Appeal
from Superior Court, Mecklenburg County; Stack, Judge.
Action
by Manley Reaves against the Catawba Manufacturing & Electric
Power Company. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
This is
an action for actionable negligence brought by plaintiff
against the defendant. The plaintiff's testimony was to
the effect that he was injured some 10 years ago-in October
1924-when he was 13 years of age; he is now 23 years of age.
His brother, Edgar, at the time he was hurt, was working for
defendant as a brick mason. The defendant was building a
frame dwelling house. The plaintiff lived three or four miles
away, and on the day in question (and the only day he carried
a lunch) he rode a horse and from his home carried the lunch
in some dishes in a bucket to his brother. He testified, in
part: "I stayed there during lunch. Afterwards, I was
getting ready after lunch to get the dishes up and went to
tell my brother I was going home and the carpenter on top of
the house dropped his hammer and he asked me to get his
hammer. Mr. Armstrong was the one that dropped the hammer and
Mr. Black was the one that told me to take it up. Mr. Black
was the foreman. * * * I started with the hammer. The house
was frame and the rafters were raised. I started to climb up
through a window and got up in the window and was climbing up
to reach a joist to hand Mr. Armstrong the hammer and I
slipped and fell, my hand slipped off the joist. That let me
fall inside across a sleeper and broke my leg. That was the
floor sleepers."
"By
the Court: Was that window on the first floor, ground floor
or second story? A. First floor.
Q. How
far had you climbed? A. 8 ft. story.
Q. Had
you climbed 8 ft.? A. Yes, climbed up to the second floor.
There was no ladder there. There was no ladder afforded for
any of them to go up on. I climbed up into the window, was
catching up and climbed the post in the window frame. I
climbed up in the window and was climbing over the window to
reach up high enough to get him the hammer and as I caught
the joist, I fell. I caught hold of a two by four, the
framing. I climbed on the window frame and tried to get up to
the top of the frame. I put my feet on the window frame and
was going on up past it and holding to it. As I went up past
it, I put my feet on top of it when I got up that high. I
tried to go higher than that and got as high as I could, but
I fell. My hand slipped off the top joist. That was a top
joist that the rough framing rested on, up next to the roof.
That was up at the top. I reckon I fell about eight feet. In
climbing up there were no cross pieces across that way to put
my feet on. I was in the act of taking the hammer up when I
fell. I was handing it to him. I had one hand on the joist
and the hammer in the other. I went to swing my hand with the
hammer up through and it slipped and fell. * * * When I was
told to go up on the house, I was preparing to go home. I had
hitched my horse. I was about ten feet from the place where
the hammer fell when I was told to take it up. Mr. Black
said, 'Boy, take that hammer up to the carpenter."
D'
Edgar
Reaves testified in part: "I was a brick mason on this
job. I worked on this job at the time. Mr. Black employed me.
He paid me $1.00 an hour. * * * When I got through dinner I
went back to work. I don't know if anybody asked my
brother to bring the hammer up. I did not hear it. I sent
after a hammer myself by Mr. Armstrong. He was up on the
building. * * * There was not any ladder there to get up on
the house at that time. I went up at the corners with braces
climbed up at the corner. They did not have any ladder there.
That is the way they went up and down. I have worked on other
buildings. I had been working at that time on buildings about
ten years. They did not have any ladder at all at this place
for you to get up, just go up on the corners. They put braces
across another and you stepped from one to the other and
grabbed a joist and swung through. * * * The window was about
fifteen feet away from the corner where I went up. It could
be seen from the window where I went up. The braces within
that space were about 3 1/2 feet apart. There were two
braces. You stepped on them and grabbed a joist and pulled
yourself up. As you stepped on this last brace, you would
have to pull yourself through. You would do that by grabbing
the over-head joist. It would be about 3 1/2 or 4 feet from
the last brace. I could not say whether my brother could have
gotten up at that corner or not, taking into consideration
the size of my brother at that time. On a building like that
they put a ladder up because you have to be going up and
down."
On
cross-examination: "Mr. Armstrong was working on the
same side of the building. He was waiting on me. I told him
to send me a hammer. * * * We was starting a stove flue and I
told him to get me a hammer; he walked about 15 feet towards
the house. It was not on the ground. The next thing I knowed
the boy had fallen. Mr. Armstrong and I both went down on the
ground, but not before the boy fell. When we went up, they
had cross pieces there at the corner for me to climb up on.
And I went up that way. Mr. Armstrong went up that way too.
The carpenters, anybody that had to go up would go up
different ways; I did not watch all of them. That's what
they were put there for."
The
judgment of the court below is as follows: "This cause
coming on to be heard before the undersigned, Judge
presiding, and a jury, at the February 5, 1934, Regular Civil
Term of Superior Court of Mecklenburg County, and the
plaintiff's having introduced evidence, and the Court
being of the opinion at the conclusion of the plaintiff's
evidence that the plaintiff ought to be non-suited: Now,
therefore, upon motion of W. S. O'B. Robinson, Jr.,
attorney for the defendant, It is Ordered, Adjudged and
Decreed that the plaintiff be and he is hereby non-suited,
and that the costs of the action be taxed against the
plaintiff. This 16th day of February, 1934. A. M. Stack,
Judge Presiding."
Willingness
with which American people respond to calls for help is
matter of common knowledge.
CLARKSON
Justice.
At the
close of plaintiff's evidence, the defendant made a
motion for judgment as in case of nonsuit. C. S. § 567. The
court below granted the motion, and in this we can see no
error. The interesting question arises on the record: What
duty does the defendant owe to this volunteer boy 13 years of
age? The general rule is thus laid down in Cooley on Torts
(4th Ed.) vol. 3, § 386, pp. 47 and 48: "One who
voluntarily assists a servant at the latter's request
does not, as a general rule, become a servant of the master
so as to impose upon the latter, the duties and liabilities
of a master towards such volunteer, or so as to render the
master liable to third persons injured by such
volunteer's acts or negligence, while rendering such
assistance. Such a volunteer assumes all the risks of the
service upon which he enters and is only entitled to the
protection due a trespasser. But if the servant has
authority, express or...
