Winbourne v. Interstate Cooperage Co.
| Decision Date | 24 September 1919 |
| Docket Number | 21. |
| Parties | WINBOURNE v. INTERSTATE COOPERAGE CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Beaufort County; Devin, Judge.
Action by E. W. Winbourne against the Interstate Cooperage Company. From judgment for plaintiff, defendant appeals. Reversed.
The action is to recover damages for physical injury, caused by alleged negligence of defendant in not supplying plaintiff an employé, with sufficient and proper tools with which to do his work. On denial of liability and plea of contributory negligence, there was verdict for plaintiff and assessing damages at $550. Judgment on the verdict for plaintiff, and defendant appealed, assigning for error, chiefly, the refusal of the motion for nonsuit.
In order for liability to attach to a master for injuries to a servant through the use of simple, everyday tools, it must appear that injury resulted from a lack of such tools or defects therein which the master was required to remedy in the reasonable and proper discharge of his duties, and that the lack or defect was of a kind from which some appreciable substantial injury might reasonably have been expected to occur.
The employer of a carpenter to demolish cars on a logging road injured when the head from the ax his assistant was using to cut off bolts with a cold chisel slipped off and hit his foot, was not liable for such injury, due to the ax head not having been tight on the handle, nor for failure to furnish a hammer for striking.
Small MacLean, Bragaw & Rodman, of Washington, N. C., for appellant.
Ward & Grimes, of Washington, N. C., for appellee.
There were facts in evidence tending to show that, in August, 1917 plaintiff, employed by defendant for the purpose, was engaged in taking down some cars, situate on a logging road, a few miles out from Belhaven, N. C.; that they were old cars, and, it being desirable to save as much of the iron as possible in shape for further use, it was not infrequently required to cut the iron bolts from the rods used in bracing the woodwork of the cars and serving to hold the frames together; that plaintiff, a carpenter of skill and experience, 63 or 64 years of age, having the ordinary tools for his work, which he was to use as required on the present job, had taken down one or two of the cars, when, finding that he was not making satisfactory progress for lack of a helper and adequate tools for the undertaking, he applied for an assistant and proper tools, and was authorized to procure the help needed, and was given further tools, which he claimed were fit and proper, to wit, a cold chisel and a hack saw frame and blades for cutting iron and a Stillson wrench, according to defendants, this last being the only tool plaintiff had specifically mentioned, and that the hardware store was directed to let him have the tools he selected, and the cold chisel, hack saw, frame and blades were both new and fitted for the work; that, after he, with his assistant, one Wallace, had been engaged on the work for two or three days, while plaintiff was holding the cold chisel in place to cut off an iron bolt, plaintiff directed Wallace to strike the same with an ax of the company which plaintiff says he had found out at the cars, and, as Wallace struck with the ax, it came off the handle, the eye of the ax striking plaintiff's foot and making a bruise thereon which resulted in painful and protracted injury, from which he still suffers. A perusal of our decisions on the subject will show that, in order for liability to attach, in case of simple, everyday tools, it must appear, among other things, that the injury has resulted from a lack of such tools or defects therein, which the employer is required to remedy, in the proper and reasonable discharge of his duties, and that the lack or defect complained of and made the basis of the charge is of a kind from which some appreciable and substantial injury may be reasonably expected to occur. Thus, in the recent case of Rogerson v. Hontz, 174 N.C. 27, 93 S.E. 376, where plaintiff was seriously injured by reason of a defective cant hook which he was using to load and place heavy sawlogs, and of which defect the employer was fully aware, the court, in setting aside an order of nonsuit in the case, and in reference to the rule of liability, said:
"On the facts as now presented, the evidence tends to show that this cant hook was an implement suitable to the work and which the employer should supply; that, while simple in itself, it was designed, by leverage, to give the workman more power; that he was engaged in loading and unloading heavy logs from cars, rough work, and where he was...
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Bradford v. English
... ... 51, ... 69 S.E. 683; Bunn v. Railroad, 169 N.C. 648, 86 S.E ... 503. In Winborne v. Cooperage Co., 178 N.C. 88, 100 ... S.E. 194, the court, speaking through Hoke, J., says: ... ...
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Fowler v. Carolina Cross Arm & Conduit Co.
... ... 672, 88 S.E. 874; Howard v ... Wright, 173 N.C. 339, 91 S.E. 1032; Winborne v ... Cooperage" Co., 178 N.C. 88, 100 S.E. 194; McKinney ... v. Adams, 184 N.C. 565, 114 S.E. 817 ... \xC2" ... ...
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McCord v. Harrison-Wright Co.
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