Appeal
from Superior Court, Northampton County; Ferguson, Judge.
Action
by Smith Harvell against the Weldon Lumber Company. From a
judgment for plaintiff, defendant appeals. No error.
Where
fair-minded men might honestly differ as to the conclusion to
be drawn from facts, whether controverted or not, the
question at issue is for the jury.
The
plaintiff, an employé, was injured on a platform of the
defendant on April 22, 1909, while at his work. He alleges in
his complaint:
"(5)
That for about four months prior to said April 22, 1909
there had been a hole in the floor of said platform about
10 inches wide and 4 feet long and located in the passway
between said tracks running to kilns Nos. 2 and 3, which
said hole was caused by the breaking of a plank which
formed a part of the floor of said platform."
"(7)
That on or about April 22, 1909, it became necessary for
the plaintiff, while in the performance of his duty, to
pass along said passway between the tracks leading to kilns
Nos. 2 and 3, with an empty truck on
his shoulder, and when he got near the hole in said
passway, he stumbled and fell through said hole in said
passway with said empty truck, weighing about a hundred
pounds or more on his shoulder, falling a distance of
several feet and landing on a brace or rafter or stob of
some kind, which was under said platform and struck
plaintiff in the groins, and the small of plaintiff's
back fell across an empty truck which was lying on top of
said platform, and the truck on plaintiff's shoulder
fell over and hit him in the stomach or bowels, by which
plaintiff was so badly and permanently injured that he was
confined to his bed for about three weeks and confined to
his house for about four weeks, was unconscious for several
hours, suffered great and excrutiating pain and mental
anguish, has been spitting up blood off and on ever since
said injury, and has been compelled to use crutches off and
on ever since said injury, and is still crippled, and, as
he is informed and believes, permanently injured.
"(8)
That plaintiff's said injury was caused by the
negligence of the defendant company, which said negligence
consisted (1) in their failure to repair the hole in said
passway after having been notified and requested by the
plaintiff and other employés of said company to do so, and
(2) in said company's allowing its said passway and
platform to become and remain in an unsafe and dangerous
condition when the plaintiff and other employés of said
company had to pass and repass in the performance of their
duties."
The
defendant answered said paragraphs as follows:
"(5)
In answer to section 5 it is admitted that some time prior to
the 22d day of April, 1909, there had been a hole in the
floor of said platform, but it is denied that it was of the
dimensions alleged in the complaint. And further answering
said section, this defendant says that the location of said
hole was perfectly apparent to the plaintiff, and prior to
the alleged accident the same had been covered and closed by
another board reasonably sound and strong and the same was so
covered at the time of the alleged accident."
"(7)
Section 7 is not true and the same is denied as therein
alleged, except that it is admitted that the plaintiff, in
the performance of his duty, had to pass along said passway
with an empty truck on his shoulder.
"(8)
Section 8 of the complaint is not true and the same is
denied."
The
plaintiff testified: "I am plaintiff. On and before
April 22, 1909, was working for Weldon Lumber Company. Began
to work for them September, 1908. There was a hole between
Nos. 2 and 3 kilns in walkway. At times I got hurt. No. 2 was
filled; No. 1 filled. No.--was blocked, and they were pulling
lumber out on opposite side. I was to put more lumber in
kiln. The smoke in all the kilns had got in and hid the hole.
I was walking with right hand on kiln No. 1. I was feeling to
try to keep from falling in the hole. I knew it was there,
but could not see it. The smoke from the kilns was such that
I could not see. Shed was covered over. When you pull a kiln,
you open door, and had to open all the kilns to fill No. 3.
At No. 3, it being pulled, I could not see it. When I started
in I could see the hole from the outside, and thought I could
see the hole, but when I got in I couldn't. The hole was
there in September; was my duty to walk along passway that
way. I would go by hole some 15 or 20 times a day, and three
others besides myself. I had to carry boards from green end.
It was my duty to take trucks where dry lumber was unloaded
and carry it back to the kiln. Mr. Pilley hired me to work. I
told Mr. Pilley about the hole twice. I know Mr. Pilley
passed along the hole sometimes two or three times a day. I
told him about the hole the second week I worked. Mr.
Shephard was going by there. I told him that the hole needed
to be fixed. Mr. Shephard is president of the company. He
said to tell Mr. Pilley about the holes. I told him that Mr.
Shephard told me to go to Mr. Pilley to have the holes fixed.
I told Mr. Pilley what Mr. Shephard said. He bowed his head
to me. I went back to work. *** It was about three weeks from
that time I fell in the hole and was hurt. End of truck hit
me in the stomach. I had truck on left shoulder feeling my
way down to No. 3 by side of another truck. By kilns being
just pulled, smoke had not got out. I could not see the hole
and slipped in it. *** Hole large enough to fall in; about as
wide as step (pointing to step of judge's platform) which
is about 12 inches wide; was about 5 feet long. Truck on my
shoulder weighed about 100 pounds. It was my, business to
carry truck on my shoulder. *** This hole was between Nos. 2
and 3. It was in daytime. Passageway was as wide as step of
judge's stand from witness platform, which is about 3
feet. If I said in my complaint about 10 inches wide and 4
feet long, I don't remember. I told Mr. Pilley about
mending hole in September; spoke of hole once or twice. What
kept me from mending hole was that I was hired to move
lumber. I had no saw or hammer. They had a carpenter. If I
had laid a plank they could not have moved the trucks. I
never broke through before. I don't remember stumbling. I
stated in complaint that I stumbled and fell in the hole;
stepped on a stick at edge of hole. It was that that caused
me to fall in the hole. I could not see the stick or the
hole. I reckon I would have stepped in the hole, as I could
not see. Was steam from kiln so filled the passageway. It
takes some 15 minutes for steam to
shift and pass away when kilns are shut up. If I had waited
till steam had cleared away could have seen the hole. The men
who carry trucks carry sticks. I might or I might not have
put the stick in there; both of my legs in hole. I don't
know how I got in the hole, but I got both legs in hole. The
truck I fell on was on the platform. *** I had frequently
walked by when hole hid by steam without getting in it; have
walked by there since I went there in September. *** If I
would have stood doing nothing, waiting for steam to clear, I
would have been discharged. It was my duty to put truck in as
soon as possible. I opened the doors. It was my duty."
The
evidence as to the extent of the injuries is omitted, as
there is no exception bearing on the issue of damages. The
defendant introduced evidence tending to show that, at the
time of the injury, the platform or passway was in good
condition, that there had been a hole in it, but it had been
repaired before the plaintiff was injured; that the board of
the passway was broken by the plaintiff throwing down the end
of the truck, which he carried on his shoulder. The board was
shown to the jury, and a witness for defendant testified:
"There were thicker boards at the mill. Board is not
strong enough to hold the weight."
Walter
E. Daniel, E. L. Travis, and Mason & Worrell, for appellant.
Peebles & Harris and Gay & Midyette, for appellee.
ALLEN,
J. (after stating the facts as above).
The
defendant relies principally on a motion to nonsuit the
plaintiff, but also contends that his honor did not instruct
the jury as to the assumption of risk, which is relied on as
a defense, and that he erroneously submitted to them the
question of the liability of the defendant, because of
failure to properly repair the passway, insisting that the
only negligence alleged in the complaint is that alleged in
paragraph 7. The doctrine of assumption of risk does not
arise, as the defendant did not tender an issue or ask for an
instruction thereon. We do not think, however, that the
defendant has suffered any injury by its failure to do so, as
it received full benefit of the facts relied on under the
issue of contributory negligence. The defendant's
construction of the complaint would be correct if the
plaintiff was confined to the facts alleged in paragraph 7
but the plaintiff goes further and alleges, in paragraph 8,
that the defendant allowed its passway and platform to become
and remain in an unsafe and dangerous condition where the
plaintiff and other employés had to pass and repass in the
performance of their duties. This plea is defective and the
defendant had the right to require the plaintiff to state
wherein the passway and platform had become unsafe and
dangerous, but it is a defective statement of a cause...
