Brady v. Standard Oil Co., 206 N.C. 596 (1934)

May 23, 1934 · Supreme Court of North Carolina

206 N.C. 596

J. A. BRADY, Administrator of THOMAS TURNER, Deceased, v. STANDARD OIL COMPANY OF NEW JERSEY, and G. P. PRITCHARD, Trading and Doing Business as GARLAND LAKE DAIRY.

(Filed 23 May, 1934.)

1. Electricity A a—

The seller of an electric appliance may not be beld liable for an injury caused by a short circuit in the appliance' in its later use when the seller is not charged with the duty of inspecting and maintaining the equipment.

2. Master and Servant C a—

Where an employee uses a certain appliance in direct disobedience of positive instruction by the employer, the employer may not be held liable for injury to the employee resulting from the use of the appliance.

Civil action, before Moore, Special Judge, at October Special Term, 1933, of RANDOLPH.

This is an action for wrongful death. The evidence tended to show that the deceased, Thomas Turner, was employed by the defendant, Pritchard, trading as Garland Lake Dairy. He was employed to milk cows, clean up the barn, wash bottles, etc. He was not a general employee. The defendant, Standard Oil Company, turned over to the defendant Pritchard a Flit Machine, which is an appliance operated by electric current, containing a fluid designed to kill flies.

On 27 July, 1932, the deceased was found dead with the Flit Machine in his hand. There was evidence that there was a short circuit in the appliance, and while the current was not more than 118 or 119 volts ordinarily, that plaintiff’s clothing was wet and he was standing on a wet floor.

The undisputed evidence was to the effect that the deceased Turner had been ordered and instructed not to use this machine. There was no evidence that the deceased had ever used the machine or appliance prior to the day of his death.

At the conclusion of the evidence of the plaintiff the trial judge sustained the motion of nonsuit and the plaintiff appealed.

I. C. Moser for plaintiff.

J. A. Spence and S. M. JRoiins for Standard Oil Company.

Cox & Prevette for G. T. Pritchard.

Pee CubiaM.

The evidence disclosed that the defendant, Standard Oil Company, was not charged with the duty of inspecting and maintaining the appliance causing the death of plaintiff’s intestate. Therefore, the judgment as to it is supported by Merritt v. Power Co., 205 N. C., 259, and Bradshaw v. Power Co., 205 N. C., 850. The evidence further showed that the deceased at the time of his death was using the appliance in direct disobedience of positive instruction given by the employer. Consequently, the judgment in favor of the defendant Pritchard is sustained by familiar principles heretofore applied in Burnett v. Roanoke Mills Co., 152 N. C., 35, 67 S. E., 30; Smith v. R. R., 147 N. C., 603, 61 S. E., 575.

Affirmed.