Taylor v. Tallahassee Power Co.

Walker, J., after stating the case: We have stated the contentions of the two parties as to the nature of the evidence and what it tends to prove almost in their own language. The jury have passed upon the different views, and have adopted that of the plaintiff in all its essential features and under a carefully considered charge of the court which covered the case completely in every aspect of it. The exceptions are few and, we think, untenable. The question asked the witness, Mr. Warren, as to whether he had been ordered to fix the elevator during the afternoon of the day on which the plaintiff was injured, and whether the elevator had been stopped while he was working there, if incompetent, was entirely harmless. The witness stated that he had received such an order, and that the defendant had promised him to stop the elevator while he was at work, and that he did the work without being hurt. It required no proof to show that if the elevator was not moving it could not injure him, so that in the end his testimony merely tended to prove a self-evident fact. It does not fall within that class of cases where some alteration of machinery or appliance is made to prevent the infliction of an injury. The evidence has some tendency to show that the elevator caused the injury to the plaintiff, and that he had the right to believe that it would not be lowered while he was at work, and also that it was moved by a new and inexperienced operator. There was no change in the elevator and no allegation that it was inherently defective. The only question was whether or not it was the elevator that struck the plaintiff and caused his injuries. The duty to furnish a reasonably safe place for the employee to do his work is a primary one and cannot *587 be delegated, and a failure to exercise due care in performing tbis duty is negligence, which becomes actionable if it is the proximate cause of an injury. Marks v. Cotton Mill, 135 N. C., 287. If the defendant allowed it to descend while plaintiff was underneath, and after he had been induced to believe by previous conduct that it would not be moved, and he was thereby injured, the negligence is clear, and it can make no difference therefore whether they stopped it that afternoon or not, as it would not affect the question of negligence which is apparent from the lowering of the elevator on the plaintiff’s head while he was at work, contrary to the custom. Steel v. Grant, 166 N. C., 635, directly supports this view. It was held in Keating v. Hewatt, 99 N. E. (Mass.), 479, that an employer is responsible for injury to an employee resulting from the foreman’s negligent failure to protect the employee against injury at a machine after an assurance, express or implied, that it would not be moved while he was working at it, and that it could be found by the jury that the injury was due solely to the negligent failure of the foreman to secure this promised protection after he had exposed the plaintiff to danger. For such negligence of the foreman the employer is responsible. There would seem to be no doubt as to the principle that if an employer orders his employee to proceed with his work, assuring him of its safety and promising to protect him against a danger which by due care can be avoided, and the employer fails to keep the promise, so that his employee, who relied upon it, is injured without contributory negligence on his part, the latter may recover if injury proximately results. We have not considered the -proposition whether, regardless of any • custom or promise to protect the plaintiff from injury while mending the elevator frame, it was of itself negligence to move the elevator while he was there engaged in performing the duty assigned to him, as we do not deem it necessary to do so in view of what has already been said. The hypothetical questions put to the experts were based upon sufficient evidence of the facts they recited and were competent and relevant to show that the injury was of a permanent nature. Summerlin v. R. R. Co., 133 N. C., 550; S. v. Bowman, 78 N. C., 509; Perkins v. R. R. Co., 44 N. H., 223. The case of Parrish v. R. R. Co., 146 N. C., 125, is directly in point. We there said: “It was necessarily assumed by the very form of the question that the jury might find that whatever injury the plaintiff had suffered was directly caused by the fall, and the witness was called upon to state what the physical conditions produced by the fall indicated to his trained and experienced mind as a medical practitioner. We think the evidence comes strictly within the rule admitting expert testimony, *588 or that which is given by a witness having special or peculiar knowledge and skill in the particular calling to which the injury relates, and the competency of the question, as predicated on the hypothetical facts stated, is sustained by the best considered authorities,” citing Logan v. Weltmer, 180 Mo., 322; Stouter v. R. R. Co., 127 N. Y., 66. There was no dispute as to the witness, who was a physician, being an expert, and his opinion as to the permanence of the injury could be taken. Besides, the injury was so severe in character that it hardly required expert testimony to show that it would permanently disable the plaintiff. The exceptions to the charge are without any merit. It is not permissible to select a detached portion of the charge and assign it as error, unless it contains a distinct and independent proposition in itself which is not explained or qualified by the other parts, but the charge must be construed as an entirety; and so construed/we find no error in it, even if the parts selected by the defendant for his exceptions were erroneous, without reference to what preceded or followed them. It is thoroughly well settled that we must look at the whole charge when construing it for the purpose of ascertaining its meaning. S. v. Exum, 138 N. C., 600; Kornegay v. R. R. Co., 154 N. C., 389. The ease has been tried according to correct legal principles applicable to it, and the verdict cannot be disturbed. No error.