Crisp v. Hanover Thread Mills, Inc.

• Decision Date: 24 January 1925
• Docket Number: 588.
• Parties: CRISP v. HANOVER THREAD MILLS, INC.
• Court: North Carolina Supreme Court

126 S.E. 110

189 N.C. 89

CRISP v. HANOVER THREAD MILLS, INC.

No. 588.

Supreme Court of North Carolina

January 24, 1925

Appeal from Superior Court, Clay County; McElroy, Judge.

Action by W. O. Crisp against Hanover Thread Mills, Incorporated. Judgment for plaintiff, and defendant appeals. No error.

Evidence of lack of proper assistance held sufficient for jury.

Merrimon Adams & Johnston, of Asheville, for appellant.

Anderson & Gray, of Hayesville, and R. L. Phillips, of Robbinsville for appellee.

CLARKSON J.

The only question involved is whether on all the evidence, taken as in a case of nonsuit, most favorable to plaintiff, the court below should have granted a nonsuit at the close of plaintiff's evidence and at the close of all the evidence.

The plaintiff's contention was that the defendant furnished and required him to use a box for the purpose of carrying out spools from the thread machine, which was too cumbrous and heavy for one man to lift and carry, and negligently failed to furnish him with a helper to do the work; that defendant knew the situation, and plaintiff informed the defendant's boss, Mr. Lyda, after he started carrying out the big box, that they were putting too much on him. He was ruptured and seriously injured in doing the work. When he first went to work they were emptying the spools in small boxes, 10 or 12 inches high; that, after he had worked some time, Mr. Lyda, the boss of the mill, put him to carrying a box which was about 6 feet long and about 12 or 14 inches at the top, and weighed 75 or 100 pounds. He got ruptured lifting that box. The evidence showed that there was no danger of hurt when two men were carrying the box. Plaintiff complained to the boss regarding this work. When he first went to work he was measuring up yarn, he worked there some three or four months, and was later required to remove the box. The box before mentioned was placed under the machinery and operatives would drop empty spools in it when they had finished with them, and he was required to replace these empty spools in a bin made for that purpose.

"I had carried these boxes eight or ten nights, all except Mr. Allman helped me one or two nights. There were four or five boxes, and I carried them out once a night. I made four or five trips every night with these boxes that were just alike."

The record discloses no assignments of error as to the competency of the evidence in the court below. The charge of the court below is not in the record.

The only issues submitted to the jury and the answers thereto were as follows:

"(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

(2) What damage, if any, is plaintiff entitled to recover of defendant? Answer: $1,000."

There are no exceptions to these issues and no issues tendered by defendant.

Judge M. H. Justice, long years a superior court judge, a man of unusual common sense, in Pigford v. R. R., 160 N.C. 96, 75 S.E. 860, 44 L. R. A. (N. S.) 865, charged the jury as follows:

"Plaintiff suffered a rupture, which was progressive in its nature, and resulted in serious and permanent injury. After he was first hurt, Spradlin furnished the help asked for, and he then performed the work assigned to him. Three issues were submitted to the jury as to negligence, contributory negligence, and damages. There was nothing said in the answer, nor was there any issue, as to assumption of risk. The court charged the jury as to the duty of defendant to provide for its employees reasonably safe means and sufficient help to perform his work, and that if it had failed in this duty--the special act of negligence being the failure to furnish necessary or adequate help--and this was the proximate cause of plaintiff's injury, they would answer the first issue 'Yes'; and that, if plaintiff undertook to do the work, after Spradlin had failed, upon proper application, to give him more help, and that a man of ordinary prudence would not have undertaken the performance of the task under the circumstances, or if plaintiff did not exercise ordinary care in the manner of doing the work; and either act of carelessness proximately caused the injury, they would answer the second issue 'Yes,' the burden as to the first issue being upon the plaintiff, and as to the second, upon the defendant. There was a verdict for plaintiff, and defendant appealed from the judgment thereon."

Justice Walker, in a well-considered opinion in that case, says:

"The duty of the defendant to supply help sufficient for the safe performance of the work allotted to the plaintiff is not questioned by the appellant, but it is contended that, if it failed to do so, the plaintiff was guilty of such negligence in going on with the work, after the refusal to comply with his request, as bars his recovery, it being an act of contributory negligence on his part, which was the proximate cause of the injury to him. We cannot assent to this proposition, except in a qualified sense. The doctrine of assumption of risk is dependent upon the servant's knowledge of the dangers incident to his employment and the ordinary risks he is

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