Beck v. Sylva Tanning Co.

• Decision Date: 20 December 1919
• Docket Number: 589.
• Parties: BECK v. SYLVA TANNING CO.
• Court: North Carolina Supreme Court

101 S.E. 498

179 N.C. 123

BECK v. SYLVA TANNING CO.

No. 589.

Supreme Court of North Carolina

December 20, 1919

Appeal from Superior Court, Jackson County; McElroy, Judge.

Action by Dee Beck against the Sylva Tanning Company. Verdict and judgment for plaintiff, and defendant appeals. No error.

Prayers should not be mere abstract propositions of law, or based on a partial statement of the evidence.

The plaintiff brought this action against the defendant to recover for a personal injury, alleged to have been sustained while in the employ of the defendant company. He alleged that the defendant was negligent in its duties to him in the following respects: That it failed to furnish him a reasonably safe place to work and safe tools and appliances with which to work, and failed to give him proper instructions; that the plaintiff was working on the night shift, and defendant failed to furnish sufficient lights, and allowed chipped wood to accumulate in the walkway between the tubs, which plaintiff was filling with chipped wood, and that the defendant failed to keep the lid on the tub, in which boiling fluids had been poured over the chipped wood, with the view of extracting the acids therefrom. Plaintiff alleged that he was injured because the lid was left off the tub, and because chips had accumulated in the walkway, and that it was dark where his work required him to be, because broken lights had not been replaced. He further alleged that he stumbled over the chips accumulated on the walkway, because of the darkness, and fell into the tub, as a result of which his feet and legs were burned, for which alleged injury he claimed that he was damaged in the sum of $3,000.

The defendant answered, denying all the allegations of negligence alleged against it, and denying that the plaintiff was injured because of any act of negligence on its part. The defendant averred that the plaintiff contributed proximately to his own injury; that it was the duty of the plaintiff, and those who worked with him as fellow servants, to put the chipped wood in the tubs, to level the tub when filled, and to put the lid on the tubs, to clean up the walkway, and, if a light bulb was broken, to put in a new one, and that plaintiff failed to exercise due and reasonable care for his own safety; that plaintiff knew all the conditions and dangers incident to the performance of his work, and assumed the risk; that, if there was any negligence other than plaintiff's, it was that of his fellow servants, in the selection of whom the defendant had exercised due care.

Verdict and judgment for plaintiff, and defendant appealed.

Coleman C. Cowan, of Sylva, for appellant.

Sutton & Stillwell, of Sylva, for appellee.

WALKER J. (after stating the facts as above).

There was evidence that the approaches to the tub in which the chipped wood was placed for boiling, in order to extract the acid therefrom, were not kept open and in a reasonably safe condition, so that defendant's employés could use the same with security to themselves, and that plaintiff, while engaged in his proper work, stumbled over the obstructions in one of these walkways, or aisles, between the rows of tubs and fell into one of the tubs, the aperture in which should have been closed with the cap, or lid, made to cover it. He received injuries of a serious nature, and now asks for damages to compensate him for them, as he alleges they were caused by the defendant's negligence in not exercising that degree of care which the law requires to make the place reasonably safe for him to work therein, and in not keeping and maintaining it in that condition.

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, etc with which to do the work assigned to him (West v Tanning Co., 154 N.C. 44, 69 S.E. 687), and this duty is a primary and an absolute one, which he cannot delegate to another, without at the same time incurring the risk of himself becoming liable for the neglect of his agent, so intrusted with the performance of this duty which belongs to the master, for in such a case the negligence of the agent, or fellow servant, if he is appointed to act for the master, is the latter's neglect also. Hicks v. Mfg. Co., 138 N.C. 319, 50 S.E. 703; Harmon v. Contracting Co., 159 N.C. 22, 74 S.E. 632; Alley v. Charlotte Pipe Co., 159 N.C. 327, 74 S.E. 885; Pigford v. Railway Co., 160 N.C. 94, 75 S.E. 860, 44 L. R. A. (N. S.) 865; Mincey v. Railway Co., 161 N.C. 468, 77 S.E. 673; Steele v. Grant, 166 N.C. 635, 82 S.E. 1038; Taylor v. Power Co., 174 N.C. 583, 94 S.E. 432. If the negligence of the master concurs with that of the servant in causing an injury, the master is liable. Tanner v. Lumber Co., 140 N.C. 475, 53 S.E. 287; Wade v. Contracting Co., 149 N.C. 177, 62 S.E. 919; Ammons v. Mfg. Co., 165 N.C. 449, 81 S.E. 452. We said in Steele v. Grant, supra:

"Where the master has negligently failed in his duty to supply the servant with safe appliances and place for the work required of him, and this negligence concurs with that of a fellow servant in proximately causing an injury to the servant, the master's responsibility is the same as if his negligence was the only cause thereof."

The fault, therefore, with the defendant's prayers for instructions, so far as they related to the negligence of a fellow servant, is that they omit the necessary qualification as to the liability of the master, when his negligence concurs with that of the servant in the performance of his primary duty, and bases the defendant's right to a verdict solely on the negligence of a fellow servant. Pigford v. Railroad Co., supra. This question received full consideration in Steele v. Grant, supra, where he said:

"It being the duty of the master * * * to provide a reasonably safe place in which to do the particular work assigned to his servant, he cannot interpose as a defense to an action for an injury to the employé the neglect of another servant to perform that duty for him; nor, where the negligence charged against him is the failure to supply a reasonably safe place to work, can the master escape liability

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