Talley v. Harris Granite Quarries Co.

• Decision Date: 31 October 1917
• Docket Number: 353.
• Parties: TALLEY v. HARRIS GRANITE QUARRIES CO.
• Court: North Carolina Supreme Court

93 S.E. 995

174 N.C. 445

TALLEY v. HARRIS GRANITE QUARRIES CO.

No. 353.

Supreme Court of North Carolina

October 31, 1917

Appeal from Superior Court, Rockingham County; Long, Judge.

Action by W. F. Talley against the Harris Granite Quarries Company. Judgment for defendant, and plaintiff appeals. No error.

In servant's action for injury, his prayers for instructions which so far as material were substantially given, were properly refused.

Plaintiff alleged that on September 10, 1915, he was an employé of the defendant quarries company, and was called upon by the foreman to assist in removing a heavy cable, attached to a smokestack, to a new anchorage, and in order to do so properly it was necessary to carry it around a pit about 150 feet in depth. He was instructed to take hold of the cable with another man, at the end of it farthest from the smokestack, and eight or ten other men were ordered to grapple the cable at a place between the plaintiff and the smokestack, which they did, for the purpose of holding in the slack and preventing the cable from swagging into the pit. The cable extended beyond where plaintiff was directed to go. "When plaintiff reached a given point carrying the cable, and had gone down the edge of the pit about four feet E. C. Frady, foreman, directed the men holding the cable in a curve around the pit to let go, and instructed the plaintiff to hold on; that the eight or ten men holding the slack in the cable turned loose, as directed, and the cable swung out over the pit with great force, and jerked plaintiff to the ground, wrenching and tearing the muscles of his back." These allegations, in section 6 of the complaint, are substantially repeated in section 7. And in the reply to the answer, the same averment is again made in these words:

"The order of the foreman of defendant, given to the men holding back the weight of the cable, 'to turn loose' which order was obeyed, and the obeying of said order, under the direction and in the presence of said foreman, caused this plaintiff to be violently thrown to the ground and seriously injured, which result could not have been known or foreseen by this plaintiff as he was engaged in carrying the cable at the farthest point, the force and effect of said order being known only to the said foreman, or should have been known by him."

The court instructed the jury that unless the plaintiff had proven by a preponderance of the evidence that the foreman E. C. Frady, ordered the men, except plaintiff and the man with him, to turn loose the cable, they should answer the first issue "No," and if the injury resulted, not from a negligent order of the foreman, E. C. Frady, to let go the cable, but solely from the negligent act of the men, or servants of the company in turning it loose, they being fellow servants of the plaintiff, the jury would leave out of consideration the negligent act of such fellow servants, and if it was found that the injury was caused proximately by the negligent act of the fellow servants of the plaintiff, and not by reason of an order given by the foreman, the jury would answer the first issue, "No," but if Frady gave the order, and this proximately caused the injury, the jury should answer the first issue, "Yes." The court instructed the jury, in response to plaintiff's prayers for instructions, as to assumption of risk, and as to the duty of the master to provide reasonably safe means and methods for his servant to perform his work, such as proper help, and a reasonably safe place to work, with proper tools and appliances with which to do his work. The court substantially gave all of the instructions requested by the plaintiff, except the fifth, and there was no allegation as to this one, as the court stated at the time. The jury answered the issue as to negligence in favor of the defendant. Judgment thereon, and plaintiff appealed.

J. R Joyce and J. M. Sharp, both of Reidsville, for appellant.

McMichael & Ray, of Reidsville, and John M. Robinson, of Charlotte, for appellee.

WALKER, J. (after stating the facts as above).

It has so often been said, as to have grown into an axiom, that proof without allegation is as unavailing as allegation without proof. There must, under the old or new system of pleading, be allegata and probata, and the two must correspond with each other. When the proof materially departs from the allegation, there can be no recovery without an amendment. McKee v. Lineberger, 69 N.C. 217; Brittain v. Daniels, 94 N.C. 781; Faulk v. Thornton, 108 N.C. 314, 12 S.E. 998; Pendleton v. Dalton, 96 N.C. 507, 2 S.E. 759; Hunt v. Vanderbilt, 115 N.C. 559, 20 S.E. 168; Green v. Biggs, 167 N.C. 417, 83 S.E. 553. It was never intended, even by our liberal code system, that a plaintiff should be allowed to prove a cause of action which he has not alleged. McNeill v. Railroad Co., 167 N.C. 390, 83 S.E. 704; Kivett v. Telegraph Co., 156 N.C. 296, 72 S.E. 388; Abernathy v. Seagle, 98 N.C. 553, 4 S.E. 542; Willis v. Branch, 94 N.C. 142.

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