Thomas v. Lawrence

• Decision Date: 22 April 1925
• Docket Number: 333.
• Citation: 127 S.E. 585,189 N.C. 521
• Parties: THOMAS v. LAWRENCE ET AL.
• Court: North Carolina Supreme Court

127 S.E. 585

189 N.C. 521

THOMAS v. LAWRENCE ET AL.

No. 333.

Supreme Court of North Carolina

April 22, 1925

Appeal from Superior Court, Durham County; Cranmer, Judge.

Action by G. W. Thomas, by his next friend, W. H. Thomas, against W H. Lawrence and another. Judgment for plaintiff, and defendants appeal. No error.

Jury question whether default in furnishing safe place to work was proximate cause of injury from thrown brick.

This action was brought by plaintiff, an employee, to recover of defendants, his employers, damages for a personal injury alleged to have been caused by the negligence of defendants (1) in failing to provide for plaintiff a safe and suitable place in which to work, and (2) in failing to provide a safe and proper method for hoisting bricks to the walls of the building, in the construction of which plaintiff was at work as an employee of defendant.

It is alleged that plaintiff was at work on the floor of a building, in process of construction by defendants, as contractors and builders, near the stage or rostrum in the auditorium of said building, under the direction of a foreman of defendants; that plaintiff, with other employees, was at work upon steel beams or girders which were to be used in the construction of the building; that, while plaintiff was thus engaged in the performance of his duties as an employee of defendants, brick masons, also employees of defendants, were at work on a scaffold 12 to 14 feet above the floor on which plaintiff was at work; that laborers or helpers of said brick masons, also employees of defendants, were engaged in carrying bricks and mortar to a balcony or scaffold some 5 or 6 feet beneath the scaffold on which the brick masons were at work and above the floor on which plaintiff was at work; that the laborers were required to pitch the bricks which were hoisted from the floor to the balcony, to other laborers standing on the scaffold on which the brick masons were at work, where they were to be used by the brick masons in the erection of a wall of the building; that a laborer on the upper scaffold failed to catch a brick pitched to him by a laborer on the lower scaffold or balcony; and that this brick fell a distance of 12 to 14 feet, striking plaintiff on the head while he was at work at the place to which he had been assigned by a foreman of defendants. As a result of the injury thus inflicted, plaintiff was rendered unconscious and has become a total mental and physical wreck.

As a defense to plaintiff's cause of action, defendants deny that plaintiff was injured by their negligence, alleging that such injury as plaintiff sustained was caused by the negligence of a fellow servant of plaintiff, and that said injury was the result of a risk ordinarily incident to work of the kind and character as that in which plaintiff was engaged, and that plaintiff, having assumed the risk of such injury as he received when he entered the employment of defendants, cannot recover damages of the defendants.

The issues arising upon the pleadings, and submitted by the court to the jury, with the answers thereto, are as follows:

(1) Was the plaintiff injured by the negligence of the defendants as alleged in the complaint? Answer: Yes.

(2) Was the plaintiff injured by the negligence of a fellow servant as alleged in the answer? Answer: No.

(3) Did plaintiff voluntarily assume the risk of his injury as alleged in the answer. Answer: No.

(4) What damages, if any, is the plaintiff entitled to recover. Answer: $5,000.

From the judgment in accordance with the verdict, defendants appealed to the Supreme Court, assigning errors based upon exceptions duly noted.

Fuller & Fuller, of Durham, for appellants.

Brogden Reade & Bryant, of Durham, for appellee.

CONNOR J.

The evidence offered by plaintiff was sufficient to sustain the allegations of the complaint, as to the existence of the relationship of employer and employee between defendants and plaintiff at the time of the injury, and as to the cause and extent of the injury sustained by plaintiff. Plaintiff was struck on the head by a brick, which fell from above him while he was at work at the place to which he had been assigned, under the direction of the foreman of defendants in charge of the construction of the building. The falling of the brick was the result of the failure of a laborer on a scaffold 17 feet above the floor on which plaintiff was at work to catch the brick which had been pitched to him by a laborer from the balcony about 7 feet beneath the upper scaffold and about 10 feet above the floor. The bricks thus pitched from one laborer to another laborer were to be used by brick masons working on the upper scaffold in the erection of a wall of the building. Bricks were being passed up to these brick masons in the usual way, and by the method provided by defendants for accomplishing that purpose. They were hoisted from the floor of the building to the balcony, about 10 feet above the floor, by means of an elevator; they were then taken from the elevator by laborers who placed them on wheelbarrows which were rolled along the balcony to a place beneath the scaffold on which the brick masons were at work. They were then pitched, one at a time, from the balcony to the scaffold, a distance of 7 feet, and placed by the laborer who caught them on the scaffold so that the brick masons could pick them up as they were needed. The distance through which they were thus pitched was 18 inches or 2 feet. The foreman, under whose direction plaintiff was at work, knew that the laborers were engaged, by this method, in getting the brick from the floor or ground to the scaffold, and that they were so engaged at the time plaintiff was directed to work at the place where he was injured.

The injury occurred about 4 o'clock p. m. Prior to this time plaintiff had been at work riveting steel beams near the center of the building. Immediately before the plaintiff was injured, he had been requested, by a fellow employee, who was authorized to make the request by the foreman, to leave the place at which he was at work, to assist other employees in raising a steel beam or girder from the floor in order that a bench might be put under it. The place to which plaintiff was thus called was about 10 feet from the wall on which the brick masons were at work and where the bricks were being pitched. The employee to whose assistance plaintiff had gone, just prior to his injury, testified that he did not know that the brick masons were then at work on the wall or that the laborers were at work getting the bricks to the upper scaffold. Plaintiff has never recovered from the effects of the blow on his head sufficiently to make an intelligent statement about the occurrence, and did not testify at the trial for this reason.

1. Defendants first contend that plaintiff's injury was due to an accident, and that therefore they are not liable for damages resulting from the injury. An accident is defined as "an unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected unusual, or undesigned occurrence; the effect of an unknown cause, or, the cause being known, an unprecedented consequence of it; a casualty." Black's Law Dictionary. See Crutchfield v. Railroad, 76 N.C. 320. "An employer is not responsible for an accident simply because it happened but only when he has contributed to it by some act or omission of duty." Martin v. Mfg. Co., 128 N.C. 264, 38 S.E. 876, 83 Am. St....