Walters v. Durham Lumber Co

• Decision Date: 19 November 1913
• Citation: 163 N.C. 536,80 S.E. 49
• Parties: WALTERS v. DURHAM LUMBER CO.
• Court: North Carolina Supreme Court

80 S.E. 49

163 N.C. 536

WALTERS

v.DURHAM LUMBER CO.

Supreme Court of North Carolina.

Nov. 19, 1913.

1. Master and Servant (§ 177*)—Injuries to Servant—Fellow Servant Rule.

A master is not liable for injuries to a servant caused by the negligence of a fellow servant.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dee. Dig. § 177.*]

2. Master and Servant (§ 170*)—-Injuries to Servant—Duty to Exercise Care in Selecting Fellow Servants.

While a master is not liable for injuries caused by the negligence of a fellow servant, he is bound to use reasonable care in selecting fellow servants, and, if he fails to use such care, he may be held responsible for injuries inflicted by such incompetent fellow servant.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 336; Dec. Dig. § 170.*]

3. Master and Servant (§ 265*)—Injuries; to Servant—Action—Burden op Proof.

There being a presumption that a master will properly perform his duty to exercise rea-sonable care in the selection of fellow servants, a servant injured by the negligence of another has the burden of proving that the master was negligent in employing an incompetent servant, or in retaining him after knowledge of incompetency.

[Ed. Note.—For other case, see Master and Sc-vant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 205.*]

4. Master and Servant (§ 168*)—Injuries to Servant—Fellow Servant—"Incompetency" of Fellow Servant.

The term "incompetency" in relation to the duty of the master to use reasonable care to select competent fellow servants for his other employes is not confined to a lack of physical, mental, or manual capacity, but extends to any kind of unfitness which renders employment or retention of a servant dangerous to his fellows.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 334, 335, 337-340, 349; Dec. Dig. § 168.*

For other definitions, see Words and Phrases, vol. 4, pp. 3507-3510.]

5. Master and Servant (§ 271*)—Injuries to Servant—Actions—Evidence.

In an action against a master for engaging and retaining an incompetent fellow servant, whose negligence caused an injury to plaintiff, evidence of the general reputation of the fellow servant for incompetency, and habitual carelessness, and inattention is admissible, as well as evidence of specific acts of negligence, carelessness, or inattention which may tend to establish the master's knowledge of the servant's incompetency.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 347, 928-931; Dec. Dig. § 271.*]

6. Master and Servant (§ 173*) —Knowledge of Agent—Effect.

Where the vice principal of the master knew of the incompetency of one of plaintiff's fellow servants, such knowledge coming to him in the course of his duties, the master is charged with notice, and the fact that the vice principal subsequently left the employ of the master will not affect the result.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 343-346; Dec. Dig. § 173.*]

7. Appeal and Error (§ 927*) — Nonsuit — Inference.

In reviewing a judgment of nonsuit, evidence in favor of plaintiff must be taken as true, and interpreted in the light most favorable to him.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. § 927.*]

8. Master and Servant (§ 287*)—Injuries to Servant—Actions—Jury Question.

In an action against a master for injuries caused by the negligence of a fellow servant, the question of the master's negligence in engaging and retaining an incompetent fellow servant held for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1034, 1045, 1051, 1052, 1054-1067; Dec. Dig. § 287.*]

9. Evidence (§ 471*)—Admissibility—Opinion Evidence.

In a personal injury action by a servant, where he counted on the master's negligence in hiring and retaining an incompetent fellow servant, it was not improper to exclude the testimony of a witness that, in his opinion, the fellow servant was not competent for the work in which he was engaged.

[Ed. Note.—For other cases, see Evidence. Cent. Dig. §§ 2149-2185; Dec. Dig. § 471.*]

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

Action by S. A. Walters against the Durham Lumber Company. From judgment of nonsuit, plaintiff appeals. Reversed and remanded.

Civil action to recover damages for physical injuries caused by the alleged negligence of the defendant company in the selection of a fellow employe, tried before his honor, R. B. Peebles, judge, and a jury, at March term, 1913, of the superior court of Durham county.

There was evidence on the part of plaintiff tending to show that on November 9, 1911, the plaintiff, an employe; of the defendant company, was engaged in operating a ripsaw, making pieces for door panels; that the work is ordinarily done by two persons, one a feeder, who pushes the lumber or material onto the saw, and the other the "tailer, " who draws the piece away from the saw, a witness saying: "The tailer takes hold of it, and holds the plank down to the table to keep it from flying up until it gets through the saw. He then lays the plank down"— that the work requires careful and continuous attention, and, if the tailer raises the material before it is severed, or before it is clear of the saw, it is not unlikely to be caught and hurled backward, causing injury to the other operator, the feeder; that on the occasion in question, the plaintiff's regular assistant, Roberts, having been called away, one Milton Carden, another employe, was sent to do his work; that Carden had not been engaged in this or other work of like kind, and soon after he commenced, being inattentive and looking away from his work, he raised the piece of material before it was sawed, or before it was clear of the saw; that same was caught and thrown against the plaintiff with great force, causing serious and very painful injuries.

In endeavoring to develop his case before the court and jury, plaintiff offered to prove that said Milton Carden had the general reputation of being careless and inattentive, and unfitted for work of this kind. The evidence was excluded, and plaintiff excepted.

Again, the plaintiff offered evidence tending to show that said Milton Carden was habitually careless, and inattentive to his duties, and had been observantly so during the time he was in the employment of defendant, more than a year. Proof excluded, and plaintiff excepted.

In this connection, among others, a witness by the name of W. F. Stanley was asked the following question: "Q. State whether or not Mr. Carden had the habit of looking away from his work, and not giving attention to the work that he was engaged in." The defendant objected to this question. Counsel for plaintiff explained the purpose of the question submitted to the witness Stanley was to show that Mr. Carden, an employeof the defendant company, who was working with the plaintiff at the time of the injury, was incompetent, and was in the habit of neglecting his work, and that this fact was known to the defendant company. The objection was sustained, and the plaintiff excepted. This witness was also asked if, in his opinion, Carden was competent for the work he was then engaged in, and question was excluded, and plaintiff excepted.

Again, a witness by the name of W. E. Young testified that he was foreman of defendant company for some time prior to 1910, having supervision over Carden, and with power to employ and discharge labor, etc., but was not now in the company's employment. This witness was asked the question: "Q. State whether or not, as foreman of the defendant, you know the habits and character of Mr. Carden as a workman at the time you and he worked with the defendant company." To the foregoing question the defendant objected. The objection was sustained, and plaintiff excepted. Counsel for plaintiff explained the question was asked for the purpose of showing that Mr. Carden was incompetent as a workman, and that he was inattentive to his work; that he had a habit of looking away from his work, and laughing and talking to others; that this was before the injury; and that these facts were known to this witness, as foreman of the defendant company's mill. He was not foreman at the time the injury occurred; but Mr. Higby was foreman. Question was excluded, and plaintiff excepted.

This witness was afterwards recalled, and stated without objection: "Had worked for some time, a year or two, with Mr. Carden at defendant's plant. He had a way of stopping and speaking to any one, and he would catch hold of them when they would come by, and I had to speak to him about it more than once, occasionally. If any one came by, close by, he would turn around, and speak to them over a job, whenever he was at work." And, again: "What I have noticed and described was just a common habit he had. I know his general reputation in this particular at the mill. I was in a position in the mill invested with power to employ and discharge labor."

Cross-examination: "I left the employ of the defendant company in January, 1910; worked with the defendant, the Durham Lumber Company. Mr. Carden was a grown man. He worked there a long time; don't remember how long. Mr. Carden was a man of sense and intelligence enough to know how to take the boards away from that saw, if he paid attention to it."

Several witnesses for defendant testified that Carden had sufficient sense and intelligence to do this work, and it was further disclosed, on cross-examination of some of these witnesses, that while in defendant's employment he was "careless and inattentive and was rough and careless in the way he did his work, " etc.

On motion there was judgment of nonsuit, and plaintiff excepted and appealed.

J. A. Giles and Bryant & Brogden, all of Durham, for appellant.

W. L. Foushee, of Durham, for appellee.

HOKE, J. (after stating the facts as above). [1-4] It is the very generally accepted principle, unless otherwise...