Appeal
from Superior Court, Davidson County; Daniels, Judge.
Action
by C. P. Harmon against the Ferguson Contracting Company and
another. From a judgment for plaintiff, defendants appeal.
Affirmed.
Instruction
requested by defendants which ignored one of the two charges
of negligence in a servant's action for injuries held
properly refused.
This
action was brought to recover damages for injuries to the
plaintiff, alleged to have been caused by the negligence of
the defendants while he was in their employ at Whitney, N.C
Plaintiff complained as follows:
"(1)
The plaintiff at the time of the injuries hereinafter set
out and at the time of the institution of this action was a
resident of the state of North Carolina, and the defendant
the Ferguson Contracting Company was a corporation and was
doing business at the time near the town of Whitney, N. C
and the defendant the Winston-Salem Southbound
Railway Company is a corporation organized and doing
business under the laws of this state, being engaged at the
time of the injury to plaintiff hereinafter described
through its codefendant, the Ferguson Contracting Company,
in the construction of its roadbed near the said town of
Whitney.
"(2)
That on or about the 6th day of June, 1910, while in the
employment of the Ferguson Contracting Company near the
town of Whitney, the plaintiff was injured under the
following circumstances: Plaintiff, with a force of hands,
was excavating on the south side of a hollow, for the
purpose of putting in pedestals, preparatory to the
erection of trestles for a bridge at Harper's Fill
trestle in Stanley county, and that one Dobbin was, with a
force of hands, in charge of a pile driver, and at work for
the same company on the other side of the hollow, about 300
feet away. That the pile driver was operated by means of
two ropes, one a manilla rope and the other a wire rope.
That about the hour of 9 a.m. one of the ropes broke while
the pile driver was being lifted by the engine, and flew
with great force, and wrapped itself around the
plaintiff's neck, jerking him into a pit some 15 feet
deep, and severely injuring his back, right shoulder, and
left hip, and permanently disabling him. At the time of the
injury, the plaintiff was standing some 5 or 10 feet from
the line of the rope, on a mixing board, at work.
"(3)
That the plaintiff's injuries were caused by the
carelessness and negligence of the said Dobbin, manager of
the pile driver of the defendant Ferguson Contracting
Company, in that the rope or cable which broke was
defective, some of the strands being worn or broken, and
further by his carelessness and negligence in that the
pulley, over which the said rope runs, was not high enough
to raise the pile driver, and said pile driver and frame
over which the rope ran and on which the pulley was
located, being too near on a level, producing too great a
strain on the rope and causing it to break.
"(4)
That the said injuries of the plaintiff were brought about
by the carelessness and negligence of the defendant the
Winston-Salem Southbound Railway Company, in that it failed
to keep supervision of the dangerous work being done by
Dobbin, and in employing incompetent and unskillful
servants and agents to operate the pile driver, and in
allowing the said servants and agents to use defective and
dangerous machinery and apparatus in pursuit of their work,
which brought about injuries to the plaintiff, as above set
out, and for which both the defendants are liable as joint
tort-feasors. That prior to his injuries plaintiff was a
skillful and experienced workman, commanding high wages,
and earned a salary of from $100 to $200 dollars per month,
but since said injuries the plaintiff has been unable and
unfit for active work, and suffers great mental and bodily
pain at all times, to his permanent damage in the sum of
twenty-five thousand ($25,000) dollars."
The
defendants filed separate answers, denying the alleged
negligence, and averring that the pile driver and two ropes
were in good condition, and had been properly inspected. They
pleaded specially that plaintiff had been duly warned by
Dobbin that they were about to pull on the ropes for the
purpose of lifting the pile driver and to move out of the way
of danger as the ropes might break under the heavy strain put
upon them, which plaintiff failed to do in his own wrong, and
was injured. There was evidence to support the allegations of
the respective parties.
There
was a verdict for the plaintiff, and the defendants appealed.
WALKER
J.
It
seems to us that the charge explained the law and the
evidence to the jury as clearly as it could be done. One of
the main issues between the parties related to the character
in which the Construction Company was doing the work for the
Railway Company, the other to the question of negligence.
If the
Construction Company was an independent contractor, the other
company was not liable for its negligence, unless the work
was so inherently dangerous...
