Lynch v. Carolina Veneer Co.
| Decision Date | 19 May 1915 |
| Docket Number | 546. |
| Citation | 85 S.E. 289,169 N.C. 169 |
| Parties | LYNCH v. CAROLINA VENEER CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Cline, Judge.
Action by W. R. Lynch against the Carolina Veneer Company. From a judgment for plaintiff, defendant appeals. Affirmed.
While one may not directly impeach his witness, he may give other direct evidence, different from his, of the facts.
Martin Rollins & Wright, of Asheville, for appellant.
Jones & Williams, of Asheville, for appellee.
This is an action by an employé to recover damages for personal injuries. The defendant is the Veneer Manufacturing Company which has in use several large vats, each 20 feet long, 10 feet wide, and 6 feet deep, filled with boiling water, in which large logs are subjected to the moist heat to soften them for veneering purposes. These vats are parallel to each other, in the same room, and are surrounded by narrow platforms 5 or 6 feet wide, on which the plaintiff, with other employés, was stationed to catch the logs as they were lifted from the vat, peeling the bark off, and rolling them to the veneer room. If a log was lifted from the vat of a different kind of wood from that being used at the time, it was rolled back into the vat. This duty required the plaintiff to work near the open vat and often at its very edge. The plaintiff, a young man 22 years old, had been in the employ of the company on this work 2 1/2 months. Down to within 10 days of his injury the defendant had used a rail as protection, consisting of a heavy 2X6 scantling laid flat and extending 10 or 12 inches above the floor. This was not a part of the vat but a protection. About 10 days before the plaintiff's injury this railing had rotted away and had not been replaced at the time of the injury. The president of the defendant company passed by the place where the rail had rotted away 3 or 4 times a day, and the defendant's foreman testified that he knew that the railing had rotted away several days before the accident. The defendant, however, with full knowledge of the absence of the protection formerly used, continued to require his employés to peel and drag the logs on the narrow platforms, 5 or 6 feet wide, saturated with water, covered with slick bark, and adjoining deep vats filled with boiling water.
While the plaintiff was engaged in peeling and moving the logs on the platform, which that day were poplar and oak, a chestnut log was lifted from the vat, and the plaintiff, in the line of his duty, put it back into the vat. To do this he struck the axe, which he was furnished with for that purpose, into the end of the log, and, in attempting to pull it around to put it back into the vat, he slipped on a piece of bark and fell into the vat, where the protection had rotted away.
The jury found upon all the evidence that the plaintiff was injured by the negligence of the defendant and did not contribute to his own injury and assessed damages. From this verdict, and judgment thereon, the defendant appealed.
The defendant's exceptions 1 and 2 are because the court refused to permit witness to answer certain questions. Without considering these exceptions further, it is sufficient to say that error cannot be assigned for ruling out questions, unless it is shown what replies were sought to be elicited, so that the court may see that the appellant was injured by such ruling. Stout v. Turnpike Co., 157 N.C. 366, 72 S.E. 993; Knight v. Killebrew, 86 N.C. 402.
The next exception is because the defendant was not allowed to impeach a witness introduced by himself. Having offered the witness to the court as credible, the defendant could not be permitted to impeach him. It could, however, have shown a different state of facts by another witness. Sawrey v. Murrell, 3 N. C. 397; State v. Taylor, 88 N.C. 694.
Exceptions 4 and 5 are abandoned. Exceptions 6, 7, 8, 9, 10, and 12 are to the charge, but the instructions excepted to presented merely the well-settled rule of the prudent man. The court charged the jury:
"Now, this is the test, gentlemen: 'Would a reasonably prudent man, a reasonably cautious employer of labor under these or similar circumstances, having proper regard for the safety of his employés and to furnish him a safe place in which to work, and that means that regard which an ordinarily prudent man would have furnished under like or similar circumstances, would such a man have maintained this vat without some protection, railing, or other protection around it for the safety of the employés who had occasion to go and come around and about it in performing the work there?' "
The court also charged the jury:
"If you find that a reasonably prudent and cautious man would have protected this vat with some sort of railing or other construction around it,...
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