Harvell v. Weldon Lumber Co.

• Decision Date: 01 March 1911
• Citation: Harvell v. Weldon Lumber Co., 154 N.C. 254, 70 S.E. 389 (N.C. 1911)
• Parties: HARVELL v. WELDON LUMBER CO.
• Court: North Carolina Supreme Court

70 S.E. 389

154 N.C. 254

HARVELL v. WELDON LUMBER CO.

Supreme Court of North Carolina

March 1, 1911

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 nonsuitthe 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 of action which is aided by answer.Whitley v. R. R. Co.,119 N.C. 727, 25 S.E. 1018;Bennett v. Tel. Co.,128 N.C. 103, 38 S.E. 294.Justice Walker says in Hitch v. Com'rs,132 N.C. 575, 44 S.E. 31: "It is well settled that in a case where the pleading is not framed with technical accuracy, or something is lacking to constitute a good statement of a cause...