Carter v. Cape Fear Lumber Co.

• Citation: 39 S.E. 828,129 N.C. 203
• Parties: CARTER v. CAPE FEAR LUMBER CO.
• Decision Date: 05 November 1901
• Court: United States State Supreme Court of North Carolina

39 S.E. 828

129 N.C. 203

CARTER v. CAPE FEAR LUMBER CO.

Supreme Court of North Carolina

November 5, 1901

Appeal from superior court, New Hanover county; Hoke, Judge.

Action by Charles Carter against the Cape Fear Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Where planks were slid down an inclined plane, and stopped at the bottom by a bumper, and everything connected with the transfer of the lumber was in good shape, except that there was half an inch play of the bumper under the collar, and a piece of lumber 16 feet long struck the bumper with such force as to drive from its position a loaded truck weighing thousands of pounds, over chocks, which were underneath the wheels, of the right size and of the proper shape, the owner of the appliances was not liable for injuries caused to an employee by the use of the truck, as he cannot be required in such case to have been informed and guard against an accident which would not reasonably have been anticipated.

Iredell Meares, for appellant.

Bellamy & Peschau, for appellee.

MONTGOMERY J.

The plaintiff was injured while employed by the defendant in the receiving of lumber from a slide, and placing the lumber upon a truck for transfer to a car, and thence to a dry kiln. The slide was at an angle of about 33~, and about 6 feet in width. There was a platform at the base of the slide about 15 inches wide, according to the testimony of the plaintiff. At each outer edge of the platform there was a "bumper" (a square piece of timber) protruding above the platform, for the purpose of stopping and holding in position the pieces of plank, raised singly to the top of the slide by automatic machinery, as they descended on the slide to the platform. These bumpers were fastened and held by iron clamps or bands bolted to the beams. Alongside of the platform, and touching it, according to the testimony of the plaintiff, a truck was placed to receive the planks, and which, when loaded, was moved laterally on an inclined track to another track, and from that other track placed on a car and carried thence to the dry kiln. On the other side of the truck in its first position were placed two upright standards to hold in place the loaded truck and keep it from rolling off. These standards rested on a platform on a level with the truck, and in front of them was an inch scantling nailed to the platform, which acted as a check or mortise to hold the standards at the bottom. The top of the standards were placed in a mortise in a board nailed to the top of the frame. To prevent the loaded truck from moving when the standards are removed, "chocks" (wooden blocks) of the right shape and dimensions were furnished by the defendant to be placed underneath the wheels, and they were used at the time of the plaintiff's injury. These chocks were removed by hand--an employé standing or stooping at each end of the truck for that purpose--after the standards have been removed, in order that the loaded truck may roll to the transfer track. The plaintiff in his complaint alleges negligence on the part of the defendant: First, in that the "defendant recklessly, negligently, and wantonly permitted lumber to be thrown down the slide against a bumper which was insecurely and negligently and defectively erected and by the force and weight of the lumber, in its fall striking against the said defective bumper, caused a car placed in its regular and customary position, which, on account of the defective condition and construction of the bumper, rested against the bumper, to turn over and throw the load of lumber and car on the body of the plaintiff, crushing him beneath its weight and breaking both legs of the plaintiff,--the left leg in two places, and the right leg near the thigh,--inflicting serious, permanent, and bodily injury to the plaintiff, and causing him great suffering and pain, prostrating and confining him to a hospital for a period of nearly six months, and seriously affecting his nervous system"; and, second, "that the defendant company was further negligent in not providing proper and sufficient appliances to prevent the said car from moving and turning over when struck, as hereinbefore alleged, where by the plaintiff suffered the injury complained of."

The alleged negligence in the construction of the frame or stall may be eliminated from the case, for, although the plaintiff said that, the frame was insecure, yet he also said that, if he had not pulled the standard out at the bottom, it would not have been broken. The injury, then, did not result from want of strength or security in the frame or stall. It is true, the plaintiff testified that at other places there was in use a method of fixing standards securely, but, as we have said, the insecurity of the standard was not the cause of the injury to the plaintiff. The standards had been removed by the plaintiff, and, as he says, if they had not been pulled up at the bottom they would not have been broken. And also the plaintiff further said that at the Angola Lumber Company's mill, at Wilmington, there was a latch that held the car until the laborers could get away to a secure place. But that testimony was in reference to the use of a latch to hold the truck, instead of holding it by the method of chocks, and not to the security or insecurity of the method of holding the car by standards and frame. There was no evidence on the part of the plaintiff that the plan of holding the trucks by chocks was not safe and secure. The real matter for consideration, then, is the alleged negligence of the defendant in reference to the construction and condition of the bumpers at the time of the plaintiff's injury; and about that matter was made the main argument of the plaintiff's counsel in this court. The plaintiff testified that: "The lumber that came down the slide came in the usual way, and in the same way as it had been coming ever since I had been working there. The platforms were in good condition. The framework was substantial. The trucks upon which the lumber is loaded are made of iron. They did not break. The iron tracks did not give way. There was nothing the matter with the slides or stalls, except the bumper was loose. It is an iron collar or band around the top of the bumper, that is fastened to the beams on the slide or platform. The iron collar did not break or wrench out. The bumper had a loose play within the collar." A safe place in which to work had been furnished to the plaintiff, and every appliance that was necessary to conduct the operations of the mill was furnished, and all in good condition, except that under the iron collar of one of the bumpers there was a play of half an inch, caused by the wearing of the timber, and not by decay or rot. The plaintiff did not know at the time of his injury of the loose collar around the bumper, but he saw it several months there after when he was at the mill, and it had not been changed; but a witness for the plaintiff said that the collar had a play of half an inch on...