Wright v. Thompson & Moseley, Inc.

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE, J.
• Citation: Wright v. Thompson & Moseley, Inc., 87 S.E. 963, 171 N.C. 88 (N.C. 1916)
• Decision Date: 01 March 1916
• Docket Number: 15.
• Parties: WRIGHT v. THOMPSON & MOSELEY, INC.

87 S.E. 963

171 N.C. 88

WRIGHT v. THOMPSON & MOSELEY, INC.

No. 15.

Supreme Court of North Carolina

March 1, 1916

Appeal from Superior Court, Pasquotank County; Cooke, Judge.

Action by Matthew D. Wright against Thompson & Moseley Incorporated. From a judgment for defendant, plaintiff appeals. Reversed.

It is usual for the jury to decide whether an employee was working with the defective tool under orders of his superior, and whether he had complained and continued to work in reasonable expectation that defects would be remedied.

Employers' Liability 249

Where it was shown that drift pin furnished employee had remained broken 30 days, and plaintiff had notified foreman, nonsuit on issue of assumption of risk should not be granted.

Civil action to recover damages for physical injuries arising from alleged negligence of the defendant. There was evidence on part of plaintiff tending to show that:

"Plaintiff a young man 23 years of age, was working as a cranesman for a dredging company near Lake Drummond. Plaintiff had been working for defendant about three months when he was hurt. The dredge which was being used had what is known as a crane and dipper handle, and at the end of the dipper handle a 'dipper,' which is made of iron, and is composed of several parts known as the 'lip' and 'ears.' These parts are fastened together by means of bolts, and in the course of using the dipper these bolts became loose and fell out. At the time in question five or six of these bolts were out, and the 'ears' were out of line with the remainder of the dipper, and in order that the bolts might be driven in place and the parts of the dipper fastened together it was necessary to get the holes in the ears in line with the holes in the dipper (that is, to 'line up' the two sets of holes). The parts of the dipper were too heavy to raise until the holes were in line, and it was necessary to drive a pin, known as a 'drift pin,' through one of the holes in the 'ears' and the corresponding hole in the dipper until bolts could be inserted and fastened in the remaining holes. Drift pins are pieces of steel without handles, of varying lengths, and larger at one end than at the other, and are driven in the holes with sledge hammers. One working man supervises and holds the pin, while another does the driving. The plaintiff in the case at bar was holding the drift pin, and one Kirkman was doing the driving. Kirkman was driving the pin, and plaintiff holding the same. He backed, and was looking to see if the holes were lined up, when Kirkman struck it another lick, and a piece of steel from the drift pin flew off and struck plaintiff in the left eye and put it entirely out."

It further appeared that J. C. Dodd was superintendent in charge of the work; that next in charge was C. R. Jellison, the foreman, and, when the superintendent was temporarily away, as he was on this occasion, the foreman had full charge; that Mr. Halleck, termed the runner, was in charge of this machine and this shift or relay of hands which included plaintiff; that he had control of plaintiff in this matter, and had directed him to do this particular work in which he was then engaged. Speaking of this, plaintiff, among other things, testified as follows:

"Mr. Halleck, dredge runner, told me to put the bolts in the dipper. I was under Mr. Halleck. I do not say that he could discharge me, but he could have me discharged if he reported me."

"Halleck was in charge of the hands of this particular machine."

"Mr. Halleck was in charge of the shift on which I was working. I was supposed to do whatever Mr. Halleck told me to do. Mr. J. C. Dodd hired me. I was working under Mr. Halleck at the time in question. Kirkman was helping me."

"I had orders from Mr. Halleck to put these bolts in, and for Kirkman to help me. He was doing the same kind of work. We were both under Mr. Halleck."

"We had a drift pin, hammer, and bolts to work with; had to put bolts in the holes. The drift pin was used for lining up the holes. Kirkman was doing the driving. I was holding the drift pin for Kirkman to drive. Kirkman was striking the drift pin, * * * and drove it until it got so I could turn it loose. Then I backed back, and was looking to see if the holes were lined up. It was a part of my duty to look and see if the holes were lined up so the drift pin would go in."

It further appeared that the tools of the company were in bad shape; that the pin which was the only one they had for this work was a piece of steel about 15 inches long, seven-eighths of an inch at the larger end, and tapering to one-half inch; that it had been used for the three months witness was on the work, was "battered and burred at the end," and about a month before it had broken off; that it had not been used much since, but did go for a "short drift."

One T. G. Castine, coemployé and witness for plaintiff, among other things testified:

"I saw the tools the company had there to work with. Their condition was very bad; for instance, the drift pin was burred very badly; the head was battered and in bad shape; slivers would fly off."

Plaintiff himself testified further:

"I told Mr. Jellison, the foreman, that all of the tools were in bad shape; that we did not have anything fit to work with. That was two or three weeks before I got hurt. I do not remember him getting any drifts or punches, but he did get some wrenches."

Upon these, the controlling features of the testimony making in favor of plaintiff's claim, on motion made in apt time, there was judgment of nonsuit, and plaintiff excepted and appealed.

Ward & Thompson, of Elizabeth City, for appellant.

J. Kenyon Wilson, of Elizabeth City, and S. M. Brandt, of Norfolk, Va., for appellee.

HOKE J.

In House v. Railroad, 152 N.C. 397, 398, 67 S.E. 981, where an employé had had her arm and hand cut in the effort to raise a car window which had become tightened by effects of weather and otherwise, the court, in denying recovery, among other things said:

"We have repeatedly decided that an employer of labor is required to provide for his employés a reasonably safe place to work, and to supply them with implements and appliances reasonably safe and suitable for the work in which they were engaged. As stated in Hicks v. Manufacturing Co., 138 N.C. 319-325 [50 S.E. 703], and other cases of like import, the principle more usually obtains in the case of 'machinery more or less complicated, and more especially when driven by mechanical power,' and does not, as a rule, apply to the use of ordinary everyday tools, nor to ordinary everyday conditions, requiring no special care, preparation, or prevision, where the defects are readily observable, and where there was no good reason to suppose that the injury complained of would result."

In thus recognizing the distinction in the degree of care in regard to simple tools and ordinary conditions and those more complex, the court did not at all intend to hold that an employer was released from all responsibility concerning such implements. Referring to the terms used, it will be noted that the distinction is approved in case of simple tools where "no special care, preparation, or provision is required, where the defects are readily observable, and where there is no good reason to suppose that the injury complained of would result." In seeking a basic principle upon which the position could generally and properly be made to rest, it was further said that, under conditions suggested, the element of proximate cause was usually lacking, an essential feature of which is said to be that it is a cause which produces the harmful result in continuous sequence and one from which a man of ordinary prudence could foresee that such result was probable under all the facts as they existed. Ramsbottom v. Railroad, 138 N.C. 39, 50 S.E. 448; Brewster v. Elizabeth City, 137 N.C. 392, 49 S.E. 885. In the recent case of Bunn v. Railroad, 86 S.E. 503, the position was approved and applied where the company had sent two capable and experienced workmen to repair a box car which was stationary in the railroad yards, having been placed there for the purpose. In the prosecution of the work, one of them having backset all the nails into the sill which held the side of the car upright in its then condition, driving them through into the sill, the side fell over on him, causing serious injuries. The men had been left to their own methods of doing this work, and recovery was denied, the court holding that, on the facts presented:

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