Hall v. Tomlinson Chair Co.

119 S.E. 823, 186 N.C. 469, 1923 N.C. LEXIS 272

Opinion

Stacy, J.

Plaintiff was injured while working at a shaper machine, which, it is alleged, was “old, out of date and not safe and suitable for the work being done.” Defense is interposed chiefly upon the ground that the machine was very simple; that the danger, such as it was, was open and obvious, and that the plaintiff assumed the risk of his injury. There was also a plea of contributory negligence. In fact, the pleas of assumption of risk and contributory negligence were both submitted under the second issue; and this, under authority of Hickes v. Mfg. Co., 138 N. C., p. 333, is a matter which must be left largely to the legal discretion of the presiding judge.

There was ample evidence tending to show negligence on the part of the defendant; and neither the allegation of assumption of risk nor that of contributory negligence was established on the hearing. The burden of proof rests with the defendant on both of these defenses. Dorsett v. Mfg. Co., 131 N. C., p. 261; Fleming v. R. R., 160 N. C., 196.

The record presents no reversible error, and hence the judgment below will be upheld.

No error.