Clinard v. Clinard Elec. Co.

• Court: North Carolina Supreme Court
• Writing for the Court: CLARKSON, J.
• Citation: Clinard v. Clinard Elec. Co., 192 N.C. 736, 136 S.E. 1 (N.C. 1926)
• Decision Date: 15 December 1926
• Docket Number: 358.
• Parties: CLINARD v. CLINARD ELECTRIC CO.

136 S.E. 1

192 N.C. 736

CLINARD v. CLINARD ELECTRIC CO.

No. 358.

Supreme Court of North Carolina

December 15, 1926

Appeal from Superior Court, Forsyth County; Webb, Judge.

Action by Devoe C. Clinard against the Clinard Electric Company. From a judgment of the superior court judge setting aside judgment of the county court and ordering new trial defendant appeals. Affirmed.

It is matter of common knowledge that rope or wire is simple appliance to be used in holding steel tank.

This is a civil action for actionable negligence by plaintiff against defendant. It was tried at December term, 1925, in Forsyth county court. The usual issues of negligence, contributory negligence, and damage were submitted to the jury. They answered "No" to the first issue, "Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint?" and did not answer the other two issues. The plaintiff assigned some 15 errors and appealed to the superior court. The only material one we consider is the charge of the Forsyth county court judge, as follows:

Assignment of error No. 9:

"The second allegation of negligence, that the defendant negligently failed and neglected to furnish the plaintiff proper tools and appliances for doing the work which he was engaged in at the time he sustained the injury complained of in his complaint, is not before you, and the court is not submitting that second allegation; so when the court refers to the allegation of negligence that the plaintiff alleges, it will be relative to the allegation of negligence that the defendant failed to furnish sufficient and proper help for doing the work he was engaged in doing."

The superior court judge sustained this assignment of error and remanded the action to the Forsyth county court, and the judgment rendered in the Forsyth county court be set aside and ordered a new trial. From this judgment defendant appealed to the Supreme Court and assigned error. The other necessary facts will be set forth in the opinion.

Swink Clement, Hutchins & Feimster, of Winston-Salem, for appellant.

Ratcliff, Hudson & Ferrell, of Winston-Salem, for appellee.

CLARKSON J.

The defendant introduced no evidence.

We are of the opinion that the superior court judge was correct in sustaining the assignment of error No. 9. The complaint alleges:

"(a) That defendant negligently failed and neglected to furnish the plaintiff with sufficient and proper help for doing the work he was required to do and which he was engaged in at the time of the injury herein complained of. (b) The defendant negligently failed and neglected to furnish the plaintiff proper tools and appliances for doing the work which he was engaged in at the time he sustained the injury complained of herein."

The defendant, in its further answer, says:

"The plaintiff had at his command any tools and appliances which he required or needed in the execution of the work of his department; that the defendant had in its place of business, at the time of this accident, ropes, tackles, and other equipment that could have been used by the plaintiff had he so desired."

The evidence on the part of plaintiff was to the effect: That he was in the employ of defendant in its water system department. That on the morning of June 15, 1925, he with another mechanic was assigned to install a tank in the Mineral Springs school building. The tank was round, 8 feet long, 2 feet in diameter, concave at one end and convex at the other, and weighed 530 pounds, and made of steel. It was to be put in the basement of the school building. To do this it had to be carried down a concrete stairway 15 feet long and 4 feet wide. The stairway ended on a small passage about 4 feet wide and 6 feet long, surrounded by a brick wall except a door 3 feet wide leading into the boiler room in which it had to be carried. To unload the tank the truck was backed up towards the steps leading down into the basement, and the tank tilted over the truck until the concave end rested a little inside the stairway. While sliding the tank off the truck it caught on the truck at a point where a row of rivets ran around the middle of the tank. The plaintiff was down the stairway assisting with the helper to slide it down the stairway off the truck. All at once the tank jerked loose, and when it did it slid down the stairway and caught the plaintiff against the brick wall at the foot of the stairway and cut off his leg. It was contended that plaintiff at the time requested more help, but it was refused-"You will have to get by the best way you can." There was evidence that defendant furnished no appliances or tools of any kind for unloading the tank. On the other hand, defendant contended that plaintiff was employed as the head mechanic, had been in the employ of the company five years, and had installed 25 to 30 tanks in various places; that plaintiff was instructed to get some negroes to work on the job, which included digging a trench, a mechanic in the department, and two negroes were assigned to do the work, and the truck-driver-three men loaded the tank at the shop and there were three who unloaded it. When the tank was half way off the truck it was caught by the rivets, and the mechanic asked plaintiff to call the two negroes, who were near by digging the ditch, to help unload, which plaintiff refused to do. The question of insufficient help was submitted to the jury. Cherry v. Railroad, 174 N.C. 263, 93 S.E. 783; Johnson v. Railroad, 191 N.C. 75, 131 S.E. 390.

Plaintiff testified, without objection, "The company had furnished no tools or appliances for getting this tank in the basement." This is the crux of the case.

The defendant in its brief says:

"Had the plaintiff, in the case before the court, shown that a rope and tackle, ropes, skids or what not were customarily used, or could have been used, and by the use of same the injury would not have occurred, they might have made out a case, but they did not show any of these things."

3 Labatt's Master and Servant (2d Ed.) p. 2478, § 924a, in note, says:

"In Mercer v. Atlantic Coast Line R. Co., 154 N.C. 399, ^[1] the court held that the rule requiring the master to use ordinary care to furnish reasonably safe appliances applied alike to the simple and complicated tools; but that the master is not required to inspect simple tools, because the employee is presumed to be equally as conversant with the tool as the employer, and, being required to use it, is in a better situation to discover the defects."

And at page 2479, it is said:

"It does not seem entirely logical to say that the master is under no obligation to exercise ordinary care to furnish reasonably safe appliances, simply because those appliances chance to be of a simple character."

In Winborne v. Cooperage Co., 178 N.C. 90, 100 S.E. 195, it is said: "A perusal of our decisions on the subject will show that in order for liability to attach, in case of simple, everyday tools, it must appear, among other things, that the injury has resulted from a lack of such tools or defects therein which the employer is required to remedy, in the proper and reasonable discharge of his duties, and that the lack or defect complained of and made the basis of the charge is of a kind from which some appreciable and substantial injury may be reasonably expected to occur." Whitt v. Rand, 187 N.C. 807, 123 S.E. 84.

Our decisions are to the effect-

"that an employer of labor, in the exercise of reasonable care, must provide for his employees a safe place to do their work and supply them with machinery, implements and appliances safe and suitable for the work in which they are engaged, and to keep such implements, etc., in safe condition as far as this can be done by the exercise of proper care and supervision." Riggs v. Mfg. Co., 190 N.C. at page 258, 129 S.E. 596, and cases cited.

The employer is not an insurer, and the negligence of the employer must be the proximate cause of the injury. In Insurance Co. v. Boon, 95 U.S. 117, 24 L.Ed. 395, it is said:

"The proximate cause is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in place and time to the loss. *** 'The inquiry must always be whether there was an intermediate cause disconnected from the primary fault and self-operating, which produced the injury."' Inge v. Railroad, 192 N.C. at page 530, 135 S.E. 522.

"A cause that produced the result in continuous sequence and without which it could not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under the facts as they existed." Ramsbottom v. Railroad, 138 N.C. 38, 41, 50 S.E. 448; Lea v. Utilities Co., 175 N.C. at page 463, 95 S.E. 895.

In Hudson v. Railroad, 176 N.C. 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." De Laney v. Henderson-Gilmer Co., 192 N.C. 647, 135 S.E. 791.

As to the degree of care required of an employer in protecting his employees from injury, a few variants of this form may be stated:

"It is such care as reasonable and prudent men would use under similar circumstances."

"Such care as a prudent man would exercise under similar circumstances."

In the words of the Supreme Court of the United States:

"The master is bound to observe all the care which prudence and the exigencies of the situation require, in...