Sentell v. Norris Cotton Mills ( 1919 )

The opinion of the Court was delivered by

Mr. Justice Gage.

The plaintiff had a verdict for $3,000 for the loss of his left arm by the teeth of a carding machine in a cotton mill.

There are eleven exceptions; but the one issue argued at, the bar and in the printed points arises out of the refusal of che Court to direct a verdict for the defendant: (1) Because there was no proof of negligence by the defendant; (2) because the plaintiff assumed the risk of the task he was at; C3) because the injury to the plaintiff was caused by a fellow servant of his.

The complaint charged' as many as seven delicts by the defendant. Of course, if there was testimony tending to prove one sufficient delict which was a proximate cause of the injury, and not affected by the three defenses above stated, then the Court ought to have sent the case to the jury. There will be no need, therefore, to consider all the seven delicts charged, nor in such event to consider perhaps all the defenses above stated.

The gist of the action, and of all such, is that under all the instant circumstances the defendant failed in the performance of its whole duty towards the plaintiff. Duty is the test of responsibility. There is no need to recite the testimony.

The truth of the postulate which next follows will not be denied. If the plaintiff, hitherto a farmer by life long practice and a man of 50 years, was solicited by the defendant more than once to quit his farm and enter the service of the mill, because of the scarcity of help there, and if the plaintiff yielded to the solicitation and entered such service, and if the plaintiff was put to strip cards with but a meagre experience in cotton mills, and met with this accident after two and a half days’ service, and if no instructions had been given him about the difficulties and dangers of that work, about which he was not practiced, and if he was put to labor on a cloudy and rainy day, in a mill darkened on the side he worked at by the state of weather and by a precipitous elevation of the ground there so as to conceal the dangers there present, and if as the proximate result of all this the man lost his hand by the revolving card cylinder while wiping off a carding machine, incident to stripping the cards, then the defendant is liable to the plaintiff, if the jury should conclude that the circumstances recited convicted the mill of a lack of due care towards the plaintiff, and should further find that the plaintiff had not defeated his right by a lack of due care on his part, and should further find that the risk was hidden and had not been assumed by the plaintiff as a pa>t of his contract of service.

The testimony tends strongly to make such a case, and it was properly sent to the jury.

In this view, the issue of fellow servant goes out of the case; for there is no dispute but that the master put the plaintiff to work where he was hurt.

Judgment affirmed.

Messrs. Justices Hydrick, Watts and Fraser concur. Mr. Chiee Justice Gary did not sit.