Alley v. Charlotte Pipe & Foundry Co.

• Decision Date: 08 May 1912
• Citation: 74 S.E. 885,159 N.C. 327
• Parties: ALLEY v. CHARLOTTE PIPE & FOUNDRY CO.
• Court: North Carolina Supreme Court

74 S.E. 885

159 N.C. 327

ALLEY v. CHARLOTTE PIPE & FOUNDRY CO.

Supreme Court of North Carolina

May 8, 1912

Appeal from Superior Court, Mecklenburg County; Lyon, Judge.

Action by F. W. Alley against the Charlotte Pipe & Foundry Company. From a judgment for plaintiff, defendant appeals. Affirmed.

In an action for injuries to plaintiff's foot, his physician's testimony that the wound was such that cancer was liable to ensue held admissible; the statement being equivalent to a statement that cancer would probably be the result.

These issues were submitted:

"(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint?" Answer "Yes."

"(2) Did the plaintiff voluntarily assume the risk and danger of being injured in the manner in which he was injured as an incident of his employment?" Answer: "No."

"(3) Did plaintiff, by his own negligence, contribute to his injuries, as alleged in the answer?" Answer: "No."

"(4) What damages, if any, is the plaintiff entitled to recover of the defendant?" Answer: "$6,000."

From the verdict and judgment the defendant appealed.

Burwell & Cansler and Davis & Davis, for appellant.

T. L. Kirkpatrick, Osborne, Lucas & Cocke, and Mr. Miller, for appellee.

BROWN J.

The plaintiff was a pipe moulder for several years in defendant's foundry. On November 28, 1910, while engaged in moulding, he was injured by the explosion of a core, which caused a stream of molten iron from the arbor to strike plaintiff's foot, set his trousers afire, and seriously burn him. This core had been made by a core maker named Nance, and furnished to plaintiff for use in connection with the arbor in moulding. The principal negligence alleged is in providing an imperfect core, the defects in which were not apparent, and in providing an unskillful and deficient workman to make the core supplied to plaintiff. There are 21 assignments of error set out in the record and discussed in the briefs. We deem it unnecessary to review them all.

1. The motion to nonsuit was properly denied. It is unnecessary to discuss the doctrine of res ipsa loquitur as applicable to this case. The plaintiff need not rely on it. There is substantive evidence of negligence for which the defendant may properly be held liable. There is evidence tending to prove that plaintiff was injured by an explosion of gas which drove the molten iron out of the arbor on plaintiff; that this arbor was made by defendant; that the explosion was caused by a defective core furnished plaintiff by defendant; that plaintiff could not well have discovered the defect; that the core was made by Sam Nance, an incompetent and unskillful core maker, and there was evidence that defendant had full knowledge of Nance's incompetency and continued him as core maker notwithstanding. There is evidence from which it may be clearly inferred that the core was defective when it left Nance's hands.

It is now elementary learning that the master must furnish the servant a reasonably safe place to work in, and reasonably safe and properly constructed appliances to work with, consistent with the character of the work.

And it is likewise true that if the defendant, with full knowledge of Nance's incompetency, continued to permit him to make cores for the use of other workmen employed in a dangerous business, the defendant is liable for Nance's negligence, for in that particular Nance represented the master, and was discharging a duty the defendant itself owed to its servants. Tanner v. Lumber Co., 140 N.C. 475, 53 S.E. 287; Barkley v. Waste Co., 147 N.C. 585, 61 S.E. 565.

2. It is contended that the court erroneously received evidence relating to Nance's reputation as a core maker. Three witnesses, found by the court to be experts, declared that Nance was an incompetent core maker. One said that he ripped through his work, and did not half make his cores, rings in them, and soft places. We think it was proper to admit the opinion of experts upon that disputed question, as well as to put in evidence Nance's general reputation in his particular specialty. Ives v. Lumber Co., 147 N. C 306, 61 S.E. 70. In Lamb v. Littman, 132 N.C. 978, 44 S.E. 646, it is held competent to prove the reputation of a man's special fitness for any employment in which he is engaged. Railroad v. Jewel, 46 Ill. 99, 92 Am. Dec. 240. Mr. Wigmore says (section 1894, Work on Evidence): "Testimony to...