Mills v. Marion Manufacturing Co.

150 S.E. 92, 198 N.C. 145, 1929 N.C. LEXIS 438

• Court: Supreme Court of North Carolina
• Decided: December 30, 1929
• Status: Published

Opinion

Beogden, J.

1. Is it evidence of negligence to require a workman to clean machinery while in motion ?

2. If so, does the act of the workman in so cleaning the machinery constitute contributory negligence or assumption of risk as a matter of law?

These propositions were considered by this Court in Marks v. Cotton Mills, 138 N. C., 401, 50 S. E., 769. The rule was thus declared: “To prevent misconception, we desire to say that our decision in this case, based upon the admitted facts, is simply that the allegation of negligence in ordering the machine to be cleaned while in motion should be submitted to the jury; that if they find the issue for the plaintiff, the question of assumption of risk or contributory negligence, alleged to arise out of his remaining in the service, should also be submitted to the jury.” Noble v. Lumber Co., 151 N. C., 76, 65 S. E., 622; Breeden v. Mfg. Co., 163 N. C., 469, 79 S. E., 960; Lynch v. R. R., 164 N. C., 249, 80 S. E., 173; Ensley v. Lumber Co., 165 N. C., 687, 81 S. E., 1010; Maulden v. Chair Co., 196 N. C., 122, 144 S. E., 557.

The evidence discloses that the plaintiff was required to place a ladder between running belts in order to clean the hanger. These belts, according to the evidence, were not more than 14 or 15 inches apart, and while he was not actually engaged in cleaning a running part of the machine, it must be apparent that the small space between the belts rendered the place of work dangerous and hazardous. Plaintiff was an experienced employee, and of course appreciated the danger, but the question as to whether the danger was so open, obvious, and imminent that no man of ordinary prudence would continue in the employment, must be submitted to the decision of a jury. Maulden v. Chair Co., supra.

No error.