Wilson v. Blackwood Lumber Co., 185 N.C. 571 (1923)

June 8, 1923 · Supreme Court of North Carolina
185 N.C. 571


(Filed 8 June, 1923.)

1. Employer and Employee — Master and Servant — Negligence—Assumption of Risks.

An employee only assumes the ordinary risks incident to his employment, and not those due to his employer’s negligence, unless they are so obvious that a man of ordinary prudence would not have continued to work on and incur the attendant risks, a principle equivalent to that of contributory negligence, involving the element of proximate cause.

2. Same — Evidence—Nonsuit.

Upon evidence tending to show that an employee expressed his unwillingness to attempt with insufficient help to move a heavy piece of green timber, and was injured in so doing under the order of the defendant’s subforeman without additional help, the employee is not held to have assumed the risk of the negligent act of the subforeman, and defendant’s motion as of nonsuit upon the evidence was properly denied.

Appeal by defendant from Lane, J., at February Term, 1923, of JACKSON.

On 14 April, 1921, tbe plaintiff was an employee of tbe defendant and subject to tbe orders of one Williams, wbo was tbe subforeman. Williams directed tbe plaintiff and two others to get log-books and move certain pieces of green timber. Tbe plaintiff told bim tbe timber was too heavy for four men to move, and asked for other help. Two of tbe men went to the rear end of a log, which was about 20 feet long, and Williams and tbe plaintiff went to tbe other end. Williams gave orders to lift tbe timber, and in attempting to carry it tbe plaintiff strained bis back and was injured. Tbe plaintiff alleged that tbe defendant was negligent in failing to provide sufficient help, proper means and appliances, and a safe place in which to work.

Tbe plaintiff testified, among other things, that be thought tbe timber was too heavy for four men, but not that it was dangerous to undertake to carry it; that be told tbe foreman it was too heavy, but in trying to carry it be was obeying instructions; that tbe foreman commanded him to assist tbe others. There was evidence in contradiction and in corroboration, and tbe issues of negligence, assumption of risk, and damages were answered in favor of tbe plaintiff. Judgment; appeal by tbe defendant.

Btdton & Stillwell for plaintiff.

Alley & Alley for defendant.

Adams, J.

Tbe exception is addressed to bis Honor’s refusal to dismiss tbe action as in case of nonsuit. Admitting tbe duty of exercising *572ordinary care to provide proper assistance and a reasonably safe and suitable place for work, the defendant contends that according to the plaintiff’s own testimony be assumed the risk of injury, and is not entitled to damages. In tbis jurisdiction it is beld that while an employee assumes all the ordinary risks incident to bis employment, be does not assume those which are due to bis employer’s negligence, unless they are so obvious that a man of ordinary prudence would not continue to work on and incur the attendant risks; and further, that tbis is equivalent to referring the question of the assumption of risk to the principles of contributory negligence. Sims v. Lindsay, 122 N. C., 678; Lloyd v. Hanes, 126 N. C., 359; Coley v. R. R., 129 N. C., 407; Marks v. Cotton Mills, 135 N. C., 287; Pigford v. R. R., 160 N. C., 95; Brown v. Foundry Co., 170 N. C., 39.

In Pigford's case, supra, the plaintiff requested additional help, and bis superior officer said, “Go and try; do the best you can; it is the engineer’s orders”; and it was beld, “When a servant is injured within the scope of a dangerous employment by the negligent act of the master in not furnishing him sufficient and- competent assistance, and the master’s negligence is the proximate cause of the injury, the servant is not beld to have assumed the risk of the master’s negligent act, and can recover unless his own negligence contributed to the injury as the proximate cause.”

While the plaintiff’s evidence may not be entirely consistent, we are not prepared to bold as a matter of law that the second issue should have been answered for the defendant, or that the action should have been dismissed. We think bis Honor properly left the controversy to the determination of the jury.

We find no error which entitles tbe defendant to a new trial.

No error.