Battley v. Seaboard Airline Railway Co.

Britt, J. Plaintiff alleges that this action is subject to the Federal Employers’ Liability Act (hereinafter referred to as the Act). The employer’s duty under this Act (45 U.S.C. § 51) is the same as at common law, to use reasonable care in furnishing employees with a safe place to work and safe tools and appliances. Cordova v. A. T. & S. F. Ry. Co., 18 Cal. Rptr. 144, 198 C.A. 2d 161. The basis of liability under the Act is negligence proximately producing injury. The plaintiff must show something more than a fortuitous injury. Camp v. R. R., 232 N.C. 487, 61 S.E. 2d 358. In an action for the recovery of damages for injuries allegedly resulting from actionable negligence, the plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury — a cause that produced the result in continuous sequence [386] and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed. Baker v. R. R., 232 N.C. 523, 61 S.E. 2d 621. Under the construction given the Act by the federal courts, an employer is not an insurer of the safety of his employees; the basis of liability under the Act is negligence on the part of the employer which constitutes in whole or in part the cause of the injury. 5 Strong, N. C. Index 2d, Master and Servant, § 36. Bennett v. R. R., 245 N.C. 261, 96 S.E. 2d 31. “In order to recover under the Federal Employers’ Liability Act, it was incumbent upon petitioner to prove that respondent was negligent and that such negligence was the proximate cause in whole or in part of the fatal accident. * * * Petitioner was required to present probative facts from which the negligence and the causal relation could reasonably be inferred.” Parker, J. (now C.J.), in Bennett v. R. R., supra, quoting from Tennant v. R. R. Co., 321 U.S. 29, 88 L. Ed. 520. In his amended complaint, plaintiff alleges four acts or omissions of negligence on the part of the defendant. We discuss each of them briefly: (1) He alleges that defendant “put a water cooler and set it up in the doorway into the cab.” Plaintiff fails to allege any facts which show in what manner this caused his injury. (2) He alleges that the fireman “blocked the entrance of the cab”; plaintiff fails to allege any facts showing how this caused his injury. (3) He alleges that the fireman “was at a position where he had no business to be” and should have been .at his position on the left-hand side of the cab. Plaintiff alleges no facts showing how this caused his injury. (4) Plaintiff alleges that the water cooler caused the floor of the cab to be constantly wet or slippery and as the plaintiff “pulled into the cab his feet slipped on the water and he was caused to fall backward some 10 to 12 feet to the ground.” Inasmuch as the employer’s duty to his employee under the Act is the same as at common law and the employer is not an insurer of the safety of his employees, the rule governing the duty of a store owner to his patron would be applicable. In Hinson v. Cato’s Inc., 271 N.C. 738, 157 S.E. 2d 537, our Supreme Court stated: “A store owner does not insure his patrons against slipping or [387] falling upon the floor. * * * To hold the owner liable, the injured person must show: (1) that the owner negligently created the condition causing the injury, or (2) that it negligently failed to correct the condition after notice, either expressed or implied, of its existence.” Plaintiff failed to allege who placed the water on the floor of the cab or that if the wetness had existed for any period of time that defendant had failed to correct the condition after notice. We hold that defendant’s demurrer to the amended complaint was properly sustained and the judgment of the Superior Court is Affirmed. Campbell and Morris, JJ., concur.