Jones v. Douglas Aircraft Co., 259

• Court: North Carolina Supreme Court
• Writing for the Court: RODMAN; HIGGINS
• Citation: Jones v. Douglas Aircraft Co., 112 S.E.2d 257, 251 N.C. 832 (N.C. 1960)
• Decision Date: 29 January 1960
• Docket Number: No. 259,259
• Parties: Roy L. JONES, Administrator of the Estate of Marvin Comer Jones, Deceased, v. DOUGLAS AIRCRAFT COMPANY, Inc.

Page 257

112 S.E.2d 257

251 N.C. 832

Roy L. JONES, Administrator of the Estate of Marvin Comer Jones, Deceased, v. DOUGLAS AIRCRAFT COMPANY, Inc.

No. 259

Supreme Court of North Carolina.

Jan. 29, 1960

Carpenter & Webb, Charlotte, for defendant-appellant.

Carswell & Justice, Robinson, Jones & Hewson, Kennedy, Covington, Lobdell & Hickman, Charlotte, for plaintiff-appellee.

RODMAN, Justice.

The assignment of error which requires first consideration is the motion to nonsuit. Appellant argues the motion should have been sustained on either of two theories: (1) the failure of plaintiff to establish the asserted negligence of defendant, and (2) clear and uncontradicted evidence of negligence of Jones proximately causing his death.

Without reciting the evidence, it is, we think, sufficient to permit but not compel a jury to find these facts: Jones, when he left Charlotte Equipment Company with the crane to work for Boyd & Goforth, became, for the period so employed, the servant of Boyd & Goforth. Jackson v. Joyner, 236 N.C. 259, 72 S.E.2d 589. Boyd & Goforth and its employees were rightly on the premises engaged in the construction of a building which Douglas had requested the Government to erect for its, Douglas' convenience. The work which Jones was employed to do was dangerous and the place assigned to do the work unsafe so long as the overhead wires were energized. That fact was known to and recognized by Boyd & Goforth and by Douglas. On 8 April Jones, acting under orders of Byrd, manager of Charlotte Equipment Company, took the identical crane which he used on the 9th when he was electrocuted to the plant to work for Boyd & Goforth. He was permitted by the guard at the gate to enter and proceeded to a place in proximity to the point where the work was to be performed but he was not permitted by Chaney, superintendent for Boyd & Goforth, to go to the scene of work until the electric lines had been de-energized. This resulted in a substantial delay. Jones and the crane which he operated were then used in placing the steel which would reinforce the concrete to be poured the following day. To avoid a similar delay when the concrete was to be poured, Chaney, on the afternoon of the 8th, in accord with designated procedure, called Wilson, of the Corps of Engineers, and requested Wilson to have the lines de-energized by 7:30 on the morning of the 9th. Thereupon Wilson called Bolick, an assistant foreman for Douglas, whose duty it was to throw the necessary switches cutting current from the lines adjacent to the point where Jones would work. Bolick informed Wilson he would have to obtain permission from his superiors before giving assurances that the current would be off at 7:30 on the following morning. Subsequently Bolick called Wilson, informing him that the necessary authorization had been obtained and the current would be off at 7:30 on the morning of the 9th. Wilson thereupon so informed Chaney. The promise made by Bolick for Douglas to de-energize by 7:30 a. m. on the 9th was communicated to Jones. Wilson testified he had the switch keys before Douglas took possession. He delivered these keys to Douglas and was then directed to contact either Quinn or Bolick whenever it was necessary to de-energize a line. Pursuant to this direction given by Douglas, he communicated with Bolick on the 8th. On the 9th, Byrd, in response to a telephone call from Chaney, sent Jones to pour the concrete. Jones passed through the plant gate at 7:30. He was electrocuted at 8:00 a. m. or shortly thereafter. The line had not been de-energized as Bolick had promised and as Wilson had informed Chaney and as Chaney had informed Byrd.

The crane was mounted on wheels. In placing it in position for work, the driver ran over a piece of 2x4 which damaged the hose connecting the radiator and engine. The boom and bucket were elevated. They were held in a horizontal position by means of a brake. This brake was not sufficient to prevent a horizontal movement caused by the slope of the land, the wind, and the vibration of the engine. The boom and bucket began to swing towards the power line while Jones was under the machine attempting to repair the hose to the radiator. In response to a call from a bystander, he came from under the machine, ran a few steps away from it, and then turned and went back to it, apparetly in an attempt to check its movement and prevent contact with the wires. When he touched the machine he was electrocuted.

Since the jury might find these facts, we must determine the motion to nonsuit upon the assumption that they have been established.

The relationship of master and servant existing between Boyd & Goforth and Jones imposed on the former the duty of exercising reasonable care to provide a reasonably safe place for its employee to work. Bemont v. Isenhour, 249 N.C. 106, 105 S.E.2d 431; Baker v. Atlantic Coast Line R. Co., 232 N.C. 523, 61 S.E.2d 621; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Ainsley v. John L. Roper Lumber Co., 165 N.C. 122, 81 S.E. 4.

To discharge this obligation the master secured a promise from Douglas that the danger would be removed and the place made safe. The master attempted to perform its duty, but contrary to the assurance given, Douglas continued to send the invisible current along the power line, leaving the place where the work was to be performed unsafe and hazardous. Douglas' promise was an invitation to Jones to proceed with his work. A failure to de-energize in this situation was a breach of duty imposing liability for injuries proximately resulting therefrom. Bemont v. Isenhour, supra; Thompson v. De Vonde, 235 N.C. 520, 70 S.E.2d 424; Coston v. Skyland Hotel Co., 231 N.C. 546, 57 S.E.2d 793; Bell v. Florida Power & Light Co., Fla. App., 106 So.2d 224; Reboni v. Case Brothers, 137 Conn. 501, 78 A.2d 887; Brown v. American Steel Foundries, 272 Pa. 231, 116 A. 546.

The law is, we think, correctly stated in the notes 44 A.L.R. 982: 'Where the premises on which the stipulated work is executed remain under the control of the principal employer while the contract is in the course of performance, a servant of the contractor is in a position of an invitee, and as such entitled to recover for any injury which he may sustain by reason of the abnormally dangerous condition of the premises or the plant thereon, if the evidence shows that the principal employer was, and the servant was not, chargeable with knowledge, actual or constructive, of the existence of that condition.' Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 38 S.E.2d 561.

In the absence of information showing a contrary condition, Jones had a right to rely on the assurance given by Douglas to his employer that the current would...