Reeves v. Taylor-Colquitt Co.

254 N.C. 342 | N.C. | 1961

HiggiNS, J.

After careful consideration, this Court concludes that the evidence offered is insufficient to show actionable negligence on the part of either defendant. “. . . As we view the entire evidence, plaintiff’s fall is just one of those events which sometimes occur without one’s foresight or expectation, and therefore not anticipated, the consequences of which must be borne by the unfortunate sufferer.” Klassette v. Drug Co., 227 N.C. 353, 42 S.E. 2d 411.

The plaintiff’s evidence disclosed that he was engaged in hauling poles at $5.00 per load for the defendant Hickman, whose duty it was to deliver them to Taylor-Colquitt Company’s plant. The plaintiff had been engaged in this work for two years and five months, using the same truck and the same loading and unloading equipment. He was thoroughly familiar with the equipment and the conditions at the plant. He apparently fixed his own hours. The evidence indicates nothing to the contrary. Much of the unloading was done at night. On one occasion only did either Hickman or Taylor-Colquitt assist. “The company unloaded my truck one time with the crane when I was carrying three 90-foot poles and couldn’t get them off.” During the two years and five months the plaintiff knew of one instance only in which an unloading chain different from his equipment was used at the plant. So far as the record shows, no other accident or injury resulted from the use of Hickman’s equipment, or others like it. Likewise, the evidence is totally lacking that unloading conditions had changed for the worse during the time of plaintiff’s employment.

The plaintiff thus explains the accident: “I got under the truck to trip the standards and the chains had nothing to do with my getting hurt. The chains had been taken off the load and the poles had been properly secured. The poles could not fall off until I tripped it and when I tripped it I stepped on something and my foot slipped and my left foot stuck out and I got hurt. My stepping on that object was the reason for my getting hurt and nothing else. That is what I would say was the sole cause of the injury . . .”

The plaintiff actually stepped on a stick or pole about two feet long. This was a part of the “trash” on the ground. “There were no lights . . . where you unload and I needed lights to see how to unload in safety.”

The plaintiff had been hauling nine or ten loads per week for two years and five months. The evidence does not disclose anything unknown to him or different from what is to be expected at a large timber and lumber plant. Yet he chose to unload at night with full knowledge of these conditions. His accident happened at a place and in a manner and under conditions which had proved safe for nine or ten operations per week for two years and five months. The accident happened because the plaintiff’s foot slipped on a stick at the exact moment a pole fell from the truck. The plaintiff’s contention that one or both defendants were negligent in failing to provide an unloading chain is not supported by the evidence. Boiled down to its essence, during all the time the plaintiff worked at the plant he knew of only one instance in which an unloading chain or crane was used.

We conclude the plaintiff’s evidence is insufficient to charge either defendant with actionable negligence. The danger of slipping on a stick was as obvious to the plaintiff as to any employee, officer or agent of either defendant. Under such circumstances, when the servant is permitted to do the work in his own way, as here, “The servant cannot recover against the master . . . This rule is especially applicable when the danger does not arise from the defective condition of the permanent ways, works, or machinery of the master, but from the manner in which they are used, and when the existence of the danger could not well be anticipated, but must be ascertained by observation at the time.” Simpson v. R.R., 154 N.C. 51, 69 S.E. 683.

The facts here disclosed do not indicate any duty on the defendants, or either of them, to install such lighting fixtures as would illuminate the ground under the truck.

Whether the contract between Hickman and Taylor-Colquitt made the former an independent contractor is immaterial. The exclusion of the contract, therefore, was nonprejudicial.

“A careful examination of the case leads us to the conclusion that if the injury to the plaintiff was caused by negligence, it was not that of the defendant, and the motion for a nonsuit should have been granted.” Simpson v. R.R., supra.

The judgment of compulsory nonsuit in the court below is

Affirmed.