41 S.E. 880 | N.C. | 1902
This action is brought to recover damages for injuries received in taking down a telephone pole, caused by the negligence of the defendant. The evidence discloses the fact that one Wood was the superintendent of the defendant in charge of this work; that on the morning the plaintiff was injured he came up town to work on another job and Mr. Wood told him, "You can drop off from your work; I want you to go out with Purtle on the long-distance telephone line." The tools and appliances necessary for such work were in the tool house of the defendant locked up, and Wood had the key. He unlocked the door and told the hands to put the tools in the wagon, and plaintiff put some of them in the wagon. He then went downstairs after some tie wire, and while down there "they" called, "Come on; we are ready," and he hurried down, got his "dinner bucket," got in the wagon and off they went to where the work was to be done, a distance of about six miles. There were five of them, and they (628) were to work under Mr. Purtle, and when they got to the place where the work was to be done Purtle put them to work — some to digging up the old poles and some to digging holes for the new poles. When they got the old pole ready to come down Purtle said, "Come on, boys, and take it down." This they undertook to do, but found they had neither pikes nor "dead men" to do it with, and they undertook to take them down by hand and by using shovels in place of pikes. "Dead men" and pikes are the usual implements used in doing such work, and plaintiff contends that if they had had pikes and "dead men" the pole would not have fallen and he would not have been hurt. The plaintiff contends that Wood had the right to hire and discharge, and though he thought it was dangerous to take down these poles without pikes and "dead men," he feared that if he did not obey the orders of Purtle he would be discharged by Wood.
The defendant undertakes to defend itself against the charge of negligence in not furnishing the necessary tools and appliances upon the ground that such tools and appliances were in the toolhouse, and that it was the duty of the plaintiff to have gotten them; that he and the other hands were told to go to the toolhouse and get the tools. This does not seem to us to be a satisfactory answer. Purtle was there and he was the "boss," and, it seems to us, it would have been rather officious in the plaintiff, who had just been hired that morning for a day's work, to have undertaken to supersede Purtle and "boss" the job.
We do not lay any stress upon the contention that plaintiff was afraid he would be turned off and lose his job if he did not obey Purtle. This doctrine has been carried to a very great extent, but it has never been carried to the extent of applying it to a hand *430 (629) employed for one day, so far as we are aware, and we do not propose to carry it to that extent in this case.
But we do think it was the duty of the defendant to furnish the plaintiff with the proper tools and appliances with which to do this dangerous work, and that it was not the duty of the plaintiff to furnish them. There was error in dismissing the action as upon nonsuit.
New trial.
Cited: S. c.,