Deligny v. Tate Furniture Co.

Walker, J., after stating the case: The general doctrines in the law of negligence have been well settled by the decisions of this Court, and the difficulty lies always in attempting to apply them to a given state of facts. We wish to say of the questions raised in this case, and in limine, that their correct solution depends largely upon a thorough understanding of the facts, and a close attention thereto, as the liability of defendant, as we view the pleadings and the evidence, is to be determined more upon how they have been found by the jury than upon the proper apprehension of the general legal principles involved, about which there seems to be very little difference in opinion among the counsel. Before entering upon a consideration of the main questions presented by the exceptions, we would lay out of the ease one matter, which is much discussed in the briefs, as to the failure of the defendant to use the metal cleat, which defendant asserts really is the only act of negligence charged *196 against it, and wbicb defendant also asserts it was not, under the evidence, required to use, as there was no legal proof that it had been approved and in general use, or that it was any safer or more efficient than the wooden cleat, and the evidence being that it was used only for thicker boards, so that, being made of metal and presenting a harder and more unresisting surface to the belt, it would not rub off the sand and injure it. We are of the opinion that this matter has been completely eliminated from the discussion by the following instruction of the court in its charge to the jury: “There is no evidence in this case sufficient to sustain a finding that the metal cleat referred to in the evidence was at the time of the injury complained of in known, approved, and general use on machines like the one complained of, and in arriving at your answer to the first issue, the court charges you that there was no duty upon the defendant to furnish such metal cleat on the machine complained of, and unless you find negligence under some other phase of the case it would be your duty to answer the first issue No.” The question then recurs, whether there was any other act of negligence alleged against the defendant, and proof to sustain it, in respect of its duty to furnish its employee -with a reasonably safe place, machines, appliances, tools and materials for the performance of his work, which, in this case, is practically a question of fact, if sufficient allegation thereof appears. It is not permissible to allege one act of negligence and prove another, without amendment, and not even then if it materially or substantially changes the cause of action so as to make it, in effect, a new one, for, in the latter case, it would amount to a failure of proof, and not merely to a variance (Simpson v. Lumber Co., 133 N. C., 95), which occurs when, while the pleading and proof do not exactly correspond, the former may be made to do so by amendment in the discretion of the court, and upon such terms as may be just and upon such conditions as will protect the other party against being taken by surprise. Pell’s Revisal,. secs. 515, 516, and notes. Where the variance is not material, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs (Revisal, sec. 516), or where the variance is shown by the party, and found by the court to be material, the opposite party having been misled thereby, with the further fact, as to the respect in which he has been so misled, the court may order the pleading to be amended, upon such terms- as may be just. Revisal, sec. 515. But this case is like that of Simpson v. Lumber Co., supra, which has been frequently approved by this Court, as recently as the Spring Term of last year, in Steeley v. Lumber Co., 165 N. C., 27. The charge in that case was one for negligently burning the plaintiff’s timber, and the particular act of negligence was the use .of an engine having a defective spark-arrester, and the court allowed the complaint to be amended by adding the allegation that the right *197 of way was foul, being covered with inflammable material, wbicb was held to be proper, because it only added a new act of negligence as contributing to the burning of the timber. We there said in regard to this question: “It can make no difference with respect to the plaintiff’s right to recover whether the burning was caused by a defective engine or by setting on fire combustible material carelessly left by the defendant on the right of way. Amendments which only amplify, or enlarge, the statement in the original complaint are not deemed to introduce a new cause of action, and the original statement of the cause of action may be narrowed, enlarged, or fortified, in varying forms, to meet the different aspects in which the pleader may anticipate its disclosure by the evidence. 1 Ene. PI. and Pr., 557-562. In suits founded on negligence, allegations of fact tending to establish the same general acts of negligence may properly be added by amendment. 1 Ene. PL and Pr., 563; R. R. v. Kitchin, 83 Ga., 83. An amendment can be allowed under our law when it does not substantially change the claim or defense (Code, sec. 273), and the statement of the additional grounds of negligence is not a new cause of action or a substantial change of the plaintiff’s claim. Kuhns v. R. R., 76 Iowa, 60; Davis v. Hill, 43 N. H., 329; R. R. v. Salmon, 14 Kan., 512; Smith v. Bogenschutz (Ky.), 19 S. W., 667; Nash v. Adams, 24 Conn., 33; Carmichael v. Dollan, 25 Neb., 335; R. R. v. Hendrix, 41 Ind., 49; Chapman v. Nobleboro, 76 Me., 427. The amendments allowed in the cases just cited were not unlike the one which was made in this case. In Smith v. Bogenschutz, supra, it was held that a complaint which alleged that a certain injury caused by the overflow of molten iron from a ladle in which it was being carried was due to the jostling of the carriers in a narrow passway could be amended so as to allege that the overflow was due to a defect in the ladle, without introducing any different cause of action. We do not see how our case can be distinguished from Smith v. Bogenschutz, which was well considered.” In the Simpson case the real cause of action was the burning of the timber — that was the gravamen of the action, and it differed not how it was brought about — whether by a defective smokestack or a foul right of way, and the two cases are perfectly analogous, for here the gist of the action is the negligent injury to the plaintiff while the manner of causing it is immaterial, subject, however, to the qualification above stated. We have referred to these matters, as it has been urgently argued that the plaintiff is without any cause of action because he has failed to establish by any admissible proof the single act of negligence upon which he rests his right to damages. If the decision of the ease depended upon this one objection, we would not hesitate to allow an amendment of the complaint, corresponding with the *198 proof and. the finding of the jury, in this Court, as we are empowered to do. "We quote literally the section of the statute. relating to this question, and call the special attention of the profession to its liberal and sweeping provisions “The Supreme Court shall have power to amend any process, pleading or proceeding, either in form or substance, for the purpose of furthering justice, on such terms as shall be deemed just, at any time before final judgment. Also to amend by making proper parties to any case where the Court may deem it necessary and proper for the purposes of justice, and on such terms as the Court may prescribe. And also, whenever it shall appear necessary for the purpose of justice, to allow and direct the taking of further testimony in any case which may be pending in said Court, under such rules as may be prescribed, or the Court may remand the case to the intent that amendments may be made, further testimony taken or other proceedings had in the court below.” Pell’s Eevisal, sec. 1545, and notes. The predominant idea of the present code system is to try the cases on their real merits. It is broad in its scope and amply sufficient, as it now is, to administer justice, in every possible ease, without regard to form or technical accuracy, and is sufficient, as it is at present, and even without any amendment, to satisfy the most advanced notions of modern pleadings and procedure. But we think that the judge has, by the instruction we have quoted, neutralized, if not entirely cut out, all of the defendant’s objections which are based upon its supposed duty to use the metal cleat, and the case need only be further considered upon the other exceptions. This brings us to the principal exception, whether defendant was guilty of negligence in any other respect, alleged in the complaint. That the plaintiff has alleged other acts of negligence, we entertain no doubt, as it is stated, in the fourteenth section of the complaint, that the defendant did not use the iron cleat, but that, instead, the machine was equipped only with a flimsy, weak and insufficient piece of timber, not secure in character, and not adapted to the purpose for which it was being used, and that it increased the ordinary risks in operating the machine. What does all this mean, even if strictly and literally interpreted, but that the defendant has been negligent in another respect than that of failing to use a metal cleat, in that it required plaintiff to use a wooden cleat, which was, of itself, inadequate, even when in its own perfection, and regardless of the omission to use the metal appliance? And the complaint further alleges that, in addition to this second act of negligence, the defendant furnished boards to be dressed by the plaintiff which were bowed and warped, and that this was a contributing cause of the injury. It can make no difference, in passing upon defendant’s liability, whether one or all of the acts of negligence in *199 combination caused the injury, provided any one of them was sufficient for the purpose, as we held in Knott v. R. R., 142 N. C., 238. We must be pardoned for quoting quite liberally from the opinion in that case', because it is so apposite, in answer to most of defendant’s contentions in this appeal: “It does not appear to us, after a careful reading of the complaint and giving it that liberal construction with a view to substantial justice between the parties which is required by the law (Revisal, sec. 495), that the plaintiff has thus restricted himself to proof only of the defect in the spark-arrester and the bad condition of the right of way. It is true, he alleges that the spark-arrester was defective, but in the seventh section of the complaint he states generally that the fire was caused by a spark emitted from the engine, which ignited the combustible material on the right of way and thence spread to his standing timber, which was destroyed. But can it make any difference, in the legal aspect of the case, whether the spark or live coal came from the smokestack or the fire-box, even assuming them to have been in the best condition, if eventually it fell upon the foul right of way and produced thé conflagration? We think not, because the permitting its right of way to remain in a dangerous condition was an act of negligence, sufficient of itself to cause the damage and necessarily proximate to it, if the fire immediately, and without any intervening efficient and independent cause, spread to the plaintiff’s woods. Aycock v. R. R., 89 N. C., 321; Phillips v. R. R., 138 N. C., 12; R. R. v. Kellogg, 94 U. S., 469. If one does an act lawful with respect to the complaining party, and does it in a proper way, the ensuing loss, if there is any, is not, in the legal sense, an injury, but damnum absque injuña. If the act is unlawful, or is done negligently, .ox, in other words, if in doing it he fails to exercise the foresight of a man of ordinary prudence and by reason thereof does not see that some damage will follow, when otherwise he would have discovered it,-the wrongdoer is liable for the damage which proximately results. Drum v. Miller, 135 N. C., 204; Jones v. R. R., ante, 201, and Hudson v. R. R., ante, 204. The quality or particular character of the act of negligence is immaterial, so that it is sufficient to produce the injury. The judge, after reciting substantially the allegation of the complaint, charged the jury in this case that before they could bring in a verdict for the plaintiff they must find that the defendant committed the very acts of negligence so set forth by him, that is, that the spark-arrester was defective and the right of way foul, and that by reason of the defect in the spark-arrester a spark was emitted from the engine and fell on the right of way, where it ignited the inflammable material there lying and caused the destruction of the plaintiff’s property! So that the jury must have found that the spark-arrester was defective and the right of way foul, as they *200 gave the plaintiff their verdict. By the charge the testimony as to the fire-box and ash-pan was virtually taken from the jury. There were two acts of- carelessness specified by the plaintiff in one part of his complaint, namely, having a defective spark-arrester and keeping a foul right of way; but when he came to allege, in another part, the negligence that caused the injury, he departed from this specific allegation and charged generally that the spark fell from the engine, without describing the particular place from which it was emitted, and that by reason thereof the fire was started on the right of way. In no view of the matter is it material to inquire how it happened to fall from the engine, so that it lighted on the right of way, which was in bad condition, and caused the fire. Simpson v. R. R., 133 N. C., 95; Troxler v. R. R., 74 N. C., 377; Wise v. R. R., 85 Mo., 178.” It must be conceded that it was within the sound, discretionary right of the jury, upon the evidence submitted by the parties, to find that this injury was caused either by a defective cleat or by the warped or bent condition of the boards, and even if there be evidence that .the plaintiff had the opportunity to choose among the boards those which were not thus defective, there was also proof that he was guilty of no negligence in this respect, but did the best that he could under the circumstances. ¥e must not bind him to infallibility of judgment, for otherwise the defendant might, itself, fall under the same condemnation. These men, who work at complicated and dangerous machines, when their living depends so much upon their steady and uncomplaining devotion to the daily task assigned to them by their employers, must not be judged by the same unbending and inexorable rules which should apply to those who, being more fortunate and better circumstanced, may come and go at their will and pleasure. They are entitled to fair consideration and treatment proportioned to their ability and opportunity to serve their master faithfully without, at the same time, subjecting themselves to the peril of losing their jobs. Whether the master has been negligent toward his servant, or the latter has carefully or negligently performed his allotted task, depends much upon the situation and surroundings of the parties at the time of the injury; because, before we can determine whether a person has exercised ordinary care, we must first know what the particular circumstances were under which the act alleged to be negligent was performed. The jury must place themselves in his place and consider his surroundings in order to judge him correctly, whether he be master or servant, and so is the law. The doctrine of negligence may be well crystallized and expressed in the words of the golden and unselfish rule, “Whatsoever ye would that men should do to you, do ye even so to them.” We have decided to this effect in numerous cases, and, among the first, is Marks v. Cotton Mills, 135 N. C., 287. This case has been *201 prominently cited as settling tbis principle, and, recently, in Lynch v. R. R., 164 N. C., 249; Lloyd v. R. R., 166 N. C., 24, 32. Referring to wbat was decided in Marks v. Cotton Mills, supra, we beld in the case last above cited, quoting literally the language of that case: “It was the duty of this company to exercise ordinary care in providing a reasonably safe place for him (the employee) to work and reasonably safe tools and appliances with which to perform his task. Marks v. Cotton Mills, 135 N. C., 287, where we said: ‘The employer does not guarantee the safety of his employees. He is not bound to furnish them an absolutely safe place to work in, but is required simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best known machinery, implements and appliances, but only such as are reasonably fit and safe and as are in general use. He meets the requirements of the law if, in the selection of machinery and appliances, he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the employer liable, not a mere error of judgment. . . . The rule which calls for the care of the prudent man is in such cases the best and safest one for adoption. It is perfectly just to the employee and not unfair to his employer, and is but the outgrowth of the elementary principle that the employee, with certain statutory exceptions, assumes the ordinary risks and perils of the service in which he is engaged, but not the risk of his employer’s negligence. When any injury to him results from one of the ordinary risks or perils of the service it is the misfortune of the employee, and he must bear the loss, it being damnum absque, injuria; but the employer must take care that ordinary risks and perils of the employment are not increased by reason of any,omission on his part to provide for the safety of his ■employees. To the extent that he fails in this plain duty he must answer in damages to his employee for any injuries the latter may sustain which are proximately caused by his negligence.’ Our latest expression on the subject is in Lynch v. R. R., 164 N. C., 249: ‘We have said in numerous decisions that the master owes the duty to his servant, which he cannot safely neglect," to furnish him with proper tools and appliances for the performance of his work, and he does not meet fully the requirement of the.law in the selection of them unless he uses the degree of care which a person of ordinary prudence would ■exercise, having regard for his own safety, if he were supplying them for his own use. Marks v. Cotton Mills, 135 N. C., 287; Avery v. Lumber Co., 146 N. C., 595; Mercer v. R. R., 154 N. C., 399. The master should, in the exercise of such care, provide reasonably safe tools, appliances and surroundings for his servant while doing the work. Dorsett v. Mfg. Co., 131 N. C., 254; Witsell v. R. R., 120 N. C., 557; *202 Orr v. Telegraph Co., 132 N. C., 691.’ And to these citations may be added, Pigford v. R. R., 160 N. C., 93; Mincey v. R. R., 161 N. C., 467; Kiger v. Scales Co., 162 N. C., 133. In the Mincey case we said; 'The duty of the master to provide reasonably safe tools, machinery and place to work does not go to the extent of a guarantee of safety to the employee, but does require that reasonable care and precaution be taken to secure safety; and this obligation, which is positive and primary, cannot be avoided by a delegation of it to others for its performance. The master’s duty, though, is discharged if he does exercise-reasonable care in furnishing suitable and adequate machinery and apparatus to the servant, with a reasonably safe place and structures in and about which to perform the work, and in keeping and maintaining them in such condition as to afford( reasonable protection to the servant against injury. R. R. v. Herbert, 116 U. S., 642; Gardner v. R. R., 150 U. S., 349; R. R. v. Baugh, 149 U. S., 368; Steamship Co. v. Merchant, 133 U. S., 375. This undertaking on the part of the master is implied from the contract of hiring (Hough v. R. R., 100 U. S., 213), and if he fails in the duty of precaution and pare he is responsible for an injury caused by a defect which is known to him and is unknown to the servant. R. R. v. McDade, 135 N. C., 554.” This covers the entire ground of negligence as presented in this case,, so far as the defendant is concerned, and defines its legal duty, and what will constitute a breach of it, with sufficient accuracy. It is also the plain duty of the master to use all machinery, appliances, tools and materials as have been approved and are generally used by those engaged in the same trade or business, which will contribute to the employee’s safety, and this rule applies to all reasonable safeguards against injury to his servant. Witsell v. Railroad Co., 120 N. C., 557, 562; Lloyd v. Hanes, 126 N. C., 359, 364; West v. Tanning Co., 154 N. C., 47; Walker v. Mfg. Co., 157 N. C., 131, 134; and as a part of this duty of the master in the operation of mills and other plants, where their machinery is more or less complicated, he must use such machinery and implements as are known, approved by the trade and in general use (Kiger v. Scales Co., 162 N. C., 133, 136), but he will not be discharged from liability, if he is otherwise negligent or fails in his duty, even though he may have used those things in his business which are known to have been ajiproved and are in general use. There is also devolved upon the master the duty to inspect in a reasonable and careful manner the machinery and appliances in his- plant, for the purpose of discovering any defects likely to injure those in his service. Labatt M. and S., secs. 154, 157; Bailey’s Pers. Inj., sec. 2638; Leak v. R. R., 124 N. C., 455; Womble v. Grocery Co., 135 N. C., 474; Cotton v. R. R., 149 N. C., 227. The question at last is, whether the master has failed, in any of the respects showing negligence, to discharge his- *203 duty to bis servant. Avery v. Lumber Co., 146 N. C., 592; Barkley v. Waste Co., 147 N. C., 585, and also Hudson v. R. R., 104 N. C., 491; Shaw v. Mfg. Co., 143 N. C., 131; R. R. v. Barrett, 166 U. S., 617. Tbe charge to the jury in this case was unusually clear and comprehensive. It defined with fullness and accuracy the law of negligence and proximate cause, as specially applicable to the facts, in the different phases of them, and as the jury might find them to be. There was nothing omitted, nor overstated, but every possible view of the case was presented with such force and clearness as to leave not the slightest doubt that the jury understood the law. We do not know what the-judge could have said that he did not say with perfect correctness .in thought and expression, and with absolute fairness and impartiality to both sides. It fully deserves the encomium passed upon a similar charge in Young v. Fiber Co., 159 N. C., 375, 382, as being appropriate-in evfery respect. The Court was right in declining to give the peremptory instructions requested by defendant as to assumption of risk and contributory negligence, as the evidence was conflicting, and different inferences could have been drawn therefrom. The defendant assumed, of course, all the-ordinary risks of the service, according to the original common-law rule, but not those which were caused or added by the master’s own negligence, unless they were so obvious and threatening that a man of ordinary prudence would not have continued. to work in the presence of them when the chances of danger were greater than those of safety.. Lloyd v. Hanes, 126 N. C., 359; Pressly v. Yarn Mills, 138 N. C., 410; Hicks v. Mfg. Co., 138 N. C., 319, 327; Pigford v. R. R., 160 N. C., 93; Britt v. R. R., 144 N. C., 256; Bissell v. Lumber Co., 152 N. C., 125; Pritchett v. R. R., 157 N. C., 88; Lynch v. R. R., 164 N. C., 249. The charge of the court must be construed as an entirety. We have-said that “the appellant is not permitted to select detached portions of the .charge, even if in themselves subject to criticism, and assign errors as to them, when, if considered with the other portions thereof, they are readily explained and the charge in its entirety appears to be-correct. Each portion of the charge must he construed with reference to what precedes and follows it. This rule is so plainly fair and just, both to the judge and the parties, as to have commended itself to the courts, and it is the only reasonable one to adopt. S. v. Exum, 138 N. C., 599; S. v. Lewis, 154 N. C., 632.” This statement of the rule is inadvertently said in the plaintiff’s brief to be taken from Ramsay v. R. R., 91 N. C., 418, as quoted in Brazille v. Barytes Co., 157 N. C., 454, 460; but it is not in 91 N. C., 418, but in Kornegay v. R. R., 154 N. C., 389, at pp. 392, 393. When the charge is viewed, as it should be, not textually but contextually, it presents every phase of the case to- *204 the jury in clear and forceful language and utterly precludes the chance of any misunderstanding by the' jury. The pleas of assumption of risk and contributory negligence did not rest upon such admitted or undisputed facts, as to present simply matters of law, but upon conflicting proofs and were therefore properly submitted to the jury to settle the contradictions. Steeley v. Lumber Co., 165 N. C., 27. The charge, both upon negligence and those defenses, was as favorable to the defendant as they could have been, without trenching upon the fixed principles of law applicable thereto. Besides, the court gave all of the instructions requested by defendant to which it was entitled. As to the questions of evidence, we have already practically disposed of those relating to the iron cleat. They have been banned by the charge of the court already quoted. It was competent for plaintiff to show by his own testimony that this machine had performed badly before, as evidence of its defectiveness, Dorsett v. Mfg. Co., 131 N. C., 254; Pritchett v. R. R., 157 N. C., 100; McCarragher v. Rogers, 24 N. E. (N. Y.), 330; 4 Labatt M. and S., sec. 1587, p. 4824; 1 Sh. and Redf. on Neg., sec. 60b; Harrell v. R. R., 110 N. C., 215; Leathers v. Tobacco Co., 144 N. C., 339; Houston B. Co. v. Deal, 33 So. Rep., 373, and especially in connection with the other testimony of plaintiff, that he had reported it to the company and a promise had been given to repair it. A question was put to the witness W. L. Hepler, “You immediately notified the insurance company of this accident?” But there was no answer by the witness, and the inquiry stopped when the objection of defendant was made. The question was asked, we presume, to impeach the credibility of the witness, who had just testified in a way that directly conflicted with the evidence offered by the plaintiff. Under the ■circumstances we cannot see that it did any harm (Featherstone v. Cotton Mills, 159 N. C., 429), and especially as defendant seems to have taken the same view of it, for there was no request that the court instruct the jury in regard to it, in order to prevent it having any prejudicial influence. This is not like the case of Starr v. Oil Co., 165 N. C., 587, but more like Featherstone v. Cotton Mills, supra, and the other.eases which are cited, reviewed and distinguished in Starr v. Oil Co., supra. Whenever such questions are asked, if they are irrelevant to the controversy and have a tendency only to prejudice one side or the other, the presiding judge should act promptly in preventing any such result and take drastic measures to do so, if necessary. When either of the parties resorts to such questions to gain an unfair advantage it is done at the sacrifice of the verdict, if he succeeds in securing •one, on account of the very dangerous character of the question. But the subject is fully discussed in the cases above cited and needs no further elaboration. In this case, we see no reason for such a course. *205 But for tbe objection tbe witness might bave said that defendant bad no-indemnity insurance. Tbe defendant, if it felt aggrieved by tbe question, should bave prayed for tbe intervention of tbe court, and relief, we are sure, would bave been speedily granted by the learned presiding-judge. Parties should-act promptly in tbe assertion of their rights. This being merely an appellate tribunal, with jurisdiction merely for tbe correction of errors in law, cannot afford tbe relief which can be given only by tbe court below in its sound discretion, unless in very exceptional cases, of which this is not one. We bave given a thorough examination to the record and briefs of counsel and find no error in tbe trial of tbe case. No error.