiff did not know anything about the machine, and he started to him to show him about the machine, but the plaintiff was cut before he got there; that shavings were piled about the machine so that plaintiff could not have seen the knives if he had known they were there; that he had been trying for several days to get the shavings moved out of the way, and had told Superintendent Terry this ought to be done; that there was a protector or hood over the knives in front, but none over the rear knives, and if there had been, it would have prevented any one getting hurt; that the shavings cut by the front knives fall over the under knives; that if this machine had had the same appliances that are on other planers, he knows that it would not have clogged.

The plaintiff testified that he had been working at the dryer; that Terry ordered him to go up and help in the barrel factory; that he was injured while trying to get the shavings out of the way so the plank would come through the ma*613chine; that he tried to knock the shapings away, and his' hand was cut while doing this; that he had no instructions prior thereto about operating this machine; that he could not see the knives which cut his hand, the shavings being in the way, besides he could not see them without getting down and looking; that there was a rake in the mill, but it could not be used to any advantage, because the shavings were piled up.

W. H. Sowers, witness for the defendant, said on cross-examination that he did not see the rake there that morning, it may have been covered up in the shavings; that this was a dangerous piece of machinery for an inexperienced man to work at without instructions, and he does not know of any instructions being given to the plaintiff as to this machine; that the accumulation of shavings would have something to do with preventing a party from seeing the danger of the machine; that the evening before the accident he heard William Kiser tell Terry that a good many shavings had accumulated, and he would like to have them removed; that the accumulation of shavings increased the danger of all who came around the planer; that when the plaintiff was injured the shavings were piled up all around the planer two or three feet deep, except where the feeder and off-bearer stood, some four feet away; that this machine was not one with modern appliances, or it would not have been necessary to ralee the shavings from it; that these modern appliances take away the shavings by suction, and also protect the hands from exposure to the knives; that such modern appliances have been in use to his knowledge six or eight years; that the plaintiff, prior to the evening before, had never worked in the shop. This was in cross-examination of one of the defendant’s witnesses. There was other evidence for the plaintiff, and evidence in contradiction by the defendant, but on a motion to nonsuit, it is only necessary to consider if there is any evidence tending to show negligence; if so, its weight is for the jury.

*614There is both allegation and evidence, as above appears, that the defendant agreed that the plaintiff would not be put to work at dangerous machinery; that the plaintiff, a minor, was inexperienced and unaware of the danger attendant upon a planer, which the defendant’s' witness says was a dangerous machine for an inexperienced worker, and that suddenly, in violation of the contract, the defendant’s superintendent ordered the plaintiff to work at said machine; without giving him any instructions, and when the machine was clogged by shavings, concealing the knives underneath, which, besides* had no guards upon them; that the machine was unprovided with modern appliances, which the defendant’s witness stated had been in use to his knowledge six or eight years, and which he says would have prevented any accumulation of shavings, and have also1 protected the plaintiff’s hands; the same witness further Said he saw no rake there that evening, and it may have been covered up in the shavings, which were piled up two or three feet deep all around the planer. This was certainly testimony tending to prove negligence, which the Judge properly submitted to the jury. That under these circumstances, not seeing the knives underneath, and seeing, guards on the knives above, and being wholly uninstructed as to this machine, which was entirely new to him, and seeing no rake around, the plaintiff should have attempted to clear the shavings away with his hands, the only method he knew, does not present such a state of facts that the Court can d& clare, as' a matter of law, that the defendant’s allegation of contributory negligence was proved. Contributory negligence is an affirmative defence, and if there is no¡ evidence, the jury must answer it “No.” Sims v. Lindsay, 122 N. C., 678. Here, there being conflicting evidence, the jury answered that issue “No,” and the first issue “Yes,” and if there was any error in such responses, it was not an error of law but an error of fact, and hence not reviewable on appeal.

*615In Turner v. Lumber Co., 119 N. C., at page 399, this Court said.: “If the plaintiff was inexperienced in the use of machinery, and the knives were so arranged as to make them a hidden danger, such a danger is not to be obvious to inspection, then, if the defendant, by the use of ordinary care, 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.” Here, it did neither.

Among many similar cases that can be cited are Myers v. Lumber Co., 129 N. C., 252, where shavings were allowed to accumulate and the plaintiff slipped and fell against a saw running naked without a guard; also Dorsett v. Mfg. Co., at this term, in which the plaintiff was caught in cog wheels revolving near him. In both these cases, and many others similar, it was held that the question of negligence was for the jury. This is a far stronger case, for in neither of the above two cases was the plaintiff young and inexperienced, nor put to work at a dangerous machine without instructions, and contrary to his father’s contract, which was that he should not be exposed to such risks.

The other exceptions are without merit, and require no discussion.