Howard v. J. H. Harris Plumbing & Supply Co

• Decision Date: 22 February 1911
• Citation: 70 S.E. 285,154 N.C. 224
• Court: North Carolina Supreme Court
• Parties: HOWARD. v. J. H. HARRIS PLUMBING & SUPPLY CO.

70 S.E. 285

154 N.C. 224

HOWARD.

v.J. H. HARRIS PLUMBING & SUPPLY CO.

Supreme Court of North Carolina.

Feb. 22, 1911.

Appeal from Superior Court, Beaufort County; Ferguson, Judge.

Action by Katharyn M. Howard against the J. II. Harris Plumbing & Supply Company. Judgment for plaintiff, and defendant appeals. Reversed and dismissed.

These issues were submitted:

"First. Was the plaintiff injured by the negligence of the defendant as alleged? Answer: Yes.

"Second. Did the plaintiff by her own negligence and acts contribute to her injury? Answer: No.

"Third. Did the release of plaintiff for a valuable consideration to E. W. Ayers from liability also relieve the defendant from liability? Answer: No.

"Fourth. What damage, if any, Is the plaintiff entitled to recover? Answer: Seven hundred and fifty dollars."

From the judgment rendered the defendant appealed.

W. C. Rodman, for appellant.

Nicholson & Daniel, for appellee.

BROWN, J. Although there are 20 assignments of error, the merits of this appeal can be passed on in considering the motion to nonsuit.

It is admitted that E. W. Ayers is the owner and proprietor of a large store in Washington, N. C, in which he conducts a mercantile business, and that plaintiff was his employe in the millinery department. Ayers employed defendant to send a workman to his store for the purpose of descending into the cellar and putting in a water pipe. The only entrance to the cellar, which was dark, was a trapdoor in the floor of the store, over which a movable counter stood. From this trapdoor a ladder was used to descend into the cellar. The counter was moved, the trapdoor opened, and the workman, one Cherry, sent by defendant to fix the water pipe, descended with hislantern and tools into the cellar, and went to work. The trapdoor was not closed after Cherry descended into the cellar, and the plaintiff in passing by fell in and was injured.

There are two reasons why the nonsuit must be sustained:

First. There is no evidence of negligence upon the part of the defendant. It obeyed the call and sent one of its workmen to Ayers' store as directed. It was Ayers' duty to conduct the workman to the place where the work was to be done. It was Ayers' store, and he had complete control and management of it. He knew the way into the cellar, and the workman did not. Ayers was offered as a witness for plaintiff, and admits that he undertook this duty. He directed one of his clerks to show Cherry the way into the cellar through the trapdoor. When Ayers delegated this duty to his clerk, he was responsible for the manner in which he discharged it. Tanner v. Lumber Co., 140 N. C. 475, 53 S. E. 287. When the workman lighted his lantern and descended by the ladder into the cellar, it was the clerk's duty to either close the door, or, if necessary to leave it open while the work was being done, to protect it so those passing by were not likely to fall into the cellar. The evidence for plaintiff is not aided any by that offered by defendant. According to Cherry's evidence, Ayers told him that one of his clerks would show him the way into the cellar; that the clerk opened the trapdoor, and told him to enter, which he did; that he then told the clerk he would be in the cellar one hour or two; and that the clerk could shut the trapdoor. Taking the evidence in its most favorable view for plaintiff, we are unable to see any negligent act upon part of the defendant. The proximate cause of her injury was the neglect of Ayers' agent after conducting the workman (as directed by Ayers) into the cellar, and after the workman was down in the cellar, in failing to close...