Spivey v. Babcock & Wilcox Company , 264 N.C. 387 ( 1965 )

141 S.E.2d 808 (1965) 264 N.C. 387

Lonnie R. SPIVEY
v.
The BABCOCK & WILCOX COMPANY.

No. 195.

Supreme Court of North Carolina.

May 5, 1965.

Aaron Goldberg, Wilmington, for plaintiff, appellant.

Marshall & Williams, Wilmington, for defendant, appellee.

SHARP, Justice.

Plaintiff, an employee of an independent contractor who had undertaken to install plumbing fixtures on defendant's premises, was an invitee of defendant. Pafford v. J. A. Jones Construction Co., 217 N.C. 730, 9 S.E.2d 408; 2 Harper & James, Torts § 27.12 at p. 1481 (1956 Ed.) Defendant's duty to plaintiff, therefore, was one of due care under all the circumstances. The general rule is stated in Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 438, 38 S.E.2d 561, 565:

"The owner is not responsible to an independent contractor for injuries from defects or dangers of which the contractor knew or should have known, ``but if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this, he is liable for resultant injury.'"

Accord, Williams v. McSwain, 248 N.C. 13, 102 S.E.2d 464; Lee v. H. L. Green & Co., 236 N.C. 83, 72 S.E.2d 33; Revis v. Orr, 234 N.C. 158, 66 S.E.2d 652, 28 A.L.R.2d 609.

A manhole, 8 feet deep, in an area covered with broken concrete and other debris is, without any doubt, a latent danger. Taking plaintiff's evidence as true, and giving him the benefit of every reasonable inference to be drawn therefrom, as we are required to do in passing upon a judgment of nonsuit, Pridgen v. Uzzell, 254 N.C. 292, 118 S.E.2d 755, two questions arise: (1) Is the evidence sufficient to establish that defendant failed to provide devices adequate to give warning of the hole to a reasonably prudent workman? (2) If it is, does it establish plaintiff's contributory negligence so clearly that no other conclusion can be reasonably drawn from it? Peeden v. Tait, 254 N.C. 489, 119 S.E.2d 450.

The covering which defendant had provided for the manhole was made with "inch boards" nailed to 2×4's. Between each of these slats was a space an inch and a half wide. This is not the type of cover one would ordinarily expect to find over an 8-foot manhole. Furthermore, it is a fair inference that dust from the broken concrete had sifted through the slats onto the cardboard cover over the hole sufficient to camouflage it and defeat the purpose of the wooden covering. We cannot say, as a matter of law, that the defendant had taken reasonably adequate precautions to warn the workmen who, it knew, would be on the floor and who might fall into the hole unless they knew of its presence. Hence, an issue of defendant's actionable negligence arises for the determination of the jury unless plaintiff has proved himself out of court on the issue of contributory negligence.

In its First Further Answer and Defense defendant alleges that plaintiff was contributorily negligent in that (1) before going upon the premises upon which he was to work, plaintiff failed to examine the blue-print which he had in his possession and which disclosed the presence of the manhole, and (2) "he removed a plywood covering and frame which had been placed over the hole and stepped on the cardboard without undertaking to discover what was thereunder or for what purpose it was there."

Plaintiff argues that the slatted covering, at most only 4 inches high, appeared to him to be just another "piece of stuff," i.e., debris, covering the area; that the dusty cardboard did not stand out sufficiently on the rubble-covered floor to attract his attention; that the cardboard itself both constituted and concealed a trap rather than warned of one; and that, as a result, it fell into the hole with him. He further contends that the primary purpose of the blueprint was to show him where to locate the fixtures he had come to install and not to warn of hazards; that at the time he fell into the hole he had had no need to examine the blueprint.

We can no more say with reference to the issue of contributory negligence than we could as to the issue of negligence that only one conclusion can reasonably be drawn. The determination of both issues must be for the jury.

Since the case goes back for a complete trial we note that in the trial below the court, over objection, permitted defendant's counsel on cross-examination to elicit from plaintiff testimony that he had received Workmen's Compensation benefits. This was error. By statute, G.S. § 97-10.2 (e), the amount of compensation and other benefits paid to or for the employee on account of the injury for which he is seeking damages is not admissible in evidence in his suit against a third party. Redding v. Braddy, 258 N.C. 154, 128 S.E.2d 147; Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886; Penny v. Stone, 228 N.C. 295, 45 S.E.2d 362. In his cross-examination of plaintiff's doctor, counsel also brought out, over plaintiff's objections, that the doctor had handled plaintiff's case "as a Workmen's Compensation matter" and that plaintiff himself was not at the present time indebted to the doctor for any services rendered. This, too, was error. The obvious purpose of these references to Workmen's Compensation benefits was to reduce the amount of the verdict in the event the case went to the jury.

If the jury should reach the issue of damages, plaintiff will be entitled to recover the amount which will fairly compensate him for his injuries as if he had received no payments under the Workmen's Compensation Act. Lovette v. Lloyd, supra; Rogers v. Southeastern Construction Co., 214 N.C. 269, 199 S.E. 41. When an injured employee sues a third person in tort for personal injuries, the measure of his damages is unaffected by any Workmen's Compensation benefits he may have received, and any reference to them is ordinarily as improper as would be a reference to the presence or absence of liability coverage for defendant. Evidence both as to liability-insurance coverage, Modern Electric Co. v. Dennis, 259 N.C. 354, 130 S.E. 2d 547; Lytton v. Marion Manufacturing Co., 157 N.C. 331, 72 S.E. 1055, Ann.Cas. 1913C, 358, and as to Workmen's Compensation benefits is inadmissible because it is not only irrelevant but also incompetent. This does not, however, mean a double recovery for a plaintiff-employee. The distribution of any recovery is a matter for the Industrial Commission under G.S. § 97-10.2(f).

Reversed.