John T. MOODY
v.
Harry KERSEY, Individually, and Piedmont Steel Erecting Co., a corporation.
No. 698.
Supreme Court of North Carolina.
June 20, 1967.*218 Benjamin D. Haines, Greensboro, for plaintiff appellant.
Dupree, Weaver, Horton, Cockman & Alvis, Raleigh, for defendant appellees.
BRANCH, Justice.
The sole question presented by this appeal is: Did the trial court err in entering the judgment of nonsuit at the close of plaintiff's evidence?
Defendants contend there is not sufficient evidence of actionable negligence to permit the issue to be submitted to a jury.
We find no evidence in the record that will allow the reasonable inference that the signals given by Jefferson were the proximate cause of plaintiff's injury. The signals given by him allowed defendant Kersey, without difficulty, to raise the chute from the ground and place it in position to be properly secured. All the evidence shows that Jefferson gave comprehensible signals and that there was no mishap as a result of misunderstanding of signals given by Jefferson to Kersey.
"In an action for recovery of damages for injury resulting from actionable negligence the plaintiff must show: (1) That there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff under the circumstances in which they were placed; and (2) 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; Murray v. Atlantic Coast Line R. R., 218 N.C. 392, 11 S.E.2d 326; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Mitchell v. Melts, N.C., 18 S.E.2d 406. See, also, Stephens v. Blackwood Lbr. Co., 191 N.C. 23, 131 S.E. 314, 43 A.L.R. 426." Luttrell v. Carolina Mineral Co., 220 N.C. 782, 18 S.E.2d 412.
Further, plaintiff offered no evidence to sustain his allegations that defendant Kersey did not have the crane under proper control, or that the crane was in a bad state of repair and in faulty operational condition. Nor was there any evidence that Kersey "slacked off" the cable too rapidly, thereby causing the chute to tear away from the bolt holding it.
"A plaintiff must make out his case secundum allegata. Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898. There can be no recovery except on the case made by his pleadings. Collas v. Regan, 240 N.C. 472, 82 S.E.2d 215. Proof without allegation is no better than allegation without proof. Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654. When there is a material variance between allegation and proof, motion for judgment of nonsuit will be allowed. Suggs v. Braxton, 227 N.C. 50, 40 S.E.2d 470." Andrews v. Bruton, 242 N.C. 93, 86 S.E.2d 786.
*219 Thus plaintiff's case must rest on whether there is sufficient evidence to go to a jury on plaintiff's allegations that defendant Kersey was negligent in failing to make any personal investigation of the chute or the bolt holding the same, or that defendant negligently "slacked off" the cable when he knew, or should have known, that the one bolt would not hold the chute. Clearly, the condition of the chute before it left the ground in no way contributed to plaintiff's injury. Plaintiff's contention that defendant should have made a personal investigation of the chute or the bolt holding the same, or that defendant Kersey should have known there was only one bolt holding the chute, must be limited to information received from plaintiff's fellow employee, Jefferson. Defendant Kersey was operating the crane, and in order to have made a personal investigation he would have been forced to abandon the controls of the crane, climb the boom of the crane, and jump from the boom to the platform, or he would have had to lay the boom on the platform and climb to the platform, which would have resulted in displacing the chute from the desired position. To follow either of such courses would not be the choice of a reasonably prudent man. "Negligence is the failure to exercise that degree of care for others' safety which a reasonably prudent man under like circumstances would exercise." Strong's N. C. Digest, Vol. 3, Negligence, Sec. 1 (Supp.). Sparks v. Phipps, 255 N.C. 657, 122 S.E.2d 496.
Defendant Kersey, by adverse examination offered by plaintiff, stated: "I don't remember Ray Jefferson advising me that there was only one bolt holding the chute. He said he had the top bolted and I asked him would it help any if we lowered it a little bit * * * and he said yes. I said, `You give me a signal.' He gave me a regular hand signal for slacking the load down a little bit. * * * I did not make any inquiry of Mr. Jefferson as to how many bolts were holding the chute before I undertook to lower it. The reason was he said that he had the top bolted. * * * If I had known at that time that only one bolt was holding this chute, I would not have undertaken to lower the chute. I thought Jefferson had all the bolts across the top." (Italics ours)
In this connection John T. Moody, the plaintiff, testified: "Immediately before the accident, I heard some conversation between Ray Jefferson and the defendant Harry Kersey. The only thing I heard them say was that one bolt was in the chute. I am talking about Mr. Jefferson. I heard him say that it was only one bolt. I did not hear Mr. Kersey make any response to that statement. Immediately after I heard Mr. Jefferson make that statement, that was when they loweredI did observe the chute being lowered immediately before it fell; * * *."
Ray Jefferson, assistant superintendent in charge of maintenance for North State Pyrophyllite Company, testified: "I have not had previous experience as a signalman in steel erection. A few times I had worked with Mr. Kersey on other jobs prior to this one in putting up chutes. I have never been employed as a signalman for a crane operator. * * * It is very difficult to recall exactly what I said before I gave the hand signal to Mr. Kersey. I know that I hollered, `I have got it bolted,' when I got the bolt in."
Upon a motion for judgment of nonsuit the evidence introduced by plaintiff is to be interpreted in the light most favorable to him, all conflicts therein are to be resolved in his favor, and all reasonable inferences therefrom which are favorable to him are to be drawn. Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536.
We recognize the principle that a person is not bound to anticipate negligent acts or omissions on the part of others, but in the absence of anything which gives, or should give, notice to the contrary, he is entitled to assume that every other person will perform his duty and that he will not *220 be exposed to danger which can come to him only by violation of duty by such other person. Weavil v. Myers, 243 N.C. 386, 90 S.E.2d 733.
In the instant case defendant Kersey was in control of machinery being used in a hazardous operation, and he was obliged to exercise a degree of care commensurate with the dangerous character of the operation. Strong's N.C. Digest, Vol. 3, Negligence, Sec. 4, p. 445. When his regular signalman became unavailable, he elected to proceed with Jefferson, a person who had acted in this capacity, at most, on one other occasion. Shortly before plaintiff's injury, defendant Kersey was talking to Jefferson. He could hear Jefferson, and Jefferson could hear him. Although Kersey states that he would not have lowered the chute had he known there was only one bolt, it may be found he relied on the judgment of an inexperienced workman and failed to make any inquiry or investigation as to the manner in which the chute was bolted. Further, defendant states that he did not remember Jefferson advising him that there was only one bolt holding the chute. There was evidence from plaintiff, who was approximately thirty feet away, that he heard Jefferson say "that one bolt was in the chute" shortly before he was injured. Kersey's testimony tends to confirm that shortly before plaintiff was injured he could hear Jefferson and that statements were made relative to bolting the chute at that time. This evidence allows a reasonable inference that defendant knew, or by the exercise of reasonable care should have known, that there was only one bolt in the chute, and that he could have reasonably foreseen that the bolt would pull through the metal when he "slacked off," so that the weight of the chute came onto the bolt. Further, that he could have reasonably foreseen that some injurious result was probable under the circumstances. Thus, we hold there was sufficient evidence of negligence to survive the motion of nonsuit.
Plaintiff cannot be held guilty of contributory negligence as a matter of law. His mere presence on the job is not sufficient to infer negligence.
"Men may properly and lawfully do work that is essentially dangerous in its nature, and a person engaged in the performance of such work may know that it is dangerous, and yet not be guilty of contributory negligence in the performance thereof, unless he voluntarily and unnecessarily exposes himself to the danger." 38 Am.Jur., Negligence, § 182, p. 860. Plaintiff was engaged in new duties and was attempting to position the lower end of the chute. This operation demanded his undivided attention. The fact that the person who was doing the signalling and securing the chute above him was his immediate superior is compatible with the assumption that he would not be exposed to a danger which would come from a violation of a duty by such other person. Weavil v. Myers, supra; Lewis v. Barnhill, supra. The only possible notice of danger came from Jefferson, his immediate superior, who stated that he had fastened one bolt. Whether this was sufficient to give notice of a negligent act by Jefferson is a question for the jury.
"(M)otion for nonsuit may not be allowed on the ground of contributory negligence unless plaintiff's own evidence establishes such negligence so clearly that no other conclusion can reasonably be drawn therefrom." Lewis v. Barnhill, supra.
Finally, defendants contend that Kersey was the special employee or agent of plaintiff's employer, North State Pyrophyllite Company, and therefore was under North Carolina Workmen's Compensation Act. In the case of Weaver v. Bennett, 259 N.C. 16, 129 S.E.2d 610, Bobbitt, J., speaking for the Court, said:
"`2. The crucial test in determining whether a servant furnished by one person to another becomes the employee of *221 the person to whom he is loaned is whether he passes under the latter's right of control with regard not only to the work to be done but also to the manner of performing it. (Citations.)
"`3. A servant is the employe of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he actually exercises that control or not. (citations)
"`4. Where one is engaged in the business of renting out trucks, automobiles, cranes, or any other machine, and furnishes a driver or operator as part of the hiring, there is a factual presumption that the operator remains in the employ of his original master, and, unless that presumption is overcome by evidence that the borrowing employer in fact assumes control of the employe's manner of performing the work, the servant remains in the service of his original employer. (Citations.)'"
Here, Kersey was employed by Piedmont Steel Erecting Company, a corporation, and was operating a crane which belonged to the corporation. The company was paid an hourly rate. The record does not reveal there was any other person on the job as a crane operator. When Kersey's signalmen arrived in an intoxicated condition, it was clearly Kersey's decision as to whether the crane would be operated that day. The only instructions given by North State or its employees to Kersey was where the chute was to be carried so as to be in position for final erection. How he moved the chute into position was left entirely to his skill, ability, and judgment. The signals given by Jefferson were not orders but merely information necessary for proper operation of the crane, since Kersey could not visually position the chute. The fact that Kersey was an officer of the corporation would not prevent the corporation from furnishing other operators on this particular job. Thus, there is not sufficient evidence to overcome the factual presumption that the operator remained in the employ of his original master, Piedmont Steel Erecting Company. Nor is there sufficient evidence to show that North State, or its employees, assumed control over Kersey's manner of operating the crane so as to make Kersey a special employee or agent of North State. Weaver v. Bennett, supra; Lewis v. Barnhill, supra; McWilliams v. Parham, 269 N.C. 162, 152 S.E.2d 117.
For reasons stated, there was error in granting defendants' motion for nonsuit.
Reversed.