Orr v. Rumbough

• Citation: 90 S.E. 911,172 N.C. 754
• Decision Date: 19 December 1916
• Docket Number: 544.
• Parties: ORR v. RUMBOUGH.
• Court: North Carolina Supreme Court

90 S.E. 911

172 N.C. 754

ORR v. RUMBOUGH.

No. 544.

Supreme Court of North Carolina

December 19, 1916

Appeal from Superior Court, Buncombe County; Adams, Judge.

Action by Louise Orr, administratrix of the estate of B. L. Orr deceased, against John B. Rumbough. Judgment for plaintiff and defendant appeals. Reversed.

Burden is on plaintiff to prove breach of duty, and when this consists of some defect in appliance, place to work, or dangers incident to work, must show that employer knew, or could have discovered, defect or danger, but employer is presumed to be familiar with dangers ordinarily accompanying his business.

This is an action to recover damages for the wrongful death of the intestate of the plaintiff, caused, as the plaintiff alleges by the negligence of the defendant in: (a) Installing a highly and intrinsically dangerous welding machine in their place of business, where the plaintiff's intestate's duties required him to work; (b) in exposing the plaintiff's intestate to dangers of said intrinsically dangerous welding machine and the operation of the same; (c) in requiring plaintiff's intestate, B. L. Orr, to work in the room with the welding machine and in and around the same the said B. L. Orr being ignorant of the dangers of said machine and inexperienced in the operation of the same; (d) in permitting coal oil and other foreign substances to become mixed with the chemicals, which were being used for the purpose of generating oxygen gas; (e) in failing to furnish the plaintiff's intestate, B. L. Orr, with a safe place in which to work and reasonably safe tools, appliances, and machinery with which and around which to perform his duties.

The defendant denied that the intestate of the plaintiff was in his employment at the time of his death, denied negligence, and pleaded contributory negligence.

The immediate cause of death was the explosion of a retort, a part of a welding machine. The defendant was engaged in the automobile business and in repairing and selling automobiles, and became proprietor of a suitable building and furnished it with necessary machinery and appliances for carrying on the business, and employed, as foreman, B. L. Orr, intestate of the plaintiff, a man 28 years of age, intelligent, of good habits and a skilled machinist of eight years' experience. This foreman had charge of the tools and machinery and the employés engaged to work with and operate the same, and among the implements were a "blower--a blacksmith forge--and anvil for hammering out and shaping up tools." The forge was open, not inclosed in any way.

Some time in November, 1914, one Ray, representing the George C. Shemmel welding machine, made at a factory in Ohio, had negotiations with defendant in his office, in said building, and talked with him about the machine, and at first defendant said he wasn't favorably impressed, but said they needed a machine to do the right kind of work. Ray got defendant interested in this machine, and told him what it would do, and defendant said to Ray, "If that machine would do what he claimed it would, it was what he wanted." This was the starting point of the negotiations, and there were several conversations and negotiations. Defendant called his foreman, Mr. Orr, down stairs by phone, and said to him: "Mr. Orr, this man claims to have a machine to do the work that you want done, and if it is what he says it is, we will put one in. I would like to have you know about it."

Ray thinks this was said on his second visit in January, but he did not close the deal for two or three visits after that; that Orr, the man defendant was intending to operate the machine, could not get away to go to the factory to get instructions; they were so busy. Finally Ray agreed to bring an expert down from the factory to the plant and learn Mr. Orr there. This plan was adopted, and Ray succeeded in selling one of the machines, and sent the order to the factory, and the factory shipped the goods and sent an expert, one McAvoy, to teach Orr. When the machine arrived it was put up in the Enterprise Machine Company, and was demonstrated and tested by Ray, McAvoy, and Orr for about a week or ten days, and Ray told defendant, having learned this from the expert, McAvoy, that it would be necessary to have a preheating machine to have a successful job. Ray described the preheater as "a furnace to heat up the piece you are going to weld." McAvoy and Orr constructed the preheater, making an iron box and connecting it with pipes to convey into it coal oil, and, after making this connection, turned on the oil, some of which leaked or spilled out on the floor and became, in some way, mingled with the chemicals used to produce oxygen gas. This mixture of the oil and the chemicals was placed in the retort of the welding machine by Orr and McAvoy, and caused the explosion, which occurred about a half hour thereafter. The preheating machine was completed about 6 o'clock of the evening before the accident, which was at about 11 o'clock in the morning.

The office of the defendant was not on the same floor with the welding machine, but he passed on this floor soon after its completion, and, seeing oil on the cement floor, said it was dangerous, and directed it to be wiped up, which was done.

His honor, among other things, charged the jury as follows:

"There is no evidence in the case sufficient to be considered by the jury that the defendant, John B. Rumbough, was negligent in installing a highly and intrinsically dangerous machine in the place of business, as alleged, where the plaintiff's intestate's duties required him to work; nor is there any evidence sufficient to be considered by the jury that John B. Rumbough was negligent in requiring plaintiff's intestate, B. L. Orr, to work in the room with the welding machine, and in and around the same. That is to say, there is not sufficient evidence that there was negligence on the part of the defendant as to the installation of the machine, nor in the mere fact that the deceased was required to work in the room in which the machine was installed."

The allegations relied on on the part of the plaintiff are these: (1) That the intestate was ignorant of the dangers of the machine and inexperienced in operating it; (2) that the defendant negligently allowed coal oil to become mixed with the chemicals which were being used for the purpose of generating oxygen gas; and (3) that the defendant failed to furnish the deceased with a reasonably safe place in which to work and reasonably safe tools, appliances, and machinery with which and around which to perform his duties.

At the conclusion of the evidence, there was a motion for judgment of nonsuit, which was overruled, and the defendant excepted.

There was a verdict and judgment in favor of the plaintiff, and the defendant appealed.

Merrimon, Adams & Johnston, of Asheville, for appellant.

Martin, Rollins & Wright, of Asheville, for appellee.

ALLEN J.

The verdict establishes the fact that the intestate of the plaintiff was in the employment of the defendant at the time of his death, and this relationship imposed on the defendant the duty of providing a reasonably safe place to work, reasonably safe appliances, and to give such inspection to the premises and appliances as was necessary to keep them in this condition, and to warn the employé of dangers known to the employer, or which he might know by the exercise of ordinary care, and which were unknown to the employé, or which he could not discover in the careful performance of his duty. Womble v. Grocery Co., 135 N.C. 479, 47 S.E. 493; Marks v. Cotton Mills, 135 N.C. 290, 47 S.E. 432; Hicks v. Mfg. Co., 138 N.C. 325, 50 S.E. 703; Mincey v. Railroad, 161 N.C. 471, 77 S.E. 673, and many other cases.

The duty to warn or instruct is more insistent when the employé is inexperienced, and is subject to the following qualifications, which must be shown in...