82 S.E. 1038 | N.C. | 1914
This action was brought to recover damages for injuries sustained by the negligence of defendant. The plaintiff, T. C. Steele, was on 9 September, 1913, engaged as a carpenter in the construction of a five-story reenforced concrete building for H. L. Grant, defendant, in the city of Goldsboro. Steele is a carpenter by trade, with several years experience, and had been at work on this building since 1 July, 1913. An elevator was used for conveying the material up on the building as it progressed, and for taking trash down, and plaintiff had helped to build this elevator shaft. On the day before the injury plaintiff was told to raise the head block of the elevator above the fifth floor of the building so as to get ready to pour the cement for the fifth floor. On the morning of the injury plaintiff, with others, was engaged in putting in the cut-off plank on the fifth floor under or near the head block which plaintiff had helped to raise the afternoon before. In putting in this cut-off plank it seems to have been necessary to remove one of the braces which was in the way, and plaintiff sent a negro down below to nail on another brace, so that he (plaintiff) could remove the brace that was binding the elevator cable and release the cable. After that had been done, and while plaintiff was in the act of putting in the cut-off plank, one end of this same head block fell, struck plaintiff, and caused the injury complained of. When the head block had been removed so as to permit of the work in hand being done, Bailey, the foreman of carpenters, had his attention (637) directed by plaintiff to the dangerous condition of the head block, if left to rest upon the stiff knee, if the elevator should be moved, *551 and suggested propping it with a lower head block or the one underneath it; but Bailey refused to let him brace it in that way, so that it would be safe in any emergency, and ordered him "to do what he had been told to do," promising him that the elevator should not be moved, in which case plaintiff's position would have been a safe one. The elevator was moved, and the head block swung around and caught plaintiff, severely injuring his leg and foot, and causing him great pain and suffering, and seriously impairing the usefulness of his leg and foot, the injury being a permanent one.
Plaintiff testified: "I was at work on Grant building on or about 9 September, 1913. I was injured on that morning between the hours of 9 and 10 o'clock. I went to put in a cut-off plank on the fifth floor, where the accident was, where I got hurt. [Here elevator model was exhibited.] This elevator was constructed as most all elevators are. On the morning that I went to work to put in the cut-off plank right here in that floor, the cut-off plank was to be raised 4 inches above that floor. Cut-off board is where the concrete is poured, and to hold the concrete. That was raised 4 inches above this floor on the morning. This head block had been raised the evening before. That went here. There was a little brace that was underneath here (attached to form a stiff knee) to hold this 4x4 before the head block was raised. The head block was resting on the floor the evening before it was raised temporarily, and this brace I put there to hold that (the stiff knee). We had to have this 4x4 (stiff knee) braced so that we could lift this (the head block) up and then brace it after it was raised. The next morning I had to have this brace removed, and therefore I sent a negro down below there to nail on this brace so I could release the cable here in this brace in front. After that was done, and while I was in the act of putting in that cut-off, the head block, the first I knew of it, was coming down on me. I didn't know the elevator was in use. I didn't know they were using the elevator. It was raised temporarily here, and we were not to use it. This elevator was constructed as follows: Those (638) were the guides that went to the basement, where they rested on solid foundation. These guides all the way up were thoroughly braced and nailed secure. Then the head block here (that is, the supporting head block), the first head block that held the guides in position were bolted in there (in the guides) with four bolts running clean through, so, and fastened securely. It being perfectly secure with that head block (the supporting head block) raised under this (the head block), but to take that head block out from under there and raise this head block with the shives in it above this post, this stiff knee in there would not be safe, as this post here (guide-post) didn't come up any further *552 than this (fifth) floor — right here; but to take this head block (supporting head block) and raise it up under there, then that holds that (the head block containing the pulleys or shives) and supports that and relieves the weight on this 4x4 (stiff knee). You can then brace them all the way around here. There was only one brace on this on the morning that I went there to put in the cut-off plank. This head block was not raised as it is now. I went to do this work under the direction of the foreman. I suggested to him to raise this head block under this as it is now. He told me it was not necessary, as he was the foreman, and I would do what I was told there. The foreman was Bill Bailey. The evening before this head block was resting right across here, on this floor here. It was in our way. We had to put in that cut-off, and had to raise it temporarily to get it out of the way. They were all in a rush there to get the floor poured. All the hands had something to do, and this had to be raised. It was raised up on this stiff knee here. There was no post up there to make it secure. I stated that I was doing this work under the direction of Mr. Bailey. Mr. Bailey was carpenters' foreman. He directed me to raise the head block on Monday evening, 8 September. After we raised the head block in the position that it is now, I went to Mr. Bailey and asked him could I raise the other head block under this one to support it, and he told me it was unnecessary; it was only raised temporarily. I understood him to say, at the time, it would not be operated in the condition it was at the time it (639) fell. It would have been perfectly safe, and would not have fallen if it had not been put in use. On that evening, Bob Lee, labor foreman, was told by Bailey, in my presence, the elevator was in no condition to use, and instructed him not to use it. He (Lee) was working on the third floor, cleaning up trash. On the morning that I started to work to put in this cut-off I went to Mr. Bailey and asked him if the elevator was going to be used. He said it was not. They were not going to use the elevator that morning. I went over there to fix it and started to work. I had been at work half an hour when it fell. There was no defect in the construction of the elevator. The defect was when it was raised temporarily, as the position it now stands in. If this head block had been raised up under here, where it should have been, it would have been safe. There is where the defect was. If this head block had been raised under here and then bolted as down here, there was no possible chance for that to have fallen, but if it had fallen, it would not have caught me. It would have fallen over here, and struck the floor, and not toppled over here on me. It was this stiff knee in that that held it up there at the time it fell. It was all that held it up. I didn't send anybody down to knock that brace off; I reached down there *553 and took it off. It was a little four-penny nail. I sent him down to nail that on so I could knock this off. I just pulled out this little four-penny nail, driven halfway in. After I took this brace off we had then sawed our plank, and I was starting to stick this in here when the elevator fell. I don't know how long it was after I took this brace off before the elevator fell. The stiff knee gave way down here at this place. It broke. I could not say whether it was at a joint or below. I saw it hanging down there after it was done (broken). I was in so much misery and suffering so I could not tell exactly where it did break. I could see the elevator as my body was laying over there. The stiff knee was all right until there was weight put on that. It would have held up that head block, it would have held that up, but not the load that was on it. It was safe a-plenty to have held the head block. I could not tell the exact position of the stiff knee, I was suffering so much. I (640) did not see the condition after I was taken down."
M. H. Moore testified: "I was at work as a carpenter on the Grant building on the morning of 9 September. I was near-by at the time of the injury. On the evening before the injury occurred on the 9th, I heard something said between Steele and Bailey about the elevator. I could not say word for word; I know there was something said. The substance of it was that Bailey told plaintiff that the elevator was not safe for operation. I could not be positive who he was speaking to; they were all there together. Mr. Lee is the labor foreman, best I understood it; he had charge of that part of it. That stiff knee in here, that one, that had been pieced, broke, and the head block swung around, gate fashion, and caught Mr. Steele, and he was laying under it when I got there. We tried to raise the head block off of him, and could not do it, and called to the edge of the building to the engineer to lower the elevator, so that we could lift the head block off Mr. Steele. This portion of the elevator at the time would weigh 600 or 700 pounds. I did not notice whether or not the elevator was loaded at the time."
There was testimony of a medical expert as to the nature and extent of the injuries.
Defendant introduced no testimony, but at the close of plaintiff's, he moved for judgment of nonsuit, which was refused, and he excepted. Verdict and judgment for plaintiff, and appeal by defendant.
After stating the facts: There was evidence of negligence in this case, which we must assume was properly submitted to the jury *554
in the charge of the court, as the latter was not sent up. The general rule as to the duty of the master in respect to the place of his servant's work, and tools and appliances furnished to him for the purpose of doing the work, and as to structures which he is engaged in erecting, (641) was conceded, and may be thus formulated: The duty of the master to provide reasonably safe tools, machinery, and place to work does not go to the extent of a guarantee of safety to the employee, but does require that reasonable care and precaution be taken to secure safety, and this obligation, which is positive and primary, cannot be avoided by a delegation of it to others for its performance. The master's duty, though, is discharged if he does exercise reasonable care in furnishing suitable and adequate machinery and apparatus to the servant, with a reasonably safe place and structures in and about which to perform the work, and in keeping and maintaining them in such condition as to afford reasonable protection to the servant against injury. R. R. v.Herbert,
The principle has found frequent and varied expression in the books. Where a seaman was killed by the explosion of a steam valve, due to the concurring negligence of the master in arranging the pipe to which it was attached in an unsafe manner and the negligence of the servant in opening the valve, it has been held that the master was liable.Southern Pacific v. Dacasta, 190 Fed. Rep., 689; 111 C.C.A., 417. "A master is liable for the injury to his servant, who is free from contributory negligence, where it is caused by the concurrent negligence of the master or his vice principal and a fellow-servant." 26 Cyc., 1302. "A servant does not assume the risk from the negligence of a fellow-servant augmented by that of the master." Humphrey v. Raleigh C.and C. Co., 80 S.E. (W.Va.), 803. It has been said that while an employee cannot recover for personal injuries if the negligence of a fellow-servant was the proximate cause of the injury, if the injury is caused by the employer's negligence, as by furnishing defective machinery, the employee may recover even though the negligence of a (644) fellow-servant was a contributory cause of the injury. Helley v. Perkins Machine Co.,
Applying this well settled doctrine to the case in hand, we find that the lift or elevator was in a defective condition, which was called to the attention of the foreman. If he, or any subordinate to whom he intrusted this primary duty of the master to cure the defect or to guard against its evil consequences, neglected the duty, the defendant, as master, was responsible just the same as if he had been personally present and acting for himself; and there was also some evidence from which the jury might have inferred that Bailey, the foreman, stood, in his relation to the defendant, as a vice principal.
But there was superadded to the default of the master, in having defective shafting, the express promise of the foreman that he would see to it that the servant's position was not made dangerous thereby, while he was engaged in performing his work. That is, in its legal character and essence, not unlike a promise to make needed repairs, called to the master's attention by the servant, in which case the rule is thus stated in 1 Labatt on Master and Servant (Ed. of 1904), sec. 421: "After the servant has shown that there has been a promise, actual or implied, on the part of the master, and that this promise amounts to an undertaking to remove, not only a danger, but a danger by which he himself is threatened, he still has the onus of proving that the inducing motive of his continuance in the employment was his reliance upon (647) the fulfillment of the promise. Recovery cannot be had where the only reasonable inference from the testimony is that the servant continued work, not because he relied on the master's promise, as given, but merely because of an expectation, based on the defendant's habit, that he would make the repairs in question. But the mere fact that the servant has some suspicion that the master's assurances will not be made good is not enough to deprive him of his right of action. When complaining of defective instrumentalities or machinery it is not *559
necessary that the servant shall state in exact words that he apprehends danger to himself by reason of the defects, nor need there be a formal notification that he will leave the service unless the defects be repaired or remedied. It is sufficient if, from the circumstances of the case, it can be fairly inferred that the servant is complaining on his own account, and that he was induced to continue in the service by reason of the promise." We cannot, therefore, say that there was any assumption of risk or contributory negligence on the part of the plaintiff. As the evidence is now presented, there was none. It does not appear who moved the elevator — whether it was done by Lee, the labor foreman, or one of his subordinates, or by a stranger. In the view we take of the case, it can make no material difference by whom it was moved, as it was the duty of the master, who had made the promise through his representative, to use due care in protecting the plaintiff while at his work, and there is evidence that this was not done. It was held in Keating v. Hewatt, 99 N.E. (Mass.), 479, a case much like this one in its facts, that an employer is responsible for injury to an employee resulting from the foreman's negligent failure to protect the employee against injury at a machine, after assuring him that it would not start while he was working at it, and that it could be found by the jury that the injury was due solely to the negligent failure of the foreman to secure this promised protection after he had exposed the plaintiff to danger. For such negligence of the foreman, the employer is responsible. Floettle v.R. R., 41 N.J. Sup., 792. We said recently in Lynch v. R. R.,
We, therefore, conclude by the application of well defined principles of the law that the case was properly submitted to the jury. The only exception taken in the record and discussed in the brief was directed against the refusal to nonsuit, and that matter, as we have seen, was correctly decided by the court, in almost any view we can take of the *560 evidence for the plaintiff, and certainly so when we adopt the one most favorable to him.
No error.
Cited: Ridge v. R. R.,
