Burr v. Everhart, 531
Decision Date | 22 May 1957 |
Docket Number | No. 531,531 |
Citation | 246 N.C. 327,98 S.E.2d 327 |
Court | North Carolina Supreme Court |
Parties | Edmond BURR V. Mrs.M.M.EVERHART. |
Robert M. Davis, George R. Uzzell, Salisbury, for defendant, appellant.
Clarence Kluttz, Lewis P. Hamlin, Jr., Salisbury, for plaintiff, appellee.
The defendant's assignment of error No. 5 is determinative of this appeal. The assignment is based on the court's refusal to allow defendant's motion for judgment of nonsuit, renewed at the close of all the evidence.
At the time of the plaintiff's accident and injury he was a carpenter 60 years of age with 35 years' experience in his trade. The defendant, a lady 76 years of age, was the owner of a number of tenant houses, experienced in having them repaired. The evidence is in conflict as to whether the terms of the agreement were such as made the plaintiff an independent contractor or a regular employee at an hourly wage. For the purpose of this motion, we must resolve the conflict in favor of the plaintiff's claim that he was a regular employee.
As a basis of his cause of action the plaintiff alleged that a scaffold was necessary before he could undertake the work in safety. The defendant insisted that he begin work and that scaffolding material would be furnished later. 'After plaintiff had been so engaged for several hours tearing off the old roof, assisted by a fellow employee, some of the timbers near the edge of the roof, which were defective, deteriorated, and not properly fastened, gave way under the weight of the plaintiff, due to such giving way and the absence of a scaffolding to stop his fall, he was thrown 12 to 15 feet into the yard,' gravely and permanently injured. The plaintiff testified: '* * * Mrs. Everhart said she wanted me to cover the house * * * and I said I would have to have some scaffolding * * she told me to take the short ladder. I said, 'Well, there aint no scaffolding down there yet,' and she said, 'Go ahead and be a-tear-ing it off, tearing the roof off, I'll have you a scaffold down there just as quick as you'd want it.' * * * She told Mr. Hilton (her get the scaffold. I went to taking it (roof) off just like I was directed. I was thinking I'd be careful and not get hurt till the scaffolding stuff did get there. ' After tearing off the roof
On cross-examination the plaintiff testified:
There was abundant evidence of the serious and permanent character of plaintiff's injuries. But negligence is not presumed from the mere fact that there has been an accident and an injury has resulted. Goodson v. Williams, 237 N.C. 291, 74 S.E.2d 762; Harward v. General Motors Corp., 235 N.C. 88, 68 S.E.2d 855; ...
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