Stewart v. Vandeventer Carpet Co

Decision Date11 April 1905
CourtNorth Carolina Supreme Court
PartiesSTEWART. v. VANDEVENTER CARPET CO.

MASTER AND SERVANT—ELEVATORS—INSTRUCTIONS—ELIMINATING EVIDENCE—RES IPSA LOQUITUR.

1. 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.

2. In an action for injuries by an elevator, an instruction that, where the employer's negligence is continuing, there can be no contributory negligence by the employs which discharges the employer, is erroneous, as eliminating evi-dence that plaintiff was injured by reason of his disobedience of orders not to use the elevator.

3. The doctrine of res ipsa loquitur does not

dispense with the requirement that the party who alleges negligence must prove the fact, but relates only to the mode of proving it; the fact of the accident furnishing merely some evidence for the jury, which requires defendant to go forward with his proof.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, §§ 218, 224, 225.]

4. Where, in an action for injuries by an elevator, the evidence does not disclose any distinct act of negligence of defendant, or any specific defect in the elevator, the jury should be instructed that their verdict must not be founded on mere conjecture, but the proof must fairly tend to show that negligence in fact existed and caused the injury.

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.

This action was brought to recover damages for injuries received by plaintiff, an employ^ 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 be 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 employes should not use the elevator. Plaintiff and other employes 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 wa3 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 tbe employes. 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 employe 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...

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