Swaney v. Peden Steel Company

131 S.E.2d 601 (1963) 259 N.C. 531

Dewey C. SWANEY
v.
PEDEN STEEL COMPANY.

No. 523.

Supreme Court of North Carolina.

June 14, 1963.

T. Lacy Williams, J. Ruffin Bailey, Raleigh, Miller and Beck, Asheboro, for defendant-appellant.

McLendon, Brim, Holderness & Brooks by Hubert Humphrey, Greensboro, Wilson & Clark, Monroe, for plaintiff-appellee.

SHARP, Justice.

Was the foregoing evidence sufficient to go to the jury on the alleged negligence of the defendant and, if so, does plaintiff's evidence establish his contributory negligence as a matter of law? These are the two questions for decision.

The defendant, as the designer and fabricator of the truss which collapsed during erection, was under the duty to exercise reasonable care not only to furnish a framework which would sustain the load it was intended to carry after erection, but which would also withstand the ordinary stresses to which it would be subjected during erection by methods reasonably to be anticipated. If a negligently designed truss were furnished, a workman on the construction job was within the foreseeable zone of danger and, if it proximately caused him injury, the designer would be liable under the principle which imposes liability upon a manufacturer who puts into circulation a product which, if not carefully made, is likely to cause injury to those who lawfully use it for its intended purpose. Person v. Cauldwell-Wingate Co., 2 Cir., 176 F.2d 237; Williams v. Charles Stores Co., Inc., 209 N.C. 591, 184 S.E. 496; Tyson v. Long Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170, 78 A.L.R. 2d 588; Gwyn v. Lucky City Motors, Inc., 252 N.C. 123, 113 S.E.2d 302; Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21; International Derrick & Equipment Co. v. Croix, 5 Cir., 241 F.2d 216.

The general rules of law applicable to the question of defendant's alleged negligence have been stated in the following sections of the Restatement, Torts:

"A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design." § 398. He is also liable if he supplies a "chattel for another's use knowing that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put," § 389.

"One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so." § 388. This section applies to "the manufacturer of a chattel which he knows to be, or to be likely to be, dangerous for use," § 394.

When defendant delivered the truss and the columns which were to support it to the Edenton Street Methodist Church job, it knew that steel erectors like the plaintiff would attempt to hoist and set the truss on the perpendicular columns. Its engineer who designed the truss was the one who knew, or should have known, both its strength and the erection stresses its bolts would be required to withstand. These were matters beyond the knowledge and ability of an ordinary steel erector to divine. Unless the truss had been so obviously defective that an erector of ordinary prudence would not have attempted to erect it, Newton was justified in assuming that it could be erected in the customary way. Ryan v. Fenney & Sheehan Bldg. Co., 239 N.Y. 43, 145 N.E. 321, 41 A.L.R. 1; Johnson v. West Fargo Mfg. Co., 255 Minn. 19, 95 N.W.2d 497; International Derrick & Equipment Co. v. Croix, supra; Babylon v. Scruton, 215 Md. 299, 138 A.2d 375. If the defendant knew, or in the exercise of proper care should have known, that the design of the truss made it unsafe to attempt erection by the usual and ordinary methods, it was the defendant's duty to warn Newton of these facts. It does not contend that it gave any information or instruction with reference to erection. Defendant contends that Newton attempted the erection in an unusual manner and that it cannot be held liable for an injury which occurred from a use it could not reasonably have anticipated. Lemon v. Buchan Lumber Co., 251 N.C. 675, 111 S.E.2d 868; Anno: Products Liability—Building Supplies, 78 A.L.R. 2d 696, 701; International Derrick & Equipment Co. v. Croix, supra.

The evidence in this case, although conflicting, was sufficient for the jury to find (1) that Newton attempted to erect the truss in the customary manner and in a way which defendant should reasonably have anticipated; (2) that in designing the truss, defendant's engineer did not take into account the stresses of erection and that the deadweight of the truss itself, without the weight of the two men on it, would have caused the bolts to shear; and (3) that the steel erectors had no way of knowing its weakness unless informed of it by defendant which failed to perform this duty.

If the jury found these facts against the defendant the conclusion that its negligence was at least a proximate cause of plaintiff's injury necessarily followed. The jury exonerated Newton of any negligence proximately causing injury to the plaintiff, and no assignment of error challenges the trial on that issue.

We come now to the question of plaintiff's contributory negligence, the defense upon which defendant relies most heavily. It contends that when plaintiff rode the load upward to attach the truss to the upright columns he was guilty of contributory negligence as a matter of law because (1) riding the load was so obviously dangerous it was plaintiff's duty to refuse to obey the order to do so and he assumed all the risks incident thereto when, instead of refusing, he knowingly placed himself in a position of danger; and (2) in riding the load, plaintiff violated both a standard safety rule of the industry incorporated in the North Carolina Building Code and a regulation of the Department of Labor having the force of law.

Defendant did not specifically plead any of the safety rules upon which it now depends. However, in its brief, it relies upon § 18 of Article XXV of the Rules and Regulations Governing the Construction Industry issued by the Department of Labor and the American Standard Safety Code for Building Construction, No. A10.2-1944, approved June 7, 1944 by the American Standards Association which, it contends, § 914 of the North Carolina Building Code incorporated. The General Assembly has given the North Carolina Building Code the force of law. Therefore, the National Electrical Code which it incorporated with the approval of the legislature also has the force of law. G. S. § 143-138; Lutz Industries v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333; Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560; Jenkins v. Leftwich Electric Co., 254 N.C. 553, 119 S.E.2d 767.

However, this Safety Code for Building Construction which defendant stresses so forcibly and from which it purports to quote in the brief, is not referred to anywhere in the North Carolina Building Code. § 914 refers to two other named publications, neither of which has been filed with the Secretary of State as required by G.S. § 143-195. Apparently they relate to specifications for the design, fabrication and erection of structural steel itself—not rules safeguarding steel erectors. Furthermore, this Safety Code for Building Construction was not offered in evidence at the trial nor would it have been competent if offered. Sloan v. Carolina Power & Light Co., 248 N.C. 125, 102 S.E.2d 822.

North Carolina is in accord with the majority view that advisory codes which have not been given compulsory force by the legislative body, whether issued by governmental agencies or voluntary safety councils, are not admissible in evidence in civil actions. Sloan v. Carolina Power & Light Co., supra; 38 Am. Jur., Negligence, § 170; Anno.: Evidence—Safety Codes—75 A.L.R.2d 778; 1962 Cumulative Supplement to 20 Am. Jur., Evidence p. 175, addenda to footnote 8, p. 815 of the Text. For a discussion of the problem, see the article entitled "The Role of Administrative Safety Measures in Negligence Actions," 28 Texas Law Review 143.

Defendant introduced in evidence the following sections from the "Rules and Regulations Governing the Construction Industry" issued by the Department of Labor under G.S. § 95-11:

"No employee shall be allowed to ride at any time upon any material elevator or hoist. Nor shall they be permitted to ride upon the sling, load, hook, ball or block of any derrick or crane or in the bucket of any hoist, except when deemed necessary for making repairs or oiling overhead sheaves; provided that this section shall not apply to stacks or caissons nor to the dismantling of hoist, derricks, cranes and towers." Article XXV, § 18. (Hereinafter referred to as Rule 18)

"Every employee shall use all safeguards and safety appliances or devices furnished for his protection and shall be responsible for carrying out all rules and regulations which may concern or affect his conduct." Article II, § 1.

The charge of the court is not in the record, but presumably these rules were received as evidence tending to establish contributory negligence on the part of the plaintiff. The defendant received whatever benefit was to be derived from the introduction of these rules and assigns no error with reference to their use. It now contends they establish plaintiff's contributory negligence as a matter of law. This contention is untenable.

The legislature has not given the rules governing the construction industry promulgated by the Department of Labor the same force of law which it gave the North Carolina Building Code. G.S. § 143-138, which ratified and adopted the Building Code of 1953, made any violation of its provisions a misdemeanor and therefore, negligence per se in any civil action instituted by a person who has sustained injuries proximately caused thereby. However, the legislature imposed no criminal penalty for a violation of the Department of Labor's construction regulations. G.S. § 95-13 provides that if any person, firm, or corporation shall, after notice from the Commissioner of Labor, violate the rules promulgated under G.S. § 95-11 relating to safety devices or measures, the Attorney General may take proper civil action to enforce them. Obviously, since the rules were formulated for the protection and welfare of the employees, such action for injunctive relief would be taken only against the employer. It is noted that regulations made by the Department of Labor to carry out the provisions of the Child Labor Law are, by statute, given the force of law and criminal penalties imposed for their violation. G.S. § 110-20.

When noncompliance with an administrative regulation is criminal, the rule that in the trial of a civil action the violation of a criminal statute, unless otherwise provided, is negligence per se, is applicable. Jenkins v. Leftwich Electric Co., supra; Hinson v. Dawson, 241 N.C. 714, 86 S.E.2d 585, 50 A.L.R. 2d 333. The General Assembly could specifically provide that the violation of an authorized administrative rule fixing reasonable standards of conduct would be either negligence per se or evidence of negligence in specified instances. "Whatever force and effect a rule or regulation has is derived entirely from the statute under which it is enacted * * *." 2 Am.Jur.2d, Administrative Law, Section 289.

However, neither the legislature, when it authorized the Division of Standards and Inspection of the Department of Labor to promulgate rules and regulations to protect "the health, safety, and general well-being of the working classes of the State" (G.S. § 95-11), nor the Division when it wrote the rules, intended to create a criterion for negligence in civil damage suits. The rule in question is a prohibition upon the employer, and does not prohibit riding the load in all instances. It recognizes the necessity in the enumerated exceptions. The purpose of these rules was to require employers to provide safe working conditions for employees in order to minimize the risk of injury to them; it was not to establish a standard of care by which to judge an employee in his action against a third party whose negligence has injured him.

Even had the legislature given these rules the force of law, and if it be conceded arguendo that plaintiff had violated Rule 18 above, such violation would not necessarily be contributory negligence barring his recovery against a third party whom the rule was not intended to protect. 1962 Cumulative Supplement to 20 Am.Jur., supra; 38 Am.Jur., Negligence, § 196; 5 Am.Jur., Automobiles, § 409; Town of Remington v. Hesler, 111 Ind.App. 404, 41 N.E.2d 657; Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Bateman v. Doughnut Corp. of America, 63 Cal. App. 2d 711, 147 P.2d 404; Rampon v. Washington Water Power Co., 94 Wash. 438, 162 P. 514, L.R.A.1917C, 998; Flynn v. Gordon, 86 N.H. 198, 165 A. 715. See also Wright v. Southern R. R. Co., 4 Cir., 80 F. 260; Huckabee v. Grace, 48 Ga.App. 621, 173 S.E. 744.

Rule 18 could not be applied to the facts in this case without doing violence to fundamental principles and to the purpose of the rule. To do so would turn a regulation designed as a shield to protect a workman from an overreaching employer into a sword with which a third person tortfeasor, after he had negligently injured the employee, would administer the coup de grace.

We hold that plaintiff violated no law which would make him guilty of negligence per se. However, where no statute fixes the standard of conduct, it is that of the reasonably prudent person under the circumstances. We now measure plaintiff's conduct by that rule.

The plaintiff in this case was covered by the Workmen's Compensation Act, but let us assume that prior to its enactment in 1929 Newton had promulgated a rule against employees riding the load; that in violation of his rule he had ordered plaintiff to go up with the truss; that plaintiff obeyed and because of a defect in the hoisting crane he fell to the ground and was injured. A plea of contributory negligence would not have availed Newton unless the order plaintiff obeyed was so obviously dangerous that a reasonably prudent man under similar conditions would have disobeyed it and quit the employment rather than incur the hazard. Noble v. John L. Roper Lumber Co., 151 N.C. 76, 65 S.E. 622; West v. Fontana Mining Corp., 198 N.C. 150, 150 S.E. 884.

The law governing suits by servants against masters in common law actions ordinarily bars recovery when a servant's injuries are proximately caused by his violation of a known safety rule promulgated by the employer for the employee's protection and safety. However, if a rule has been habitually violated to the employer's knowledge, or violated so frequently and openly for such a length of time that in the exercise of ordinary care he should have ascertained its nonobservance, the rule is waived or abrogated. Biles v. Seaboard Air Line R. R., 139 N.C. 528, 52 S.E. 129; Haynes v. North Carolina R. R., 143 N.C. 154, 55 S.E. 516, 9 L.R.A.,N.S., 972; Smith v. North Carolina R. R., 147 N.C. 448, 61 S.E. 266, 17 L.R.A.,N.S., 179; Tisdale v. Union Tanning Co., 185 N.C. 497, 117 S.E. 583; Byers v. Boice Hardwood Co., 201 N.C. 75, 159 S.E. 3.

Certainly the defendant in this case who knew of the universal custom of steel workers to ride the load, like the master in common law actions, should not be allowed to defeat plaintiff's recovery for injuries which its negligence proximately caused by relying upon a rule promulgated for the employee's protection, the violation of which would have been harmless but for defendant's negligence.

Plaintiff had no means whatever of knowing that the truss had not been designed to withstand the stress of erection. He obeyed a usual and customary order of his employer with no knowledge that an administrative agency had issued a rule against it or that advisory safety codes prescribed it. The day after the truss collapsed with him, Newton erected the reinforced framework in the same manner he had attempted the day before, his son riding the load in plaintiff's stead. Logically, it might be argued that when plaintiff mounted the truss he assumed the risk that he would lose his grasp on it, become dizzy, or that his foot would slip during the upward ride, but he did not assume a risk he could not have anticipated. Assumption of risk is founded on knowledge. Batton v. Atlantic Coast Line R. R., 212 N.C. 256, 193 S.E. 674; Womble v. Merchants' Grocery Co., 135 N.C. 474, 47 S.E. 493.

When a plaintiff has put himself in a dangerous situation, and while there is injured by the negligence of another, it is not always easy to determine whether his physical presence at the time and place was one of the proximate causes contributing to his injury or merely the opportunity or occasion for it. Sometimes a court solves the problem in favor of the injured plaintiff by putting the ultimate stress on the doctrine of proximate cause. Lerette v. Director General of Railroads, 306 Ill. 348, 137 N.E. 811. Of course, the specific accident would rarely happen to a particular plaintiff but for the fact that he was where he was at the time and place it occurred. However, mere presence at a place is not usually determinative. Berry v. Sugar Notch Borough, 191 Pa. 345, 43 A. 240; Bonnier v. Chicago, B. & Q. R. Co., 2 Ill. 2d 606, 119 N.E.2d 254; Cosgrove v. Shusterman, 129 Conn. 1, 26 A.2d 471. The fact that the injured person placed himself in a dangerous position will defeat his recovery only when the negligence which injured him can reasonably be considered as having been included in the risk to which his position exposed him. McFadden v. Pennzoil Co., 341 Pa. 433, 19 A.2d 370.

"The fact that the plaintiff has failed to exercise reasonable care for his own safety does not bar recovery unless the plaintiff's harm results from a hazardous cause to which his conduct was negligent." Restatement, Torts, § 468.

Contributory negligence becomes a question of law only when plaintiff's evidence so clearly establishes it that no other reasonable inference may be drawn therefrom. Dalrymple v. Sinkoe, 230 N.C. 453, 53 S.E.2d 437; Graham v. Atlantic Coast Line R. R., 240 N.C. 338, 82 S.E.2d 346. "Where the nature and attributes of the act relied on to show negligence, contributing to the injury, can only be correctly determined by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the court to determine its quality as a matter of law." Cooke v. Baltimore Traction Co., 80 Md. 551, 31 A. 327; Bethlehem Steel Co. v. Variety Iron & Steel Co., 139 Md. 313, 115 A. 59, 31 A.L.R. 1021; Dennis v. Gonzales, 91 Cal. App. 2d 203, 205 P.2d 55. This was such a case. It was ably and fairly tried by both judge and counsel. The jury, after considering all the surrounding circumstances, found that plaintiff's injuries were proximately caused by the negligence of the defendant and that plaintiff did not by his own negligence contribute to them.

In the trial below we find

No error.