Medford v. Rex Spinning Co.

Adams, J.

The defendant excepted to the following instruction in regard to the plaintiff’s assumption of risk: “I again instruct you that upon the third issue the burden of proof is cast upon the defendant, and if you reach its consideration, if the defendant has satisfied you by the greater weight of the evidence that the injury to the plaintiff was the direct and proximate result of a risk assumed by him, then you would answer this issue ‘Yes’; if you are not so satisfied you would answer it No.’ ” In the same connection his Honor had previously said: “As applied to an investigation of this nature, the law recognizes that when one enters into service he assumes certain risks, and that if injured while in such service as a result of a risk assumed, no liability attaches to his master for such injury. I instruct you that one who enters the employment of another does not assume risks which arise from any failure upon the part of the master to perform such duties as the law fixes upon him. These are termed additional risks which are not assumed when the relation of employer and employee is entered into.”

The instructions embrace these three propositions: (1) the burden of proving assumption of risk is upon the defendant; (2) the plaintiff assumed only such risk as was incident to the work he was required to perform when properly conducted; (3) the plaintiff did not assume any risk arising from the defendant’s failure to perform the duty it owed the plaintiff. It will be seen that no reference is made to the position on which the defendant chiefly relied; that is, even if the defendant had failed to exercise due care in providing a reasonably safe place for work or reasonably safe and suitable appliances, still the plaintiff assumed the risk of injury by continuing his work with knowledge of impending danger.

It is true that, when the master’s negligence is the proximate cause of the servant’s injury, the injured servant shall not be barred of recovery by the mere fact that he works on in the presence of a known defect, even though he may be aware to. some extent of the increased danger; but if the danger is obvious and so imminent that no man of ordinary prudence, acting with such prudence, would incur the risk which the conditions disclose, the servant’s knowledge of such hazard *128 would be treated as falling within the class of ordinary risks generally assumed by him in the prosecution of his work. This principle, clearly stated in Hicks v. Mfg. Co., 138 N. C., 319, 327 , has been approved in several subsequent decisions.

Jones v. Taylor, 179 N. C., 293 ;

Howard v. Wright, 173 N. C., 339 ;

Wright v. Thompson, 171 N. C., 88 ;

Deligny v. Furniture Co., 170 N. C., 189, 203 ;

Pressly v. Yarn Mills, 138 N. C., 410 . Whether the danger of putting the belt in the pulley when the machinery was in motion was so obvious that a man of ordinary prudence would not have gone on with the work, was a question for the jury to determine upon all the evidence.

Pigford v. R. R., 160 N. C., 93, 101 ;

Tate v. Mirror Co., 165 N. C., 273 . But this phase of the case was not presented by the charge. The jury were instructed to answer the issue “Yes” if they were satisfied by the greater weight of the evidence that the plaintiff’s injury was the proximate result of risk assumed by him, that is, the ordinary risk incident to his work; but if they were not so satisfied to answer it “No,” without an instruction as to whether the plaintiff’s continuance of the work with knowledge of danger, notwithstanding the master’s negligence, was an ordinary or extraordinary risk. The jury were left to infer that .the only ordinary risks were those incident to the work when there was no negligence on the part of the defendant. For this reason a new trial is awarded.

New trial.