Harvell v. Weldon Lumber Co.

Allen, J.

after stating tbe ease: Tbe defendant relies principally on a motion to nonsuit tbe plaintiff, but also contends tbat bis Honor did not instruct tbe jury as to tbe assumption of risk, wbicb is relied on as a defense, and tbat be erroneously submitted to tbem tbe question of tbe liability of tbe defendant, because of failure to properly repair tbe passway, insisting- tbat tbe only negligence alleged in tbe complaint is tbat alleged in paragraph 7.

Tbe doctrine of assumption of risk does not arise, as tbe defendant did not tender an issue or ask for an instruction tbereon. We do not tbink, however, tbat tbe defendant has suffered any injury by its failure to do so, as it received full benefit of tbe facts relied on under tbe issue of contributory negligence.

Tbe defendant’s construction of tbe complaint would be correct if tbe plaintiff was confined to tbe facts alleged in paragraph 7, but the plaintiff goes further and alleges, in paragraph 8, tbat tbe defendant allowed its passway and platform to become and remain in an unsafe and dangerous condition where tbe plaintiff and other employees bad to pass and repass in tbe performance of their duties. This plea is defective, and tbe defendant bad tbe right to require tbe plaintiff to state wherein tbe p>assway and platform bad become unsafe.and dangerous, but it is a defective statement of a cause of action which is aided by answer. Whitley v. R. R., 119 N. C., 727; Bennett v. Tel. Co., 128 N. C., 103.

Justice Walker says in Hitch v. Comrs., 132 N. C., 575: “It is well settled tbat in a case where tbe pleading is not framed with technical accux-acy, or something is lacking to constitute a good statement of a cause of action, tbe defect is waived by pleading to tbe merits or by not taking advantage of tbe defect in some proper way, and tbe defective pleading is aided and tbe necessary averments will be supplied by tbe law.” There is no injustice in tbe application of this rule in this case, as tbe record discloses tbat both parties bad full opportunity to present evidence as to tbe condition of tbe walkway. Tbe counsel for defendant doubtless failed to point out tbe defect in tbe Superior Court because they knew it would be cured by amendment.

If tbe bole in the passway had been repaired by placing boards over it, and the. plaintiff stumbled and broke a board, the fact that the board broke and the evidence of the defendant’s witness that there were thicker boards at the mill and that the broken board was not strong enough to hold the weight, was some evidence that the passway was unsafe after the repairs were made.

This brings us to the consideration of the motion to nonsuit, which is on two grounds:

1. That if the defendant was negligent, the act of the plaintiff in stumbling and falling was the proximate cause of the injury, and not the negligence of the defendant.

It is well settled, as contended by counsel for defendant, that a plaintiff cannot maintain an action by showing that the defendant is negligent, and that he must go further, and show that this negligence was the proximate cause of his injury; but by proximate cause is not necessarily meant the cause nearest the injury. It may be true that the plaintiff would not have been injured if he had not stumbled, and equally true that, although he stumbled, he would not have been injured if the passway had not been unsafe. Proximate cause means the dominant efficient cause, the cause without which the injury would not have occmrred; and if the negligence of the defendant continues up to the time of the injury, and the injury would not have occurred but for such negligence, it is not made remote because some act, not within the control of the defendant, and not amounting to contributory negligence on the part of the plaintiff, concurs in causing the injury. The rule is.thus stated in Cyc., vol. 26, 1092: “Where the master’s negligence is the efficient cause of the injury, he is liable, although his negligence is combined with some ulterior cause.” Malott v. Hood, 99 Ill. App., 360; New York R. R. v. Green, 70 Tex., 257; Texas R. R. Co. v. McLane, 24 Tex. Civ. App., 321.

In Ætna Ins. Co. v. Boon, 95 U. S., 117, Justice Strong says: “The proximate cause is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in time and place. The inquiry must always bo whether there was any intermediate cause disconnected from the primary fault and self-operating, which produced the injury.”

In Harton v. Telephone Co., 141 N. C., 455, the question is fully discussed, and Justice Hoke, speaking for the Court, quotes with approval the following statement of the law: “To show that other causes concurred in producing or contributing to the result complained of is no defense to an action of negligence. There is, indeed, no rule better settled in this present connection than that the defendant’s negligence, in order to render him liable, need not be the sole cause of the plaintiff’s injuries. When two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, he is liable.”

It is true that two justices dissented, but the difference of opinion was not as to the doctrine, but to the application of it in that case.

It follows, therefore, that the act of stumbling and falling into the hole alone will not prevent a recovery.

If, however, the plaintiff was negligent, and this negligence caused him to stumble and fall, he could not recover, although the defendant was also negligent, because this would present a case of concurrent negligence, -and it is well settled that when the plaintiff and defendant are negligent, and the negligence of both concur and continue to the time of the injury, the negligence of the defendant is not in the legal sense proximate. The defendant says that this condition is presented by the evidence of the plaintiff, and upon this bases its second ground for judgment of nonsuit.

Is the plaintiff guilty of contributory negligence on his own evidence? If two minds could reasonably draw different conclusions from his evidence, one of which would be favorable to the plaintiff, the judge could not so declai-e, but must leave the matter 1o the determination of the jury. Grand Trunk R. R. v. Ives, 144 U. S., 408; Norton v. R. R., 122 N. C., 929.

In Russell v. Town of Monroe, 116 N. C., 729, the Court says: “It will be found that the question whether a iilaintiff has contributed by his own carelessness to bring about an injury complained of, must be answered after a comprehensive consideration of the conditions confronting Mm at the time.”

Accepting the evidence of the plaintiff to be true, for the purposes of tMs motion, be knew of the defect in the passway, and under the conditions surrounding him ought to have known it was dangerous to go along that way; he had informed the defendant of the defect and the defendant had promised to remedy it; he was carrying an unloaded truck on his shoulder, weight 115 pounds; the defect could not be seen by him on account of the smoke from the kilns; he stumbled and fell; he was in the performance of his duty and was walking with his right hand on kiln No. 1 and was feeling to keep from falling; it would have taken fifteen minutes for the smoke to clear, and if he had stood doing nothing, waiting for the smoke to clear, he would have been discharged. We think under these circumstances it was for the jury to say whether he acted as a man of ordinary prudence, and this his Honor submitted to them.

“It is not contributory negligence for a servant to undertake dangerous work, where it is required by the nature of his employment, unless the danger is so obvious and imminent that no ordinarily prudent person would consent to undertake it.” Cyc., vol. 26, 1256.

It is the duty of the employee to observe, and he is chargeable with those conditions he could discover by the exercise of ordinary care; but he is not guilty of contributory negligence because he works in the presence of a danger, unless it is so obvious that a man of ordinary prudence would have refused to do so. Midgette v. Mfg. Co., 150 N. C., 347; Bissell v. Lumber Co., 152 N. C., 124.

In Cyc., vol. 29, 140, a great many authorities are collected in support of the proposition that, “The fact that the person injured was aware of the danger is not sufficient to render him guilty of contributory negligence, as matter of law, but the question should be submitted to the jury.”

The case of Beard v. R. R., 143 N. C., 142, is very much like the one under consideration, except we think the evidence of contributory negligence was stronger in that case than in this. The plaintiff Beard was a freight conductor, and on the night lie was injured, which .was dark and'stormy, he was ordered to take out a freight train. He went to the freight office for his waybills, and as he came out and reached the platform, the wind blew out his lantern. There were no lights on the platform, and from the platform to the railroad track there were steps, which were cut into the platform about three feet and had no railing around them. He knew the steps were there and did not return to the office to light the lantern, but continued along the platform, feeling his way with his feet, and fell down the steps and was injured. It was held that he was not guilty of contributory negligence on his own evidence, and Justice Connor, speaking for the Court, says:

“The principles of law governing the case are well settled. If it can be said that the plaintiff’s duty to return to the office and light his lantern was so manifest and his failure to do so clearly negligent, so that two reasonable minds could come to but one conclusion in regard thereto, the authorities sustain defendant’s contention. On the other hand, if, measured by the standard of conduct which would control the reasonably prudent man, under similar circumstances, his conduct is capable of more than one reasonable inference, the decision of the question was properly left to the jury. Plaintiff was not injured by reason of falling into a hole, the existence of which was unknown to him. There was no negligence in the position or construction of the steps, but it was the duty of defendant to have and maintain sufficient light along the platform and near the steps or to have a railing so that their employees could use them with reasonable safety. This was a positive duty, the failure to perform which makes the defendant liable, unless the danger in using them was so manifest and obvious that no prudent man would do so in the absence of lights. ' In passing upon this question his Honor was compelled to take into consideration the whole evidence and fix the standard of duty, applying the legal test of prudence. It cannot, we think, be said that, using his senses, members, and knowledge of surrounding conditions, as described by plaintiff, he was manifestly regardless of his safety. Common observation teaches us that many persons clearly within the pale of ordinary prudence, feel their way along steps in tbe dark. -We can bardly tbink tbat by doing so tbey can be said to be clearly and obviously negligent.”

Wé bave examined tbe exceptions to tbe charge of bis Honor and to tbe refusal to give certain instructions requested by tbe defendant, and find no error.. Tbe prayers of tbe defendant were directed almost entirely to tbe questions of xoroximate cause and contributory negligence, wbicb bave been considered.

There is one exception to evidence. Tbe plaintiff testified that he went to Mr. P'illey, a foreman of tbe defendant, and told him about tbe bole, and tbat Mr. Shepard, president of the defendant, said to bave it fixed, and tbat Mr. Pilley bowed bis bead. He was then asked: “What effect- did Mr. Pilley’s nodding bis bead, when you told him, bave on you ?” To wbicb defendant excepted. He replied: “It made me tbink be was going to bave it fixed.”

We think it was competent for tbe plaintiff to state what tbe foreman did and tbe impression made on him, as tbe defendant was contending tbat be was guilty of contributory negligence in continuing at work in tbe presence of a known danger; and bowing tbe bead under tbe circumstances' detailed by tbe witness reasonably indicated assent.

Upon consideration of tbe whole case, we find

No error.