McMahan v. Carolina Spruce Co.

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J. (after stating the facts as above).
• Citation: McMahan v. Carolina Spruce Co., 180 N.C. 636, 105 S.E. 439 (N.C. 1920)
• Decision Date: 24 December 1920
• Docket Number: 515.
• Parties: MCMAHAN v. CAROLINA SPRUCE CO.

105 S.E. 439

180 N.C. 636

MCMAHAN v. CAROLINA SPRUCE CO.

No. 515.

Supreme Court of North Carolina

December 24, 1920

Appeal from Superior Court, Yancey County; Harding, Judge.

Action by McKinley McMahan against the Carolina Spruce Company. Judgment for plaintiff, and defendant appeals. No error.

Signing of a release by an injured servant, obtained through misrepresentations of the master as to plaintiff's condition, which misled the plaintiff and caused him to surrender his right of recovery for almost nothing as compared with his real damage, would not bar recovery.

Plaintiff states two causes of action, in the first of which he alleges negligence of the defendant in failing to furnish a safe place to work. The defendant required the plaintiff to work on a lumber dock, which was about 12 feet above the ground on a frame of studding, which had been floored and a steel rail track laid on top of this flooring, upon which track a lumber car or truck was operating. Defendant had been shipping lumber from packs alongside of this dock, and had carelessly piled up a lot of lumber and packing strips in a loose way on top of this lumber dock and by the side of the track. The timber in this dock had been permitted to rot, which caused the track upon the same to spread, and the lumber truck to drop down between the rails. In order to get the truck back on the track, it was necessary to prize the same up with timbers, requiring the plaintiff to go around the car on the dock, and to do so he was required to pass over this lumber or packing strips, which slid off to the ground, taking the plaintiff with it, a distance of about 12 feet, when both the bones in his left arm were broken. Plaintiff also alleges an insufficiency of hands to do the work, which required him and his coworker to use the scantling for prizing the car back on the rails.

In the second cause of action, the plaintiff alleged that he was injured by the malpractice of defendant's doctor, who failed to treat his arm properly and with ordinary skill, and failed to use the right kind of splint, and thus permitted the bones of his arm to become lapped and out of alignment and thereby his arm was left badly misshaped and was rendered practically useless.

Defendant pleaded a release by the plaintiff, which the latter alleged was fraudulently procured. The other questions in the case will fully appear from the verdict, which, with the answers thereto, is as follows:

1. Was the plaintiff injured by the negligence of the defendant, as alleged in the first cause of action, as set out in the complaint? Answer: Yes.

2. Did the plaintiff by his own negligence contribute to his own injury? Answer: No.

3. What damage, if any, is plaintiff entitled to recover for and on account of his injury, as alleged in the first cause of action? Answer: $2,500, less $165.

4. Was the signature of the plaintiff and the execution of the contract of release set up in defendant's answer obtained from the plaintiff, McKinley McMahan, through fraud, undue influence, or misrepresentation of the defendant? Answer: Yes.

5. Was the plaintiff at the time of signing the said release a minor, under the age of 21 years? Answer: Yes.

6. Did the defendant engage and employ Dr. D. J. Smith as its physician to treat the plaintiff, as alleged in the complaint? Answer: Yes.

7. Did the defendant negligently furnish an unskilled and incompetent physician and surgeon to give such treatment? Answer: Yes.

8. Was the plaintiff injured by the negligence of the defendant in failing to properly treat plaintiff's injury, as alleged in the complaint? Answer: Yes.

9. What damages, if any, is the plaintiff entitled to recover as the result of negligence, as alleged in the second cause of action? Answer: $4,000.

Judgment was entered on the verdict, and the defendant appealed.

W. C Newland, of Lenoir, S. J. Ervin, of Morganton, Merrimon Adams & Johnston, of Asheville, and Chas. Hutchins, of Burnsville, for appellant.

Watson Hudgins, Watson & Fouts, of Burnsville, for appellee.

WALKER, J. (after stating the facts as above).

It will be convenient to consider the exceptions in the order of their statement in the record, though they are not so stated in the defendant's brief.

As to the first cause of action, we think there was sufficient evidence of the defendant's negligence for the jury. The defendant was required to exercise due care in furnishing a reasonably safe place for plaintiff to do his work, and this it is alleged was not done, as its platform or dock was decayed, so that the rails spread and the hand car fell between the rails. On the day of the injury, the car, because of the rotten condition of the dock, fell between the rails, and it was necessary for plaintiff to secure a scantling from the other side of the track, in order to prize it back to its place. To do this, he was required to go around the car, and while he was walking toward the place where he saw the scantling, he stepped on a pile of lumber which had been taken from the stack and was crossed. It should not have been there, and, besides, it was improperly piled, being crossed, instead of straight. He was short of help, and had to hurry with his work, in order to keep the mill clear of lumber, where it would be in the way if allowed to accumulate. He stepped on the lumber, and it slipped and slid off, and threw him violently to the ground, because it was piled improperly. It should have been piled straight, instead of crossed, and should have been in the stack and not on the platform. The question of negligence was properly submitted to the jury by the court, under the rule of the prudent man, and also the question of plaintiff's contributory negligence, and they found against the defendant.

This case does not fall within that class where the employee is allowed to do simple work in his own way, without the necessity of any instructions from his employer, because it is presumed in such a case that the work is safe, if properly done by the employee, by the exercise of his own common sense and judgment; there being no complication in the work requiring special instructions from the employer as to how he should do it. But this rule does not apply if the employer has not furnished a reasonably safe place to do the work and the employee has been injured by his default in this respect, while in the exercise of due care himself. Whether the master has performed his duty, and the servant has performed his, are questions manifestly for the jury to decide. If, in this case, the defendant furnished a rotten platform, or dock, for its servant to work on, and insufficient help for him to do the work properly and safely; if, in consequence of defendant's failure in this respect, plaintiff was compelled to go around the car on a walk, where lumber was wrongly and carelessly piled, and while in the exercise of care himself the plaintiff stepped on the pile of lumber, which slipped from under him and caused him to be thrown from the platform; and the jury found these to be the facts, and that the injury was proximately caused in this way, and by defendant's failure of duty--the verdict was correct in fact and in law. We must hold that there was some evidence from which the jury could infer the necessary facts showing defendant's negligence, and the same may be substantially said of the defendant's contributory negligence. His honor put both questions to the jury according to our approved precedents. It was more a question of fact than one of law.

The master's duty to furnish a reasonably safe place for the servant to work, and proper machinery and other appliances with which he may perform it, is unquestionable. "Where there is evidence tending to show that an injured employee did not have a reasonably safe place to work, * * * the question whether it was such a place, or whether the failure to warn him of the danger was the proximate cause of the injury, should be submitted to the jury. Where more than one inference can be drawn, as to the negligence, or the proximate cause, it is for the jury to determine" which inference is the correct one. Holton v. Lumber Co., 152 N.C. at page 69, 67 S.E. 54. Cases bearing on this question are Steeley v. Lumber Co., 165 N.C. 27, 80 S.E. 963; Nelson v. Tobacco Co., 144 N.C. 420, 57 S.E. 127; Dunn v. Lumber Co., 172 N.C. 129, 90 S.E. 18; Marks v. Cotton Mills, 135 N.C. 290, 47 S.E. 432; West v. Tanning Co., 154 N.C. 44, 69 S.E. 687, and other cases which are cited in Steeley v. Lumber Co., supra. There was no error in submitting the first cause of action to the jury, especially when the principles of law applicable to the case were so lucidly stated in the charge.

As to the second cause, for malpractice in treating the plaintiff there can be no question that there was some evidence which tended to establish the charge of unskillfulness in the method of treatment, and a failure to exercise proper care and to make a proper diagnosis. There was undoubtedly sufficient evidence that defendant knew of the incompetency of the physician. The particular allegation is that Dr. Smith assisted by Dr. Aldredge, failed to place the broken...