Scott v. Western Union Telegraph Co.

• Decision Date: 06 June 1930
• Docket Number: 485.
• Citation: 153 S.E. 413,198 N.C. 795
• Parties: SCOTT v. WESTERN UNION TELEGRAPH CO. et al.
• Court: North Carolina Supreme Court

153 S.E. 413

198 N.C. 795

SCOTT v. WESTERN UNION TELEGRAPH CO. et al.

No. 485.

Supreme Court of North Carolina

June 6, 1930

Appeal from Superior Court, Mecklenburg County; Sink, Special Judge.

Action by Maggie Scott against the Western Union Telegraph Company and others. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Burden of showing contributory negligence ordinarily rests on defendants.

Action for the recovery of damages for personal injury resulting in death. The Lambeth Realty Company owned a building in Charlotte known as the Builders' building, and employed Henry Scott, plaintiff's intestate, to operate one of the elevators. On April 13, 1929, about 3 o'clock in the afternoon, Scott brought the elevator to the first floor of the building. One side of the corridor on the first floor is occupied by a smoke shop or lunch room, and between the elevator and the smoke shop there is a hallway. At the rear of the smoke shop is a door which affords access along the corridor to the elevator shaft. After stopping the elevator Scott left it unattended, with the door open and the light burning, and went to the smoke or lunch room, distant 35 or 40 feet, to get a sandwich. While he was away the defendant Roy Williams, a messenger of the Western Union Telegraph Company, came into the building, and, seeing no one attending the elevator, he got in it and moved it to an upper floor. Scott was in the lunch room about two minutes. Hearing the ringing of the elevator bell, he hurried along the corridor towards the elevator shaft. The elevator had not returned to the first floor; the inclosure was open; the bell was ringing. Scott "came right out of the smoke shop *** and straight on down and run in the elevator shaft." He fell to the basement and when a witness went there he found him "dead or dying." The injury he suffered caused his death.

The plaintiff contends:

1. That the defendant Roy Williams was guilty of actionable negligence in moving the elevator to an upper floor, without shutting the elevator door or inclosure, leaving the elevator shaft at the first floor open and unattended.

2. That the defendant telegraph company is liable for the aforesaid negligent conduct of Roy Williams, its messenger boy, because at the time he was acting within the scope of his employment and in furtherance of his employer's business.

3. That the defendant Lambeth Company was guilty of actionable negligence, in that it failed to equip its said elevator with an appliance known, approved, and in general use on the 13th day of April, 1929, an "electric interlock," which makes it impossible to move an elevator from a floor at which it is stopped unless and until the outer inclosure is first shut and fastened.

The defendants contend:

1. That the plaintiff's intestate was guilty of contributory negligence which bars the plaintiff's recovery.

2. The Western Union Telegraph Company contends that it is not liable for the negligence of Roy Williams because he was acting outside the scope of his employment and not in furtherance of his employer's business.

3. The Lambeth Realty Company contends that, if it was negligent its negligence was not the proximate cause of the injury.

D. B Smith and Stewart, McRae & Bobbitt, all of Charlotte, for appellant.

Francis R. Stark, of New York City, and Tillett, Tillett & Kennedy of Charlotte, for appellee Western Union Telegraph Co.

J. Laurence Jones and Ralph V. Kidd, both of Charlotte, for appellee Lambeth Realty Co.

ADAMS J.

The judgment of nonsuit, we take it, was based upon the theory that the contributory negligence of the intestate bars the plaintiff's recovery of damages. Upon no other principle can we sustain the judgment in behalf of all the defendants. As the burden of showing contributory negligence ordinarily rests upon the defendants, we must decide whether the plaintiff's evidence establishes this defense. If it does, the judgment must be affirmed.

In Covington v. Furniture Co., 138 N.C. 374, 50 S.E 761, 762, the court, quoting Labatt, 333, gave the following statement of the rule which controls in the present case: "The general rule of law is 'that when the danger is obvious and is of such a nature that it can be appreciated and understood by the servant as well as by the master or by any one else, and when the servant has as good an opportunity as the master or any one else of seeing what the danger is, and is permitted to do his work in his own way, and can avoid the danger by the exercise of reasonable care, the servant cannot recover against the master for the injuries received in consequence of the condition of things which constituted the danger. If the servant is injured, it is from his own want of care. *** The rule is especially applicable when the danger does not arise from the defective condition of the permanent ways, works, or machinery of the master, but...