Brown v. Cook-lewis Foundry Co

• Court: North Carolina Supreme Court
• Writing for the Court: CLARK
• Citation: Brown v. Cook-lewis Foundry Co, 86 S.E. 725, 170 N.C. 38 (N.C. 1915)
• Decision Date: 03 November 1915
• Docket Number: (No. 323.)
• Parties: BROWN . v. COOK-LEWIS FOUNDRY CO.

86 S.E. 725

170 N.C. 38

BROWN .

v.COOK-LEWIS FOUNDRY CO.

(No. 323.)

Supreme Court of North Carolina.

Nov. 3, 1915.

Appeal from Superior Court, Forsyth County; Geo. Rountree, Judge.

Action by Leo Brown against the Cook- Lewis Foundry Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

J. B. Craver, A. E. Holton, and C. B. Poindexter, all of Winston-Salem, for appellant.

Watson, Buxton & Watson, 'of Winston-Satem, for appellee.

CLARK, C. J. [1] This was an action for personal injury sustained by the alleged negligence of the defendant. The plaintiff's allegation and proof was that, while acting as general helper in the foundry, he was called on by John Hartle, the head molder, to help turn a box which contained a mold and sand, the box being about 4 1/2 feet by 2 feet deep. The plaintiff testified that the box and contents weighed about 2, 000 pounds and he told Hartle that the three men were not enough to handle the box, but was directed to "go ahead." He was then directed to go around to the other side to let it down, and it fell on his foot, crushing it. He says that he had never seen that work done before, and when he said to the molder, "There are not enough men here to handle this thing, " he replied, "Yes; there is; go ahead." There were other witnesses who testified that it would require four men or five to properly handle the box; that three men could turn it only by hard straining; and that they were very cramped for space, only 12 or 13 inches between this box and another, and when the box was let down it dropped on his foot.

Upon this evidence it was error to direct a nonsuit. The facts are almost identical with those in Pigford v. Railroad, 160 N. C. 93, 75 S. E. 860, 44 L. R. A. (N. S.) 865, where the plaintiff told the foreman that he needed more men to help him load, but the foreman said, as here, "Go ahead, " and Walker, J., in a very full and well-reasoned opinion, held:

"When a servant is injured within the scope of his dangerous employment by a negligent act of the master in not furnishing him sufficient and competent assistance, and the master's negligence is the proximate cause of the injury, the servant is not held to have assumed the risk of the master's negligent act, " and can recover "unless his own negligence contributed to the injury as the proximate cause."

And in that case the court sustained a verdict for the plaintiff.

In this case the defendant contends that the injury was caused by the contributory negligence of the plaintiff or by the negligence of his fellow servants, or was an accident. It was an accident only in the sense that it was not intentionally done. If there was evidence of any negligence of the plaintiff or of his fellow servant, it was a matter of defense and for the jury. Upon the...