Hemphill v. Standard Oil Co.

Connor, J. Upon consideration of tbe evidence offered at tbe trial of this action, as set out in tbe case on appeal, we are of tbe opinion that there was .error in tbe refusal of tbe trial court to allow defendant’s motion for judgment as of nonsuit, at tbe close of all tbe evidence. C. S., 567. There was no evidence tending to show that defendant was negligent as alleged in tbe complaint, but conceding that there was such evidence, all tbe evidence tends to show that plaintiff, by bis own negligence, contributed to tbe injuries wbicb be testified that be has sustained, and that plaintiff, when be accepted employment by defendant, assumed tbe risk of such injuries. Defendant’s motion should have been allowed, and tbe action dismissed. Plaintiff was employed by defendant as a truck-driver, and helper. He was about 20 years of age, and in good physical condition, at tbe time be was employed. On tbe occasion when be contends that be was *341 injured, plaintiff had been ordered and directed by his superior to take his truck to a filling station, near Hickory, N. C., and to bring from the filling station to Hickory, a pump, which he testified weighed between 800 and 1,000 pounds. When plaintiff arrived at the filling station there was no one there to load the pump on the truck, or to aid him to do so. There was usually a sufficient number of men, employees at the station, to load a pump such as plaintiff had been ordered and directed to bring on his truck to Hickory, whose duty it was to load, or help load the pump. Plaintiff had been instructed by his superior on previous occasions to call on these men for help. When plaintiff arrived at the filling station, and found no one there to aid him, he waited for thirty minutes for help. There was telephone connection between the station and the office of plaintiff’s superior, under whose orders he was acting. Plaintiff did not telephone to his superior, or otherwise inform him that there was no one at the station to help him load the pump on the truck. He undertook to load the pump alone and without assistance. He testified that as a result of his lifting the heavy pump, and loading it on the truck, he strained his back and neck. He did not suffer from his injuries until that night. He continued to work for defendant for several months, without complaint to his superior or to the defendant, and then voluntarily left the defendant’s employment. Some time in June, 1928, plaintiff was ordered and directed by defendant to go to Newton, N. C., as an assistant to defendant’s agent at that place. While working for defendant at Newton from June to December, plaintiff was required to work in a small office, sometimes at night. During the winter defendant provided a small oil stove for heating this office. Oil and matches were provided by defendant. Plaintiff testified that the office was sometimes cold and that he suffered severe colds because the office was not sufficiently heated by the oil stove. There was no evidence that plaintiff at any time made complaint to defendant or to his superior that the office was not comfortable, or that the oil stove was not adequate for the purpose of heating the office on cold days and nights. The principles which control the decision of the question presented by this appeal are stated and discussed by Brogden, J., in Jarvis v. Cotton Mills, 194 N. C., 687, 140 S. E., 602. Upon the facts which all the evidence in this case tends to show, defendant is not liable to plaintiff, and the judgment must be Eeversed.