Haynie v. North Carolina Elec. Power Co.

Decision Date20 December 1911
Citation73 S.E. 198,157 N.C. 503
PartiesHAYNIE v. NORTH CAROLINA ELECTRIC POWER CO. et al.
CourtNorth Carolina Supreme Court

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

Action by Peter Haynie, administrator of William G. Haynie deceased, against the North Carolina Electric Power Company and another. From a judgment of nonsuit granted at the close of plaintiff's case, plaintiff appeals. Reversed, and new trial granted.

Where in an action for the death of a boy in the employment of the defendant, the plaintiff based his claim upon a violation by the defendant of the contract of hiring by which the injury occurred, the burden is on plaintiff to show the breach of contract and that it was the proximate cause of the child's death.

Where in an action for the death of an infant servant, the theory of the action is that a breach of the contract of hiring made with the deceased's father was the proximate cause of the injury, the burden is upon the defendants to show that the father acquiesced in the breach, unless the facts appear from the plaintiff's own evidence.

Locke Craig, Moore & Rollins, and Jones & Williams, for appellant.

Martin & Wright, for appellees.

BROWN J.

The evidence offered by plaintiff tends to prove that his son the intestate, aged 13 years, was killed in the engine room of defendants situated on the west side of the French Broad river about July 12, 1910, by falling on the belt connected with the engine. The evidence tends to prove that the boy was employed by defendants Willard & Son as a water carrier, for the men engaged on the east side of the river, in building a railroad track, and that on the west side of the river were situated all the engines and machinery for blasting and moving rock, etc. The evidence shows that at the time the boy was killed the engineer in charge of the engine was Raymond Turner, aged 20. The boy was killed by failing on the belt. The belt threw him off between the belt and the wall. His skull was cracked, his leg broken, and he was mashed to pieces and died in four hours. The boy had often been seen playing around the belt by Turner, the engineer, Correll, the foreman, and he was notified of the danger, but kept on playing around the belt. The evidence tends to show further that C. R. Willard knew of the boy's conduct and that the engineer and foreman had repeatedly warned the boy. The foundation of plaintiff's action is the allegation that his son was non sui juris, inexperienced, and incapable of appreciating great danger, and, by reason of his youth and inexperience, careless in incurring danger; that he hired his son to defendants to work upon the east side of the river as a water carrier away from the dangerous machinery and he should be protected from such dangers by the defendants. Plaintiff avers that this agreement was violated by defendants and his son permitted to go in the engine house on the west side of the river and to be around and about the machinery in consequence of which he was killed.

The plaintiff does not base his claim upon any defective machinery, but upon a distinct violations by defendants of the contract of hiring. Upon the allegations of the complaint, the burden rests upon plaintiff to show a breach of the contract and that it was the proximate cause of his son's death.

The plaintiff testifies that he consented to the employment of his son by defendants for the purpose of carrying water on the east side of the river; that he forbade them to let his son go on the other side where the machinery was; that the foreman promised that his son would be kept at work on the east side; and that he would see to it.

It is well settled that the father may stipulate as to the kind of work his child may be employed in ...

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