Shaw v. Highland Park Mfg. Co.

• Decision Date: 04 December 1907
• Citation: 59 S.E. 676,146 N.C. 235
• Parties: SHAW v. HIGHLAND PARK MFG. CO.
• Court: North Carolina Supreme Court

59 S.E. 676

146 N.C. 235

SHAW v. HIGHLAND PARK MFG. CO.

Supreme Court of North Carolina

December 4, 1907

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

Action by J. W. Shaw against the Highland Park Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

In an action for injury to a servant, plaintiff was a competent witness as to his bodily condition after the injury.

This was a civil action, instituted by the plaintiff to recover damages for injuries sustained while in the employment of the defendant on the 18th day of May, 1905; plaintiff being engaged at the time in directing the work of tearing down a cloth press in defendant's mill, preparatory to moving to another part of the building. The court submitted these issues: "(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? A. Yes. 2. Did the plaintiff by his own negligence contribute to his own injuries? A. No. 3. What damages is the plaintiff entitled to recover? A. $5,000." From the judgment rendered defendant appealed.

Tillett & Guthrie, for appellant.

McNinch & Kirkpatrick, R. S. Hutchison, and Burwell & Cansler, for appellee.

BROWN J.

The matter involved in this appeal was before this court at a former term, and constitutes the second cause of action reported in 143 N.C. 134, 55 S.E. 433. That opinion is referred for a general statement of the case. The jury having found the issue of contributory negligence against the defendant, and there being no error committed by the court upon the trial of that issue pointed out to us, that question may be considered settled.

The learned counsel for defendant contends now that the plaintiff is not entitled to recover in any aspect of the case (a) because there is no evidence that the defendant was guilty of negligence in failing to furnish two chain blocks and tackle or other proper appliances; (b) there is no evidence that the failure to furnish sufficient hands caused the injury; (c) the defendant's negligence was in no sense the proximate cause of the plaintiff's injury. We will not consider in detail the numerous exceptions for failure to give defendant's prayers for instruction on the issue of negligence, as, in the view we take of the case, it is needless to do so.

His honor might well have instructed the jury that, if they believed the evidence in the case, the defendant was guilty of negligence in failing to furnish the plaintiff with sufficient and proper tools and appliances reasonably necessary for the accomplishment of the work the plaintiff was commanded to do and also for failure to furnish sufficient assistants reasonably necessary to help in performing it. The entire evidence upon this issue is embraced by the testimony of the plaintiff himself, and that tends to prove that plaintiff was ordered by Superintendent Constable to move the bed plate and plunger, weighing some 5,000 pounds, to another part of the mill, and that Constable was present, overlooking the manner in which the work was done. Plaintiff told Constable that he needed a two-ton chain block, but Constable said he could not afford to hire it, as it would cost him $1 a day, and it would take two weeks to finish the job, and that the mill was not making any money, and the plaintiff would have to make out with the two small chain blocks. The plaintiff protested stating that the small chain blocks were too little, but was told by Constable to go ahead and use them anyway. Plaintiff again told Constable that he thought they were too small, and he wanted a heavier one, but was again instructed by Constable to go ahead and use them, as they were all right. When plaintiff went to use these chain blocks, he found that one of them was defective, or out of repair, so that he could not use it. Both Constable and Johnson, the general manager of the mill, knew at the time that this chain block was out of repair, and that plaintiff could, therefore, only use one of the two chain blocks in tearing down the press. The evidence tends to prove that plaintiff had large experience in moving heavy machinery, and knew what was necessary; that he had been working for defendant some 10 years, and had used a two-ton chain block frequently in unloading heavy machinery, and that such chain block is nearly double the size of the chain block used on this occasion. The evidence shows that insufficient help was furnished (one man and three inexperienced colored boys), and, upon plaintiff's protesting that such help was insufficient, Constable said he knew the three boys were not "worth a damn," but that they were all he had, and he directed plaintiff to go ahead, and promised to furnish more help, which he failed to do. Upon this uncontradicted evidence, his honor would have been justified in charging the jury that, if believed to be true, it proved that the defendant's superintendent had been undeniably negligent in his duty to plaintiff. The defendant failed to furnish appliances proper and necessary for such work. It furnished defective appliances, and such as were insufficient in size and number. It failed to furnish sufficient assistants, although repeatedly demanded by plaintiff, and three of those furnished were inexperienced and unsuitable for that kind of work. The uncontradicted declarations of the superintendent himself proves that the appliances and help demanded by plaintiff were necessary for the safe performance of the work, and that those furnished were utterly insufficient. It is immaterial that the superintendent was a competent one. Those intrusting authority to control others are held responsible for the manner of its exercise. If it is abused, those conferring it are held responsible for its abuse. Tanner v. Lumber Co., 140 N.C. 475, 53 S.E. 287; Mason v. Machine Works (C. C.) 28 F. 228. We scarcely deem it necessary to cite authority to sustain our view that the defendant fell far short of its legal duty to plaintiff,...