Fearington v. Blackwell Durham Tobacco Co

• Decision Date: 10 April 1906
• Parties: FEARINGTON. v. BLACKWELL DURHAM TOBACCO CO.
• Court: North Carolina Supreme Court

53 S.E. 662

(141 n. c. 80)

FEARINGTON.

v.BLACKWELL DURHAM TOBACCO CO.

Supreme Court of North Carolina.

April 10, 1906.

1. Master and Servant — Machinery and Appliances—Duty op Master.

An employer of labor, in plants where the machinery is complicated, and especially when driven by mechanical power, is required to provide a reasonably safe place to work and to supply appliances reasonably safe and suitable for the work and such as are approved and in general use in plants of like kind.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 171-176.]

2. Same — Personal Injuries — Evidence — Negligence—Question for Jury.

In an action by servant for personal injuries received while riding upon a freight elevator in the discharge of his duties, evidence held sufficient, under the doctrine of res ipsa loquitur, to require submission to the jury of the question of defendant's negligence.

3. Same — Contributory Negligence — Evidence—Orders of Foreman.

In an action by a servant for personal injuries received while riding, under the direction of a foreman, on a freight elevator, evidence that the foreman, with knowledge of plaintiff's inexperience, directed him to work on the elevator, was competent to show absence of contributory negligence.

Appeal from Superior Court, Durham County; Shaw, Judge.

Action by Arthur Fearington, by next friend, against the Blackwell Durham Tobacco Company. From a judgment for defendant, plaintiff appeals. Reversed.

Civil action to recover damages for personal injuries tried before Shaw, J., and a jury at October term, 1905, of Durham superior court. The plaintiff, on his examination in chief, testified as follows: "I was injured some time in June 1903; had been at work in the defendant's factory three days before the injury, working in the shipping room helping to load cases of tobacco in a box car which stayed on the side track in a few feet of the shipping room. In the evening, Mr. Andrews, superintendent of the defendant, came to me and told me to go up town and get him some tobacco; when I came with the tobacco he said: 'Go in and help those fellows truck that tobacco up stairs.' I told him that I had never worked on an elevator. He said: 'Hell, you don't want to work, do you? ' and I said: 'I don't want to work like that' He turned and went off and I went to work where he told me. The first load I carried up with Thomas Fleming, second with Howard Smith, and got half way up the building; the tobacco was put on the truck and then pulled on the elevator; it was in sacks laid across the truck; the truck had wheels and was rolled on the elevator; the tobacco was piled on the truck, about as high as my head; I could not look over it; I stood behind the truck, between the truck and the side of the elevator floor; about 12 or 14 inches space was between where I had to stand. [Illustrates the position of his feet, his right foot being slightly in advance of the left]. I had one hand resting on the tobacco sacks; as the elevator was going up I was looking straight up, and the elevator dropped several inches; something gave me a knock on the left leg and I heard the bone break and my right leg shot out behind me; I fell with my face on the truck and right foot out behind me, and caught the iron rod...