Butler v. Armour & Co.

• Decision Date: 27 April 1927
• Docket Number: 284.
• Parties: BUTLER v. ARMOUR & CO. et al.
• Court: North Carolina Supreme Court

137 S.E. 813

193 N.C. 632

BUTLER v. ARMOUR & CO. et al.

No. 284.

Supreme Court of North Carolina

April 27, 1927

Appeal from Superior Court, New Hanover County; Grady, Judge.

Action by W. V. Butler against Armour & Co. and others. From a judgment dismissing the action at the close of plaintiff's evidence, plaintiff appeals. Reversed.

See also, 192 N.C. 510, 135 S.E. 350.

Action to recover damages for personal injuries. Plaintiff was injured by a fall, caused by the breaking of a board in a scaffold upon which he was standing, while at work as an employee of defendant. The board broke because of defects therein, causing plaintiff to fall to the floor beneath, a distance of about 8 feet. Plaintiff's leg was broken by the fall; his injuries are permanent. Plaintiff alleges that such injuries were caused by the negligent failure of defendant, his employer, to furnish and provide for him a safe place to work.

Defendant denies liability for plaintiff's injuries, alleging that said injuries were caused by the act of a fellow servant, for which defendant is not liable.

Defendant pleads in bar of plaintiff's recovery in this action his contributory negligence, and also a release, in writing signed by plaintiff. Defendant alleges that plaintiff thereby, in consideration of a sum of money paid to him by defendant, fully released and discharged defendant from all liability on account of his injuries, resulting from his fall.

Plaintiff alleges that the execution of the release by him as alleged by defendant was procured by fraud and misrepresentations and that, therefore, said release is invalid. Plaintiff demands judgment for the amount of his damages, to wit $20,000, less the sum of $300 paid to him by defendant at the time the release was signed, this being the amount which plaintiff alleges was agreed upon as compensation for his loss of time, due to his injuries, for 12 weeks.

From judgment dismissing the action at the close of plaintiff's evidence, as upon nonsuit, plaintiff appealed to the Supreme Court.

Whether release, executed by injured carpenter, was induced by misrepresentations held for jury.

A. G. Ricaud, E. K. Bryan, and L. C. Grant, all of Wilmington, for appellant.

John D. Bellamy & Sons, of Wilmington, for appellee Armour & Co.

CONNOR J.

The evidence offered by plaintiff tends to establish the allegations of his complaint, with respect to the cause and extend of his injuries.

On May 30, 1925, plaintiff was at work for defendant, as a carpenter. He was directed by his foreman to go up on a scaffold which defendant had caused to be erected in the buiiding upon which plaintiff was at work. While plaintiff and a fellow workman were standing upon a board in this scaffold, engaged in the performance of their duties as employees of defendant, the board suddenly broke, causing plaintiff to fall, a distance of about 8 feet, to the floor of the building.

The scaffold had been erected on the previous day, for the use of carpenters and other workmen employed in the building by defendant. Plaintiff had nothing to do with the selection of material for this scaffold or with its construction. The board, which broke while plaintiff was standing on it, was selected and used in the construction of the scaffold by a fellow workman of plaintiff, acting under the orders of his foreman. It had been used for some time about the building as a runway for wheel barrows; it was old and dirty. The workman who selected the board and used it in the construction of the scaffold testified that it looked like a strong blank, but that he did not take much pains in selecting it. There were two knots on the underside of the board, which was 16 feet long, 10 inches wide, and 2 inches thick. These knots were about the middle of the board, and extended continuously to its outer edges. The board broke right at the knots.

The scaffold containing this board was constructed by defendant as a place for its employees to stand while at work on the beams overhead. The defendant owed to its employees, who were directed to work on this scaffold, the duty to exercise due care in selecting materials reasonably suitable and safe for its construction. If defendant delegated to one of its employees the performance of this duty, it is responsible for the manner in which such employee performed the duty delegated to him; defendant is liable to plaintiff, if a breach of its nondelegable duty, with respect to the place at which he was directed to work, was the proximate cause of his injuries. It is not relieved of such liability because its employee who selected the board and constructed the scaffold was a fellow servant of plaintiff. Barkley v. Waste Co., 147 N.C. 585, 61 S.E. 565.

In Fowler v. Conduit Co., 192 N.C. 14, 133 S.E. 188, in the opinion written by Justice Brogden, it is said:

"The principles of liability growing out of the use of scaffolds, platforms, and walkways, as declared by the decisions of this court, are as follows: (1) The employer must exercise ordinary care in selecting materials reasonably suitable and safe for the construction of such instrumentalities; (2) ordinary care must be exercised in the construction and inspection thereof; (3) if the employer delegates the construction of such instrumentalities to one of his employees, he is responsible for the manner in which this duty is discharged, and the employee using such instrumentality has a right to assume that the employer has exercised due care both in the selection of proper materials and in the construction of the instrumentality."

As the result of the injuries sustained by him when he fell, plaintiff was confined to his bed in the hospital for 5 weeks, during which time he suffered great pain. After he was taken to his home, he was confined to his bed there for 2 weeks. He then got up and moved around in a chair. He was injured on May 30, 1925, he went back to work with defendant, at reduced wages, on September 10, 1925, and continued to work until he was discharged on April 22, 1926. During this time, he found it necessary to use crutches; he now uses a stick to enable him to walk. His general health, which prior to his injury was good, is now greatly impaired. He suffers pain from his injuries almost constantly. Since he was discharged by defendant, he has been unable to secure employment. He testified:

"Since that time, I have had no other employment. I have asked several for work, but they say, 'No,' they don't want nobody. They see me on a stick, and I guess they don't want a man on a stick; they don't want me, and I guess nobody else does."

If the jury shall find from the evidence that plaintiff was injured by the negligence of defendant, as alleged in the complaint, and his recovery in this action is not barred by his contributory negligence or by a valid release, plaintiff is entitled to recover of defendant, as damages for his injuries, a sum of money which the jury shall find is full and adequate compensation for all losses which he has sustained as the immediate and necessary consequences of his injuries. Wallace v. Railroad, 104 N.C. 442, 10 S.E. 552.

The defendant offered no evidence at the trial, but at the conclusion of plaintiff's evidence moved for judgment as of nonsuit.

Plaintiff's evidence does not show or tend to show that he contributed by his own negligence to his injuries, and that he is thereby barred of recovery in this action, should the jury find that he was injured by the negligence of defendant, as alleged in the complaint.

The plaintiff was taken to a hospital immediately after he was injured. With respect to the execution by him of the release relied upon by defendant as a bar to his recovery, plaintiff testified as follows:

"On the 4th day after I went in there, Mr. Lewis came. I was asleep when he came in. When I woke up, he was standing at the foot of the bed, smiling. He walked around the side of the bed and said he had a paper he would like to have me sign, so that he could pay Dr. Bullock, as he had to pay him in advance. He did not ask me if I wanted to read the paper--he just asked me if I wanted to sign it. I told him I reckoned so, if I could. I could not raise anything but my head. I could not raise my body on account of the cast. Mr. Lewis said that signing the paper would not interfere with my suing the company in case I was injured for life. He made figures, showing for what I was signing. These figures show, 'For Dr. Bullock, first aid, $35; room and board for five weeks, $192.50; charge for Dr. Bullock, $50, and my time $300.' He said, 'We have agreed to give you half time for 12 weeks, as the job will be finished in that time; this amounts to $267.10, but we will make it $300.' He gave me a check for $300, and I signed the paper. I relied upon his representation as to what the paper said. I did not read it. I had no money; I had to pay rent and support my family. I am a married man. I knew what I was doing when I signed the paper. My mother was in the room when Mr. Lewis came in. She remained there. Two nurses came in and signed the paper as witnesses. My wife was not there. Only my mother, the two nurses, and Mr. Lewis were in the room with me when I signed the paper. I do not know whether I was under the influence of drugs or not. I had taken some the night before. They had been giving me drugs all along. I know what Mr. Lewis told me I was doing when I signed the paper and took the check for $300. They did not read the release to me, nor did they offer to read it. Mr. Lewis asked me about the nurses. He called them to come into the room. They signed the paper and went out. I asked Mr. Lewis, in case I was ruined for life, what would happen. He said that the paper I had signed would not

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