Swaney v. Peden Steel Co., 523

• Decision Date: 14 June 1963
• Docket Number: No. 523,523
• Citation: 131 S.E.2d 601,259 N.C. 531
• Parties: Dewey C. SWANEY v. PENDEN STEEL COMPANY.
• Court: North Carolina Supreme Court

Page 601

131 S.E.2d 601

259 N.C. 531

Dewey C. SWANEY v. PENDEN STEEL COMPANY.

No. 523

Supreme Court of North Carolina.

June 14, 1963

T. Lacy Williams, J. Ruffin Bailey, Raleigh, Miller and Beck, Asheboro, for defendant-appellant.

McLendon, Brim, Holderness & Brooks by Hubert Humphrey, Greensboro, Wilson & Clark, Monroe, for plaintiff-appellee.

SHARP, Justice.

Was the foregoing evidence sufficient to go to the jury on the alleged negligence of the defendant and, if so, does plaintiff's evidence establish his contributory negligence as a matter of law? These are the two questions for decision.

The defendant, as the designer and fabricator of the truss which collapsed during erection, was under the duty to exercise reasonable care not only to furnish a framework which would sustain the load it was intended to carry after erection, but which would also withstand the ordinary stresses to which it would be subjected during erection by methods reasonably to be anticipated. If a negligently designed truss were furnished, a workman on the construction job was within the foreseeable zone of danger and, if it proximately caused him injury, the designer would be liable under the principle which imposes liability upon a manufacturer who puts into circulation a product which, if not carefully made, is likely to cause injury to those who lawfully use it for its intended purpose. Person v. Cauldwell-Wingate Co., 2 Cir., 176 F.2d 237; Williams v. Charles Stores Co., Inc., 209 N.C. 591, 184 S.E. 496; Tyson v. Long Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170, 78 A.L.R.2d 588; Gwyn v. Lucky City Motors, Inc., 252 N.C. 123, 113 S.E.2d 302; Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21; International Derrick & Equipment Co. v. Croix, 5 Cir., 241 F.2d 216.

The general rules of law applicable to the question of defendant's alleged negligence have been stated in the following sections of the Restatement, Torts:

'A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.' § 398. He is also liable if he supplies a 'chattel for another's use knowing that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put,' § 389.

'One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so.' § 388. This section applies to 'the manufacturer of a chattel which he knows to be, or to be likely to be, dangerous for use,' § 394.

When defendant delivered the truss and the columns which were to support it to the Edenton Street Methodist Church job, it knew that steel erectors like the plaintiff would attempt to hoist and set the truss on the perpendicular columns. Its engineer who designed the truss was the one who knew, or should have known, both its strength and the erection stresses its bolts would be required to withstand. These were matters beyond the knowledge and ability of an ordinary steel erector to divine. Unless the truss had been so obviously defective that an erector of ordinary prudence would not have attempted to erect it, Newton was justified in assuming that it could be erected in the customary way. Ryan v. Fenney & Sheehan Bldg. Co., 239 N.Y. 43, 145 N.E. 321, 41 A.L.R. 1; Johnson v. West Fargo Mfg. Co., 255 Minn. 19, 95 N.W.2d 497; International Derrick & Equipment Co. v. Croix, supra; Babylon v. Scruton, 215 Md. 299, 138 A.2d 375. If the defendant knew, or in the exercise of proper care should have known, that the design of the truss made it unsafe to attempt erection by the usual and ordinary methods, it was the defendant's duty to warn Newton of these facts. It does not contend that it gave any information or instruction with reference to erection. Defendant contends that Newton attempted the erection in an unusual manner and that it cannot be held liable for an injury which occurred from a use it could not reasonably have anticipated. Lemon v. Buchan Lumber Co., 251 N.C. 675, 111 S.E.2d 868; Anno: Products Liability--Building Supplies, 78 A.L.R.2d 696, 701; International Derrick & Equipment Co. v. Croix, supra.

The evidence in this case, although conflicting, was sufficient for the jury to find (1) that Newton attempted to erect the truss in the customary manner and in a way which defendant should reasonably have anticipated; (2) that in designing the truss, defendant's engineer did not take into account the stresses of erection and that the deadweight of the truss itself, without the weight of the two men on it, would have caused the bolts to shear; and (3) that the steel erectors had no way of knowing its weakness unless informed of it by defendant which failed to perform this duty.

If the jury found these facts against the defendant the conclusion that its negligence was at least a proximate cause of plaintiff's injury necessarily followed. The jury exonerated Newton of any negligence proximately causing injury to the plaintiff, and no assignment of error challenges the trial on that issue.

We come now to the question of plaintiff's contributory negligence, the defense upon which defendant relies most heavily. It contends that when plaintiff rode the load upward to attach the truss to the upright columns he was guilty of contributory negligence as a matter of law because (1) riding the load was so obviously dangerous it was plaintiff's duty to refuse to obey the order to do so and he assumed all the risks incident thereto when, instead of refusing, he knowingly placed himself in a position of danger; and (2) in riding the load, plaintiff violated both a standard safety rule of the industry incorporated in the North Carolina Building Code and a regulation of the Department of Labor having the force of law.

Defendant did not specifically plead any of the safety rules upon which it now depends. However, in its brief, it relies upon § 18 of Article XXV of the Rules and Regulations Governing the Construction Industry issued by the Department of Labor and the American Standard Safety Code for Building Construction, No. A10.2-1944, approved June 7, 1944 by the American Standards Association which, it contends, § 914 of the North Carolina Building Code incorporated. The General Assembly has given the North Carolina Building Code the force of law. Therefore, the National Electrical Code which it incorporated with the approval of the legislature also has the force of law. G.S. § 143-138; Lutz Industries v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333; Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560; Jenkins v. Leftwich Electric Co., 254 N.C. 553, 119 S.E.2d 767.

However, this Safety Code for Building Construction which defendant stresses so forcibly and from which it purports to quote in the brief, is not referred to anywhere in the North Carolina Building Code. § 914 refers to two other named publications, neither of which has been filed with the Secretary of State as required by G.S. § 143-195. Apparently they relate to specifications for the design, fabrication and erection of structural steel itself--not rules safeguarding steel erectors. Furthermore, this Safety Code for Building Construction was not offered in evidence at the trial nor would it have been competent if offered. Sloan v. Carolina Power & Light Co., 248 N.C. 125, 102 S.E.2d 822.

North Carolina is in accord with the majority view that advisory codes which have not been given compulsory force by the legislative body, whether issued by governmental agencies or voluntary safety councils, are not admissible in evidence in civil actions. Sloan v. Carolina Power & Light Co., supra; 38 Am. Jur., Negligence, § 170; Anno.: Evidence--Safety Codes--75 A.L.R.2d 778; 1962 Cumulative Supplement to 20 Am Jur., Evidence p. 175, addenda to footnote 8, p. 815 of the Text. For a discussion of the problem, see the article entitled 'The Role of Administrative Safety Measures in Negligence Actions,' 28 Texas Law Review 143.

Defendant introduced in evidence the following sections from the 'Rules and Regulations Governing the Construction Industry' issued by the Department of Labor under G.S. § 95-11:

'No employee shall be allowed to ride at any time upon any material elevator or hoist. Nor shall they be permitted to ride upon the sling, load, hook, ball or block of any derrick or crane or in the bucket of any hoist, except when deemed necessary for making repairs or oiling overhead sheaves; provided that this section shall not apply to stacks or caissons nor to the dismantling of hoist, derricks, cranes and towers. ' Article XXV, § 18. (Hereinafter referred to as Rule 18)

'Every employee shall use all safeguards and safety appliances or devices furnished for his protection and shall be responsible for carrying out all rules and regulations which may concern or affect his conduct. ' Article II, § 1.

The charge of the court is not in the record, but presumably these rules were received as evidence tending to establish contributory negligence on the part of the plaintiff. The defendant...