WOODY v. FOUNTAIN.

WALKER, J. I concur in the conclusion of the Court, and also in its opinion, to this extent: It seems to me that in processioning proceedings, unless perhaps both parties claim under a paper title, it will be difficult, if not impossible, to confine the investigation required to the mere location of the dividing line. When both parties claim by right of possession, or one by a paper title and the other by adverse possession, it will become necessary in the large majority, if not all, of the cases, to ascertain the nature and extent of the possession and, even in the case of a claim under a paper title, the true location of corners and of other boundaries, as preliminary to the location of the dividing line which is in dispute. So that it may, speaking generally, be safely said that the title to the land is not involved in such a proceeding, but that means that it is not directly involved, for in many cases, as we have already shown, it may become incidentally one of the questions or issues in the case, which must be decided before the main issue, as to the location of the dividing line, can be determined. The illustration put by the Chief Justice is an apt one. I refer to the case of a partition proceeding. There the question of title is not necessarily involved, but it may become necessary upon a plea of sole seisin to determine first how the parties stand with reference to the title, before deciding whether they are tenants in common and entitled to partition. It is a preliminary question which must be settled before the relief prayed can be granted. A partition proceeding will very often run into an action of ejectment, and the same may be said of a processioning proceeding. In the latter case, the ownership of the land on either side of the alleged disputed line, which is a prerequisite to the right of having the land processioned, cannot always be determined by mere occupancy, but often will require an investigation of the title, as in other cases where the issue is not primarily involved.

HICKS v. MANUFACTURING Co.

HICKS v. MANUFACTURING COMPANY.

(Filed November 13, 1906).

Master and Servant-Defective Machinery-Negligence— Contributory Negligence-Evidence.

1. In an action by an employee to recover damages for injuries sustained in endeavoring to clean out a machine, where he testified that he was injured by reason of a defective machine of which he had no notice, and that if the machine had been in proper condition there was no danger to be reasonably apprehended from cleaning it in the manner testified to, the Court committed no error in refusing to nonsuit plaintiff.

2. In an action by an employee to recover damages for injuries sustained in endeavoring to clean out a machine, where defendant offered evidence to show that the machine was a standard one and was superseding the old machines, and that the opening, by reason of which plaintiff's hand was injured, was not a defect, but a part of the structural plan of the machine, and plaintiff alleged that the old machine which he had hitherto used afforded complete protection, and if the defendant had installed a different machine which created an additional danger, it was its duty to warn him of this condition, an instruction, that if the jury found the new machine differed in this respect from the old ones and that plaintiff did not know of the opening and could not have known of it by the exercise of ordinary care, and was put to work on the new machine without notice of its condition, then the defendant would be guilty of negli gence, was addressed to the duty of the defendant to warn the plaintiff, and did not make any particular machine the arbitrary standard of excellence.

ACTION by Joseph Hicks against Naomi Falls Manufacturing Company, heard by Judge G. S. Ferguson and a jury, at the June Term, 1906, of the Superior Court of GUILFORD, There was verdict and judgment for the plaintiff, and the defendant excepted and appealed.

R. C. Strudwick for the plaintiff.

W. P. Bynum, Jr., Cabell, Talley & Cabell and G. S. Ferguson, Jr., for the defendant.

HICKS v. MANUFACTURING CO.

HOKE, J. This cause was before the Court on a former appeal, and will be found reported in 138 N. C., 319. Pursuant to the order then made, a new trial was had, and the case, under the charge of the Court, was submitted to the jury on the usual and ordinary issues in actions of this character.

On the trial below, the plaintiff, among other things, claimed and testified that at the time of the injury he was an employee of defendant, at work in the lapper-room; that these machines were encased in a covering, and their operation in the process of cleaning cotton was explained to the Court and the jury by means of a model exhibited at the time of the examination; that when plaintiff first went to work there were three machines in the room, two Atherton and one Whiting. In a month or so another machine was installed, known as the Kitson, and plaintiff was injured in endeavoring to clean out this machine.

Plaintiff further testified that he had worked at this particular employment at this and other mills for several years; and in all properly constructed machines, and all that plaintiff had ever examined, there was underneath the covering a screen made by slats from 1 to 11⁄2 inch apart, and extending from the mote-box, which was on the floor of the lapperroom, clear around to the feed-roll, the point where the cotton entered the machine; and these slats were well-nigh a complete protection for any one cleaning the machine from the beaters of the machine as it revolved. That at the time. of the injury, plaintiff was endeavoring to clean out the machine, when his hand was caught by the beater and severely injured; and this was caused by reason of the fact that one of the slats in this Kitson machine was missing, thus preventing the screen from offering the complete protection which it would otherwise have done.

On question and answer, the examination of the witness on this point was as follows:

HICKS v. MANUFACTURING CO.

Q. What were you doing when you were hurt? A. I was cleaning out the motes.

Q. How were you cleaning them out? A. With my hands. I raked out what I could with my hands; then I had to stick my head and shoulders in to reach back there.

Q. I will ask you if there was any danger in cleaning out this machine while same was running if slats were all in place? A. No, sir.

Q. Why? A. There was no other place for me to be hurt. Q. I will ask you if these screens fully composed of the slats would have protected you, whether running or not? A. Yes, sir.

Q. Was there any danger of putting part of your person in there if all the slats had been there? A. No, sir.

Q. What, then, was the cause of your being injured? A. Missing slat.

Plaintiff further testified that he had never examined this machine or raised the covering, having no occasion to do so, and was not aware of any defect in it till some time after the injury, when he went back and examined the machine, and found the slat missing, as stated.

There was evidence of the defendant to the effect that the machine was a standard machine, approved and in general use, and was in no way defective; that plaintiff had negligently exposed himself to injury by the unusual manner in which he was endeavoring to clean the machine at the time, etc.

On the argument here it was earnestly urged by counsel that defendant having supplied plaintiff with a standard, up-to-date machine, there was no fault imputable to defendant by reason of this injury; and it was further contended that plaintiff was guilty of contributory negligence by the unusual and uncalled-for method by which he was endeavoring to clean out the motes.

HICKS v. MANUFACTURING Co.

The fallacy of these positions rests in this: they both assume that the evidence offered by defendant is true or was uncontradicted, whereas the plaintiff, as we have seen, testified that he was injured by reason of a defective machine of which he had no notice; and, secondly, if the machine had been in proper condition there was no danger to be reasonably apprehended from cleaning the machine in the manner testified to. If this be true, there was a right of action, and his Honor committed no error in refusing to nonsuit plaintiff on defendant's motion.

Defendant further alleges for error the portion of the charge pointed out in exception 13, as follows:

"If you shall find from the evidence, by the greater weight, that the defendant removed the Whiting machine and placed the Kitson machine in its place, and that the slats of the Whiting were so arranged that the plaintiff, in getting out the motes from the mote-box, and he claims that the slats between that and the beater were so arranged that he could not get his hand through it, that the spaces were so close together that there was not sufficient space that his hand could go through, and you further find from the evidence, by its greater weight, that the Kitson machine, upon which he was hurt, was put in the place of the Whiting machine, and should further find from the evidence that in the Kitson machine the space between the upper slat was sufficient for the hand of the plaintiff to have gone through, and should further find that the plaintiff didn't know of this space in the Kitson lapper, and could not have known of it by the exercise of ordinary care in doing and performing the duties required of him, and he was put to work on that Kitson machine without any notice of the condition of the slats or space, then I charge you that the defendant would be guilty of negligence, and it would be your duty to find, if you find that the plaintiff was injured on account of the negligence of the defendant, to answer the first issue 'Yes.' "