
    JONES v. WAREHOUSE CO.
    (Filed December 20, 1904).
    1. OPINION .EVIDENCE — Experts—Negligence.
    Wliere there was evidence that plaintiff’s injury was sustained by his falling from a truck six inches high, as claimed by defendant, and also that it was the result of being caught in a belt a week later and thrown against a post in the wall, as claimed by plaintiff, it was proper to ask a physician his opinion, under all the circumstances surrounding both accidents, as to which he would attribute plaintiff’s injury.
    2. OPINION EVIDENCE — Experts—Harmless Error.
    
    Tn an action for personal injuries, a physician was asked, “A person falling vertically, what is the result?” and he answered, “It might cause concussion of ihe spinal cord.” While the form of the question may be open to criticism, the answer was harmless, as it was merely what common experience would suggest to any mind.
    3. NEGLIGENCE — Master and Servant- — Proximate Cause.
    
    Wliere a master directed a servant to do certain work in a manner not reasonably safe, and the performance of the work in the manner directed was the proximate cause of injury to the servant, the master was guilty of negligence.
    
      4. NEGLIGENCE — Assumption of Risk — Master and Servant.
    
    Where the plaintiff had worked a machine four weeks, and the danger of bein'g injured if he was caught in the driving belt and pulley attached to it was open, obvious and known to him, and after such knowledge he continued to work at such machine, he assumed the risk incident thereto.
    Montgomery, J., dissenting.
    ActioN by R. A. Jones against the American Warehouse Company, heard by Judge W. B. Allen and a jury, at March Term, 1904, of the Superior Court of Eoesytii County.
    The plaintiff alleges that he was in the employment of the defendant company in its finishing mill near the town of Spray, N. 0. That he was directed by the defendant’s superintendent to work at a machine known as a “napper.” That there was attached to said machine a large pulley run by belting connecting with the shafting overhead. On the inner or lower side of the machine was a smaller pulley which drove a fan or other part of the machinery and is run by a smaller belt. This smaller pulley is not grooved, and the belt at times slips and has to be replaced by the operator. Defendant’s superintendent, who had control of the department where plaintiff worked and directed and controlled plaintiff, told him not to stop the machine when the smaller belt slipped; that he could safely replace the belt without stopping the machine, and ordered him not to stop the machine, but to replace the belt, if it should slip, while the machine was in operation. That plaintiff was ignorant of the machinery, having only a few months’ experience, as defendant well knew. That plaintiff, under the command and direction of the superintendent, whom he thought an experienced operator and well acquainted with the machinery and its operation, attempted to replace the slipped belt as directed, when he was caught by the larger belt and hurled against the wall of the building, his back striking a post or wooden beam, and injured. That to attempt to fix said belt while the machine was in motion was a dangerous and hazardous undertaking, well known to defendant, or ought to have been well known to it, and, notwithstanding this fact, the defendant’s superintendent carelessly, negligently and recklessly ordered plaintiff, who was ignorant of the danger, to attempt to adjust the slipped belt during the operation of said machine. That by reason of being thrown against the post, as aforesaid, he was seriously injured, etc.
    The defendant admitted the manner in which the machine was constructed and operated — the way the belt was adjusted, etc. — but denied the allegation in all other respects. It also alleged that the “napper” was the newest and most-approved pattern, standard in make, and equipped with all approved safety appliances and safeguards in general use, etc. That necessarily the operation of such machine was attended with some risk, which is apparent upon an inspection of it, and this plaintiff well knew when he accepted the employment; that he operated two months without injury, etc.; that he assumed the risk incident to the employment.
    Defendant also alleged that if plaintiff was injured it was the result of his contributory negligence. The Court submitted, upon the merits, three issues: 1st. Was the plaintiff injured by the negligence of defendant? 2d. Did plaintiff, by his own negligence, contribute to his injury? 3d. Was there an assumption of risk on the part of the plaintiff?— an issue as to damage. The jury answered the first issue “Yes” and the second and third “No.” From a judgment upon the verdict the defendant appealed.
    
      Glenn, Manly & Hendren, for the plaintiff.
    
      B. D. Reid, R. W. Winston, Pou & Fuller, Watson, Buxton & Watson and Lindsay Patterson, for the defendant.
   Conner, J.,

after stating the facts.. The record contains sixty-three exceptions, many of which are directed to the same question and are properly taken to save the point. There was a motion at the close of the testimony to nonsuit, which was properly denied, thus disposing of exceptions 1, 2, 8, 9 and 10.

We will first discuss the exceptions to the admission and rejection of testimony. Exceptions from 12 to 16 inclusive cannot be sustained. Exceptions 17 to 18 are directed to the ruling upon the following question to Dr. A. P. Davis : “Suppose the facts to be, and the jury so find, that he (plaintiff), on the 28th or 29th of June, fell from a truck six inches high to a floor, upon his buttocks or partially so; that he made no complaint about it to any one as having received any injuries from it; that on the morning of the 3d of July he was thrown by a belt, with his back striking a studding in the wall — suppose the jury should find that to be the fact, and he worked then for a night, perhaps two nights, complaining of pain — to which of these causes would you contribute the injury?” To understand the purpose of this question, it is proper to say that there was evidence that on the 28th of June plaintiff was thrown from a truck six inches high and caught on his buttocks and his hands; that he did not feel any pain from this fall; that he was caught by the belt and thrown against the post on the latter part of the night of July 2d. lie explained the manner in which he was injured, etc. There was evidence tending.to show that plaintiff had said that he sustained the injury by falling from the truck, and evidence that he said he sustained it by being caught in the belt. Several physicians who attended him were examined as to his condition and the cause of it, etc. It was also in evidence that Dr. Davis had attended plaintiff. The plaintiff was insisting and seeking to show to the jury that he was injured by being caught in the belt, while the defendant was insisting’ and seeking to show that the injury was the result of the fall from the truck. It thus became relevant to have the opinion of the physicians.

Dr. Davis testified that he saw plaintiff on August 10th and the condition in which he found him- — -paralyzed, almost completely, from his lower extremities, etc. — and that he was permanently paralyzed, his limbs very much emaciated; that he would never walk, etc.; that his nerves were almost destroyed. In answer to the question objected to, Dr. Davis said: “Granting that the suffering was only after the last injury, I would more than likely attribute it to the latter.” lie was then asked: “A person falling vertically, what is the result ?” Answer: “It might cause concussion of the spinal cord.” The record shows that defendant objected to the question but not to the answer. This is necessary to present the question of its admissibility'upon appeal when it is not responsive to the question. Perry v. Jackson, 88 N. C., 103; Bost v. Bost, 87 N. C., 477. Passing -this objection, however, we think that while the form of the question may be open to criticism, the answer is so vague and indefinite that no possible harm could have been done to the defendant. The physician simply said what common experience would have suggested to any mind. It would seem quite self-evident without the aid of expert testimony that if a man has a. fall which causes no suffering, as in this case, one would more likely attribute the suffering to the last fall. This might have been found by the jury as a matter of common experience and observation or as material evidence. The exception cannot be sustained.

Mr. Thomas was asked the same question, and answered: “I would say this second injury; because a common fall, sitting-down fall on that end on a smooth floor is so frequent with no bad results. Still from a direct violence against the spine this is almost sure to produce some serious results.” In this instance the defendant excepts to the answer as well as to tbe question. We can see no valid objection to tbe answer. Tbe witness simply tells tbe jury wbat every man of common sense and observation knows to be true. This witness, after an examination as to tbe formation of tbe vertebras, spinal cord, etc., is asked a hypothetical question as to whether, in bis opinion, the injury to the plaintiff is permanent. Tbe defendant objects to tbe question but not to- tbe answer. We can see no valid objection to either. There was a great deal of testimony introduced by both parties of this character. We think that tbe exceptions to it are without merit. It was very important to enable tbe jury to come to a satisfactory conclusion in regard to tbe cause of tbe condition in which tbe plaintiff was conceded to be. Tbe physicians were intelligent and, so far as we can see, there was no marked difference in their opinions. All of tbe testimony showed that the plaintiff is seriously and permanently injured. We have examined the other exceptions to the admission and rejection of testimony and find no error. Ilis Honor instructed the jury upon each issue. Among other instructions he gave the following:

“Negligence is a want of ordinary care, a failure to exercise that care which a man of ordinary prudence would have exercised under the circumstances. It is a failure to perform some duty imposed by the law. The law imposes upon the master the duty of using ordinary care to provide for the servant reasonably sound and safe appliances and machinery, and a reasonably safe place and methods to do his work, and on entering into employment the servant has the right to assume that these duties have been performed, and may, without blame, act upon this assumption until some defect becomes so apparent that it may be discovered by the exercise of ordinary care. The master is not required to furnish the best machinery and appliances, nor is he required to provide the safest place or methods, but such as are reasonably safe. The law also requires tbe servant to exercise ordinary care for his own safety. It is also a part of the contract of employment that the servant assumes the ordinary risk of his employment and also the risk incident to dangerous work or dangerous methods of work if they are obvious.’'
“If you find from the evidence, and by the greater weight of the evidence, that the defendant directed the plaintiff to put the belt on the smaller pulley by placing his hands through the larger belt while in motion, and that this was not a reasonably safe way to do what he was required to do, and that while so doing he was injured, and that the unsafe way, as stated above, in which he was doing the work according to directions was the proximate cause of the injury to the plaintiff, then it will be your duty to answer the first issue ‘Yes.’ ”
“If the plaintiff has failed to satisfy you that the method adopted was not a reasonably safe method, the jury should answer the first issue ‘No.’ ”
“If the plaintiff has satisfied you that the method adopted was not a reasonably safe method, and he has failed to satisfy you that this was the real cause of his injury, the jury should answer the first issue ‘No.’ ”
“If the injury to the plaintiff was the result of an accident, the jury should answer the first issue ‘No.’ ”
“If upon a careful consideration of the evidence you cannot find how the fact is from the .evidence, the jury should find the first issue ‘No,’ for the reason that the burden upon that issue is upon the plaintiff.”
“While 'the law imposes a duty upon the master it also imposes a duty upon the servant. It requires him to exercise ordinary care for his own safety, to use his intelligence and his senses, and it holds him responsible if he is injured by his failure to exercise such care. It requires him to observe the machinery at which -he is working and the appliances used, and to discover those dangers which a man of ordinary prudence would discover, and if he fails to perform his duty and is injured thereby he cannot recover damages.”
“If you find, from the evidence, that the plaintiff had worked at this napper machine for four weeks, and that the danger of being injured if he was caught in the driving belt and pulley attached to it was open and obvious and known to him, and that after such knowledge he continued to work at said machine, you will answer the third issue 'Yes.’ ”
“If you find, from the evidence, that the plaintiff knew of the danger of attempting to replace the belt on the pulley while the machine was in operation, and appreciated the danger and continued to work at said machine, and attempted to replace the belt when it slipped off the pulley, then the plaintiff assumed the risk and you would answer the third issue 'Yes.’ ”
“Assumption of risk does not mean that in all cases where the defendant has knowledge of the defects of dangerous machinery and goes on with the work that he assumes the risk, but the law is that where the defendant fails to perform its duty and furnish the plaintiff with safe and suitable methods of doing the work, the plaintiff will not be held to assume the risk in undertaking to perform a dangerous work unless the act itself is obviously so dangerous that in its careful performance the inherent probability of the injury is greater than those of safety, or unless it is a danger ordinarily incident to the employment, or unless obvious, or one which the servant may discover by the exercise of ordinary care.”

The Court charged the jury fully upon the question of damages.

We have examined the charge and exceptions thereto with care, and find no error in the charge. The questions were largely for the jury, under the application of general arid well-recognize'd principles of law. The charge is clear and full. Tbe damages awarded are large, but that was a matter for tbe jury. Tbe plaintiff is a physical wreck. While we do not undertake to do more than suggest, from tbe cases which have been before us in which injuries have been sustained by operatives in cleaning, or otherwise putting their hands into dangerous places, while the machine is in motion, it would seem that economy as well as a regard for the safety of operatives would suggest that rules be made prohibiting, instead of commanding, such action by them. The courts recognize that persons working in mills and other employments where powerful and dangerous machinery is used assume certain risks, but it is the duty of superintendents and others having charge of the employees to use every reasonable precaution to protect them from injury.

The judgment must be

Affirmed.

Walker, J., concurs in result.

Montgomery, J.,

dissents. This action was brought to recover damages from the defendant because of personal injuries alleged to have been sustained by the plaintiff on account of the negligence of the defendant. The defendant denies that it was negligent, and avers that the plaintiff Avas injured by his own negligence, and that he assumed the risk of any injury which he suffered. The plaintiff in his complaint alleges that the defendant was negligent in tAvo respects: first, that it furnished the plaintiff, carelessly and knoAvingly, a dangerous and unsafe machine with which to do his work, and second, that it directed him to use the dangerous and unsafe machine in a manner which Avas not reasonably safe (the plaintiff being alleged to be an unskilled workman, and ignorant of the nature of the machine), and that by reason thereof he Avas injured in the operation of the machinery. After tbe evidence was all in, tbe Court said tbat tbe defendant need not offer evidence for tbe purpose of showing that tbe machine at which tbe plaintiff was hurt was a standard machine, as there was no evidence to tbe contrary. Tbat was true, and be anight have gone further and said tbat tbe machine by all tbe evidence was without fault. In bis charge, also, tbe Judge eliminated from tbe case tbe allegation tbat tbe defendant bad furnished an unsafe and dangerous machine for tbe plaintiff to do bis work with, and told tbe jury tbat tbe negligence of the defendant depended upon tbe question whether tbe defendant adopted and required tbe plaiartiff to use a method which was not reasonably safe. Nevertheless, be afterwards instructed tbe jury that it was the duty of tbe defendant to provide for its operatives not only safe machinery but reasonably safe methods. Tbat was an erroneous instruction, even if it be conceded tbat tbe defendant Avas to furnish safe machinery, for there had been a great amount of evidence on tbe character and construction of tbe machine offered by plaintiff in trying to prove an unsafe method of operating it, and under tbe first branch of tbat instruction the jury might have arrived at tbe conclusion tbat the machine itself was unsafe and dangerous, when tbat question bad been eliminated by tbe Judge as a matter of la\v upon tbe evidence from the trial of tbe case. Instead of giving tbat instruction, I think, be should have said to tbe jury tbat all tbe evidence in tbe ease went to show tbat tbe machine was a standard one, and in tbat connection tbat the only question for them to consider was whether or not the superintendent had compelled and directed tbe plaintiff to use tbe machinery jn an unsafe and dangerous method.

Tbe evidence in this case, in some respects, is most remarkable. The plaintiff himself testified that be was injured on tbe night of July 2, 1901, by being thrown by a belt in motion, attached to tbe machinery, against a post in tbe Avail while engaged in adjusting a part of tbe machinery in the manner as he was directed to do by the defendant’s superintendent. Several physicians, two of whom performed a surgical operation on him, attended the plaintiff in his sickness, and they testified that they examined him about the cause of his trouble, and that he told them he was hurt by having been thrown by one of the employees of the defendant, in a frolic, from a truck about six inches high, used in the warehouse of the defendant, and that he never mentioned to them'that he had received any injury through the means of the defendant’s machinery. He admitted himself that for months he had not told the managers of the defendant’s warehouse that he had been injured by the machinery, and that it was eighteen months after the alleged injury before this suit was brought. He also told his foster-father, a man by the name of C. E. Jones, that he was hurt by being thrown from the truck by one of the defendant’s employees, and he did not mention that he had been hurt by the machinery until sometime after he had stated he had been hurt by being thrown from the truck. There was evidence offered and received tending to show that the plaintiff, while standing on a truck in the defendant’s warehouse, was suddenly thrown to the floor, catching partly on his hands in a sitting position, by the truck having been kicked from under him by an employee of the defendant.

Hpon the evidence, the plaintiff’s counsel asked Hr. Havis, an expert witness, this question: “Suppose the jury should find that he was injured on the 28th or 29th of June, that he fell from a truck six inches high to a floor upon his buttocks or partially so, that he made no complaint about it to any one as having received any injuries from it, that on the morning of the 3d of July he was thrown by a belt with his back striking a studding in the wall — suppose the jury should find that to be the fact, and he worked then for a night, perhaps two nights, complaining of pain, to which of these causes would, you attribute the injury?” The question was allowed over the objection of the defendant. The objection was well taken and the question ought not to have been allowed. It was incompetent.

It is not necessary to go at length into a discussion of the question whether the evidence justified the recital in the question as to whether the plaintiff fell from the truck to the floor of the warehouse upon his buttocks. The evidence was that he fell from the truck to the floor and caught upon his hands in a sitting position. The difference in statement as to how he fell may not be serious enough to amount to a reversible error,' but there are faults in the question, both as to its substance and form, which make it under our decisions wholly incompetent. In the first place, there is no recital in the question of any evidence going to show the nature of the injury, the extent of it, or the condition of the plaintiff either before or at the trial, and second, there is assumed in the question the conclusion -that whatever injuries the plaintiff might have sustained (if they had been stated in the question) were caused by his falling from the truck or by being thrown by the belt against the wall. That was the very question to be decided by the jury, and expert testimony on the part of the witness could only be admitted on the ground that his scientific knowledge could aid the jury in arriving at a conclusion. The condition of the plaintiff and the nature of his injuries as brought out in the evidence were not repeated to the witness and his opinion asked thereon (in case the jury should find the evidence to be true), as to whether the fall from the truck or being thrown by the belt against the wall could or might have caused the injury to the plaintiff. It assumed that one or the other did cause the injury. It might have been that if the question had been properly asked, the witness might have answered that the facts being believed by the jury, in his opinion the plaintiff’s injuries were or could have been caused by his having been thrown by the belt against the wall, or, also, that in his opinion the fall from the truck might have produced the same result. And he might have said further that in his opinion the injuries were more likely to have been produced by the one than the other, as his judgment and scientific skill might dictate. The question should have been stated in a hypothetical form and not upon any assumption that the plaintiff’s injuries had been received in either of the ways mentioned in question. Rogers Expert Testimony, sec. 27; State v. Bowman, 78 N. C., 508; Summerlin v. Railroad, 133 N. C., 550. I think there should be a new trial.  