Young v. Barrier, 440

• Decision Date: 02 November 1966
• Docket Number: No. 440,440
• Citation: 150 S.E.2d 734,268 N.C. 406
• Parties: Carrie YOUNG v. Bobby L. BARRIER and wife, Delores Barrier.
• Court: North Carolina Supreme Court

Page 734

150 S.E.2d 734

268 N.C. 406

Carrie YOUNG v. Bobby L. BARRIER and wife, Delores Barrier.

No. 440.

Supreme Court of North Carolina.

Nov. 2, 1966.

W. H. Steed, Thomasville, for plaintiff appellant.

Roberson, Haworth & Reese, by Arthur M. Utley, Jr., and David L. Maynard, High Point, for defendant appellees.

PARKER, Chief Justice.

Plaintiff's evidence, considered in the light most favorable to her, and giving her the benefit of all reasonable inferences to be drawn therefrom, and the judicial admissions in the answer (Norburn v. Mackie, 262 N.C. 16, 136 S.E.2d 279), would permit a jury to find the following facts:

On 10 September 1963 plaintiff was employed by defendants as a domestic servant to perform ordinary domestic work in defendants' home, which included sweeping floors and looking after defendants' children. Prior to that date she had worked for defendants one to three days a week as defendants requested her services. The front porch of defendants' home is about six feet above the ground. The porch had a top railing consisting of a board connected with a post at the west end of the porch and running horizontally several feet to and connecting with another post, and running horizontally from that post several feet to and connecting with the outside wall of a room of defendants' home. The top of this railing came up to about plaintiff's hips. Beneath the top board was a similar board, which was about five inches from the floor of the porch, running horizontally and connected with the same posts and the same wall of defendants' home. Between these boards at frequent intervals were wooden slats. Hay for small ponies was kept by defendants on this porch. On the morning of 10 September 1963 Mrs. Barrier told plaintiff that Sherry, her small daughter, had just started walking and she might pick up something from the porch and get it in her mouth, and she took a broom, leaned over the railing and asked her to sweep underneath good and not to leave anything for the baby to get in her mouth. At the time there was no furniture on the porch, except one chair in which Sherry was sitting. After Mrs. Barrier instructed her how to clean out from under this railing by taking the broom and leaning over and outside the railing, she went in the house to get ready to carry the other children to the kindergarten.

Plaintiff at the time weighed about 240 pounds. She took a broom and started at the west end of the porch right where the railing connected with the post. She leaned over the railing to clean beneath it, as Mrs. Barrier had instructed her to do, and the railing, which was rotten, came apart from the post and she fell from the porch six feet to the ground. A piece of the railing or bannister was lying across her body, and it was rotten, completely rotten. About six months before, this railing had been painted and the paint was over the rotten places so she could not see the rotten places in the railing.

In the fall her collarbone was broken and her right leg was hurt. By reason of her injuries she could not get up from the ground and lay there about 20 or 25 minutes. About 10 minutes after she fell, Mr. Barrier came running around the house to where she was lying on the ground. He told her he was sorry she was hurt, and it was his fault, that the railing should have been fixed when he painted it about six months previously. Since the Feme defendant lived in the same house with her husband, the jury could draw the legitimate inference that the rotten condition of this railing before it was painted was also known to her.

According to the judicial admissions in the answer and the evidence, defendants were the employers of plaintiff and she was their employee on the day she was injured, and when injured she was leaning over the railing to the front porch and attempting to sweep beneath it within the course and scope of her employment, as she was specifically shown and directed to do by Mrs. Barrier, when the railing, because of its rotten condition, broke loose where it was connected with the post at the west end of the porch, resulting in plaintiff's falling six feet to the ground.

Actionable negligence on the part of the employer is essential to his liability at common law for an injury sustained by his employee when acting in the course and scope of his employment. The employer, however, is not an insurer of his employee's safety while engaged in the performance of duties within the scope of his employment. Fore v. Geary, 191 N.C. 90, 131 S.E. 387; Muldrow v. Weinstein, 234 N.C. 587, 68 S.E.2d 249; 3 Strong's N.C. Index, Master and Servant, § 22.

It was the legal duty of defendants, employers of plaintiff, under the allegations and proof to exercise the care of an ordinary prudent man under like circumstances to provide plaintiff a reasonably safe place to work, and to prevent her from being subjected to unreasonable risks or dangers. Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14; Baker v. Atlantic Coast Line R.R., 232 N.C. 523, 61 S.E.2d 621; 3 Strong's N.C. Index, Master and Servant, § 22. This duty is absolute and nondelegable. Smith v. Raleigh Granite Co., 202 N.C. 305, 162 S.E. 731; 56 C.J.S. Master and Servant § 186.

When an employee has been directed by his employer to work in a place that is unsafe and dangerous because of a hidden or concealed defect and the employer has actual or constructive notice of the defect and the employee is ignorant of it,...