Whitson v. Wrenn

• Decision Date: 18 December 1903
• Citation: 46 S.E. 17,134 N.C. 86
• Parties: WHITSON v. WRENN.
• Court: North Carolina Supreme Court

46 S.E. 17

134 N.C. 86

WHITSON v. WRENN.

Supreme Court of North Carolina

December 18, 1903

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

Action by Alney Whitson against T. F. Wrenn. From a judgment for plaintiff, defendant appeals. Reversed.

Plaintiff was employed to load truck with lumber, placing it in a kiln and to move the trucks from the kiln to the factory when the lumber was dry. Plaintiff was directed to go behind or in the rear of the loaded trucks in removing them from the kiln which was a safe way, but, instead of doing so, at the time he was injured, he went under the truck and applied the force or pressure from beneath, and by reason thereof the truck fell, causing the injury. Held, that the plaintiff's own negligence was the proximate cause of the injury.

Avery & Ervin, for appellant.

E. J Justice, for appellee.

WALKER J.

The plaintiff was an employé of the defendant in his furniture factory, and while engaged in his work received injuries which he alleges were caused by the defendant's negligence. At the time he was injured he was loading trucks with lumber, and placing the same in the kiln for drying, and in moving them from the kiln, when the lumber was dried, to the factory. The evidence tended to show that each of the trucks was made of two pieces of lumber 6 to 10 feet long, 14 inches wide, and 2 inches thick, which were nailed together with 4-inch blocks between them at each end and at the middle, and near each end there were wheels. The trucks were about 6 feet long by 10 inches high, and were 8 inches wide, and when placed on the rails they would not stand without being held or supported, until they were partly loaded with lumber placed across them. There was no axle or connecting rod between these separate trucks. The trucks held about 4,000 feet of lumber, and when they were loaded the kiln was full from side to side and to within 18 inches of its top. The plaintiff was directed by the foreman or superintendent, in removing the loaded trucks from the kiln, to go behind or in the rear of them, and instead of doing so on this occasion he went under the truck, which he was attempting to remove, and applied the force or pressure from beneath, and by reason thereof the trucks fell and he was injured. It is not necessary to state any more of the testimony in order to present the points upon which the case is decided.

The defendant requested the court to give the following instruction: "If the jury find from the evidence that the plaintiff was directed in removing the lumber from the kiln to go behind or in the rear of the trucks and apply pressure from behind or in the rear of the trucks in order to remove the same from the kiln, and you further find that this was a safe way, and that if it had been done the plaintiff would not have been injured, and you further find that the plaintiff, instead of adopting this method, went under the truck which was to be removed from the kiln and applied force from under and below the truck, and was injured in consequence of so doing, then the plaintiff's own negligence was the proximate cause of the injury, and you should answer the first issue 'No."D' The court refused to give this instruction as it was asked to be given by the defendant's counsel, but gave it with this modification, that, in order to answer the first issue "No," under the instruction prayed for, the jury must, in addition to the facts stated therein, further find that the method of applying the force to the loaded truck as used by the plaintiff, that is, by pushing the truck from beneath, "was obviously dangerous, and that plaintiff knew it, or could have known it by the exercise of due care." We do not think that the modification of the instruction by the court was correct. It can make no difference whether the method employed by the plaintiff for moving the truck was obviously dangerous or not. This is not the case of a servant who is ordered or commanded by his master, or by some one having authority over him, to perform a certain duty, when obedience to the order will be attended with obvious danger. It is the duty of the servant, it is true, to obey the orders given to him, unless obedience to them will be obviously dangerous, in which case he has the right, and it is his duty to himself, to disobey them. The law requires that he should do so, or suffer the consequences of his recklessness. Our case is the very converse of the one stated. Here the servant was ordered to do his work...