McCord v. Harrison-Wright Co.

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS, J.
• Citation: McCord v. Harrison-Wright Co., 198 N. C. 742, 153 S. E. 406 (N.C. 1930)
• Decision Date: 28 May 1930
• Docket Number: 475.
• Parties: McCORD v. HARRISON-WRIGHT CO.

153 S.E. 406

198 N.C. 742

McCORD v. HARRISON-WRIGHT CO.

No. 475.

Supreme Court of North Carolina

May 28, 1930

Appeal from Superior Court, Mecklenburg County; Clayton Moore Special Judge.

Action by W. E. McCord against the Harrison-Wright Company. Judgment for plaintiff, and defendant appeals.

No error.

Testimony by servant, suing for injuries to eye from fragment of steel that hammered head of chisel was dangerous, held not erroneously admitted as expression of opinion.

On July 26, 1926, the defendant, a corporation, was engaged in cutting trenches and laying conduit pipes on Morehead street in the city of Charlotte for the Southern Bell Telephone Company. The plaintiff was an employee of the defendant, and had charge of a squad of men. In order to lay the pipes it was necessary to cut through the bitulithic pavement, and for this purpose the defendant furnished the plaintiff steel chisels or cutters about eighteen inches long and one inch and a half in diameter. It was alleged that the tops of the chisels had been hammered until they had become frayed dangerous, and unsafe; that the plaintiff had requested the defendant to have the chisels dressed and put in suitable condition for the work he had to do and the defendant negligently failed to do so; that one of the men got a chisel or cutter and held it in position, and two other men struck it with heavy sledge hammers; that a small fragment of steel flew from the head of the chisel and struck the plaintiff's right eye while he was standing near by directing the work, and practically destroyed the sight of the injured eye. The plaintiff alleged that his injury was due to the negligence of the defendant in failing to provide an air compressor drill and in providing a cutter which was worn, frayed, and unsuitable for the work which the plaintiff was required to do.

The defendant denied all allegations of negligence and pleaded contributory negligence and assumption of risk in bar of the plaintiff's recovery.

The jury returned a verdict for the plaintiff on all the issues, assessing damages. From the judgment rendered, the defendant appealed upon error assigned in its exceptions.

John M. Robinson and Hunter M. Jones, both of Charlotte, for appellant.

J. D. McCall, E. T. Cansler, and M. C. Moysey, all of Charlotte, for appellee.

ADAMS J.

It is contended by the defendant that the evidence of negligence is insufficient, that the plaintiff assumed the risk of his injury, and that for these reasons, or indeed, for either of them, his motion for nonsuit should have been allowed. It is said that the chisel referred to was a simple tool, and, if defective, that its defect was obvious and as easily discoverable by the plaintiff as by the defendant.

In Hicks v. Manufacturing Co., 138 N.C. 319, 50 S.E. 703, the court declared it to be the duty of an employer of labor to supply his employees, in the exercise of proper care, with machinery, implements, and appliances suitable for their work and to keep such machinery in good condition so far as it can be done by the exercise of due care and diligence. The duty of furnishing tools and appliances, as thus stated, was approved in Mercer v. R. R., 154 N.C. 399, 70 S.E. 742, Ann. Cas. 1912A, 1002, in which it was said that, while this duty applies alike to simple and complicated tools, the authorities agree that, after performing this duty the law does not impose the same obligation with reference to the two classes. The employer must inspect complicated tools; but, if a simple tool becomes defective from use, it is the employee's duty to inform the employer, so that the defect may be remedied or a new tool furnished.

There is evidence that the plaintiff did this. Allen was superintendent; Fonville was general superintendent. They gave the plaintiff instructions. Fonville told him to turn over to Dulin, another employee, such tools as needed repair. The day before the injury the plaintiff requested Dulin to take the cutters and have them dressed, suggesting the necessity of prompt action. Dulin promised, but failed to do so. The tool was defective; the defect was known to Dulin, whose duty it was to make the repair; and there is evidence that the defect was the proximate cause of the plaintiff's injury. Under these circumstances the first issue could not properly be withdrawn from the jury. Reid v. Rees' Sons Co., 155 N.C. 230, 71 S.E. 315; Mincey v. R. R., 161 N.C. 467, 77 S.E. 673; Rogerson v. Hontz, 174 N.C. 27, 93 S.E. 376; King v. R. R., 174 N.C. 39, 93 S.E. 378; Gaither v. Clement, 183 N.C. 450, 111 S.E. 782.

The appellee differentiates the cases on which the appellant relies. In Clement v. Cannon Mills, 198 N.C. 43, 150 S.E. 630, there was no evidence of a defect in the appliance; in Martin v. Highland Park Man. Co., 128 N.C. 264, 38 S.E. 876, 83 Am. St. Rep. 671, the defect was latent, in which event, as pointed out in Mercer's Case, supra, there is ordinarily no liability; in Morris v. R. R., 171 N.C. 533, 88 S.E. 818, the glancing of a hammer used in driving a spike in a cross-tie was the accidental cause of the injury; and in Winborne v. Cooperage Co., 178 N.C. 88, 100 S.E. 194, the plaintiff found an ax belonging to the defendant, and, with ample opportunity to know the handle was loose, used the ax several days without requesting a better tool.

Upon the evidence in the case we are not justified in holding as a matter of law that the action should be dismissed on the ground that the plaintiff assumed the risk of his injury. At the time he was injured the plaintiff was engaged in directing the work of three other men. This was his duty. They were to cut a ditch ten feet long through a bitulithic...