Craver v. Franklin Cotton Mills Inc, (No. 490.)

• Citation: 145 S.E. 570
• Decision Date: 05 December 1928
• Docket Number: (No. 490.)
• Court: United States State Supreme Court of North Carolina
• Parties: CRAVER. v. FRANKLIN COTTON MILLS, Inc.

145 S.E. 570

(196 N.C. 330)

CRAVER.

v.FRANKLIN COTTON MILLS, Inc.

(No. 490.)

Supreme Court of North Carolina.

Dec. 5, 1928.

[Ed. Note.—For other definitions, see Words and Phrases. First and Second Series, Proximate Cause.]

Appeal from Superior Court, Cabarrus County; J. L. Webb, Judge.

Action by Will Craver against the Franklin Cotton Mills, Inc. Judgment for plaintiff, and defendant appeals. Reversed.

W. H. Beckerdite, J. L. Crowell, and J. L. Crowell, Jr., all of Concord, for appellant.

A. A. Tarlton and J. F. Newell, both of Charlotte, and Hartsell & Hartsell, of Concord, for appellee.

ADAMS, J. The plaintiff was employed by the defendant as a night watchman. It was his duty to keep watch on three floors of the mill and once an hour in winding his clock to use keys which were "fastened to the upstairs and posts over the room." In the performance of this duty, he had to go up and down a stairway. At 9 o'clock on the night of September 7, 1927, while he was going from the second floor to the basement, his foot was caught in the loop of a small wire, each end of which had been fastened by nails to the eighth step, and he was thereby thrown to the foot of the stairway and injured. The defendant moved for nonsuit at the close of the plaintiff's testimony and at the conclusion of all the evidence, and excepted to the denial of its motion. The issues of negligence, contributory negligence, and damages were answered in favor of the plaintiff, and from the judgment the defendant appealed upon assigned error.

The only negligence set forth in the original complaint has reference to the wire. It was alleged: (1) That the defendant negligently operated its mill with a copper wire fastened on the eighth step of a stairway which it was necessary for the plaintiff to use in the course of his employment; (2) that the defendant negligently fastened the wire to the step; and (3) that the defendant knew, or by the exercise of due care should have known, the wire was there. The complaint was subsequently amended by inserting an allegation of the defendant's negligent failure to light the stairway. It Is upon these allegations that the action was prosecuted. It therefore becomes necessary to determine whether upon all the evidence either of the causes can be maintained.

First as to the lights: The plaintiff testified that one light was burning in the tower which was more than ten feet square) when he was injured, but that it "did not shine on the staircase to do any good, " and gave his reason for saying so; but he said that he had been engaged in this particular work for six months; that, excepting nine nights, he had gone up and down the stairway every hour while on duty twelve times every night when the light in the tower was burning, and that he had never fallen before. True, he testified that there was no light on the stairway when he was injured, and, if one had been there, he could have seen the wire, but the light in the tower was the only one which had been used during the preceding six months to light the stairway. Several witnesses testified in contradiction of the plaintiff as to the sufficiency of the light in the tower, which was very near the stairs; but, considering the plaintiff's testimony as undented, we cannot escape the conviction that the light in the tower was bright enough for the usual and ordinary prosecution of his work. The plaintiff seems to have thought so, for there is no evidence that he made any complaint to the defendant. Moreover, the testimony shows that the defendant had provided a lantern for the plaintiff, and that he preferred a flash-light. He testified:

"Part of the time I carried a flash light and part of the time I didn't. I won't say whether I had one that night. Sometimes I'd go and forget to take it out of my pocket."

If sufficient provision was made in this respect for the usual work required of the...