Mincey v. Atlantic Coast Line R. Co.

• Decision Date: 19 March 1913
• Citation: 77 S.E. 673,161 N.C. 467
• Parties: MINCEY v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

77 S.E. 673

161 N.C. 467

MINCEY v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

March 19, 1913

Appeal from Superior Court, Pender County; Carter, Judge.

Action by R. R. Mincey against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. No error.

Plaintiff while in the employ of defendant as a carpenter was ordered by C. D. Lupo, who was foreman of his squad, to go with one E. E. Mason, and repair a glass door of the paint shop. In order to do the repair work, it was necessary to use a ladder. There was evidence that Lupo told Mason to take the plaintiff with him and do the work. Mason got a ladder, as he testified, placed it against the side of the house, and then climbed up the ladder, and removed the broken panes in the door. Plaintiff then ascended the ladder with the new panes of glass, and, when he reached a point near the top, the ladder broke, the glass dropped from his hands, and he fell on the broken pieces, and was seriously cut by them. The court submitted the usual issues in negligence cases, which were all answered in favor of the plaintiff, and from a judgment upon the verdict defendant appealed.

Davis & Davis and H. L. Stevens, all of Wilmington, J. T. Bland, of Burgaw, and K. O. Burgwin, of Wilmington, for appellant.

C. D Weeks, of Kenansville, and W. P. Mangum Turner, of Wilmington, for appellee.

WALKER J.

In this case there was some evidence to the effect that the ladder selected by Mason and used by him and the plaintiff in doing their work was lying in the shop with several others which appeared to be sound and serviceable, while the ladder in question had been broken on one side and spliced, and it was contended by counsel for defendant that where the master has provided an adequate and readily accessible stock of suitable appliances, in good condition, from which the servant may make his own selection, and the imperfection of the one chosen, therefore, was or should have been apparent to the servant who selected it, the master is not responsible for consequent injuries to the servant, whether he made the selection or his fellow servant, citing Labatt on Master & Servant, § 603. But this principle was fairly submitted to the jury by the court, as was the question or contributory negligence, and both were found against the defendant. The defendant relied also upon the general principle, thus stated by Labatt, § 333: "When the danger is obvious and of such a nature that it can be appreciated and understood by the servant as well as by the master or by any one else, and when the servant has as good an opportunity as the master or as any one else of seeing what the danger is, and is permitted to do his work in his own way, and can avoid the danger by the exercise of reasonable care, the servant cannot recover against the master for injuries received in consequence of the condition of things which constituted the danger. If the servant is injured, it is from his own want of care." See, also, Whitson v. Wrenn, 134 N.C 86, 46 S.E. 17; Covington v. Furniture Co., 138 N.C 374, 50 S.E. 761; Denny v. Railroad Co., 132 N.C. 340, 43 S.E. 847; Hicks v. Manf. Co., 138 N.C. 319, 50 S.E. 703; Taylor v. Railroad Co., 109 N.C. 233, 13 S.E. 736. This, we think, was also substantially explained to the jury by the court, so far as it was applicable to the case.

It must be remembered that these general rules must be somewhat restricted, when the negligence is imputed to a fellow servant of a railroad employé, because of Acts 1897, c. 56 (Revisal, § 2646), which charges the master, if a railroad company, with liability for the negligence of a coemployé or fellow servant, as much so as if the delinquent servant had been the alter ego or vice principal, and as such fully represented the master. Fitzgerald v. Railroad Co., 141 N.C. 530, 534, 54 S.E. 391, 392, 6 L. R. A. (N. S.) 337. The statute operates alike "on all employés of the company, whether in superior, equal or subordinate positions." We have also held that the act of 1897 applies to an employé of a railroad company, whether at the time of the injury he was engaged in the running or operation of a train or in any other kind of service, whether more or less dangerous. Sigman v. Railroad Co., 135 N.C. 181, 47 S.E. 420; Mott v. Railroad Co., 131 N.C. 234, 42 S.E. 601. In the recent case of Twiddy v. Lumber Co., 154 N.C. 237, 70 S.E. 282, Justice Hoke, for the court, considers the subject fully and clearly, reviewing all the authorities.

We have examined the charge in this case very carefully in connection with the evidence, and it appears therefrom to be manifest that the jury decided the case upon the negligence of Mason, whether he be regarded as a vice principal, or simply as a fellow servant of the plaintiff in performing the work assigned to them by C. D. Lupo, the company's manager in that department of its service. There was ample evidence to support this finding of the jury, and, as they have acquitted the plaintiff of any concurring or contributory negligence in producing the injury, the defendant must be held liable to the plaintiff in damages for the imputed wrong of Mason. The ladder which was used by the plaintiff under the direction of Mason, it appears, had been discarded by the company as unfit for use. It was spliced on one side, but that was not the side on which it afterwards broke. Plaintiff examined it, and thought it was safe and sound, before he mounted it. We need not inquire whether it was evidence of negligence to leave this ladder with others then in use, as the case was decided on another ground.

The duty of the master to provide reasonably safe tools machinery, and place to work does not go to the extent of a guaranty of safety to the employé, but does require that...