Jones v. D. L. Taylor & Co., Inc.

• Decision Date: 10 March 1920
• Docket Number: 179.
• Citation: 102 S.E. 397,179 N.C. 293
• Parties: JONES v. D. L. TAYLOR & CO., INC.
• Court: North Carolina Supreme Court

102 S.E. 397

179 N.C. 293

JONES v. D. L. TAYLOR & CO., INC.

No. 179.

Supreme Court of North Carolina

March 10, 1920

Appeal from Superior Court, Carteret County; Kerr, Judge.

Action by Henry Jones against D. L. Taylor & Co., Incorporated. Judgment for plaintiff, and defendant appeals. No error.

Conflicting evidence upon the issues as to negligence causing injury to an employé carries the case to the jury.

Plaintiff alleged that in March, 1917, he was employed by the defendant as a laborer, and was assigned to the work of "hooking stone" by using grabirons to fasten to the stone so as to move them or lift them up. The work was being done at pier No. 1, Morehead City, where the stone was unloaded from the cars and placed on barges to be taken to Cape Lookout, where defendants were engaged in constructing a breakwater for the government. Plaintiff was placed under the authority of Mr Armstrong, who was the superintendent or "boss" of the work, and who ordered him to break certain stone with a hammer. Plaintiff objected to breaking stone in that way because it was not the usual way, and also was dangerous, but the superintendent insisted that he do so, or, if he refused he would have "to quit the job." The plaintiff while breaking stone under the said orders was seriously injured; his face being hit by flying stone and his eye knocked out. He alleged that the tools and implements used for handling the rock under Mr. Armstrong's orders were not of the proper and usual kind, or in general and common use for such work, and that by the negligent acts and conduct of the defendants, represented by their superintendent, his injuries resulted.

The defendants deny that plaintiff's injury was caused by any negligence on their part, but, on the contrary, by the plaintiff's own negligence. They alleged that the stones to be moved and loaded on the barges, for the purpose of being carried to Cape Lookout, were of different sizes, and some of them were not to be broken. The plaintiff, they allege, knew what was the manner of doing the work, and that there was no risk to him if he performed his work properly.

The small stones were not broken. The plaintiff had been engaged in this work before breaking stone with a sledge hammer where it was thin and flat. Mr. Wheatley was employed by the government as an inspector, and would indicate by a X mark on the stone whether it was to be drilled or broken, and thereupon following this marking by the government inspector, a stone of 5 feet long, 12 inches wide, and 8 inches thick would be broken by a sledge hammer. This was the usual and customary way of breaking stone of this character. These facts were all well known to plaintiff, and he had been engaged in this work for two years or more. The hammer in use was in good condition and the piece of stone on which the plaintiff was working was 8 feet long and 12 inches wide. Before that time it was broken by tapping it with a hammer, when it would break, and there was danger in that, because it cracked just like a piece of ice and would fly all about. They allege that plaintiff said, "I knew it was dangerous to work with a sledge hammer, but I worked at it for two years then I quit." Mr. Wheatley indicated with a X the stones that were to be broken. All plaintiff had to see was that the stone was of certain size. There was evidence to support each of the two contentions. The plaintiff, among other things, testified:

"The stone was marked to be drilled, and the fellows worked so much of it until they could not get it broken up, and had to put it out on a sidetrack, and they had to pay 'murrage' on it. Mr. Armstrong said: 'Now the stone that comes in flat don't put it out there, take the hammer out here and break it.' They could not keep up with it. I was afraid to use the hammer, and threw it away, and one day there were three pieces left in the car. He called me, and said: 'What are you doing sending that stone out there, take the hammer up there on the platform and don't you ever send a car out with one or two pieces.' Of course I was under him, and I got the hammer, and at half past 8 I was breaking that stone, and a piece flew out where the stone ought to have been drilled, and struck me in the eye and knocked it right out in my hand. I don't know whether Mr. Armstrong was on the job at that time or not; I am not sure, but he worked there most all of the time. I objected to breaking up the stone with the hammer. I told him it was dangerous; one boy had already got hurt with one; but I kept right on like he told me; if I did not I would have to get off the job. He told me if I did not I would have to get off the job. The piece of stone I was working on was about 12 inches wide and about 8 feet long. Mr. Wheatley, the government man, would mark the stone, where they were to drill it, with an X, and it was against the law not to break a marked piece."

The judge charged the jury upon the various phases of the case, to which there was no objection, except in the respects hereinafter stated. The defendant asked for a nonsuit and for an instruction that if the jury believed all the evidence the issues should be answered No, which was refused. The defendant then requested that this instruction be given to the jury:

"If the jury believe from the evidence that the defendant D. L. Taylor & Co. furnished the plaintiff suitable tools to work with, and that

...