Robinson v. J.B. Ivey & Co.

• Decision Date: 25 May 1927
• Docket Number: 454.
• Citation: Robinson v. J.B. Ivey & Co., 138 S.E. 173, 193 N.C. 805 (N.C. 1927)
• Parties: ROBINSON v. J. B. IVEY & CO.
• Court: North Carolina Supreme Court

138 S.E. 173

193 N.C. 805

ROBINSON v. J. B. IVEY & CO.

No. 454.

Supreme Court of North Carolina

May 25, 1927

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

Action by R. C. Robinson against J. B. Ivey & Co. Judgment for plaintiff, and defendant appeals. No error.

To constitute "proximate cause," it is sufficient if it could be reasonably anticipated injury might follow act.

This is an action for actionable negligence brought by plaintiff against defendant. The plaintiff was a salesman in the store of defendant. His duties were to assist in checking stock against invoices and to take stock out of the shelves in the storeroom and generally to perform such duties around the store of the defendant as he was ordered to perform in connection with the receipt, handling, and sale of merchandise, the duty to perform various services usually performed by salesmen. The allegations of negligence made by plaintiff:

"The the defendant was guilty of negligence which proximately caused the injuries of the plaintiff in the following particulars, viz.: (a) The defendant failed (to use or exercise ordinary care) to provide for the plaintiff a safe place in which to work, and required him, in the discharge of his duties, to climb upon shelves which were unsafe and dangerous, and were likely to turn and throw him to the floor and injure him. (b) The defendant failed to provide for plaintiff safe and suitable appliances with which to do the work which he was required to perform, and failed to furnish him any stepladder, bench, or other appliance upon which to climb or stand when placing the hats on the top of the shelves in its said building, and required him to climb upon the shelves in order to place the hats on top thereof. (c) The defendant allowed one of the shelves upon which the plaintiff, and its other employees, were required to climb to be and remain in a defective condition, so that, when the plaintiff stepped upon same, in the course of his duty and regular line of his employment, it split and turned so as to throw plaintiff to the floor, and, although defendant required its employees to climb upon the shelves, it failed to inspect same and to make same reasonably safe for use by its employees in climbing. (d) The defendant's manager under whom the plaintiff was working, negligently ordered and directed plaintiff to climb upon the shelves which had been built in defendant's storeroom, for the purpose of placing hats in the boxes on the top of said shelves although the said shelves had not been built for the purpose of being climbed upon and were not sufficiently strong to be used for that purpose and were not inspected and kept in a safe condition for that purpose."

The plaintiff alleged that, as a result of the aforesaid negligence of defendant, the shelf was in a defective condition, and he was thrown to the floor, and from the fall his left knee was permanently injured.

The defendant denied any negligence on its part, and set up the plea of contributory negligence:

"That, if the plaintiff was injured by the negligence of the defendant as alleged in the complaint, which is expressly denied, the plaintiff, by his own negligence, contributed to his said injury, which said contributory negligence was the direct and proximate cause of whatever injuries he suffered, in that he conducted himself on and about the said shelves in a negligent and careless manner, in that he voluntarily jumped therefrom and failed and refused, in conducting himself on and about the said shelves, to use the safe means which were available, and failed to act with due regard for his safety."

The material part of Cecil (R. C.) Robinson's (plaintiff's) testimony, necessary to be considered in the determination of the case, is as follows: Plaintiff's testimony:

"I was working with J. B. Ivey & Co. on April 17, 1925. I had been working there six or eight months in the gents' furnishing department. I was 21 years old. I was making $21.50 per week and a bonus, which amounted to a week's pay every month if the department made its quota. The gents' furnishing department was on the first floor. My superior was Charles Creighton. I got hurt in the stockroom on the fifth floor. I was up there checking an order of some straw hats that had arrived for our department. Mr. Creighton went up there with me. I had not been doing that kind of work before. I was checking an order of some straw hats with Mr. Creighton in the stockroom. The hats were on top of the shelves on top of a section of shelves in the stockroom. I was getting a hat of each style down to check the order. The hats were on top of the shelves in the stockroom on top of a section of shelves. They were in pasteboard boxes. The boxes were about three feet deep. The section of shelves that I refer to was in the middle of the stockroom. The top of the shelves was about eight feet, and the top of the shelves was about four or five feet wide. There were six or seven shelves from the floor up to the top. I went to the stockroom with Mr. Creighton. He was my superior.

Q. After you and Mr. Creighton got up there, what did Mr. Creighton tell you to do, if anything? A. Climb on the shelves and take the hats down, one of each style.

Q. Did you do that? A. Yes, sir.

Q. Where was Mr. Creighton when you did that? A. He was sitting on a box down there, and I would pitch him the hats down there.

Q. Did he tell you how to get up on top of the shelves? A. Yes.

Q. What did he tell you? A. Climb those shelves.

Q. What did you do after you got up on top of the shelves? A. I pitched him the hats down, different styles.

Q. How many times before had you ever climbed on top of those shelves? A. I had never climbed up before.

Q. What other way was there for you to get on top of the shelves except to climb as you did? A. No other way.

Q. What other implements did they have around there that you could use in getting up there? A. Not any.

Q. After you got the hats, what did you do? A. I came down.

Q. Then what happened? A. He checked the orders of the hats, and when he had finished with the hats he took two or three of them down by the office and told me to put the rest of them back in the boxes.

Q. Where were the boxes? A. On top of the shelves.

Q. Go ahead and describe what you did then. A. I was taking the hats up, two hats, and I had put them together and put them on the shelf, then climbed so I could get them up, and as I was climbing up on about the third or fourth shelf and started to take a step the shelf broke, pulled loose, gave way, or something, and that threw my foot off, and I fell down and my leg like this; it threw me down."

The necessary evidence of defendant: Charles Creighton's testimony, in part, on cross-examination, is as follows:

"I am manager of the men's department at Ivey's, and the plaintiff was working in that department under my orders and instructions. It was his duty to do what I told him to do. On this day, the 17th of April, 1925, I wanted to go up in the stockroom and do something with reference to some straw hats, and I took the plaintiff along with me, it being his duty to do what I told him. These hats were in boxes on top of the shelves. There was a double row of shelves meeting back to back. *** I was not going to get a hat out of each of the boxes, but only out of some of the boxes. I had the list of stock numbers of the boxes out of which I wanted to get each particular hat. I did not tell the plaintiff how to get up there; I told him to get up there. There were always ladders in the stockroom, a stepladder. I do not know where it was that particular day, I did not say anything to him about getting a ladder. There was not one at that particular spot. The plaintiff had been in the stockroom several times. I was standing right there with him within about three feet. I told him to get up on top of the ledge or platform. I left it to him as to how he should get up there. Q. How did you intend for him to get up there? A. I left that to him.

Q. How did you expect Mr. Robinson to get up on the top of the platform? A. I expected, if he wanted to be very careful, to go get the ladder and climb up there.

Q. You expected him to get the ladder and climb up there, is that what you tell the jury? A. Yes.

Q. And it surprised you when he did not do that? A. It did not surprise me.

Q. He did not what you expected him to do. You just now told the jury when you told him to get up there, you expected him to go and get the ladder and climb up there? A. Yes.

Q. And when he did not do that, he did not do what you expected him to do, did he? And you stood there and saw him climbing up on the shelves? A. Yes.

Q. And you did not tell him not to do it? A. No. sir."

The witness Creighton did not see the plaintiff fall, as he had left the place.

E. T. Whitaker, testified, in part:

"I am in the employ of J. B. Ivey & Co., and I was in its employ in April, 1925, as stockroom manager. I remember the occasion when Mr. Robinson was hurt. On the day Mr. Robinson was hurt Mr. Creighton and Mr. Robinson came to the stockroom together. Mr. Creighton told Mr. Robinson to go up on top of some shelves and throw him down some boxes of hats, and Mr Robinson went up there and threw the hats down to Mr. Creighton, and Mr. Creighton took out what he wanted. Ed Earl was helping at the time they were getting those hats, and he told Earl to throw the boxes back up to Mr. Robinson, and he took the hats he wanted and went on downstairs. From the time Mr. Robinson got up on the shelves until Creighton left, Robinson was up on top of the ledge. When I say ledge, I mean the top of the shelves. When Mr. Creighton left, Ed Earl threw the boxes of hats back up to Mr. Robinson...