Snyder v. Town of Asheboro, 182 N.C. 708 (1921)

Dec. 21, 1921 · Supreme Court of North Carolina
182 N.C. 708


(Filed 21 December, 1921.)

1. Appeal and Error — Unanswered Questions — Record.

The record on appeal must show what tbe answer to a question, ruled out at tbe trial, would bave been in order for appellant to-rely tbereon as error on appeal.

2. Appeal and Error — Instructions—Contentions—Objections and Exceptions.

An exception to tbe statement of tbe contentions of a party must be made at tbe time they were given in tbe charge to be available to appellant.

3. Negligence — Contributory Negligence — Due Care — Evidence.

Where there is evidence that tbe plaintiff, tbe bead miller in a grist mill, observing that tbe mill did not grind prpperly, and in order to remedy it, bad bis band injured by putting it in' tbe first brake while in operation; that tbe trouble with tbe mill was caused by tbe defendant’s employees while repairing it, without the knowledge of tbe plaintiff, it is competent and material for tbe defendant making tbe repairs to show plaintiff’s want of due care in so doing.

4. Same — Custom—Opinion—Experts—Questions for Jury.

Where it is competent for tbe defendant to show tbe plaintiff’s want of due care in placing bis bands upon a roller in tbe grist mill be was employed by another to operate, to ascertain why it did not properly operate, experienced witnesses may testify as to tbe custom in this respect in other like mills; but tbe question of its necessity or danger under tbe evidence of tbe case at bar is one for tbe jury, upon which tbe witness may not express bis opinion.

Appeal by defendant from Bryson, J., at March Term, 1921, of RANDOLPH.

*709Civil action for personal injury alleged to have been caused by tbe negligence of tbe defendant. Tbis action was instituted by tbe plaintiff Snyder to recover damages on account of injuries be sustained while working as bead miller of tbe Southern Crown Milling Company in tbe town of Asbeboro, N. C. Tbe mill was operated by electric current furnished by tbe defendant from a municipally owned and operated plant. On tbe day of tbe injury, tbe town bad notified tbe Southern Crown Milling Company and tbe plaintiff that it was necessary to suspend operations pending work on the transmission line necessitating tbe removal of some of tbe poles and tbe severance of tbe power transmission line. The transmission line, which was composed of three separate wires, connected wdtb a three-phase electric motor at the plant of tbe Southern Crown’ Milling Company, by which tbe machinery of tbe mill was operated. Tbis transmission Tine, composed of the three wires, carried an alternating three-phase current of 2,300 voltage. There was testimony indicating that in tbe course of the work that was done by tbe employees of tbe defendant upon tbe occasion in question, tbe relative positions of two of tbe three wires constituting tbe transmission line became transposed and resulted in the motor at tbe mill running backward instead of forward as it bad been accustomed to do, when tbe current was turned on. After tbe lapse of sufficient time, as be thought, for the work to -be completed, but before receiving actual notice that tbe power lines were ready for use, tbe plaintiff caused an employee of tbe mill to switch on tbe current of electricity, and tbe plaintiff himself threw in gear tbe brakes or rolls in tbe usual way, starting tbe operation of tbe plant. The machinery thereby put in operation all operated backward and opposite to tbe normal or proper way. The plaintiff, who insists be did not at tbe time notice that tbe machinery was operating backward, went to tbe first brake or set of rolls, tbe place where tbe grinding of tbe grain was commenced. Tbe brake contained two horizontal corrugated or grooved iron rolls, side by side, revolving together at tbe top and away from each other at tbe bottom when in use in tbe proper way, taking in tbe grain from above and crushing it as it passed' between tbe corrugated rolls. These rolls were operated by belts and pulleys running at high speed in plain view of tbe operator. Tbe plaintiff immediately after putting tbis machinery in operation went to tbe first brake, inserted bis band and arm in an opening in tbe stand underneath tbe rolls, and observing that tbe rolls were not crushing tbe wheat as they should, put bis band up against tbe revolving rolls and bis fingers were drawn inward, up and between tbe rolls, resulting in tbe injury to bis band and arm complained of. Tbe plaintiff contends that it was necessary that be place bis bands upon tbe revolving rolls of tbe brake as be did at tbe time of tbe injury, for tbe purpose of determining *710wbetber or not they were properly adjusted; whether they were heating; and whether they were gummed up with wild onions or the crushed grain; and that it was customary for millers to put their hands upon the rolls while in operation as he did for that purpose. The defendant contends that this was neither necessary nor customary, and was dangerous and liable to cause injury, even when the rolls were operating in the proper direction. The case was submitted to the jury upon the three issues of negligence, contributory negligence, and damages.

Brittain & Brittain and J. B. McCrary for plaintiff.

H. M. Robins for defendant.

Adams, J.

A change in the relative position of certain wires which were connected with the electric motor caused the iron rolls to revolve upward instead of downward; and the plaintiff, upon observing that the rolls were not adequately crushing the grain, placed his hand underneath and upon the rolls in search of the cause, when by reason of the reverse revolution his hand and arm were caught in the machinery and injured. The defendant contended that the proximate cause of the injury was the negligent act of the plaintiff in thrusting his hand into the machinery without apparent necessity. Evidence tending to show the plaintiff’s want of due care was, therefore, both pertinent and material. But the defendant’s exceptions to his Honor’s statement of the plaintiff’s contention concerning the established custom of examining the rolls cannot be sustained because no objection was made by the defendant at the time. Phifer v. Comrs., 157 N. C., 150. Ve presume the exceptions were intended to show the importance as well as the competency of evidence which the defendant sought to elicit from R. D. Bost. This witness was asked whether it was customary for the miller to put his hand upon the rolls of the first brake in order to determine its condition. The witness was not permitted to answer. It is not necessary to determine whether the witness had shown that he was qualified to answer, or to decide whether the evidence proposed was competent on the question of due care. Since the record fails to disclose what the witness would have said, we cannot assume that his answer would have been favorable to the defendant. It would be vain to grant a new trial upon the hazard of an uncertain answer by the witness. In re Smith's Will, 163 N. C., 466; Dickerson v. Dail, 159 N. C., 541; Boney v. R. R., 155 N. C., 95; Fulwood v. Fulwood, 161 N. C., 601; Schas v. Assur. Society, 170 N. C., 421. Exceptions 6, 12, and 13 cannot be sustained.

"We are unable to see wherein the admission of the evidence to which the seventh and eighth exceptions relate constitutes reversible error.

*711Bufus Brady, a witness for the defendant, was not permitted to say whether it was necessary for a miller in the performance of his duties in a mill like that in which the plaintiff was injured to put his hand on the first brake while it was in operation, in order to determine its condition. The objection to the question was properly sustained. It is true that in certain circumstances a person of adequate knowledge and experience may testify whether a particular act is necessary to the accomplishment of a particular result; but in this case whether there was such necessity was a matter for consideration by the jury in their ultimate determination of the question of due care on the part of the plaintiff. Besides, the record does not suggest what the answer of the witness would have been had the evidence been admitted.

Whether there was danger in putting the hand underneath the roll was likewise a question for the determination of the jury upon all the evidence indicating the character, motion, and general operation of the machinery by which the plaintiff was injured. Exceptions 7, 8, 9, 10, and 11 must be overruled. The others are merely formal.

The case seems to have been carefully tried, and the record is free from error.

No error.