Casey v. Byrd , 259 N.C. 721 ( 1963 )

131 S.E.2d 375 (1963) 259 N.C. 721

Carl David CASEY
v.
J. Claiborne BYRD, t/a/d/b/a Associated Scaffolding and Equipment Company.

No. 675.

Supreme Court of North Carolina.

June 14, 1963.

Haywood & Denny, and George W. Miller, Jr., Durham, for plaintiff appellant.

Bryant, Lipton, Bryant & Battle, Durham, for defendant appellee.

SHARP, Justice.

A scaffold, designed to be used by workmen painting a ceiling twenty-five to thirty feet above the floor, is an inherently dangerous instrument if not properly constructed. One who contracts to furnish a scaffold for such a purpose owes to those for whose use it is provided the duty to use proper care in its construction and to supply a reasonably safe structure. Odum v. National Oil Co., 213 N.C. 478, 196 S.E. 823; Cathey v. Southeastern Construction Co., 218 N.C. 525, 11 S.E.2d 571; Williams v. Charles Stores Co., Inc., 209 N.C. 591, 184 S.E. 496.

The rule applicable to this case is stated in Annotation: Contractor's Servants—Contractee's Liability, 44 A.L.R. 932, 1049:

"Where the defendant furnishes appliances to be used for a particular purpose with knowledge of such use, he is liable for a defect therein created by his own negligence, or negligently permitted to exist, where such negligence renders the appliance dangerous to life and limb of those who may use the same. Such liability exists independent of any privity of contract between the parties."

In Coughtry v. Globe Woolen Co., 56 N.Y. 124, 15 Am.Rep. 387, a case in which a scaffold fell killing a workman, Rapallo, J., said: "It is evident from the nature and position of the structure that death or great bodily harm to those persons (for whose use it had been provided) would be the natural and almost inevitable consequence of negligently constructing it of defective material or insufficient strength. It was clearly the duty of the defendant and its agents to avoid that danger by the exercise of proper care. (Citations omitted). This duty was independent of the obligation created by the contract." See Petty v. Cranston Print Works, 243 N.C. 292, 90 S.E.2d 717, where Coughtry is discussed.

Plaintiff's evidence, which we must accept as true in ruling upon the motion for nonsuit, is sufficient to establish that the scaffold fell because one of the crossarms bracing it was not equipped with a safety lock. Its credibility and the question of defendant's negligence were for the jury. If the jury should answer the issue of negligence in plaintiff's favor, whether the defective brace was an obvious condition for which the plaintiff assumed the risk or was a concealed danger he could not have discovered in the exercise of reasonable care, will also be a question for the jury. Plaintiff testified that he was an apprentice painter and had had little or no experience with tubular-type steel scaffolding. His foreman testified that he himself inspected the scaffold and that plaintiff had no control over it. Plaintiff was not, as a matter of law, bound to look for hidden defects. Gray v. Boston R. B. & L. R. Co., 261 Mass. 479, 159 N.E. 441; Devlin v. Smith, 89 N.Y. 470, 42 Am.Rep. 311; Campbell v. Fong Wan, 60 Cal. App. 2d 553, 141 P.2d 43.

The judgment of nonsuit is

Reversed.