Yarborough v. F. C. Geer Co.

BeowN, J. In tbe view we take of tbis casé, it is unnecessary to discuss tbe several assignments of error seriatim. Tbe questions of law presented are few and simple and can be considered under tbe motion of nonsuit. Tbe plaintiff was employed by tbe National Fire-Proofing Company, hereinafter called tbe defendant, in tbe construction of a building for tbe Geer Company in tbe city of Durham. Wells Brothers Company were tbe contractors to erect tbe building, and they sublet tbe concreting of tbe several floors of tbe building to tbe defendant tbe National Fire-Proofing Company. At tbe time of plaintiff’s injury be was employed by tbis defendant and engaged in concreting tbe third floor. Tbe concrete was carried by means of an elevator to tbe top of the building as it was being erected, and from buckets emptied into a hopper; from tbe hopper it passed into tbe chute and was conveyed to that part of tbe building where it was to be laid. Tbe evidence tends to prove that tbis elevator was about 60 feet high and was an open latticed tower structure. Tbe plaintiff was sent by tbe defendant’s superintendent, Price, to tbe top of tbe elevator tower and directed to operate tbe hopper. Tbe plaintiff stood upon tbe platform at tbe top of tbe elevator and operated tbe chute and tbe hopper from that position. At times it became necessary to climb on top of tbe hopper in order to prevent its becoming choked. Tbe plaintiff climbed on top of tbe hopper for tbe purpose of freeing it, and in getting back to bis position on tbe platform, as be was attempting to step off of tbe platform, be stepped on one of its planks, which, according to tbe evidence, was not nailed or in any way fastened down, and as it gave way it caused tbe plaintiff to fall to tbe first floor, whereby be was seriously injured. Blaintiff testifies: “I bad nothing to do with laying those planks that were across there for me to stand on. Tbe first time that I saw tbe planks or used them was when I was ordered up there to work.” In addition to excepting to his Honor’s refusal to allow tbe motion to nonsuit, tbe defendant excepts to tbe following charge: “But I bold as applicable to tbis case that a structure of tbis kind, where a person is put to work upon it and has to ascend as high as 60 feet in tbe air, and do tbe work, that tbe principle of requiring tbe master to furnish a safe place to work — a reasonably safe place — does apply to tbis case, and I instruct you that that principle does apply to tbis case, subject, however, to tbe rules I shall lay down later as to contributory negligence *336 and assumption of risk. I am bolding that where a man is put to work on a structure of this kind, a.s high as he was in the air, that the master must furnish him a reasonably safe place to work, and as to whether this was a reasonably safe place, I am leaving that for the jury to say— putting a man to work on a platform of this kind without nailing it down.” One of the elementary principles of the law of negligence now established is that the master must furnish his servant a reasonably safe place in which to do his work, consistent with the character of the work to be done. This principle is so well settled that it needs no citation of authority to support it. There are exceptions to this as well as to most other rules. The defendant contends that this ease falls within the rule announced by this Court in the case of Bunn v. R. R., 169 N. C., 648; Simpson v. R. R., 154 N. C., 52, and-others of similar import; that is, that the duty of the master to provide for his employee a safe place to work does not usually prevail under ordinary conditions requiring no special care, preparation, or prevision, where defects are readily observable and where there was no good reason to suppose that injury would result. We agree with his Honor that a structure of the kind which the plaintiff was required to ascend and work upon, 60 feet from the first floor, is not of the kind referred to in any of the cases which have been made exceptions to the ordinary rule. This particular structure was a tower elevator in which concrete was carried up to its top and which workmen were required to ascend and use at a dangerous elevation. If such a structure as this does not require the supervision of the master to see that it is in good and proper condition, as far as circumstances will reasonably permit it to be, then we do not think any structure could require such supervision. Barkley v. Waste Co., 147 N. C., 585; Smith v. R. R., 170 N. C., 184. There is no similarity whatever, in our opinion, between that class of cases represented by Bunn v. R. R., 169 N. C., 648, and Simpson v. R. R., 154 N. C., 52. The plaintiff took no part in the erection of this tower and was not required to inspect the condition of the platform. "When he was sent on top of this structure by the superintendent, he had the right to assume that the platform was as secure as it could reasonably be made, and he was not required to inspect it, and it seems from the evidence that he had no knowledge that the planks on this platform had not been in any way fastened down. Labatt on Master and Servant, 1904 Ed., secs. 409c, 410a, and cases cited in Note G to section 412 on page 1150. Cotton v. R. R., 149 N. C., 227; Aiken v. Mfg. Co., 146 N. C., 324; Steele v. Grant, 166 N. C., 635; Barkley v. Waste Co., 147 N. C., 585; Standard Oil Co. v. Bowker, 141 Ind., 12. *337 There is abundant evidence tending to prove that tbe tower was erected by this defendant; that tbe planking of tbe top of tbe platform was left unfastened, and that it was tbe direct and proximate cause of tbe plaintiff’s injury. There is no evidence, so far as we can see, that tbe plaintiff did anything of a negligent character which contributed to bis own injury. Tbe plaintiff in accepting this particular employment assumed all such risks a.s are naturally incident to it, but be did not assume those risks which arise out of tbe negligence of tbe defendant. If in tbe construction of this tower tbe defendant delegated tbe work to one of its .servants, it is responsible for tbe manner in which it was discharged, and the plaintiff did not assume any risk which was tbe proximate result of tbe defendant’s negligence or of those to whom tbe primary duty of tbe defendant was delegated. Tanner v. Lumber Co., 140 N. C., 475; Avery v. Lumber Co., 146 N. C., 592; Smith v. R. R., supra; Aiken v. Mfg. Co., 146 N. C., 324; Orr v. Telephone Co., 132 N. C., 691. No error.