Jarvis v. Erwin Cotton Mills Co.

• Court: North Carolina Supreme Court
• Writing for the Court: BROGDEN, J.
• Citation: Jarvis v. Erwin Cotton Mills Co., 194 N.C. 687, 140 S.E. 602 (N.C. 1927)
• Decision Date: 14 December 1927
• Docket Number: 387.
• Parties: JARVIS v. ERWIN COTTON MILLS CO.

140 S.E. 602

194 N.C. 687

JARVIS v. ERWIN COTTON MILLS CO.

No. 387.

Supreme Court of North Carolina

December 14, 1927

Appeal from Superior Court, Davidson County; Harding, Judge.

Action by R. L. Jarvis against the Erwin Cotton Mills Company. Judgment for plaintiff, and defendant appeals. Reversed.

Evidence of employer's negligence in furnishing inadequate help held insufficient for jury.

This was an action for damages instituted by the plaintiff alleging in substance that on or about the 8th day of December, 1925, while in the employ of the defendant, he was required to lift loom beams and stack them six high. These beams weighed from 285 to 300 pounds. The height of the stack was about 4 1/2 feet. The evidence tended to show that plaintiff called another workman to his assistance, and while they were attempting to place the last beam on the stack he was ruptured. Upon appropriate issues there was a verdict for plaintiff, and an award of damages in the sum of $4,000. From judgment upon the verdict, defendant appealed.

Manly Hendren & Womble, of Winston-Salem, A. T. Grant, Jr., of Mocksville, and Raper & Raper, of Lexington, for appellant.

Walser & Walser and Phillips & Bower, all of Lexington, for appellee.

BROGDEN J.

What duty is imposed upon an employer with reference to the sufficiency of help furnished an employee? The general rule is that it is the duty of an employer of labor to exercise ordinary care in furnishing to an employee adequate help or assistance in the performance of the work required of such employee. This duty is primary and nondelegable and ranks in importance with the duty of an employer to exercise ordinary care in furnishing a safe place to work. The question has been considered by this court in many decisions, notably the following: Bryan v. Railway, 128 N.C. 387, 38 S.E. 914; Shaw v. Manufacturing Co., 146 N.C. 235 59 S.E. 676; Pigford v. Norfolk S. R. Co., 160 N.C. 93; Brown v. Foundry Co., 170 N.C. 38, 86 S.E. 725; Hollifield v. Telegraph Co., 172 N.C. 714, 90 S.E. 996; Cherry v. Atlantic C. L. R. R., 174 N.C. 263, 93 S.E. 783; Winborne v. Cooperage Co., 178 N.C. 88, 100 S.E. 194; Strunks v. Payne, 184 N.C. 582, 114 S.E. 840; Hines v. Atlantic C. L. R. R., 185 N.C. 72, 116 S.E. 175; Crisp v. Thread Mills, 189 N.C. 89, 126 S.E. 110; Bradford v. English, 190 N.C. 742, 130 S.E. 705; Johnson v. Carolina C. & O. R. Co., 191 N.C. 75, 131 S.E. 390; Barrett v. Seaboard Air Line R. Co., 192 N.C. 728, 136 S.E. 5; Clinard v. Electric Co., 192 N.C. 736, 136 S.E. 1. These cases present a variety of circumstances. In some of them, the sufficiency of help furnished is combined with a failure to furnish proper tools and appliances. In others, the employee was inexperienced. In all of them, with few exceptions, there was a request by the employee for more help, and the request was either denied or ignored.

The law in other jurisdictions discloses a divergence of judicial thought upon the question. Many of the pertinent decisions may be found in an annotation to Tony Williams v. Ky. River Power Co., 179 Ky. 577, 200 S.W. 946, 10 A. L. R. 1396. The headnote to that case discloses that the Kentucky court held:

"An employee, directed to carry plank, cannot hold the employer liable for hernia caused by the work being beyond his strength, although when directed to do the work he protested that it was too heavy."

Denial of recovery in this line of cases is usually based upon the theory that the employee assumed the risk, for the reason that the workman himself is the best judge of his own strength, or is certainly as capable of judging his own strength as the employer. An examination of our decisions upon the subject, however, will demonstrate that the rule of liability is much stricter in this jurisdiction, perhaps, than that recognized by the weight of authority in other states.

In order to determine the merits of the controversy in the present case, it is necessary to recur to the facts appearing in the record. The plaintiff operated a slashing machine. In the same room were seven other employees. It was a part of his duty to stack loom beams. These beams weighed from 285 to 300 pounds. The beams were stacked by laying two on the floor, two across, and two on top of these, making six in each stack. The completed stack was about 4 1/2 feet high. Plaintiff's narrative of his injury is as follows:

"As I was bringing the third beam out, to roll it up on the other two, Mr. Griffin (foreman) said: 'Do not lay it up there; put it up on the stack,' and I said, 'Can you help us?' and he said, 'No; get somebody else;' and I looked around to see who I could get, and I called Mr. Heller, and me and him picked up one off the floor and started with another to fill the space here inside, and I laid it up against the end of the beam, and Mr. Heller stepped around and kinder lifted it up on top of this full stack, extended out here where I couldn't get any room, and threw it up, and I was standing up against it. I did not have any room to get in, and Mr. Heller was on the other end. When putting them up, I felt something tear in my side, and tore so I could not get up with the second loom beam. I put up the first one all right. *** I asked him (foreman) to help me, and he said, 'Get some one

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