Shaw v. National Handle Co., Inc.

• Decision Date: 24 September 1924
• Docket Number: 16.
• Citation: Shaw v. National Handle Co., Inc., 124 S.E. 325, 188 N.C. 222 (N.C. 1924)
• Parties: SHAW v. NATIONAL HANDLE CO., INC., ET AL.
• Court: North Carolina Supreme Court

124 S.E. 325

188 N.C. 222

SHAW v. NATIONAL HANDLE CO., INC., ET AL.

No. 16.

Supreme Court of North Carolina

September 24, 1924

Appeal from Superior Court, Chowan County; Devin, Judge.

Action by W. S. Shaw, administrator of W. D. Shaw, against the National Handle Company and another. From judgment for plaintiff, defendants appeal. No error.

In an action for death claimed to have been caused by fumes of a gasoline engine, an instruction that evidence of subsequent changes and repairs was submitted solely to aid in ascertaining the condition of the engine at the time of the accident, and was not to be considered as tending to show that the engine was defective, was correct.

The material facts are:

W. D Shaw, plaintiff's intestate, was employed by the defendant the National Handle Company, and had the superintendency of its logging business--"log foreman." He was in charge of logs in the woods, seeing the logs cut down and rafted. The raft was turned loose on Roanoke river to float down to Plymouth. A colored man in a canoe went along with the raft until it was met by the defendant company's boat. At the time of his death Shaw was in the employ of defendant the National Handle Company, and had been for two years. Joe Dixon was superintendent under the defendant M. J Norton, who was manager. Shaw frequently went to Plymouth and returned to his logging work on the Coast Line train, which leaves Plymouth about 7 o'clock a. m. On the Sunday before Shaw's death he started up the river in the company's boat with one Curby, an employee of the company, but did not go, as it was out of order and needed repairs. Joe Dixon, the superintendent, witness for plaintiff, testified in part that under the direction and orders of M. J. Norton, the manager, he saw Elmer Jackson and a boat was obtained from Jackson, who said the boat was in perfect condition. Jackson would not let the boat go without his employee, a colored man named John Parker, an engineer, to run it. The colored man and Shaw left in the Jackson boat between 10 and 11 o'clock on Sunday Morning. The gas to run the boat, about 62 to 72 gallons, was drained out of the defendant's boat that was then out of repair.

"Q. Did you know for what purpose he was going? A. For convenience to get to his raft, that is all I know; he had no business in the boat so far as I know. That was the National Handle Company's raft.

Q. Was that part of his duty looking after the raft? A. Yes sir logging. The company's boat was broken down that Sunday. I found out this between 8 and 9 o'clock Sunday morning. I did not see Shaw when he went and undertook to go in the company's gas boat, or when he went on the company's gas boat.

Q. Mr. Dixon, there was a boat that the company had that was ordinarily furnished him for the purpose of making these trips? A. In what way do you mean?

Q. The boat he was usually permitted to use in making these trips, the one you say was broken down? A. Yes, that was the National Handle Company's boat.

Q. That was the boat he was permitted to use? A. Shaw never used any; it was used by Mr. Curby to haul logs.

Q. The boat you say he undertook to use--it was out of shape that day? A. Yes; Shaw left in the boat of Mr. Elmer Jackson of Plymouth. I saw Mr. Jackson about getting the boat. I went to Mr. Jackson; asked him was his boat in running condition. He said in perfect condition. I asked him could we get it to go up the river for a raft, ours was broken down. By 'we' I mean the National Handle Company. He said, 'No, unless my crew goes.' Parker was his crew.

Q. Did you agree for Parker to go? A. I didn't have anything to do with it. * * * I did not know where they were going; to what point on the river. I don't remember Norton telling me where he wanted the boat to go. He told me to tell Jackson that he wanted the boat to go until he met the raft. * * * Mr. Shaw did not have anything in the world to do with operating the gas boat. He did not have any duties to perform on the gas boat. He usually came from the log woods and went back on the Coast Line train. * * * Neither I, or anybody representing the company, told him to go out with Curby on our boat. After our boat broke down, he went on Jackson's boat, just for convenience on his own accord. He had no instruction from the company to go, and no duties to perform. I do not know when he and Curby started out in the gas boat. They came to see me about 8 or 9 o'clock. I do not know whether Shaw came with Curby or not. Curby reported to me that the gas boat was broken down, and suggested that I would have to get another boat, if he had to go up and get the raft. Then I went to see Mr. Norton, and he told me to see if I could get a boat. Then I went to see Mr. Elmer Jackson to see if I could get his boat. When I told Jackson I wanted the boat, Jackson absolutely refused to hire the boat to me or the company, and told me that the only condition under which the boat could tow this raft was that he send it with his own crew, reserving absolute operation and control, at so much per hour. Jackson's boat was regularly engaged in towing logs, and had been for a long time operated by Jackson with his own crew. I have never been on the boat, and know nothing about gasoline engines. The only thing I heard about the boat it was one of the best that run up the Roanoke river. * * * He (Shaw) could have gone on the train. I could not tell you whether it was his duty to be at the raft; however, he got there. I said he was going up for convenience was all I know. I just said I could not tell about that. If Shaw had not gone, Curby was going by himself. I do not know whether it was or was not his duty to go after that raft. He was log foreman.

Q. As log foreman he was supposed to look after the raft? Didn't you say that it was his duty to look after his raft? Didn't you call it Shaw's raft? A. I might have called it Shaw's logs, I think that was as far as he had to go, was to raft the logs.

Q. Don't you know? A. That was his job; to get the logs and raft them.

Q. Don't you know that it was not his business? A. Yes.

Q. Why did you permit him to go? A. I didn't have anything to do with it. Mr. Curby was going. Mr. Curby was going after the raft, Shaw did not have any duty there, as far as I know.

Q. Was it not his duty to see that the raft was equipped to come? A. To get the logs, haul them to the river, and then raft them. You did not understand me to say he could have met the raft on the Roanoke river on the Coast Line train, I ain't said it. * * * The only reason it was necessary at all for Shaw to go back to the woods was to get more logs. His duties with reference to the raft were complete. The only man to go after the raft was Curby with a gas boat, to get it back. When the boat could not go I contracted with Mr Jackson to get his boat. The boat was going up the river. The raft was turned loose on Roanoke river to float down, and a colored man in a canoe would always go along with it until it was met by the boat. Shaw was going to the woods.

Q. Is it not a fact that Shaw himself fixed up that raft, turned it aloose and came back to Plymouth to get the boat to meet it? A. I do not know about that. I do not know. I had no information about it."

Elmer Jackson, witness for plaintiff, testified in part:

"I am Elmer Jackson referred to in this testimony. I have owned this boat about sixteen years. I had a four-cycle twelve horse power Globe engine. I bought it from Thomas R. Curby, Berkley, Va. Prior to buying it I had known it about thirty minutes. I have not the slightest idea how old it was when I bought it; it was not new. Both the boat and engine had been used before. I have used it ever since.

Q. Have you owned it since the unfortunate accident? A. Yes, it is still running now, every day. It has the same engine. I have replaced the valves about a dozen times. I have replaced the two exhaust valves since the accident and the two intake valves I have had reseated. I remember no other changes since December, 1922, except that I have repaired the pipe. I have replaced the exhaust valves, had the intake valves reseated, and replaced the exhaust pipe. Have made no other changes that I recall, except possibly some minor changes, such as tightening a bolt. Since Mr. Shaw's death I have used the boat pretty near every day. * * * Sunday was the day Mr. Dixon came to see me. I told him the only way I would send the boat was under the control and operation of my own man--to tow the raft down for him. I would not permit him to take control, or the boat, to go without my man on it. Mr. Norton had nothing to do with it. I did not see Mr. Norton. Parker was in control of the boat acting for me. I sent the boat with Parker off on my business. I had taken the contract. I had contracted with Dixon, and was going for the National Handle Company's logs. * * * Since I have owned the boat I had repaired the windows. I have not inclosed it more. With the exception of the windows being broken, it was inclosed as it was at the time of the accident. I have had it inclosed six or seven years. I repaired the exhaust pipe about three weeks prior to the time Mr. Leary came there or maybe a shorter time. I broke off the gas pipe, and that is why I repaired it. It was about three weeks prior to Mr. Leary's going there."

Mack Gregory, witness for plaintiff, testified in part:

"I live in Edenton. I am an automobile and gas engine mechanic. I have been engaged in repairing gas engines more than fifteen years. I know the construction of and am familiar with the operation of four-cycle engines. If the exhaust pipes are tight and mufflers tight and good joints, they don't give off any gases, unless certain parts of the engine are worn. The exhaust pipe

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