Smith v. Fiber Controls Corp. , 44 N.C. App. 422 ( 1980 )

261 S.E.2d 247 (1980) 44 N.C. App. 422

James Keith SMITH
v.
FIBER CONTROLS CORPORATION.

No. 7922SC151.

Court of Appeals of North Carolina.

January 8, 1980.

Homesley, Jones, Gaines, Dixon & Fields by Edmund L. Gaines, Statesville, for plaintiff-appellant.

James P. Crews and Rodney A. Dean, Golding, Crews, Meekins, Gordon & Gray, Charlotte, for defendant-appellee.

The North Carolina Academy of Trial Lawyers by C. Frank Goldsmith, Jr., Marion, and Tim L. Harris, Harris & Bungardner, Gastonia, as amicus curiae.

ARNOLD, Judge.

Plaintiff and amicus curiae argue that contributory negligence should not have been available as a defense in this action, and that defendant should have been held strictly liable. It has long been the rule in North Carolina, however, that a manufacturer's duty to those who use his product is tested by the law of negligence. See Corprew v. Chemical Corp., 271 N.C. 485, 157 S.E.2d 98 (1967); Wilson v. Hardware, Inc., 259 N.C. 660, 131 S.E.2d 501 (1963); Fowler v. General Electric Co., 40 N.C.App. 301, 252 S.E.2d 862 (1979). Any decision that a manufacturer be held strictly liable for injuries resulting from a defect in product design would be a matter of public policy to be decided by the legislature.

Plaintiff also assigns error to the charge to the jury. He argues first that the court erred in failing to give his requested instructions nos. 18 and 19. As to no. 19 we find no error, since there was no evidence to support such an instruction. The plaintiff himself testified that he volunteered to unclog the fine opener, and his supervisor testified that it was not plaintiff's job to take care of wrap-ups on the fine opener. The evidence, therefore, would not support an instruction that plaintiff was acting at his employer's bidding at the time he was injured.

Requested instruction No. 18 would have called to the jury's attention certain of the surrounding circumstances they could have considered in determining whether plaintiff was contributorily negligent, e. g., plaintiff's age at the time as well as his experience at Carolina Mills, and his knowledge of the fine opener machine. We find no error in the court's failure to give the instruction as requested, since the parts of No. 18 which the jury could appropriately consider were given in substance in the court's charge. See 12 Strong's N.C. Index 3d, Trial § 38.1.

In his next argument plaintiff asserts that the court erred by instructing the jury that the product may be improperly and materially altered, or improperly maintained, by the purchaser so as to relieve the manufacturer of liability for an injury resulting from such improper alteration or maintenance. Plaintiff's position is that such a material alteration or improper maintenance would be a defense by the manufacturer to an action brought by the purchaser of the machine, or product, but not as to this plaintiff, the user of the machine. The instruction, according to plaintiff, gave defendant manufacturer the improper defense of contributory negligence by the purchaser.

The contested statement of law by the court is correct. Moreover, it was given during the charge as to negligence, an issue which was answered in plaintiff's favor, not contributory negligence. Thus, no prejudicial error to plaintiff can be discerned.

We do not find that the trial court expressed an opinion or incorrectly summarized the evidence in his charge, as plaintiff contends in his arguments 6 and 9. Nor do we find any prejudicial error in plaintiff's remaining assignments of error.

No error.

WEBB, J., concurs.

WELLS, J., dissents.

WELLS, Judge, dissenting:

The facts of this case drive me to the conclusion that there could not have been contributory negligence on the part of the plaintiff because the danger he was exposed to was a hidden danger, the knowledge of which he cannot be charged with. The machine in question was designed in such a way as to conceal the latent danger. The design was such that it in no way furnished warning to plaintiff—and that therefore he could not foresee—that the feeder rollers would continue to turn with force after their source of motive power was cut off.

In the words of Justice Ervin, plaintiff's conduct "must be judged in the light of the general principle that the law does not require a person to shape his behavior by circumstances of which he is justifiably ignorant, and the resultant particular rule that a plaintiff cannot be guilty of contributory negligence unless he acts or fails to act with knowledge and appreciation, either actual or constructive, of the danger of injury which his conduct involves." Chaffin v. Brame, 233 N.C. 377, 380, 64 S.E.2d 276, 279 (1951).

By inverse reasoning, my position is supported by Clark v. Roberts, 263 N.C. 336, 139 S.E.2d 593 (1965). There, plaintiff's hand was injured when he inserted it into a corn field chopper. In holding that the plaintiff was guilty of contributory negligence as a matter of law, Justice Parker carefully emphasized that the plaintiff had grown up and worked on a farm and was familiar with the type of machinery by which he was injured; plaintiff knew that the shaft on which the knives were mounted would continue to turn for several minutes after the power was cut off; and that when he put his hand in, he did not know whether the knives were moving or not. In other words, Justice Parker carefully established that the plaintiff in Clark was clearly aware of the danger which caused his injury. It is only reasonable to assume that had all the evidence been to the contrary, as it is here—that the plaintiff had no knowledge of the danger—contributory negligence could not have been an issue.

Central to the existence of contributory negligence is knowledge on the part of the plaintiff of the presence of the danger:

In order that the plaintiff's conduct may be contributory negligence . . . the plaintiff must know of the physical condition created by the defendant's negligence and must have knowledge of such facts that, as a reasonable man, he should realize the danger involved. Furthermore, the plaintiff must intentionally expose himself to this danger. He must have the purpose to place himself within reach of it. It is not enough that his failure to exercise reasonable attention to his surroundings prevents him from observing the danger, or that lack of reasonable preparation or competence prevents him from avoiding it when the condition created by the defendant is [un]known to him.

Restatement (Second) of Torts § 466, Comment c. Since it is undisputed in the present case that the machine gave no indication from its outward appearance of the danger that lurked within, no reasonable man would have notice of the danger. Therefore, plaintiff cannot, as a matter of law, be charged with exposing himself to the danger.

It is my opinion that the plaintiff here was entitled to an instruction to the jury to answer the issue of contributory negligence in his favor, and that the trial court's failure to so charge constitutes reversible error. I would grant plaintiff a new trial on the sole issue of damages.