Cook v. Camp Mfg. Co.

• Decision Date: 22 February 1922
• Docket Number: 219.
• Citation: 110 S.E. 608,183 N.C. 48
• Parties: COOK v. CAMP MFG. CO. ET AL.
• Court: North Carolina Supreme Court

110 S.E. 608

183 N.C. 48

COOK v. CAMP MFG. CO. ET AL.

No. 219.

Supreme Court of North Carolina

February 22, 1922

On petition for rehearing. Former opinion (182 N.C. 205, 108 S.E. 730) adhered to, and petition denied.

J. O Carr and Geo. Rountree, both of Wilmington, and H. L Stevens, of Warsaw, for petitioners.

STACY J.

This was an action brought by the plaintiff, an employee of the defendants, or one of them, to recover damages for an alleged negligent injury. The defense is that of contributory negligence and the "fellow-servant rule." There is no other plea of assumption of risk. Dorsett v. Mfg Co., 131 N.C. 261, 42 S.E. 612. Upon trial in the superior court there was a judgment as of nonsuit, at the close of plaintiff's evidence, which was entered on the theory that the only negligence shown was that of a fellow servant, involving no liability of the master. Plaintiff appealed. A new trial was awarded, and the judgment of nonsuit reversed on the ground that some evidence had been offered tending to show a dereliction of duty on the part of one or both of the defendants. We are now asked to grant a rehearing of the case, to the end that our former decision may be reconsidered, if not overruled.

The alpha and omega of every case must be determined by the facts. What are they here?

(1) The defendants (or at least the Camp Manufacturing Company) own and operate a large sawmill and lumber manufacturing plant near the own of Wallace, N.C. Eight high-powered boilers with the same number of furnaces, are run and used in connection with said establishment. To a considerable extent sawdust is used as fuel in feeding these furnaces, and the same is conveyed from the sawdust pile, or dust house, by means of a dust chain, or conveyor, which is operated by a small engine; and this engine is stationed in an outhouse or one somewhat apart from the main buildings of the plant.

(2) Plaintiff was employed as chief engineer of the mill, and had been working as such for about six months. It was his duty to inspect, examine, keep in repair, and care for the machinery, including all chains, pulleys, and engine equipment. To use his own language:

"I was what you might call general repair man, but I did not operate or run the machinery. I had authority to stop the engines when I wanted to make repairs."

(3) The dust chain required attention, and sometimes repairs, on an average of two or three times a day, because of knots, slabs, etc., clogging and interfering with its operation. In working on this chain it was necessary to stop the engine, by which it was run, and the machinery to which it was attached.

(4) Henry Peterson was fireman, and looked after the large boilers. John Southerland (colored) was his helper and dust cutter. The latter generally operated this small engine which ran the dust chain.

(5) It was also alleged that the defendants "failed to furnish the plaintiff with sufficient helpers; and negligently and carelessly failed to have said engine properly manned and properly operated with skillful and competent fireman and helper," etc. Pigford v. Railroad, 160 N.C. 93, 75 S.E. 860, 44 L. R. A. (N. S.) 865.

(6) In starting and stopping the machinery in the sawmill proper, the defendants employed a system of whistle signals in giving notice or warning to the employees of such operation of the machinery; but there was no such system used in connection with starting and stopping the small engine which ran the dust chain.

(7) On July 13, 1918, the plaintiff, discovering that something was wrong with the dust chain, stopped the small engine, and told Peterson and Southerland (speaking to both in person) not to start it again until he came out and notified them. Plaintiff then went to the rear of the dust house, and, upon investigation, found that a lightwood knot had lodged in the dust chain. While undertaking to remove this "kink," as he called it. John Southerland, without warning and at the direction of Henry Peterson, started the small engine, and the plaintiff was caught in the chain or conveyor and seriously and permanently injured. Southerland left the small engine, after the plaintiff had notified him not to start it again until he came out, and was away for about 25 minutes. Upon his return, Peterson told him to start up the engine and cut some dust. Southerland asked if the plaintiff had gone, and Peterson replied, "Yes; he has gone out." Neither was in a position to see the plaintiff at this time, as there was a partition between the dust house and the engine room.

(8) There was evidence tending to show an established custom or rule that, when the plaintiff had stopped an engine for the purpose of repairing any part of the machinery, it should not be started again until he gave the proper notice. Plaintiff testified:

"When I stopped an engine, the rule was that it was not to be started until I told them. This particular engine was stopped running maybe two or three times a day. Some knots or things would get in there, and I would stop the engine and go and notify the men that I had stopped it; that was understood between me and the fireman." Defendants earnestly contend that this was only an understanding between the plaintiff and the fireman, and not a rule of the company. But it is alleged in the answer, as a matter of defense, that the plaintiff "knew when he went to work on the chain it was his business to notify all the other employees not to start the engine, and that on this occasion he failed and neglected to notify Southerland, or any other employee, * * * that he was working on the chain, and not to start up the engine, and his failure so to do was negligence, which proximately contributed to his injury." Why this allegation, if such duty were not imposed by a rule of the company? Obviously the defendants must have realized that the plaintiff's position was one of peril and danger, or else this plea of contributory negligence would not have been made. At any rate, there was evidence from which the jury might have found that such was an established rule of the company. And if it were the "business" of the plaintiff to give such notice--which seems to have been given--does it not follow that the defendants owed a corresponding duty to the plaintiff to see that the notice was obeyed?

"It is the duty of the master to use reasonable care to see that the rules adopted by him for the safety of his servants are complied with; and, if he fail to do so, he will be responsible for injuries resulting from noncompliance therewith." 26 Cyc. 1159.

The defendants reply to this last question, however, by saying that, even if Southerland and Peterson were negligent in starting the engine, such was only the negligence of one or more fellow servants, and for which the defendants cannot be held liable under the doctrine announced in Kirk v. Railroad, 94 N.C. 625, 55 Am. Rep. 621. Possibly it would be well to observe that, in the Kirk Case, "it was admitted by the counsel for plaintiff, that Harris the engineer, Brown the fireman, Thompson the yardmaster, and Smith [the negligent employee], his assistant, were fellow servants of the plaintiff." Furthermore, the negligence of Smith was the only evidence of negligence before the court. But in the case at bar it is not admitted that Peterson and Southerland were fellow servants of the plaintiff, with respect to the enforcement and observance of the rule which had been adopted expressly for the plaintiff's safety and protection. We are not now concerned with what their status or relation may have been in regard to other matters. Plaintiff contends that Southerland was the alter ego, or vice principal, of the master in caring for his safety while in a position of peril, especially as no system of signals had been adopted for the starting and stopping of this small engine. Plaintiff says that a reliance upon this rule was his only means of protection, that such was known to the defendants, and that it proved to be unsafe through no fault of his. Herein lies one of his allegations of negligence, and there are others.

The rigorous rule of the fellow-servant doctrine, as it once obtained, has been greatly modified in recent years. Speaking to this question, Brown, J., in Tanner v. Lbr. Co., 140 N.C. 475, 53 S.E. 287, makes the following pertinent observation:

"The true rule now is more humane, and holds the master is liable for negligence in respect to such acts and duties as he is required, or assumed, to perform, without regard to the rank or title of the agent intrusted with their performance. As to such acts, the agent occupies the place of the master and he is liable for the manner in which they are performed. Flake v. Railroad, 53 N.Y. 549; Crispin v. Bobbitt, 81 N.Y. 521. If the negligent act of one servant is done in the discharge of some positive duty which the master owed to another servant, then negligence in the act upon the part of the servant is the negligence of the master.

This principle of the law of master and servant is laid down in many adjudications. Railroad v. Baugh, 149 U.S. 368; Railroad v. Seeley, 54 Kan. 21; Minneapolis v. Lunden, 7 C. C. A. 344; Coal & Coke Co. v. Peterson, 136 Ind. 398; Justice v. Pa. Co., 130 Ind. [ 321]; Hough v. Railroad, 100 U.S. 213. The Supreme Court of Pennsylvania thus expresses it: 'Whenever it is sought to hold the master liable for the act or neglect of his foreman, the question to be first considered is whether the negligence complained of relates to anything which it was the duty of the master to do. If it does, then the master is liable, for he must see at his peril that his obligations to the workmen are properly discharged.' Ross v. Walker, 139 Pa. 42; Gunter v. Granville Mfg. Co., 18 S.C. 270."

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