O'Neal v. Jones, 199 N.C. 652 (1930)

Oct. 29, 1930 · Supreme Court of North Carolina

199 N.C. 652

ELBERT D. O’NEAL v. W. W. JONES, W. M. JONES and G. B. JONES, Trading as JONES BROTHERS.

(Filed 29 October, 1930.)

Master and Servant O c — Evidence of employer’s negligence held properly submitted to the jury in this case.

In an employee’s action to recover damages for an alleged negligent personal injury, evidence that plaintiff was acting under the direction of defendant’s foreman with the latter’s assurance that there was no danger, and was injured by a falling wall contiguous to a wall being torn down by them, is sufficient to carry the case to the jury on the issue of defendant’s actionable negligence.

Civil actioN for damages, heard by Barnhill, J., at January Term, 1930, of Carteret.

The plaintiff alleged and offered evidence tending to show that he was employed as an ordinary laborer by the defendant, and was engaged in tearing down or pushing down one of the brick walls of a school building which had been previously burned, and that, while so engaged, another wall fell, knocking him through a hole in the floor and resulting in serious and permanent injuries. There was further evidence that assurances were given by one of the defendants and a foreman that there was no danger in the work.

From judgment for the plaintiff assessing damages of $5,000, the defendant appealed.

G. B. Wheatly and Julius Duncan for plaintiff.

Moore & Dumb for defendant.

Pee CuRiam.

There was no allegation or issue as to assumption of risk. There was evidence of negligence, and the testimony tended to show that the plaintiff was working under the direction and supervision of one of the defendants and a foreman, and. that he was doing the work according to instructions given him by said defendant and the foreman. Furthermore, there was evidence that positive assurance was given that there was no danger in doing the work according to the method adopted by the employer.

Hence the trial judge ruled correctly when he submitted the case to the jury. Neville v. Bonsal, 166 N. C., 218, 81 S. E., 448; Fowler v. Conduit Co., 192 N. C., 14, 133 S. E., 188.

No error.