Richardson v. Am. Cotton Mills Inc

• Decision Date: 13 May 1925
• Docket Number: (No. 465.)
• Citation: 127 S.E. 834
• Parties: RICHARDSON. v. AMERICAN COTTON MILLS, Inc.
• Court: North Carolina Supreme Court

127 S.E. 834

(189 N.C. 653)

RICHARDSON.

v.AMERICAN COTTON MILLS, Inc.

(No. 465.)

Supreme Court of North Carolina.

May 13, 1925.

Appeal from Superior Court, Gaston County; Lyon, Judge.

Action by Crown Richardson against the American Cotton Mills, Inc. Judgment for plaintiff, and defendant appeals. New trial.

Plaintiff was an employee of the defendant. He alleged that when injured he was engaged in fixing a loom that had been "flagged" for repair; that while in a position of peril R. L. Lanier, at that time not engaged in any duty in the mill but there as a licensee of the defendant, carelessly put the loom in motion and caught the plaintiff therein, inflicting personal injury. The plaintiff set up also alleged negligence of the defendant concurring with that of Lanier, in that the defendant did not use due care to require Lanier, when his shift ended, to cease the operation of its machinery and to leave its premises, but negligently permitted him to remain and operate its machinery. Plaintiff's "shift" was from 6 a. m. to 6 p. m., and that of Lanier from 6 p. m. to 6 a. m. There was evidence tending to show that Lanier put the machinery in motion between 6 and 6:15 a. m. Defendant denied all allegations of negligence, pleaded contributory negligence, and alleged that the plaintiff's injury was caused by the act of a fellow servant. The issues of negligence, contributory negligence, and damages were answered in favor of the plaintiff. The defendant appealed, assigning error.

Garland & Austin, of Gastonia, for appellant.

S. J. Durham, of Gastonia, and Henry L. Kiser, of Bessemer City, for appellee.

ADAMS, J. [1] Primarily the defense is based upon the contention that Lanier and the plaintiff were fellow servants, and that for this reason the negligence of Lanier cannot be imputed to the defendant. That the fellow-servant doctrine relieves the master from liability where the person injured is a fellow servant of the tort feasor is so firmly established it is not essential to our present purpose that we inquire into the fundamental reasons upon which the rule is founded. Dobbin v. Railroad. 81 N. C. 446, 31 Am. Rep. 512; Walters v. Lumber Co., 163 N. C. 537, 80 S. E. 49; Page v. Sprunt, 164 N. C. 364, 79 S. E. 619; Brown v. Scofield Co., 174 N. E. 4, 93 S. E. 381; Talley v. Granite Co., 174 N. C. 445, 93 S. E. 995.

We need only say that the principle, formerly unrestricted in its application, has been abrogated by statute as to railroads operating in this state. C. S. $ 3465; Kirk v. Railroad, 94 N. C. 625. 55 Am Rep. 621; Webb v. Railroad, 97 N. C. 387, 2 S. E. 440; Nicholson v. Railroad, 138 N C. 516, 51 S. E. 40; Bloxham v. Timber Corporation, 172 N. C. 37, 89 S. E. 1013.

The defendant excepted to this instruction which was given the jury:

"Now, if you find from the evidence and the greater weight of the evidence that the man, Lanier, negligently started that loom on that occasion, that is, that he did something that a reasonably prudent man ordinarily would not have done under the circumstances, and further find that such negligence was the proximate cause of the injury complained of, and you further find that Lanier at the time was not acting in the capacity of a fellow servant, but was merely a licensee there in the mill, his time having expired some 10 or 15 minutes, then you would answer the first issue, 'Yes, ' and if you do not so find you would answer, 'No.' "

In Dobbin v. Railroad, supra, the court had occasion to say:

"Who is a fellow servant within the meaning of the law appertaining to this subject is a difficult question—one that has never been decided in this state. And, so far as we have been able to find, no definition of the relation as a test applicable to all cases has as yet...