McKinish v. Norwood Lumber Co., 191 N.C. 836 (1926)

May 27, 1926 · Supreme Court of North Carolina

191 N.C. 836

DAVE McKINISH v. NORWOOD LUMBER COMPANY.

(Filed 27 May, 1926.)

Master and Servant — Employer and Employee — Carriers—Logging Roads —Contributory Negligence — Statutes.

A logging road comes within the provision of our statute making contributory negligence of an employee an element of consideration by the jury in assessing the amount of damages recoverable, and is not a complete bar to the employee’s recovery in his action for damages.

Appeal by defendant from Webb, J., at October-November Term, 1925, of SwaiN. No error.

Action to recover damages for personal injury, alleged to have been sustained by plaintiff, an employee of defendant, a corporation, while operating a steam skidder, used in loading logs on defendant’s cars, to be transported on defendant’s logging road.

While plaintiff was “spooling” a wire cable, which wound around the drum of the skidder, the iron bar, with which he was performing the duty incident to his employment, was struck by a knot in the cable, caused by “splicing” the cable, with such violence, that plaintiff was thrown against the drum and injured. The wire cable was old, worn and defective. Its condition had been called to the attention of defendant’s superintendent, who- promised to get a new cable, and instructed plaintiff to splice tbe cable and to continue to use it. Tbe cable bad been broken in several places, and bad been “spliced” or tied together, tbus making six or seven knots, wbicb projected two or three inches from tbe cable. One of these knots struck tbe iron bar, with wbicb plaintiff was “spooling” tbe cable as it wound around tbe drum. As tbe result of bis injury, plaintiff developed a rupture or hernia wbicb caused him great suffering, and greatly impaired bis ability to work and earn money.

Tbe verdict of tbe jury was as follows:

1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint ? Answer: Yes.

2. Did tbe plaintiff by bis own negligence contribute to bis injury? Answer: Yes.

3. What damages, if any, is tbe plaintiff entitled to recover? Answer: $1,250.00.

From tbe judgment on this verdict, defendant appealed.

McKinley Edwards and Moody & Moody for plaintiff.

Alley & Leatherwood and S. W-. Black for defendant.

Per Curiam.

Defendant relies, on this appeal, chiefly upon its exception to tbe refusal of tbe court to allow its motion for judgment as of nonsuit, at tbe close of all tbe evidence. Tbe only other exceptions are to tbe exclusion of evidence upon objection of plaintiff. There are no exceptions to tbe instructions of tbe court in tbe charge to tbe jury, wbicb has not been included in tbe case on appeal.

Tbe fact, as found by tbe jury, that plaintiff by bis own negligence contributed to bis injury, does not bar a recovery by him of damages resulting from bis injury. Tbe effect of contributory negligence was to diminish tbe amount assessed by tbe jury as damages in proportion to tbe amount of negligence attributable to plaintiff. C. S. (1919), secs. 3466, 3467 and 3468, by tbe express provisions of C. S., 3470, are applicable in an action against defendant by plaintiff, to recover damages upon tbe facts of this case. Defendant was engaged in tbe operation of a logging road, and plaintiff was employed by defendant in tbe operation of said road. Tbe injury was sustained while plaintiff was at work as such employee. Craig v. Lumber Co., 185 N. C., 560.

There was evidence from wbicb tbe jury could find, as they did, that plaintiff was injured by reason of a defect, or insufficiency, due to defendant’s negligence, in tbe appliances, furnished by defendant to plaintiff, with wbicb to do bis work. Tbe assignments of error cannot be sustained and tbe judgment must be affirmed. There is

No error.