Wilson v. Lowe's Asheboro Hardware, Inc.

• Decision Date: 14 June 1963
• Docket Number: No. 531,531
• Citation: 131 S.E.2d 501,259 N.C. 660
• Parties: W. A. WILSON v. LOWE'S ASHEBORO HARDWARE, INC., and Michigan Ladder Company.
• Court: North Carolina Supreme Court

Page 501

131 S.E.2d 501

259 N.C. 660

W. A. WILSON v. LOWE'S ASHEBORO HARDWARE, INC., and Michigan Ladder Company.

No. 531

Supreme Court of North Carolina.

June 14, 1963

James H. Pou Bailey, and George R. Ragsdale, Raleigh, for defendant-appellant.

Miller & Beck, by Adam W. Beck, Asheboro, for plaintiff-appellee.

RODMAN, Justice.

Michigan has three assignments of error: The first two challenge the competency of evidence admitted over its objection; the third is to the refusal of the court to allow its motion to nonsuit.

Plaintiff charges Michigan with negligence in (1) manufacturing the ladder from coarse grained pine of insufficient strength for a ladder of its type; (2) constructing the steps and rails from wood of insufficient thickness; and (3) cutting the grooves for insertion of the steps in the rail deeper than necessary or proper in ladders of the kind and size purchased by plaintiff.

Plaintiff, without objection, offered in evidence 'American Standard Safety Code for Portable Wood Ladders. ' The sponsors for this code are American Ladder Institute, American Society of Safety Engineers, and National Association of Mutual Casualty Companies. The ladder which plaintiff purchased is described in that code as type 3. The superintendent of production and purchasing agent for Michigan testified that Michigan 'follows that code in the production of its type 3 ladder.'

Table 1 of that code is a 'Classification of Various Species of Wood Acceptable for Use in Ladders. ' It classifies timbers suitable for that purpose in four groups. Group 1 lists the strongest. Group 2 woods have less strength than group 1, but they are stronger than woods in groups 3 and 4. Yellow pine is in group 2. White pine is in group 4.

Hal Garner, witness for plaintiff, testified that since 1925 he had been engaged in using lumber, building various structures such as cabinets, door frames, window frames, and during that period had used differing kinds of lumber, mostly pine, some oak and fir. Prior to 1925 he was engaged in sawmilling and had 'worked with wood all my adult life. ' The court found the witness to be 'an expert craftsman in the use of wood for manufacturing purposes. ' That holding is not now challenged. He was asked over defendant's objection if he knew what kind of wood the ladder was made of. He answered pine. The objection then made is not assigned as error. He then proceeded without objection to say that one of the rails was yellow pine. The other was known as white pine, also known as spruce pine or loblolly pine. 'The side rail that is not broken is the piece that is made out of yellow pine. As between those two kinds of wood, the broken piece is what we term as a spruce pine. It is different from yellow pine. I know what the difference is between the yellow pine and spruce pine.'

The first and second assignments of error read: '(R. p. 64) The admission of the testimony of Hal Garner as to the identity of the wood from which the ladder was made and the relative strength of the two rails of the ladder. ' '(R. p. 65) The failure of the Court to strike out the testimony of Hal Garner.'

Presumably the assignments are intended to relate to the following questions and answers appearing on pages 64 and 65 of the record: 'Q By reason of your experience in the woodworking industry and based upon your examination of the ladder identified as Exhibit 'AA', do you have an opinion which is satisfactory to yourself as to which of the side rails of this ladder is constructed from the stronger wood? A Yes sir, I'd say the one that is not broken is the stronger piece of wood. Q Why do you say that? A It is a finer grain wood. Yellow pine is a stronger wood than white pine, I have always found by my experience. Q Do you know what that is? A The white pine is a softer, more spongier, brittle wood than yellow pine.'

These assignments of error are not sufficient to comply with the rules of this Court. Pratt v. Bishop, 257 N.C. 486, 126 S.E.2d 597; Darden v. Bone, 254 N.C. 599, 119 S.E.2d 634. But even if sufficient, prejudicial error does not appear. The finding that the witness was an expert craftsman in the use of woods for manufacturing purposes, having spent more than thirty years in that kind of work, mostly in the use of pine, was sufficient to permit him to express his opinion as to whether the wood exhibited to him was or was not pine. His testimony to that effect appears on page 62 of the record. That testimony is not now challenged. His testimony that yellow pine is stronger than white pine is based on more than thirty years' experience in working with pine wood and accords with the statement appearing in the safety code which appellant claims to use as its standard in manufacturing ladders. Even if the witness had not been qualified to speak, testimony from one not qualified, which merely corroborates other evidence admittedly competent, would at most be harmless error, not warranting a new trial. Bullin v. Moore, 256 N.C. 82, 122 S.E.2d 765; Hall v. Atkinson, 255 N.C. 579, 122 S.E.2d 200; In re Will of Knight, 250 N.C. 634, 109 S.E.2d 470.

Did the court err in refusing to allow Michignan's motion for nonsuit?

To answer the question it is necessary to ascertain the legal obligation, if any, which a producer owes to those whom he expects to use or consume his product.

The rule to measure the producer's responsibility has been declared in a multitude of cases decided by this Court and appellate courts of sister states. A producer is not an insurer. His obligation to those who use his product is tested by the law of negligence. He must operate with that degree of care which a reasonably prudent person would use in similar circumstances. That care must be used in designing the article, Swaney v. Peden Steel Co., N.C., 131 S.E.2d 601, in selecting proper materials with which to make the article, Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N.W. 1103, 15 L.R.A. 818, Heise v. J. R. Clark Company, 245 Minn. 179, 71 N.C.2d 818 (where a manufacturer of stepladders was held liable for using ponderosa pine in...