Gaither v. E. H. Clement Co.

• Decision Date: 03 May 1922
• Docket Number: 386.
• Citation: 111 S.E. 782,183 N.C. 450
• Parties: GAITHER v. E. H. CLEMENT CO.
• Court: North Carolina Supreme Court

111 S.E. 782

183 N.C. 450

GAITHER v. E. H. CLEMENT CO.

No. 386.

Supreme Court of North Carolina

May 3, 1922

Appeal from Superior Court, Guilford County; Webb, Judge.

Action by W. B. Gaither against the E. H. Clement Company. From a judgment on the verdict for plaintiff, defendant appeals. New trial ordered.

Where in personal injury action the court charged that the plaintiff could not recover if his negligence was the proximate cause or contributed to the injury, the further charge that plaintiff may be guilty of contributory negligence, and yet that negligence would not be the proximate cause of the injury, was not prejudicial to defendant in view of the rule that instructions must be considered in their entirety.

Plaintiff alleged that he was injured by the negligence of the defendant. Defendant denied negligence, and pleaded plaintiff's contributory negligence and assumption of risk. The issues of negligence, contributory negligence assumption of risk, and damages were answered in favor of the plaintiff. Judgment on the verdict, and appeal by the defendant.

The plaintiff's statement of facts is substantially as follows:

"The plaintiff, at the time of his injury, was in the employ of the defendant as a carpenter, having had no experience in concrete work. The defendant was engaged in erecting a brick and concrete building, and had laid the concrete floors in the building, same having been poured in forms made of wood and supported by 2-inch boards held up by timbers 4X4. For some reason it became necessary to drill holes through the second floor of the building, and the defendant's superintendent, Cooper, ordered the plaintiff and a fellow servant to do so. The concrete of which the floor was composed had been set up three or four days, but the part where the plaintiff was working, and in which the holes had to be drilled, had been run two or three weeks before. The wooden forms were still underneath the concrete. In order to drill the holes, and do the work required of the plaintiff, the defendant furnished him a drill made of some of the reinforcing iron left over from use in the concrete. The plaintiff was aided in this work by a fellow workman--one held the drill and the other hit it with a hammer. The drill was 2 1/2 or 3 feet long and about 1 1/2 inches in diameter. One end was flattened out and sharpened, the flat end being wider than the body of the drill. The plaintiff and his fellow servant, after drilling one or two holes, were undertaking to get the drill out of the hole where it had become stuck. It could not be driven through because the top had become battered and flattened so that it would not pass through the hole; neither could it be pulled back, as the point had become stuck in the wooden form underneath the concrete. The defendant's superintendent, Cooper gave orders for the plaintiff to go underneath and knock the drill back, while his fellow servant stayed on top and held it. In obedience to this order, the plaintiff went underneath, got a step ladder, went upon it, and with a hammer weighing about 2 1/2 pounds, struck the end of the drill; whereupon, with the first stroke, a piece flew off the drill and hit him in the left eye, putting it out. It was not light underneath the floor. His eye had been in good condition up to that time."

J. Lawrence Jones, of Charlotte, and F. P. Hobgood, Jr., of Greensboro, for appellant.

Wilson & Frazier and R. C. Strudwick, all of Greensboro, for appellee.

ADAMS J.

The complaint states four phases of the defendant's alleged negligence, but at the trial the plaintiff relied mainly on the asserted negligent failure to provide for him a suitable drill and a safe place in which to work. After the plaintiff's witnesses had testified, the defendant, declining to offer evidence, made a motion to dismiss the action as in case of nonsuit. In support of the motion it now insists: (1) That the injury was an accident; (2) that, even if the general rule prescribing the employer's duty as to furnishing implements applies where the tools are of simple construction, still, granting the defendant's negligence in the respects complained of, there was no proximate causal relation between such negligence and the plaintiff's injury; and (3) that the plaintiff, disregarding the safe way of driving back the drill, chose the dangerous way by using a hammer for that purpose.

The master is not an insurer of the servant's safety, but he is required to exercise ordinary care to provide reasonably safe instrumentalities wherewith, and reasonably safe places wherein, the servant shall do his work. In the discharge of this duty he meets the requirements of the law if he exercises that degree of care which a man of ordinary prudence would exercise having regard to his own safety, if he were providing such appliances or places for his own personal use. Marks v. Cotton Mills, 135 N.C. 290, 47 S.E. 432; Nail v. Brown, 150 N.C. 535, 64 S.E. 434; Mercer v. R. Co., 154 N.C. 401, 70 S.E. 742, Ann. Cas. 1912a, 1002. In Mercer's Case, Allen, J., said:

"This duty applies alike to the simple and the complicated tools, but the authorities agree that, after performing this duty, the law does not impose the same obligations with reference to the two classes of tools. When the tools and appliances are complicated, the employer must inspect them from time to time, and must see that they are maintained in a reasonably safe condition." Fearington v. Tobacco Co., 141 N.C. 83, 53 S.E. 662.

With reference to simple tools, the question of the employer's responsibility may generally be referred to his actual or constructive knowledge of defects from which injury may reasonably be expected to result. This principle has been frequently applied, as, for example, where the employer had provided a hammer that was not suitable for the work intrusted to the employee (Young v. Fiber Co., 159 N.C. 376, 74 S.E. 1051), where a pin intended to secure a wheel on the spindle of a truck had been materially worn by long use (Cotton v. R. Co., 149 N.C. 227, 62 S.E. 1093), where a ladder used to clean out a vat had become worn and defective (Reid v. Rees, 155 N.C. 231, 71 S.E. 315), and where a defective chisel had been furnished for cutting slack rivets from an oil tank (Mercer v. R. Co., supra). That there had been in some of these cases an opportunity for inspection is unimportant, for the reason that in the instant case the defendant not only manufactured the drill, but provided material that was not suitable for the purpose. Rogerson v. Hontz, 174 N.C. 27, 93 S.E. 376; Thompson v. Oil Co., 177 N.C. 279, 98 S.E. 712; Hensley v. Lumber Co., 180 N.C. 573, 105 S.E. 174. So likewise as to the question whether the servant who made or sharpened the drill was a competent workman. The master's duty with regard to providing reasonably safe and suitable tools is not delegable, and such servant must be regarded as the representative or alter ego of the defendant, and not as a fellow servant of the plaintiff. Chesson v. Lumber Co., 118 N.C. 60, 23 S.E. 925; Bolden v. Ry. Co., 123 N.C. 617, 31 S.E. 851; Tanner v. Lumber Co., 140 N.C. 479, 53 S.E. 287; Harmon v. Contracting Co., 159 N.C. 28, 74 S.E. 632; Mincey v. R. Co., 161 N.C. 470, 77 S.E. 673; Clements v. Power Co., 178 N.C. 55, 100 S.E. 189.

The defendant contends, however, that the hurt inflicted could not have been foreseen; that it was an accident, and that there was no causal relation between the alleged negligence and the plaintiff's injury. As we have said, there was evidence tending to show that the defendant negligently furnished a defective drill, and that the plaintiff, in obedience to instructions, attempted to "knock it back through the boards or wood * * * whereupon a piece flew off the drill and hit him in the left eye." The defendant says that the plaintiff only assumed that the particle of steel came from the drill; but the jury found it to be a fact. The defendant says that the proximate cause of the injury was the plaintiff's negligent use of the hammer; but this was a matter for the consideration of the jury. The principle discussed in Martin's Case, 128 N.C. 264, 38 S.E. 876, 83 Am. St. Rep. 671, is not applicable where the employer has actual or constructive knowledge that the defect in a simple tool which he provides is of a kind importing menace of substantial injury (Thompson v. Oil Co., supra); and where there is evidence of concurring negligence on the part of the plaintiff and of the defendant the question of proximate cause must ordinarily be referred to the jury. True it is that, where the danger is obvious, and the servant has as good an opportunity as the master of seeing the danger, and can avoid it by the exercise of reasonable care, the servant cannot recover against the master for injuries received in consequence of conditions which constituted the danger. Labatt on Master and Servant, § 333; Mincey v. R. Co., supra. But upon the evidence here we cannot hold as a conclusion of law that the alleged negligence of the plaintiff was the proximate cause of his injury. Isaiah Miles testified that the drills in general and approved...