Moore v. Chicago Bridge & Iron Works

• Decision Date: 03 May 1922
• Docket Number: 445.
• Citation: Moore v. Chicago Bridge & Iron Works, 183 N.C. 438, 111 S.E. 776 (N.C. 1922)
• Parties: MOORE v. CHICAGO BRIDGE & IRON WORKS.
• Court: North Carolina Supreme Court

111 S.E. 776

183 N.C. 438

MOORE v. CHICAGO BRIDGE & IRON WORKS.

No. 445.

Supreme Court of North Carolina

May 3, 1922

Appeal from Superior Court, Mecklenburg County; Ray, Judge.

Action by Ralph Moore against the Chicago Bridge and Iron Works.Judgment for plaintiff, and defendant appeals.New trial.

Civil action to recover damages for an alleged negligent personal injury.Plaintiff, an employee of the defendant company, was engaged with other servants in the work of erecting a steel tower and water tank for the Standard Bonded Warehouse Company in the city of Charlotte.At the time of the injury plaintiff, together with other employees, was undertaking to move a long pole, similar to a telegraph pole, from the platform of the warehouse to the scaffold around the water tank.The pole was being conveyed on a two-wheeled dolly, or small wooden hand truck.When the wheels of the dolly came to the rail at the end of the platform it was necessary, in order to get the wheels over the rail and upon the bridge leading to the tower--an elevation of five or six inches--to place two short boards or planks in proper position so as to easily push the dolly from the platform up to and upon the bridge.The plaintiff selected the plank for the wheel on his side, placed it himself, and was helping to push the truck or dolly up the boards, so placed, when the dolly careened or tilted towards him, and he either jumped off or was knocked off the platform, and fell a distance of five or six feet to a lower platform, with the result that his leg was broken.Defendant pleaded assumption of risk, the fellow-servant rule, and contributory negligence, in that the plaintiff by his own carelessness and negligence in placing the plank etc., brought about his own injury.From a verdict and judgment in favor of plaintiff, the defendant appealed assigning errors.

E. R Preston and Wade H. Williams, both of Charlotte, for appellant.

D. E. Henderson and T. A. Adams, both of Charlotte, for appellee.

STACY J.(after stating the facts as above).

There are a number of exceptions appearing on the record, but we deem it unnecessary to consider them seriatim, as, in our opinion, a new trial must be awarded for error in the charge on the issue of contributory negligence.Upon this phase of the case his honor instructed the jury as follows:

"So, if you find that the plaintiff in the case, under the contentions which the court will later lay down for you, was guilty of contributory negligence and contributed to the degree that he was guilty, yet it does not predominate, then the defendant is not entitled to have an issue of contributory negligence answered in its favor; it must prevail by an outweighing of the contentions of the plaintiff that he did not contribute."

As we understand this excerpt, to which the defendant has excepted, it embodies and carries with it a statement of the principle of comparing the negligence of the plaintiff with that of the defendant.This doctrine is applicable with us, and then only for the purpose of mitigating the damages or as a partial defense, in cases arising under the federal Employers' Liability Act(U. S. Comp. St. §§ 8657-8665) and our own statute(C. S. § 3467).Williams v. Mfg. Co.,175 N.C. 226, 95 S.E. 366.The instant case comes under neither enactment.

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