Farr v. Tallassee Power Co.

• Decision Date: 22 January 1930
• Docket Number: 617.
• Citation: Farr v. Tallassee Power Co., 151 S.E. 242, 198 N.C. 247 (N.C. 1930)
• Parties: FARR v. TALLASSEE POWER CO.
• Court: North Carolina Supreme Court

151 S.E. 242

198 N.C. 247

FARR v. TALLASSEE POWER CO.

No. 617.

Supreme Court of North Carolina

January 22, 1930

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

Action by Ira Farr against the Tallassee Power Company for personal injuries sustained through defendant's negligence. Judgment for plaintiff after trial before jury, and defendant appeals. No error.

Giving instruction on master's liability for watchman's acts as vice principal held not error under evidence showing watchman was employer's alter ego.

The defendant is a corporation operating a plant that generates hydroelectric power at Tapoco, N.C. The plaintiff was employed by defendant as a carpenter and pipe fitter, but in October, 1926, was ordered and directed to assist in removing some large rocks and boulders out of the river near the mouth of the tail race, which was blocking the flow of the water from the water turbine wheels and interfering with the proper operation of them.

The allegations of negligence are:

"(a) The defendant failed to furnish the plaintiff a proper and safe place with proper and safe surroundings and conditions in which to perform the work assigned him to do.

"(b) In that the defendant negligently failed to furnish and use proper means, equipments and methods for doing the work in which the plaintiff was ordered and directed to do.

"(c) In that the defendant negligently failed to use experienced and competent servants and employees in sufficient number and positions for doing the work properly and safely, in which the plaintiff was assigned and directed to do and in which he was injured.

"(d) In that the defendant negligently assigned the plaintiff to work out in the river in a dangerous and unsafe place in connection with high powered derricks and appliances when in operation and without a proper and safe way or means by which to approach and leave the said derrick cable and its appliances in safety.

"(e) In that the defendant wrongfully and negligently started, caused and permitted to be in operation the said powerful derrick and cable at a time when the plaintiff was busily engaged in handling and hooking the end of the cable to a large rock or boulder out in the river in a dangerous and unsafe place, without any notice or warning to the plaintiff.

"(f) In that the defendant negligently started its said machine and cable while plaintiff was busily engaged in performing his duty at and in connection therewith to the great danger and distress of plaintiff and caused plaintiff in said emergency to attempt to flee for his safety, throwing him across a rock, rupturing, bruising and permanently injuring his body, causing him to suffer great pain and mental anguish to his great damage."

The defendant denied negligence and set up the defense of contributory negligence, assumption of risk, and the fellow-servant doctrine.

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

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

"2. Did the plaintiff contribute to his injury by his own negligence? Answer: No.

"3. Did the plaintiff assume the risk of his injury? Answer: No.

"4. What damage, if any, is the plaintiff entitled to recover? Answer: $2,000.""

The necessary facts will be set forth in the opinion. The defendant made numerous assignments of error and appealed to the Supreme Court.

S. W. Black, of Bryson City, and R. L. Phillips, of Robbinsville, for appellant.

T. M. Jenkins, of Robbinsville, Moody & Moody, of Murphy, and Edwards & Leatherwood, of Bryson City, for appellee.

CLARKSON J.

At the close of the plaintiff's evidence and at the close of all the evidence, defendant moved for judgment as in case of nonsuit. C. S. § 567. The court below overruled the motions, and in this we find no error.

Plaintiff's evidence was to the effect that he was employed by the superintendent in charge of defendant's hydroelectric power plant, to assist in removing large rock out of the river, near the mouth of the tail race. In doing this a derrick and cable were used to lift the rock. A cable was stretched from one side of the mountain to the other, running across the river at the end of the tail race. The engineer in charge of the hoisting engine, W. D. Williams, was not in sight of the man at the tail race, where they hooked or hitched the rock to the cable. The superintendent, Walter Scott, had placed a man, one White, on the side of the mountain, who could see the engineer and the workmen at the tail race, and whose duty it was when the rock was hooked at the tail race and the signal given to him, to signal the engineer, who would start the engine, and the rock would be hoisted and carried out. When the men hooked on the rock they had to get out of the way. Plaintiff and the men were hitching on a stone 4x5x7 feet. "We got this rope around this rock and the derrick started and I did not have time to get across this rough place without rushing for my life for the only way to get out was the way this cable was coming. Before I could get out the derrick moved and I made a spring to get away from it. I was in the river; over on this side near the power house was water say 30 or 35 feet, and just back of this rock it seemed to be 4 feet before you could land on another stone and that water was deep. The only way I could do was to come out the way the cable come and a little bar of sand there and then I got to get out on and when I stepped on this stone going out from this cable wire was when I got my injury. I was travelling fast because of the danger of this rock starting before I was ready and could get away. I stepped on a small boulder, it was slick, my left foot slipped from under me and threw me in a twist and I felt myself tearing in my left side and of course I was very bad hurt. If I was doing the hooking on the rock, I was the man to signal Mr. White. I was doing the hooking at the present time and Mr. White was signalling Mr. Williams to start. Williams was not in sight of me, but I was in sight of White. I did not signal Mr. White to have the engine started. It started without a signal. When I fell White stopped the derrick until I got up out of the way. He flagged him and stopped him. *** Mr. Walter Scott was in charge of the crew. Mr. Scott was not there and I suppose they considered that I was in charge, I did not feel that they were altogether under my charge because he gave me orders and did not say anything to me about it. I had no right to fire or hire them. I could only give them orders that he gave me. *** Q. Did you tell any one that you wanted another way to get out of there? A. I wanted...