Mack v. Marshall Field & Co.

• Decision Date: 20 December 1940
• Docket Number: 670.
• Citation: 12 S.E.2d 235,218 N.C. 697
• Parties: MACK v. MARSHALL FIELD & CO. et al.
• Court: North Carolina Supreme Court

12 S.E.2d 235

218 N.C. 697

MACK v. MARSHALL FIELD & CO. et al.

No. 670.

Supreme Court of North Carolina

December 20, 1940

This is an action for the alleged wrongful death of the plaintiff's intestate. C.S. § 160.

Marshall Field & Company contracted with the Southeastern Construction Company to build an addition to its sheeting mill at Draper, N.C., according to plans and specifications prepared by Robert & Company, architects, and the Southeastern Construction Company sublet the construction of the steel work to J. L. Coe, and the plaintiff's intestate, John Hunter, was an employee of J. L. Coe.

The addition to the sheeting mill was to be 150 or 150 feet by 300 feet in area, the construction of which necessitated the removal of a high-voltage electric line which carried the current to the substation containing the transformer, which supplied the electric power to operate the mill, as well also as the removal of the substation. At the time involved in this case the transmission line had been removed, but the substation and transformer remained in place and were surrounded by the partially constructed walls of the addition. A newly constructed electric line was connected with the substation and transformer by four temporary wires which ran diagonally across the wall of the addition. These wires enabled the mill to continue operation while the construction of the addition progressed. A new substation outside the walls of the addition was in the course of construction and it was planned to remove the transformer to such substation as soon as it was completed and attach it to the new power line, thereby permitting the old substation to be torn away, an opening being left in the new walls to permit this removal of the transformer.

J L. Coe had erected a portion of the steel work and was engaged in this operation at the time in question,--he was using a hoisting apparatus, consisting of a wooden pole about 35 feet long to which was attached pulley blocks through which ran the steel cables used in hoisting the steel columns, and at the base of this pole there was what was called a winch on which the steel cables were wound in the hoisting operation.

The plaintiff's intestate was winding the windlass of the winch, which was hoisting a steel column about 36 feet long in order to put the column in place according to specifications. As the column rose from the ground it assumed an almost perpendicular position and the top end thereof came in contact with the temporary high-voltage wires leading to the substation and transformer, and the electric current ran from the wires through the steel column and the steel cables to the winch and there came in contact with the intestate killing him almost instantly.

Robert & Company was named in the summons and the complaint but was never served. A judgment as in case of nonsuit was entered as to the defendant W. F. Humbert at the close of plaintiff's evidence, to which no objection was made.

Predicated on the jury's verdict, his honor entered judgment in favor of the plaintiff against the defendants Marshall Field & Company and the Southeastern Construction Company. From this judgment these defendants appealed assigning error.

Junius C. Brown, of Reidsville, and Sapp & Sapp, of Greensboro, for appellant Marshall Field & Co.

Dalton & Myers, of High Point, for appellant Southeastern Const. Co.

Lovelace & Kirkman, of High Point, and Frazier & Frazier, of Greensboro, for appellee.

SCHENCK Justice.

Both of the appealing defendants assign as error the refusal of the court to sustain their motions for judgment as in case of nonsuit made when the plaintiff had introduced her evidence and rested her case and renewed when all of the evidence was in. C.S. § 567.

The Southeastern Construction Company was an independent contractor and J. L. Coe was an independent contractor. Hence Marshall Field & Company was in nowise liable for the negligence of either of them, and was liable only for such of its own negligence, if any, as contributed to the death of the plaintiff's intestate. It is alleged and there is evidence tending to show that the temporary wires connecting the old substation and transformer with the new power line carrying 2,300 volts of electricity, were permitted to remain on the premises in an exposed condition, and in such a position as was likely to come in contact with those working on the addition to the...