Fowler v. Carolina Cross Arm & Conduit Co.

• Court: North Carolina Supreme Court
• Writing for the Court: BROGDEN, J.
• Citation: Fowler v. Carolina Cross Arm & Conduit Co., 192 N.C. 14, 133 S.E. 188 (N.C. 1926)
• Decision Date: 27 May 1926
• Docket Number: 472.
• Parties: FOWLER v. CAROLINA CROSS ARM & CONDUIT CO.

133 S.E. 188

192 N.C. 14

FOWLER v. CAROLINA CROSS ARM & CONDUIT CO.

No. 472.

Supreme Court of North Carolina

May 27, 1926

Appeal from Superior Court, Mecklenburg County; Lyon, Judge.

Action by George Vance Fowler, by his next friend, W. N. Fowler against the Carolina Cross Arm & Conduit Company. Judgment for plaintiff, and defendant appeals. Reversed.

Eighteen year old boy cannot be held without capacity to reasonably apprehend and appreciate danger incident to unloading cars of lumber.

The plaintiff, a boy about 18 years of age, was employed by the defendant as a general laborer or utility man, doing anything that "came along; whatever they wanted me to do." He had been working for the defendant about six or eight weeks before his injury. He alleged that on or about the 30th of September, 1924, he was seriously and permanently injured by the fall of a platform, while engaged in the line of his duty and in executing the orders of the foreman to unload a car of lumber. The car of lumber in question was pulled up opposite defendant's building. In order to unload the car it was necessary to build or lay a platform from the platform of the building to the door of the car, a distance of six or eight feet.

The plaintiff testified as follows:

"On Saturday morning Mr. Stills (foreman) told us not to come back Monday morning to work, but to come back Tuesday morning, and there would be a car of lumber there to be unloaded. If he did not come in Monday, he would be there Tuesday. He just told us to unload the car of lumber. He told us where to unload it; in the same place we had always unloaded it. There was not any other place for unloading it. We ordinarily unloaded the lumber right at the rear end of the building. There was a platform there part of the way; wasn't one all the way. We had to build it from the platform of the building out to the car; that was about six feet, I reckon. The instructions he gave us for unloading the lumber were, he just told us to unload it there until he came, and in the same place, and use the same stuff we had been using. That was all we had to use. We had been using in unloading just 4x4, that we used at this time. There were four pieces used. We laid one end of this lumber on the platform that was in the building and took these little dinky cross-ties and put them up at the other end; stacked them up on top of each other, made a pile, and laid the 4x4 from the platform on the building out on that to make it level. *** We placed them on this occasion just exactly in the same manner in which we had placed them theretofore. Used the same material all the way around. Used the same number of pieces that we ordinarily used. Hilton and me and the two Barrett boys made the scaffold. We went in there that Tuesday morning and made this scaffold the first thing, the platform that we were piling on. We could put half or two-thirds of the lumber back in the building before we started to put it on the platform that run out from the building. *** The scaffold under the platform on which I was standing broke, and the platform broke."

Plaintiff further testified that about two-thirds of the car of lumber had been placed inside the building, and practically all of the remaining third was piled upon this platform at the time it fell. The exact words of the plaintiff were:

"We had right around one-third of a carload, hardly one-third out there. We had no idea of building it for the purpose of stacking lumber on it for long. We had never stacked any lumber on it out that far. Me and Hilton and those two Barrett boys built the platform. I don't remember who picked out the lumber. It was what we had used all the time, 4x4, because that is what we had the planer set for when they were planing them. We had used the same skids late the day before. *** I mean by dinky cross-ties, short cross-ties for a little railroad. *** The condition of those pieces of 4x4, the pieces of lumber that were put out there, was good; looked to be."

There was evidence tending to show that the third of the carload of lumber which was loaded on the platform would weigh about 28,000 pounds, and the contention of the defendant was, upon all the evidence, that the platform fell or broke, not by reason of any defect, but because the plaintiff and his co-laborers had placed more weight upon the platform than it could bear; it being only designed as a temporary structure for unloading cars, and to be used chiefly as a walkway and not a loading platform.

Issues as to negligence, contributory negligence, assumption of risk, and damages were submitted to the jury and answered in favor of the plaintiff, awarding damages in the sum of $7,000. From judgment thereon, the defendant appealed.

J. Laurence Jones and James A. Lockhart, both of Charlotte, for appellant.

J. F. Flowers and Marvin L. Ritch, both of Charlotte, for appellee.

BROGDEN J.

The only exception requiring discussion is whether or not there was sufficient evidence of negligence to be submitted to the jury. If so, there is no reversible error, and the judgment should be upheld. If not, the judgment of nonsuit should have been sustained.

The liability of an employer for injuries to his employees, occasioned and brought about from the use of instrumentalities used in the work, has created a broad field of judicial inquiry. An examination of the authorities will disclose that liability results from the application of the following principles, to wit:

(1) The instrumentality must be defective. Aiken v. Mfg. Co., 146 N.C. 324, 59 S.E. 696; Barkley v. Waste Co., 147 N.C. 585, 61 S.E. 565; Yarborough v. Fire Proofing Co., 171 N.C. 334, 88 S.E. 474; Vogh v. Geer, 171 N.C. 672, 88 S.E. 874; Howard v. Wright, 173 N.C. 339, 91 S.E. 1032; Winborne v. Cooperage Co., 178 N.C. 88, 100 S.E. 194; McKinney v. Adams, 184 N.C. 565, 114 S.E. 817.

(2) The employer must know of the defect, or be negligent in not discovering it and making the needed repairs. West v. Tanning Co., 154 N.C. 44, 69 S.E. 687; Reid v. Rees, 155 N.C. 230, 71 S.E. 315; Wright v. Thompson, 171 N.C. 91, 87 S.E. 963.

(3) If the employer gives assurance that the instrumentality is safe. Atkins v. Madry, 174 N.C. 187, 93 S.E. 744; Smith v. R. R., 170 N.C. 184, 86 S.E. 1009; Rogerson v. Hontz, 174 N.C. 27, 93 S.E. 376.

(4) If the work is done under the supervision of the employer and according to his instructions. Thompson v. Oil Co., 177 N.C. 279, 98 S.E. 712; McKinney v. Adams, 184 N.C. 565, 114 S.E. 817; Hairston v. Cotton Mills Co., 188 N.C. 557, 125 S.E. 124.

(5) If the employer, having either express or implied notice of a defect, promises to repair or to procure a reasonably suitable instrumentality. Whitt v. Rand, 187 N.C. 807, 123 S.E. 84.

The case now under consideration involves the breaking or falling of a platform. The law of negligence, as applied to platforms and ladders, is discussed in the following cases: Aiken v. Mfg. Co., 146 N.C. 324, 59 S.E. 696; Barkley v Waste Co., 147 N.C. 585, 61 S.E. 565; West v. Tanning Co., 154 N.C. 44, 69 S.E. 687; Reid v. Rees, 155 N.C. 230, 71 S.E. 315;...