Stewart v. Van Deventer Carpet Co.

• Decision Date: 11 April 1905
• Citation: 50 S.E. 562,138 N.C. 60
• Parties: STEWART v. VAN DEVENTER CARPET CO.
• Court: North Carolina Supreme Court

50 S.E. 562

138 N.C. 60

STEWART v. VAN DEVENTER CARPET CO.

Supreme Court of North Carolina

April 11, 1905

Appeal from Superior Court, Guilford County; Bryan, Judge.

Action by W. N. Stewart against the Van Deventer Carpet Company. From a judgment for plaintiff, defendant appeals. Reversed.

In an action for injuries by an elevator, an instruction that if the appliances in common use on elevators were not provided by defendant, etc., is erroneous, in the absence of evidence that defendant had failed to equip the elevator with appliances in common use.

This action was brought to recover damages for injuries received by plaintiff, an employé of the defendant, by the fall of a freight elevator on which at the time he was riding, as he alleges, in the performance of his duty. The evidence introduced by the plaintiff tended to show that his duty was to carry filling and warps from the first to the second floor of the mill. This was done by putting the load on the elevator and operating it himself. At the time of the injury he had about 50 pounds of filling and warps on the elevator which was started by pulling a rope. When the rope was pulled, the brake was released, and the elevator would rise and, when the rope was turned loose, it would stop. The elevator was moved up and down by a cable attached at one of its ends to the carriage, and at the other to a heavy weight the cable winding over a drum three or four times. Plaintiff had been operating the elevator since the 1st day of February. In September, when he was hurt, he was carrying a load of filling and warps on the elevator; and, when he reached the second floor, it fell and injured him. Plaintiff did not know what caused the fall. He denied that he had been forbidden by the superintendent or his assistant to use the elevator, and instructed to use the stairway instead; and he also denied that there was any notice posted to the effect that employés should not use the elevator. Plaintiff and other employés were in the habit of using the elevator without objection. There was nothing broken about the elevator to plaintiff's knowledge. It had been operated by him safely that morning, and for some time before the day he was injured. There were no safety catches on the elevator. There was evidence on the part of defendant tending to show that the elevator was in good condition, as shown by an examination of a machinist made immediately after plaintiff was injured. There was evidence showing the proper manner of operating the elevator and of handling the brake rope; one of the defendant's witnesses testifying that if the operator holds onto the brake rope, and the elevator is descending, it will strike the floor, and the drum and pulley will continue to unwind the coil, and make a slack in the cable; that the slack was not the result of any defect in the elevator, but of carelessness of the operator in not turning loose the brake rope. This witness stated that, when he went to the elevator to examine it after the plaintiff fell, he found that the brake rope had been taken off, the elevator had been allowed to run too fast, and the cable had unwound from the drum. If the brake had been put on at the proper time, this would not have happened. The witness also stated that there were no safety catches on the elevator; that he had seen only one, and that was on a passenger elevator. There was also evidence that the plaintiff had been forbidden to use the elevator, and told to use the stairway, and that notices had been posted giving like instructions to the employés. At the close of the testimony, defendant moved to nonsuit the plaintiff, and also asked for special instructions. This motion and the prayers for instructions were refused, and defendant excepted, as it did to certain instructions given by the court. There was a verdict for the plaintiff, and a motion for a new trial by defendant, which being overruled, defendant again excepted. Judgment for plaintiff, and appeal by defendant.

King & Kimball, for appellant.

John A. Barringer, for appellee.

WALKER J. (after stating the case).

It is unnecessary to consider more than two of the defendant's exceptions, which relate, respectively, to the first and second issues. The court charged the jury as follows:

"If the jury find that the appliances in common use upon elevators were not provided by the defendant, and that plaintiff, in discharging his duties, was injured thereby, then you will answer the first issue, 'Yes.'

Where the negligence of an employer is a continuing one, as the failure to furnish safe appliances in general use, there can be no contributory negligence by the employé which discharges the liability of the employer."

The first of these instructions was erroneous, because there was no evidence that the defendant had failed to equip the elevator with appliances in common use. It is true that the employer must adopt and use all approved appliances which are in general use. Witsell v. Railroad, 120 N.C. 557 27 S.E. 125; Lloyd v. Hanes, 126 N.C. 359, 35 S.E. 611; Dorsett v. Mfg. Co., 131 N.C. 262. 42 S.E. 612; Marks v. Cotton Mills, 135 N.C. 290, 47 S.E. 432; Bottoms v. Railroad, 136 N.C. 472, 49 S.E. 348. But while this is so, there must be evidence upon which the jury can find that the particular appliance which it is claimed the employer should have adopted and attached to his elevator was in general use. It is error for a judge to base an instruction upon a hypothetical state of facts, or upon facts of which there is no evidence in the case. This is a well-settled rule, and should be carefully observed, in order that the jury, in their consideration of the case, may be kept strictly within the limits of the evidence, and decide the case upon the facts, and not upon mere conjecture or surmise. If their attention is diverted from the true questions involved in the case, and directed to irrelevant matters, their conclusion cannot be relied on with safety, as determining the rights of the parties according to the law and the evidence. The charge of the court must always be applicable to the facts of the case. King v. Wells, 94 N.C. 344; Burton v. Mfg. Co., 132 N.C. 17, 43 S.E. 480; Joines v. Johnson, 133 N.C. 487, 45 S.E. 828. A like reason underlies the rule that it is not error to refuse an instruction asked to be given to the jury which is not supported by the evidence. Clark's Code (3d Ed.) p. 535. If this instruction referred to the evidence in regard to safety catches, it was erroneous, as it does not appear that they were generally used as approved appliances in the...