Wood v. Mccabe & Co

• Decision Date: 15 December 1909
• Citation: 66 S.E. 433,151 N.C. 457
• Court: North Carolina Supreme Court
• Parties: WOOD. v. McCABE & CO.

(151 N.C. 457)

66 S.E. 433

WOOD.

v.McCABE & CO.

Supreme Court of North Carolina.

Dec. 15, 1909.

1.Master and Servant (§ 150^*)—Dangerous Occupation—Liability of Master.

Where an occupation attended with danger can be prosecuted without harmful results by proper precaution, the master must take such precautions or he is liable for resulting injuries, and, where the servants are left in ignorance of the danger and suffer in consequence, the master is liable.

[Ed. Note.—For other cases, seeMaster and Servant, Cent. Dig. §§ 297, 299-302, 305-307;Dec. Dig. § 150.*]

2.Master and Servant (§ 153*)—Dangerous Occupation—Liability of Master.

A master engaged in constructing a railroad knew of the explosive nature of dynamite and of the increased danger of explosion when left exposed to atmospheric influences.He employed a boy 16 years old to pick up dynamite sticks left by workmen without instructing him as to the nature. of the danger or as to the manner of handling the sticks.The boy, who was ignorant of the danger, was injured by an explosion.Held, that the master was guilty of actionable negligence in failing to take proper precaution to warn the boy.

[Ed. Note.—For other cases, seeMaster and Servant, Cent. Dig. §§ 314-317;Dec. Dig. § 153.*]

3.Explosives (J 10*)—Care Required.

The degree of care required of persons using such dangerous instrumentalities as dynamite in their business is of the highest, and what might be reasonable care in respect to grown persons of experience would be negligence as applied to children.

[Ed. Note.—For other cases, seeExplosives, Cent. Dig. §§ 3-7;Dec. Dig. § 10.*]

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

Action by Johnnie Wood, by next friend, against McCabe & Co.From a judgment for plaintiff, defendant appeals.Affirmed.

The suit appears to have been originally brought against the South & Western Railway Company as well as the defendant, McCabe & Co., but no answer was filed by the railway company and no issue was submitted as to it and no judgment taken against it It is presumed the suit as to the railway company was not prosecuted.These issues were submitted to the jury: "Johnnie Wood, by his next friend, Oney Wood, v. McCabe & Co.(1) Was the plaintiff Injured by the negligence of the defendant as alleged in the complaint'!Answer: Yes.(2) Did the plaintiff, by his own negligence, contribute to his own injury, as alleged in the answer?Answer: No.(3) What damage, if any, is the plaintiff entitled to recover of the defendant?Answer: $6,441."From the judgment rendered the defendantMcCabe & Co. appealed.

Hudgins, Watson & Johnston, for appellants.

Pless & Winborne and St. John & Shelton, for appellee.

BROWN, J.After examination of the several assignments of error we are of opinionthat the merits of this appeal may be fully considered upon the motion to nonsuit.The evidence tends to prove that the plaintiff, a boy of 16 years, was employed by the defendant, McCabe & Co., contractors engaged in the construction of the South & Western Railway, and placed in charge of the dynamite magazine; that, among other duties assigned to him, he had to pick up from the ground where the roadbed was being constructed the dynamite sticks left scattered about by the workmen and carry them to the magazine.The evidence shows that the boy was required to do this work without being given any instructions as to dynamite, its nature or dangers, the nature of the danger to be apprehended or any other instructions of any kind as to handling it.The plaintiff so states, and no witness for the defendant claims to have given him any specific instructions nor to have described the danger, but some of them state that they had told him that it was dangerous.Plaintiff states explicitly that all he knew about the explosive qualities of...