Opinion
(Decided 3 May, 1898.)
Action for Damages — Master and Servant — Defective Machinery — Negligence — Contributory Negligence — Question for Jury — Sufficiency of Evidence — Trial.
1. The burden of proof on an issue as to contributory negligence rests upon the defendant, and while the court can hold that a party upon whom rests the burden of proof has failed to offer any evidence to sustain it, it cannot adjudge that he has proved his case, for where there is any evidence the jury alone can pass upon its truth.
2. Where, in the trial of an action for damages for an injury sustained by the plaintiff, an operator in a laundry, by reason of a defective machine at which she worked, the plaintiff testified that she thought the machine was more dangerous than a former one she had used, but that nobody had explained the machine to her and she did not know a guard was necessary, and that she had to put her fingers close up to the rollers to get the linen in: Held, that such evidence did not necessarily prove the plaintiff to be guilty of contributory negligence.
3. An operative, by not declining to work at a machine lacking some of the safeguards which she has seen on other similar machines, does not thereby waive all claims for damages from the defective machine, unless it be so plainly defective that the employee must be deemed to know of the extra risk.
ACTION for damages for an injury caused the plaintiff by the (679) alleged negligence of defendants and the unsafe and defective condition of a "mangle," at which plaintiff was employed to work, tried before Timberlake, J., and a jury, at July, Special Term, 1897, of BUNCOMBE.
A. S. Barnard for plaintiff. (681)
H. B. Stevens for defendants.
The plaintiff, who sues by her next friend, was a girl 13 years of age at the time of the injury, whose hand was mashed in the rollers of a mangle in a steam laundry, necessitating the amputation of the fingers of the hand. It was in evidence that the defendant had admitted that the accident was caused by the guard having been taken off, and that he knew it was off that morning when the girl went to work.
At the close of the evidence the defendant demurred under Laws 1897, ch. 109, "on the ground that the plaintiff's testimony showed she had been guilty of contributory negligence in working at the machine for five days, with knowledge of the absence of the guard and of the dangerous condition of the machinery." The court sustained the demurrer, and in this there was error.
The burden of contributory negligence was on the defendant, and while the court can hold that a party, on whom rests the burden of proof, has failed to offer evidence to sustain it, it cannot adjudge that he has proved his case, for when there is evidence the jury alone can pass upon its truth. Ice Mfg. Co. v. R. R., post, 881, and several other cases at this term.
(682) Besides, the girl's evidence did not prove her guilty of contributory negligence. She said she thought this machine was more dangerous than a former one she had worked at which had a guard, but that nobody had explained the machine to her, and she did not know that the guard was necessary, nor that this machine ever had a guard, and that she had to put her fingers close up to the rollers to get the linen in. It is not to be held as a matter of law that operatives must decline to work at machines which may be lacking in some of the improvements or safeguards they have seen upon other machines, under penalty of losing all claim for damages from defective machinery. It is the employer, not the employee, who should be fixed with knowledge of defective appliances and held liable for injuries resulting from their use. It is only where a machine is so grossly or clearly defective that the employee must know of the extra risk that he can be deemed to have voluntarily and knowingly assumed the risk. Where the line is to be drawn must depend largely upon the circumstances of each case, but they must be such as to show that the employee had full knowledge of the unusual risk and deliberately assumed it. Such a state of facts was not conclusively shown by the plaintiff's evidence in this case. If such inference could be drawn from it, it was in the province of the jury, not of the court, to draw it.
New trial.
Cited: Lloyd v. Hanes, 126 N.C. 362; Ausley v. Tobacco Co., 130 N.C. 40, 41; Kiser v. Barytes Co., 131 N.C. 614; Hicks v. Mfg. Co., 138 N.C. 327; Marks v. Cotton Mills, ibid., 405; Pressley v. Yarn Co., ibid., 414, 435; Sibbert v. Cotton Mills, 145 N.C. 312; Helms v. Waste Co., 151 N.C. 372; Walters v. Sash Co., 154 N.C. 326; Rogers v. Mfg. Co., 157 N.C. 486; Pigford v. R. R., 160 N.C. 97; Wright v. Thompson, 171 N.C. 93; Howard v. Wright, 173 N.C. 342.
(683)