Young v. Virginia & N.C. Const. Co.

• Decision Date: 15 December 1891
• Parties: YOUNG v. VIRGINIA & N.C. CONST. CO.
• Court: North Carolina Supreme Court

14 S.E. 58

109 N.C. 618

YOUNG v. VIRGINIA & N.C. CONST. CO.

Supreme Court of North Carolina

December 15, 1891

Appeal from superior court, Mecklenburg county; JAMES H. MERRIMON Judge.

Action for personal injury by T. C. Young against Virginia & North Carolina Construction Company. The trial to a jury resulted in a judgment for plaintiff, and defendant appeals. Reversed.

The other facts fully appear in the following statement by MERRIMON, C.J.:

This action is brought to recover damages for injury to the plaintiff, occasioned by the alleged negligence of the defendant. In the complaint it is alleged: "Third. That the 'boss' or 'superintendent, ' who had entire control and charge of the hands at work,--one Capt Catlett,--was, the day of the injury complained of, raising cross-ties, etc., and leveling the road-bed, etc. That in raising the cross-ties certain machines or tools known as 'jacks' were used, but they were abandoned on account of their being unsafe and defective on account of their long use, and on account of the defective material of which they were made. That the screws to said 'jacks' were worn out. That Capt. Catlett, who had the entire control of the work and hands, abandoned the use of the 'jacks,' and instead of getting new and safe 'jacks' to do the work, as he had done before, procured a green, round pole to be cut of some kind of wood believed to be oak wood, and with cross-ties underneath, used the round, oak pole as a lever to lift a cross-tie upon which the iron rail was nailed. That the said 'boss' aforesaid ordered and commanded the plaintiff to assist and aid in raising the cross-tie before mentioned by means of said lever before mentioned. That the plaintiff did not know of the unsafe defective, and inadequate implement used; nor did he know of the unsafe, defective, and inadequate manner used in doing the work. That he was ordered and commanded to come from the gravel train, where he had been working with other hands, and before he had time to discover the unsafe, defective, and inadequate manner in which it was to be done, the said 'boss' before mentioned commanded and ordered himself and some of the other hands to take hold and to prize the cross-tie, etc. That he took hold, of the pole with the other hands, and did as ordered and commanded to do; and the pole which was round, and unsafe, defective, and inadequate to do the work, slipped and fell with the men, on the leg and thigh of the plaintiff, injuring him severely, crushing and mangling him, to his great damage. That the defendant knew that the implement used for said work was unsafe, defective, and inadequate, and the manner in which it was used was unsafe and dangerous, and not suitable for the purpose. Fourth. That at the time aforesaid, and while the plaintiff was employed and engaged in his duties and occupation as a workman on the gravel train, the said pole which was used in prizing as before mentioned, and the manner in which it was used, were unsafe, defective, dangerous, and not suitable for the purpose, and that the injury complained of was not by any fault or negligence of the plaintiff." The answer denied the material allegations of the complaint, and alleged contributory negligence. The court submitted to the jury the following issues, to which it responded as indicated at the end of each: "(1) Was the plaintiff's injury caused by the negligence of the defendant? Answer. Yes. (2) Was the plaintiff guilty of contributory negligence? A. No. (3) Did the plaintiff know, or have good reason to know, the nature and character of the implement used by him, and consent to use the same? A. No. (4) What damage...