Davis v. North Carolina Shipbuilding Co.

Hoke, J. There were facts in evidence tending to show that on 1 March, 1918, the intestate of plaintiff, with other employees of the shipbuilding company, were engaged in removing some heavy timber from a car and piling them on the ground near, by means of a derrick or crane; that these workmen, at the time, were under the immediate supervision and direction of a foreman or boss, who stood towards them in the relation of vice principal, and that the derrick crane was defective, *76 and bad been for several days; tbat in attempting to remove a very heavy piece of timber from tbe car, one end of it lodged or became fastened in some way, and tbe boss ordered tbe intestate to go in under tbe timber and push it free; tbat intestate, a young man, 24 years of age, wbo bad been on tbe work about a week, proceeded to 'obey tbe order, pushed tbe timber free; tbe derrick failed to work, and tbe timber slid down on tbe intestate and crushed him to death. There was ample evidence of negligence, tbe proximate cause of tbe killing, imputable to defendant, both in tbe condition of tbe derrick and in tbe negligent order of tbe vice principal, and bis Honor was clearly right in refusing defendant’s prayer for instructions to tbe effect tbat if tbe jury believed the. evidence they would find tbe issue as to tbe principal negligence for defendant. Thompson v. Oil Co., 177 N. C., 279; Howard v. Oil Co., 174 N. C., 651; Ridge v. R. R., 167 N. C., 510. As apposite to tbe facts presented, it was said in Thompson’s case, supra: “And in this connection there are numerous decisions to tbe effect tbat tbe general directions or present and special orders of a boss or higher employee, one wbo represents tbe employer and stands towards tbe workmen in tbe position of vice principal, may be considered as a relevant fact when it is one from which, in itself or in connection with tbe attendant circumstances, tbe fact of negligence may be reasonably inferred. Atkins v. Madry, 174 N. C., 187; Howard v. Oil Co., 174 N. C., 651; Howard v. Wright, 173 N. C., 339; Wade v. Contracting Co., 149 N. C., 177; Holton v. Lumber Co., 152 N. C., 68; Noble v. Lumber Co., 151 N. C., 76; Allison v. R. R., 129 N. C., 336; Patton v. R. R., 96 N. C., 455. “Not only is an employer supposed, as a rule, to control tbe conditions under which tbe work is done, and to have a more extended and accurate knowledge of such work and tbe tools and appliances fitted for same, but tbe order, itself given by tbe employer or bis vice principal directing tbe work and tbe natural impulse of present obedience on tbe part of tbe employee are additional and relevant facts to be considered in passing upon tbe latter’s conduct in reference to tbe issue.” It was chiefly urged for error tbat tbe court admitted, over defendant’s objection, evidence tending to show tbat tbe shipbuilding company bad taken out and held indemnity insurance in reference to employees engaged in this work, citing Clark v. Bonsal, 157 N. C., 270, in support of tbe objection. ■ It is true tbat in Clark v. Bonsal tbe Court decided tbat an injured employee could not maintain an action for negligent injury against tbe insurance company on an indemnity policy as ordinarily drawn, taken out, and held by tbe employer for bis own protection. Applying tbe principle, it has been held in several such eases that-tbe existence and *77 contents of such a policy is not, ordinarily relevant on the question of damages, or on the issue as to negligence, but, in the present case, the defendant was endeavoring to maintain the position that it was not then operating the plant, and the intestate, at the time of the occurrence, was not in their employment. And the fact that the company had taken out and then held indemnity insurance for injuries to their employees, was clearly relevant in that issue. The court was careful to restrict the evidence to the purpose indicated, and the exception must be overruled. In this connection it was earnestly insisted that there was error, in permitting witnesses to speak of the policies in question when it appeared that they were in writing and not produced. The question chiefly pertinent here was not so much the contents of the policies as the independent fact that such policies were held, but, in any event, the policies not being the subject-matter in dispute between the parties nor their contents directly involved in the issue, they do not come within the rule which excludes parol evidence as to the contents of a written paper or document. Miles v. Walker, 179 N. C., 479-484; Morrison v. Hartley, 178 N. C., 618. Speaking to the position in Miles case, supra, the Court said: “Again it is objected that the court, over defendant’s objection, allowed plaintiff to say that he had sublet the property at $50 per month, the objection, being put on the ground that this sublease was in writing, but as held in numerous cases on the subject, the rule excluding parol evidence of the contents of a written paper or document applies only in actions, between the parties to the writing, and when the enforcement of obligations created by it is substantially the cause of action, it does not prevail as to collateral matters though they may be relevant to the inquiry.” On careful consideration, we find no error to defendant’s prejudice,, and the judgment for plaintiffs is affirmed. No error.