Watson v. Warsaw Const. Co.

• Decision Date: 23 October 1929
• Docket Number: 618.
• Citation: 150 S.E. 20,197 N.C. 586
• Parties: WATSON v. WARSAW CONST. CO.
• Court: North Carolina Supreme Court

150 S.E. 20

197 N.C. 586

WATSON v. WARSAW CONST. CO.

No. 618.

Supreme Court of North Carolina

October 23, 1929

Appeal from Superior Court, Swain County; McElroy, Judge.

Action by Lee Watson, by his next friend Josie Watson, against the Warsaw Construction Company, for damages for personal injuries caused by explosion of dynamite caps. From a judgment for plaintiff, defendant appeals. Reversed.

One is not under duty to provide against danger to another which reasonably prudent person would not reasonably have anticipated.

The plaintiff brought suit to recover damages for personal injury alleged to have been caused by the explosion of dynamite caps negligently put into his possession by the defendant.

The defendant is a corporation, and at the time of the injury was engaged in blasting and grading a roadbed for a highway to be built from Hazel Creek in Swain county to the Tennessee line. The plaintiff had been in the employ of the defendant for two or three years, and prior to that time in the service of the defendant's predecessor. When injured he was the defendant's teamster. He was 18 years of age and weighed 90 or 95 pounds. His foreman was A. W. Whaley. His account of the injury follows: "I had been hauling for Warsaw Construction Company about two or three months. Mr. Whaley gave me and the other members of the crew orders and directions what to do. I kept my team near the river in a barn where I had been ordered by the company and Mr. Whaley to keep the team. The barn was pretty close to the highway. I was hauling dirt for the Warsaw Construction Company on the afternoon of the 2d day of February, 1928. I went to the barn to put up my team. I was there doctoring my mule, doctoring his shoulder, and Mr. Whaley came and called me. I went by the name of Jack, he called my name and said, 'Here is a box of caps and a roll of fuse, I want you to carry it to the little shack and put the caps and fuse up over the door.' I told him all right, and he said that would be all right. I told him that just as quick as I got through doctoring my mule I would go. He said that will be all right. I laid the fuse down on the ground and put the caps in my pocket. I was wearing overalls. I put them in the right pocket. Mr. Whaley was standing there present when I put the box of dynamite caps in my pocket. He didn't say anything. He didn't give me any instructions or any warning as to the danger of the caps or explosives. He made no statements about it at all. It took me something like 10 or 15 minutes to finish up my work there. After I did that I went on and done what he told me, put up the caps and fuse. The little house he ordered me to put them in was kind above the highway, right on the side of the highway, something like 75 or 100 feet from the barn. I put them up over the door like he said. There was dynamite, tools, leather and so forth and so on in that house. The house was not locked where the dynamite was kept. The door was open. After I put the caps, the box of caps, and the fuse, where I was ordered to put them, I went on to the house to my boarding place. I was wearing loose overall pants. The shack was 100 feet from the barn. When Mr Whaley gave me the dynamite caps he didn't tell me how many were in the box. After he gave me the roll of fuse and caps he went on to the house, I suppose. He went that way. The next day I was hauling pipe for him, for the Warsaw Construction Company, under the instructions of Mr. Whaley. I hauled two loads of pipe and got in about 1:30 and ran to the house and ate dinner and hurried back and started to haul another load and Mr. Whaley called me and wanted me to move a pump down to the river to the little ferry. I took one mule and moved the pump to the boat and brought the mule back and hooked it into the wagon and when I hooked it up I got up on one side of the wagon and looked down and saw my whip on the ground, and I jumped down to get it and when I hit the ground it fired. I don't know what it was that fired. The explosion occurred just as I hit the ground. It knocked me kind of backwards. I ran backwards to keep from falling, and I thought I could come straight. Mr. Luck was standing over from me, I thought I could walk to him, but I couldn't. I went around and around and fell backwards in the road and then raised up and saw that my leg was torn up. The leather lines were shot in two. My pants were shot all to pieces."

This is his description of the box containing the caps: "The box Mr. Whaley gave me was kind of a square box, about an inch and a half broad and about an inch and a half all the way. This is broader on this box than what he gave to me. The lid on the other box was narrower than this. This shuts down tighter than the other one, it is broader. I put the box he gave me in my right overall pocket. I didn't know any caps had come out in my pocket. The lid would come off easy on that box. I didn't know they would come out in my pocket. I observed that the corners of the cap box he gave me were loose. They were loose in the corners like that. They were not fastened together. *** To the best of my knowledge the lid was sprung on the box that he gave me. After he gave me the box and I went up to the house I didn't put my hand in my pocket. When I took the box out of my pocket the corners of the lid was raised up. When I took it out it pushed back on."

Speaking of the caps he said: "I put them down in my pocket, then took them to the shack. I put my hand in my pocket and took them out and put them up. I put up all that he gave me. *** I didn't know I had any dynamite caps in my pocket. From 5 o'clock that evening after I took the dynamite caps and put them up I never had my hand in my right hand pocket till the next day when I got hurt. I could have put my hand in my pocket and found out what I had, but I didn't that I remember. The best I remember I didn't put my hand in there, for if I had I would have found something. When Mr Whaley handed me the box of dynamite caps I didn't notice it, I just put it in my pocket. I glanced over the box and put it in my pocket. I didn't notice anything about it when I glanced over it. That was after I took it out of my pocket that I noticed one corner of the lid was raised. That was in broad daylight. When I took that box out of my pocket and noticed that the lid was pulled up, the foreman was not present and he didn't know anything about it. If the lid was pulled up and some of the caps had slipped out of the box, I never thought anything about it. I just put them up. I just pushed it back down a little. I never though there was any caps in my pocket. I reached my hand in my pocket and then noticed that the lid was slipped up or had come off, but it went back on and I set it up.

Seeing and knowing that, I didn't put my hand in my pocket to see if any of the caps had come out. I never thought about it."

Other witnesses were examined, but the plaintiff's testimony is for him the most favorable. At the close of the plaintiff's evidence and at the conclusion of all the evidence the defendant moved for judgment as of nonsuit. Each motion was denied, and the defendant excepted.

The issues of negligence, contributory negligence, and damages were answered in favor of the plaintiff, and he was awarded judgment, from which the defendant appealed upon error assigned.

Edwards & Leatherwood, of Bryson City, for appellant.

Sutton & Stillwell, of Sylva, for appellee.

ADAMS J.

At 5:30 in the afternoon of February 2, 1928, the plaintiff received the dynamite caps from the defendant's foreman and was injured by an explosion in his pocket on the day following at 1:30. The material allegations of negligence, as set forth in the complaint, are the defendant's failure to warn the plaintiff of danger in handling the caps and its failure to provide a safe box or container for their transportation. Let us consider each of these allegations in its relation to the plaintiff's evidence.

As to the first, it is conceded to be the duty of an employer to warn his employees concerning dangers which are known to him or which in the exercise of reasonable care should be known to him, and are unknown to his employees or are undiscoverable by them in the exercise of due care, and concerning dangers which, by reason of youth, inexperience, or incompetency the employees do not appreciate. Under these conditions, unless the servant is warned or instructed, he does not assume the risk of such dangers, and, if without fault or negligence on his part he receives an injury in consequence of not having been wanted or instructed, the master will be liable to him in damages. West v. Tanning Co., 154 N.C. 44, 69 S.E. 687; Norris v. Mills, 154 N.C. 474, 70 S.E. 912; Steeley v. Lumber Co., 165 N.C. 27, 34, 80 S.E. 963.

For the present purpose, we may admit the proposition that, where explosives are given to a messenger for transportation in a package apparently harmless and he has no information or notice of their general character and carries them with the care adapted to their apparent nature, the person delivering the explosives will ordinarily be held liable for injuries resulting from an explosion during the period of transportation. But without saying that the jury may not reasonably have inferred from the evidence that the defendant had been negligent in failing to warn the plaintiff of probable harm, we are confronted with the fact that no injury resulted to the plaintiff during the course of his employment, i. e., during the time he was engaged in obedience to the foreman's orders in carrying the caps from the barn to the shack. His regular service was that of a teamster. The reason of requiring warning in appropriate cases is to impress upon the employee the necessity...