93 S.E. 995 | N.C. | 1917
Plaintiff alleged that on 10 September, 1915, he was an employee of the defendant quarries company and was called upon by the foreman to assist in removing a heavy cable, attached to a *480 smokestack, to a new anchorage, and in order to do so properly it was necessary to carry it around a pit about 150 feet in depth. He was instructed to take hold of the cable, with another man, at the end of it furtherest from the smokestack, and eight or ten other men were ordered to grapple the cable at a place between the plaintiff and the smokestack, which they did, for the purpose of holding in the slack and preventing the cable from swagging into the pit. The cable extended beyond where plaintiff was directed to go. "When plaintiff reached a given point, carrying the cable, and had gone down the edge of the pit about 4 feet, E. C. Frady, foreman, directed the men holding the cable in a curve around the pit to let go, and instructed the plaintiff to hold on; that the eight or ten men holding the slack in the cable turned loose, as directed, and the cable swung out over the pit with great force and jerked plaintiff to the ground, wrenching and tearing the muscles of his back." These allegations, in section 6 of the complaint, are substantially repeated in section 7. And in reply to the answer, the same averment is again made, in these words: "The order of the foreman of defendant, given to the men holding back the weight of the cable, `to turn loose,' which order was obeyed and the obeying of said order, under the direction and in the presence of said foreman, caused this plaintiff to be violently thrown to the ground and seriously injured, which result could not have been known or foreseen by this plaintiff, as he was engaged in carrying the cable at the furtherest point, the force and effect of said order being known only to the said foreman, or should have been known by him."
The court instructed the jury that unless the plaintiff had proven by a preponderance of the evidence that the foreman, E. C. Frady, ordered the men, except plaintiff and the man with him, to turn loose the cable, they should answer the first issue "No," and if the injury resulted, not from a negligent order of the foreman, E. C. Frady, to let go the cable, but solely from the negligent act of the men, or servants of the company, in turning it loose, they being fellow-servants of the plaintiff, the jury would leave out of consideration the negligent act of such fellow-servants; and if it was found that the injury was caused proximately by the negligent act (447) of the fellow-servants of the plaintiff, and not by reason of an order given by the foreman, the jury would answer the first issue "No"; but if Frady gave the order and this proximately caused the injury, the jury should answer the first issue "Yes." The court instructed the jury, in response to plaintiff's prayers for instructions as to assumption of risk and as to the duty of the master to provide a reasonably safe means and methods for his servant to *481
perform his work, such as proper help and a reasonably safe place to work, with proper tools and appliances with which to do his work. The court substantially gave all of the instructions requested by the plaintiff, except the fifth, and there was no allegation as to this one, as the court stated at the time. The jury answered the issue as to negligence in favor of the defendant. Judgment thereon, and plaintiff appealed.
after stating the case: It has so often been said as to have grown into an axiom that proof without allegation is as unavailing as allegation without proof. There must, under the old or new system of pleading, be allegata and probata, and the two must correspond with each other. When the proof materially departs from the allegation, there can be no recovery without an amendment.McKee v. Lineberger,
In our case the sole allegation is that the defendant's foreman, who was in charge of this gang of workmen, gave a negligent order to some of them to turn loose the cable. This is the gravamen of the complaint, and upon it the plaintiff elected to rest his case and his legal right to a recovery of damages. This allegation he did not establish, as the verdict declares that no such order was given by the foreman. The finding, of course, is fatal to plaintiff's success. But if he had alleged any other act of negligence, such as a failure by the defendant to have a sufficient number of men to move the cable, there would be no evidence of it, as the gang was sufficient, and it seems that the accident could have occurred in only one of two ways, viz., the negligent order of the foreman, which was obeyed by the servants of defendant, or their own negligent act in turning loose the cable without any order from their foreman. There was no such order, and in the latter case the defendant would not be responsible for the negligent act of a fellow-servant, as this is not a railroad company, and the fellow-servant doctrine still exists (449) in cases like this one.
If under our ruling the prayers for instructions were material, they were substantially given, or concluded improperly, as, *483
for example, the fifth prayer, which asked the court to charge upon matters alleged therein that plaintiff would be entitled to recover. Witsell v. R.R.,
In no phase of the case was there any error in the court's rulings. The other objections became immaterial, in the view taken by us, and must fall with the principal exception.
No error.
Cited: Muse v. Motor Co.,