Appeal
from Superior Court, Mecklenburg County; Harding, Judge.
Action
by R. C. Peterson against E. B. McManus and Shivar Springs
Incorporated, and others, wherein named defendants filed a
cross-complaint. From an order overruling the motion of
defendants E. B. McManus and Shivar Springs, Incorporated, to
make the Travelers' Insurance Company a party defendant
the named defendants appeal.
Affirmed.
This is
an action for actionable negligence brought by plaintiff
against the defendants E. B. McManus and Shivar Springs
Inc., alleging damage. The plaintiff alleges, in part
"That on or about October 20, 1934, the plaintiff was
helping to paint part of the Charlotte Hotel building in the
city of Charlotte. That in performing said work, the
plaintiff and his fellow worker used a swinging stage which
was supported by pulleys and ropes. That immediately prior to
the time complained of, the plaintiff and his fellow worker,
while standing upon said swinging stage, were painting the
outside of some of the windows of said Hotel Building over
and above a certain alleyway which runs from Poplar street in
an easterly direction along the back side of said Hotel
Building, said stage at said time being about 28 feet above
the surface of the ground. That while the plaintiff and his
fellow worker were standing upon said stage, engaged in
painting the outside of said windows, as aforesaid, the
defendants, while operating an automobile truck containing
Shivar Ginger Ale, over and along said alleyway from the rear
of said Hotel toward Poplar street, operated said truck in
such a reckless, careless, negligent and dangerous manner
that said truck caught one of the ropes which hung from said
stage, thereby pulling said rope with such force and violence
that one end of said swinging stage was thereby caused to
fall from its stirrup, the plaintiff being thereby
precipitated with great force and violence for a distance of
about 28 feet to the hard surface of said alleyway, the force
of said fall causing the plaintiff to sustain certain serious
and permanent injuries hereinafter described."
The
defendants E. B. McManus and Shivar Springs, Inc., set up the
plea of contributory negligence. The plaintiff, in reply,
denied contributory negligence and set up the "last
clear chance"-if the plaintiff was guilty of
contributory negligence, the defendants had the last clear
chance to avoid the injury to plaintiff.
The
defendants E. B. McManus and Shivar Springs, Inc., on April
4, 1935, set forth a petition for new parties and filed a
cross-complaint, alleging: "That the defendants are
informed and believe that any injuries received by the
plaintiff on the occasion referred to in the complaint were
directly and proximately caused by the negligence of
Charlotte Hotel Operating Company, a corporation, and H. H.
Anderson, in that they failed to exercise due care to provide
the plaintiff a safe place in which to work; in that they
failed to exercise due care to furnish the plaintiff
appliances and equipment with which to do his work that were
reasonably safe for said purpose; in that they negligently
and carelessly furnished the plaintiff a dangerous and
insecure stage or platform on which to stand while working
many feet above the pavement; in that they failed to properly
instruct the plaintiff, and that they failed to exercise due
care to perform the duties which they owed to the plaintiff
as an employee. That the defendants are informed and believe
that the negligence of the said Charlotte Hotel Operating
Company and H. H. Anderson, and the negligence of the
plaintiff himself, concurred and co-operated in causing the
plaintiff's injury; that if the defendants were
negligent, and if their negligence was the proximate cause of
the plaintiff's injury, which is expressly denied, the
negligence of the Charlotte Hotel Operating Company and H. H.
Anderson was also a proximate cause of said injury operating
concurrently, and that the said persons are jointly liable
with these defendants, if these defendants are liable at all,
and that the defendants have a right to have said liability
determined in this action in accordance with C. S. 618."
The
petition was granted and an order was made making H. H.
Anderson and the Charlotte Hotel Operating Company, a
corporation, parties to the action. H. H. Anderson filed an
answer to the cross-complaint denying the material
allegations of the cross-complaint, and for a further answer
and defense alleged that the injury to plaintiff was due to
the sole, direct, and proximate cause of the negligence of
the defendants E. B. McManus and Shivar Springs, Inc. The
Charlotte Operating Company filed an answer to the
cross-complaint denying the material allegations of the
cross-complaint and alleged: "That the said H. H.
Anderson, at the time referred to in the plaintiff's
complaint, was doing the work therein referred to on the
Charlotte Hotel, as an independent contractor under a
contract between the said Anderson and the owner of said
hotel, and the plaintiff was not
at said time an employee of this defendant."
The
defendants E. B. McManus and Shivar Springs, Inc., on May 22
1935, set forth a petition to make the Citizens Hotel Company
a party, and filed a cross-complaint, in part: "That, as
appears from the record herein, Charlotte Hotel Operating
Company has now filed an answer in which it alleges that the
work which the plaintiff was doing was being done by H. H.
Anderson under a contract with the owner of the Charlotte
Hotel; that these defendants are informed and believe that
the owner of the Charlotte Hotel is Citizens Hotel Company,
and that the Charlotte Hotel Operating Company is the lessee
thereof. That the work which the plaintiff was doing at the
time of his injury was of an inherently dangerous nature, and
that, consequently, the owner and the lessee...
