Opinion
(Filed 20 December, 1902.)
PLEADINGS — Complaint — Answer — Allegata — Probata — Negligence.
In this case the evidence offered by the plaintiff does not sustain the allegations of the complaint as to the negligence of the defendant.
ACTION by Thomas A. Kiser, by his guardian, against the Hot Springs Barytes Company, heard by Judge W. B. Councill and a jury, at August Term, 1902, of MADISON. From a judgment for the plaintiff the defendant appealed.
(607) Gudger McElroy and C. B. Mashburn for the plaintiff.
Merrimon Merrimon for the defendant.
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 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 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 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.