129 S.E. 595 | N.C. | 1925
The contentions on the part of plaintiff were: That Cedric was an inexperienced boy, 17 years of age, and was employed by the defendant's foreman, E. A. (Gene) Whitford, to take a bush-hook and axe and go in the woods and help one Frank Fulcher clear roads for the hauling. The defendant had several men sawing trees, hauling and snaking logs in close proximity to where he was clearing the road. The foreman was present in charge of and directing the work being done. Tops of trees and logs were lying around where Riggs was put to clear the road. While he was at work chopping bushes and limbs and throwing them out of the way, he heard the workmen back of him, who were cutting, "they just hollered." When they hollered he did not look around, but jumped out of the way and ran. He heard the tree cracking. He was about 35 or 40 feet from the tree and it fell in the direction of where he was working. The tree was about 62 or 64 feet high. That he ran to keep from getting killed and the tree would have fallen on him if he had not run. While he was getting out of the way of the falling tree, jumping over tops and debris, he stumbled over a limb and in falling was injured by being cut by the axe.
Defendant denies it was guilty of any negligence and pleads contributory negligence on the part of plaintiff. It admits that Whitford was foreman but contends: (1) That Cedric Riggs, the plaintiff, was an experienced boy and when he got hurt was not within 150 or 200 feet of the nearest tree falling, which was on the opposite side of the team. No tree was over 75 feet long and where he was working and got hurt was out of the range of the falling tree. (2) That he was walking on a log and slipped off and was hurt in that way.
The issues submitted to the jury and their answers thereto, were as follows:
"1. Was the plaintiff, Cedric Riggs, injured by the negligence of the defendant, as alleged in his complaint? Answer: Yes.
2. If so, did said plaintiff, by his own negligence, contribute to his own injury, as alleged in the answer? Answer: No.
3. What damage, if any, is said plaintiff entitled to recover from defendant? Answer: $700.00." *258
Judgment was rendered on the verdict. Many exceptions and assignments of error were made by defendant as to the competency of evidence, charge of the court, etc., and defendant appealed to the Supreme Court. The material ones we will consider in the opinion.
It is well settled in this State "that an employer of labor, in the exercise of reasonable care, must provide for his employees a safe place to do their work and supply them with machinery, implements and appliances safe and suitable for the work in which they are engaged, and to keep such implements, etc., in safe condition as far as this can be done by the exercise of proper care and supervision. Pigford v. R. R.,
It will be noted that it is the duty of the master to "use or exercise reasonable care," or "use or exercise ordinary care" to provide the servant a reasonably safe and suitable place in which to do his work. The master is not an insurer. The failure to submit in charge the qualification of this duty is error, and new trials have been frequently granted on account of the omission. It is a substantial right. The most recent case granting a new trial is Cable v. Lumber Co.,
We think the charge on the facts and circumstances of this case correct.
In Lucey v. Stack-Gibbs Lumber Co.,
In Beck v. Tanning Co., supra, Walker J., said: "It is unquestionably the duty of the master to use proper care in providing a reasonably safe place where the servant may do his work, and reasonably safe machinery, implements, and so forth, with which to do the work assigned to him (Westv. Tanning Co.,
The warning must not only be given, but it must be a timely warning — proper warning. Such reasonable time so that workmen can avoid injury. We think these matters were fairly presented to the jury.
The following is complained of by defendant in the charge: "It is the duty of the plaintiff in sudden peril, to take active measures to preserve himself from impending harm, but was by no means held to the same judgment and activity under all circumstances."
But the charge on this aspect must not be taken disjunctively, but as a whole, as follows: "On the second issue the burden is on the defendant to satisfy the jury by the greater weight of the evidence that *260 the plaintiff, notwithstanding the negligence of the defendant, if you find the defendant was negligent, did not use ordinary care to prevent his injury. The court charges you it is the duty of the plaintiff in sudden peril to take active measures to preserve himself from impending harm but was by no means held to the same judgment and activity under all circumstances. The opportunity to think and act must be taken into consideration. And although he may not have taken the safest course or acted with the best judgment, or greatest prudence, he can recover for injuries sustained upon showing that he was required to act suddenly without opportunity for deliberation. It has been said that when choice of evils only is all that is left to a man he is not to be blamed if he chooses one, nor if he chooses the greater, if he is in circumstances of difficulty or danger at the time and compelled to decide hurriedly." We see no error in this charge.
3. Labatt's Master and Servant (2 ed.), p. 3555, says: "It is well settled that a servant who is suddenly exposed to great and imminent danger is not expected to act with that degree of prudence which would otherwise be obligatory. Or, as the doctrine is also expressed, a servant is not necessarily chargeable with negligence because he failed to select the best means of escape in an emergency." The court below charged almost the exact language quoted in Parker v. R. R.,
The case was one mainly of disputed facts, and the jury has found with the plaintiff. On the record, we find
No error.
