O'Brien v. Parks Cramer Co.

• Decision Date: 12 December 1928
• Docket Number: 455.
• Parties: O'BRIEN v. PARKS CRAMER CO.
• Court: North Carolina Supreme Court

145 S.E. 684

196 N.C. 359

O'BRIEN v. PARKS CRAMER CO.

No. 455.

Supreme Court of North Carolina

December 12, 1928

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

Action by D. F. O'Brien against the Parks Cramer Company. Judgment for plaintiff, and defendant appeals. No error.

Charge that employer was negligent, if he was notified of, or by exercising ordinary care could have discovered, defect in electric drill, before injury to employee, held not reversible error, in view of entire charge.

This is an action for actionable negligence. Plaintiff, a machinist was employed by defendant to work in its shop. At the time he was injured he was putting up sheet iron to inclose the shipping room. The foreman of the shop, J. L. Alexander, sent him to help Sam Williams, the boss of the shipping room. He had a helper, M. R. Smith, and they had to drill holes to connect the sash angle iron to the channel iron. A part of the sash angle iron was to be attached to the overhead. They had to be drilled to be fastened together. The place to drill was about 12 feet from the floor, and a stepladder was used with round steps on it. An electric drill was used and the power was cut on and off. The drill was seven-sixteenths weighing 25 to 30 pounds. Plaintiff and the helper had drilled some the day before. The floor was concrete. About a quarter to eight on the morning of November 18, 1924, he and the helper started to drill. The plaintiff ground the drill and put it in the motor. To operate the drill he started up the ladder with it, and Smith said: "I'm a younger man than you are, let me go up the ladder." Smith went up the ladder. Plaintiff stood at the foot of the ladder to steady it. Smith got to the top of the ladder, about two steps of the top; Smith placed the drill, and said "Look out, I'm ready," and then he turned the power on with the latch. It was run by electricity. Plaintiff heard the helper scream, and the next thing plaintiff knew the drill hit him a glancing blow on the head, and Smith fell on plaintiff's lower hip.

Plaintiff had been on the job in the shipping room a day or two before he was hurt, and had used the drill the day before, and had put a plank across to stand on; but this was so close to the corner that he and the helper discussed it the evening before with T. S. Simpson, shop engineer, as to whether this would be the best way to do it the next day, and he said, "Just go up and drill it any way." Smith, the helper, went up the ladder and took the drill with him, but could not get it started, so he put one hand on the drill and reached over to pull the latch off, and then the volts grabbed him, and he hollered once or twice and fell on his back. Smith was shocked and dropped the drill when he got loose, which struck plaintiff's head and he fell on the plaintiff. The plaintiff was steadying the ladder. Smith had not used the drill before.

It was in evidence that the drill was short-circuited, and when drilling with the drill, standing on a concrete floor, a person would be shocked if he touched it.

It was in evidence that the foreman of the shop, J. L. Alexander, was notified that it had a short circuit and that he ought to have it fixed. This was "something like ten days or two weeks" before plaintiff was hurt. Another witness stated it was "not very long" before plaintiff was hurt, and that he complained to the foreman of the copper shop of defendant and he promised to fix it. It shocked both of these parties. There was also another witness, at a remoter period, that testified that the foreman of the copper shop of defendant was notified of the defect of the drill and warned of trouble if it was not fixed. It was also in evidence as to plaintiff's injuries, "He has complained about it since he was hurt. It hurt him continuously since. *** I know he suffered with his back." Plaintiff's doctor testified that he examined the plaintiff, "I found luxation of the sacro-iliac joint. That is the joint between one of the pelvic bones and the spinal column. Luxated means loosened. *** I prescribed his having a bandage made and applied and worn." Plaintiff testified: "I have not consulted a doctor lately, but when I went to see him, he gave me a belt to wear. I am still wearing it. I went to Dr. Wiley Moore the last time. He gave me the belt to wear. I can't work like I did. I can't stoop over to pick up anything. I could get down in half a day's time if I would try. I suffer pain from it, at times it is real bad. There are times when I can't get out of bed without pulling up by a post."

All the evidence was to the effect that plaintiff's helper was shocked by the electric current in the drill appliance, which caused him to fall and injure plaintiff.

The defendant denied negligence and set up the plea: (1) Negligence of a fellow servant; (2) contributory negligence. The evidence of defendant contradicted that of plaintiff.

The issues submitted to the jury, and their answers thereto, were as follows:

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

2. Did the plaintiff by his own negligence contribute to his own injury as alleged in the answer? Answer: No.

3. What damages, if any, is the plaintiff entitled to recover? Answer: $6,000.00."

Defendant made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones will be considered in the opinion.

John M. Robinson, of Charlotte, for appellant.

J. D. McCall, of Charlotte, for appellee.

CLARKSON J.

This is an action for actionable negligence between employer and employé. It was in evidence: (1) That the electric drill was defective; (2) that the alter ego of defendant "not very long" before plaintiff was injured was notified of the defect and promised to fix it; (3) that the helper of plaintiff went up near the top of the ladder to drill, and when he turned on the current to operate the electric drill he was shocked and dropped the drill, which struck plaintiff a glancing blow on the head, and the helper fell on the plaintiff's "lower hip," injuring him. Holes were being drilled in a channel iron to connect the sash angle iron to the channel iron. A stepladder was used, as the place to be drilled was about 12 feet from the floor. The floor was concrete. Plaintiff was steadying the stepladder so the helper could drill. The appliance was defective, as it was short-circuited.

The court charged the jury as follows: "To establish actionable negligence, the plaintiff is required to show by the greater weight of the evidence, first, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff under the circumstances in which they were placed, proper care being that degree of care which a reasonably prudent man would exercise under like circumstances and charged with a like duty; and, second, it must appear that such negligent breach of duty was the proximate cause of the injury, the cause that produced the result in continuous sequence and without which it would not have occurred and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed. (A) Now, gentlemen of the jury, if you find from the evidence, and by its greater weight, the burden being on the plaintiff to so satisfy you, that the drill with which the plaintiff was directed to do his work, was out of repair and that it had a short circuit and that the defendant had been notified of its condition prior to the time of the occurrence or that the defendant could have by the exercise of ordinary care and by inspection have discovered its condition and you find from the evidence that it did not make the necessary repair, and that said machine was defective in that it had a short circuit and you find that was the proximate cause of the injury to the plaintiff, you would answer the first issue Yes. If you do not so find, you would answer it No. (B)." It will be noted that the charge uses "foreseen." It is more liberal than the rule in this jurisdiction, which is as follows: In Hudson v. R. R., 176 N.C. page 492, 97 S.E. 389, Allen, J., confirming the above rule, says: "To which we adhere with the modification contained in Drum v. Miller, 135 N.C. 204 [47 S.E. 421, 65 L. R. A. 890, 102 Am. St. Rep. 528], and many other cases, that it is not required that the particular injury should be foreseen, and is sufficient if it could be reasonably anticipated that injury or harm might follow the wrongful act." See De Laney v. Henderson-Gilmer Co., 192 N.C. at page 651, 135 S.E. 791.

We will repeat the law in this jurisdiction, reiterated recently in Ellis v. Herald Co., 196 N.C. at pages 264, 265, 145 S.E. 285: "It is well-settled that an employer is not a guarantor or an insurer of the safety of the place of work or of the machinery and appliances of the work. But it is the positive duty of the employer, which is primary and nondelegable, in the exercise of ordinary or reasonable care, to furnish or provide his employee a reasonably safe and suitable place in which to do his work, and reasonably safe and suitable machinery and appliances. If there is a failure in this respect, and such failure is the proximate cause of any injury to an employee, the employer is liable"-citing cases. Cable v. Lumber Co., 189 N.C. 840, 128 S.E. 329; Riggs v. Mfg. Co., 190 N.C. 256, 129 S.E. 595; Lindsey v. Lumber Co., 190 N.C. 844, 130 S.E. 713; Hall v. Rhinehart, 191 N.C. 685, 132 S.E. 787; Fowler v. Conduit Co., 192 N.C. 14, 133 S.E. 188; Watson v. Tanning Co., 192 N.C. 790, 136 S.E. 117.

The defendant excepted and assigned error to the charge between "A" and "B", and...