Troy L. CHAMBERS
v.
Palma EDNEY, Administratrix of the Estate of Calvin Edney.
No. 100.
Supreme Court of North Carolina.
November 20, 1957.*347 Henry C. Fisher, Lee & Marler, Asheville, for plaintiff-appellant.
George Pennell, Asheville, Clyde M. Roberts, Marshall, Ward & Bennett, Asheville, for defendant-appellee.
WINBORNE, Chief Justice.
Careful consideration of the many assignments of error, based upon exceptions to the admission and to the exclusion of evidence, presented on this appeal, fails to disclose error of a prejudicial character.
Indeed, the evidence offered, taken in the light most favorable to plaintiff, giving to him the benefit of every reasonable inference to be drawn therefrom, as is done when considering demurrer to the evidence, G.S. § 1-183, is insufficient to make out a case of actionable negligence.
In an action for recovery of damages for injury resulting from actionable negligence, the plaintiff must show: First, that there has been a failure on the part of the defendant to exercise proper care in the performance of some legal duty which the defendant owed 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, 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 the facts as they existed. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84, and numerous similar cases.
If the evidence fails to establish either one of the essential elements of actionable negligence, judgment as of nonsuit must be affirmed. Whether there is enough evidence to support a material issue is a matter of law. Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661, and cases cited.
In this connection the obligation of an employer to furnish his employees with reasonably safe appliances, and a reasonably safe place to work, does not impose upon him the duty of supplying instrumentalities in a completed form. Where, under the terms of a contract of employment, the employees are required to construct an instrumentality, the employer's duty is discharged by furnishing suitable materials with which it may be constructed, and he is not liable for an injury caused by a defect in its construction or adjustment. It is said that this frequently has been held in the case of scaffolds, staging, derricks, and like instrumentalities. 35 Am.Jur. p. 609.
The principle of liability growing out of use of scaffolds, platforms, and walkways are discussed by this Court in Fowler v. Carolina Cross Arm & Conduit Co., 192 N. C. 14, 133 S.E. 188, 190, in opinion by Brogden, J. In this case plaintiff was injured when an unloading platform which he had helped erect collapsed under weight of lumber loaded from a standing boxcar. The Court said: "In our examination of the authorities in this state relating to ladders, platforms, and walkways, there is found no direct decision dealing with the question of a platform or walkway actually constructed by the party injured, and the effect this would have upon his right to recover. There are, however, in several of the cases referred to, statements to the effect that the party injured had no part in constructing the instrumentality causing the injury. These intimations are strong and suggestive; and, while it may be urged that they involve only negative reasoning, there *348 are cases in other jurisdictions expressly holding that when the injured party himself constructs the platform causing the injury, in his own way, and the employer has exercised due care in furnishing reasonably fit and suitable material therefor, no recovery can be allowed. The principle is thus declared in Lagler v. Roch, 57 Ind. App. 79, 104 N.E. 111: `When the master in person, or by another, provides or undertakes to build for the use of his servants a scaffold or like structure, and turns it over to such servants in a completed or supposedly completed stage for their use in prosecuting their work for the master, it is undoubtedly his duty to exercise reasonable care to see that it is reasonably safe for the contemplated purposes. But, where the master has used reasonable care in the selection of materials from which to erect such a structure with design and purpose that the servants shall build it for their own use, and where the servants, with knowledge of such design and purpose, erect such structure from such material in such a manner as their own judgment dictates to them, the master having no direction or control of such construction, he cannot be held liable for injury sustained by one of such servants by reason of defects in such structure growing out of the manner of the construction thereof.' * * * Of course, it must be conceded that the age (17½ years) and experience of a plaintiff and his capacity to observe and appreciate danger must be considered in applying the rules of liability for injuries in such cases * * * There is no evidence in this record that the plaintiff was inexperienced in unloading cars of lumber, or that he did not possess the capacity to reasonably apprehend and appreciate any danger that might be incident thereto."
In the light of these principles, applied to factual situation in hand, it is seen that plaintiff himself was in the process of constructing the scaffold, and was in position to observe the materials he himself was using, and had opportunity to make examination of the materials. And the board, which broke under his weight, looked to him "like a sound board. There was nothing discoverable by looking at it." And there is no evidence to indicate that Edney, the owner, could have anticipated that plaintiff, weighing approximately 180 pounds, would step on a board of the dimensions shown. Indeed defendant argues and contends, and this Court holds properly so, that there is an absence of negligence on the part of Edney proximately causing the injury sustained by plaintiff.
But if it be conceded that there is evidence of such negligence, plaintiff, 21½ years of age, weighing 180 pounds, experienced in handling of lumber of various kinds, in a place of his own choosing, by his own negligence contributed to his injury.
Cases cited and relied upon by plaintiff have been considered and found to be distinguishable from instant case.
For reasons stated, the judgment as of nonsuit from which appeal is taken will be, and it is hereby
Affirmed.