Walters v. Durham Lumber Co.

• Decision Date: 19 November 1913
• Citation: 80 S.E. 49,163 N.C. 536
• 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

November 19, 1913

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.

It was proper to exclude the testimony of a witness that, in his opinion, a fellow servant was not competent for the work in which he was engaged.

Civil action to recover damages for physical injuries caused by the alleged negligence of the defendant company in the selection of a fellow employýe, 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 employé 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 employé, 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 employé of 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).

It is the very generally accepted principle, unless otherwise provided by statute, as it is in this state, in the case of railroads, that an employer of labor is not responsible for injuries to an employé attributable solely to the negligence of a fellow servant. Hagins v. Railroad, 106 N.C 537, 11 S.E. 590. He is held, however, to the exercise of reasonable care in selecting employés who are competent and fitted for the work in which they are engaged, and, if there has been negligence in this respect, and it is shown that such negligence is the proximate cause of injury to an employé, he may be held liable. Shearman & Redfield on Negligence (6th Ed.) § 189; Bailey on Master's Liability, p. 46. The presumption is that the employer has properly performed his duty in the respect suggested, and before responsibility can be fixed on him it must be established...