Bryant v. Welch Furniture Co.

Hoke, J. It is contended for appellant that the motion for nonsuit should have been allowed for the reason chiefly that the machine in question being simple of structure and operated by plaintiff himself, no negligence can be imputed to defendant company, but in our opinion and on the facts presented the objection cannot be sustained. While the duties incumbent on employers in the exercise of reasonable care, to supply tools and appliances reasonably safe and suitable for the work, are not as exigent in regard to simple tools and appliances as in other cases, they are not relieved of any and all obligation in the matter, and our decisions hold that where a faulty tool has been knowingly supplied by the employer or in violation of the ordinary inspection due in such instances, and the defect is one that imports menace of substantial injuries, there are conditions and instances where liability may attach. In the recent case of McKinney v. Adams, 184 N. C., 562, it was held: “The principle requiring an employer, in the exercise of reasonable care, to furnish to his employees a safe place to work, and provide them with implements, tools, and appliances suitable to the work in which they are engaged, applies to simple or ordinary tools where the defect is readily observed, and of a kind importing menace of substantial injury, having due regard to the nature of the work and the manner of doing it, and the employer should have known of the defect, or discovered it under the duty of inspection ordinarily incumbent upon him in tools of this character, and the injury complained of occurred without ' having afforded the employee an opportunity of remedying the defect.” And King v. R. R., 174 N. C., 39; Rogerson v. Hontz, 174 N. C., 27; Wright v. Thompson, 171 N. C., 88; Reid v. Rees, 155 N. C., 231; Mercer v. R. R., 154 N. C., 399, are cited in support of the position. *444 In the McKinney case, supra, the foreman of defendant, shown to be a vice-principál, as the plaintiff, the employee, was starting out to trim off logs in the woods, gave to such employee an axe with a “switchy, limber” handle, where the employee had neither time nor opportunity to supply or remedy the defect, and in using the axe in the work the employee received a severe injury, and it was held, as stated, that the question of liability was for the jury. And the same ruling was made in Rogerson v. Hontz, supra, the tool being a defective cant hook supplied to employee engaged in loading and unloading logs, and by reason of the defect complained of the hook slipped its hold and severe injuries were received. Speaking to the question presented in that case, the Court 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 frequently liable to be in position that, if the hook slipped its hold or the handle broke, severe injuries were not improbable, and, applying the principles of the cases referred to and others of like import, the issue must be referred to the jury on the question whether the tool was defective; was such defect known to the employer, and was it of a kind which threatened substantial injury in its use.” Accepting the evidence of plaintiff as true, and interpreting the same in the light most favorable to him, the established rule in motions of this character, it appears that this was an old and much-worn machine, with a break in the mechanism; that under the conditions presented there was menace of substantial injury to employee in its use, and under the authorities cited and the principles upon which they rest, the question of liability was for the jury, and defendant’s motion for nonsuit was properly overruled. Defendant excepts further that in the cross-examination of W. T. Powell, president of defendant company, plaintiff was erroneously allowed to put before the jury evidence to the effect that the company held indemnity insurance against this alleged claim. The witness having stated that the machine worked properly and so far as witness knew had only been operated twelve years, in the cross-examination the following questions and answers were allowed and excepted to: “Mr. G. E. Ridge is our superintendent. That machine was in the Welch Furniture Company when I came there, twelve years ago. “Q. I ask you if you don’t know it had been there 22 years in operation? A.' No, sir; it was there when I came there, 12 years ago. I don’t know when it was installed. *445 “Q. I ask you if you. didn’t tell tbe insurance man tbat in tbe presence of tbe plaintiff? (Objection by defendant; overruled; exception.) A. I don’t remember ever telling bim tbat. “Q. I am asking you whether you ever told tbe insurance agent tbat this machine tbat the plaintiff was hurt on bad been there 22 -years in operation? A. I don’t remember ever telling tbe insurance agent anything like tbat. “Q. You might have told bim? A. I don’t remember ever telling bim. “Q. You don’t remember whether you did or not? A. I don’t remember anything about it.” It has been held in this State tbat in a trial of this kind tbe fact tbat a defendant company charged with negligent injury held a policy of indemnity insurance against such a liability is ordinarily not competent, and when received as an independent circumstance relevant to tbe issues, it may be held for prejudicial error. And if brought out in tbe bearing of tbe jury by general questions asked in bad faith and for tbe purpose of evasion, it may likewise be held for error. On tbe contrary, if an attorney has reason to believe tbat a juror, tendered or on tbe panel, has pecuniary or business connection naturally enlisting bis interest in behalf of such a company, it is both tbe right and duty of tbe attorney in tbe protection of bis client’s rights to bring out -the facts as tbe basis for a proper challenge, or if in tbe course of tbe trial it reasonably appears tbat a witness has such an interest tbat it would legally affect tbe value of bis testimony, this may be properly developed, and where such a fact is brought out merely as an incident, on cross-examination or otherwise, it will not always or necessarily constitute reversible error when it appears from a full consideration of tbe pertinent facts tbat no prejudicial effect has been wrought. Holt v. Mfg. Co., 177 N. C., 170; Featherstone v. Cotton Mills, 159 N. C., 429; Lytton v. Mfg. Co., 157 N. C., 331; Norris v. Mills, 154 N. C., 474. In tbe present case it is clear tbat tbe attorney for plaintiff, having asked tbe question generally, was endeavoring in good faith to impress tbe witness with tbe time and place of an adverse declaration by bim, and referred to a conversation with some “insurance man” in tbe effort to recall tbe matter to tbe memory of tbe witness. In tbe entire series of cross-questions be never describes or refers to tbe person in question as tbe agent of an indemnity company, nor is there anything to show tbat such an impression was made upon tbe jury, or tbat it bad in any way affected tbe results of tbe trial. On careful consideration of tbe record we find no reversible error, and tbe judgment for plaintiff will be affirmed. No error.