Brazille v. . Barytes Co.

This is an action to recover damages for personal injuries. The plaintiff alleges that the company furnished him and other employees iron tamping rods to be used in tamping dynamite, and while so being used the iron tamping rods caused an explosion which seriously and permanently injured the plaintiff. He further alleges that in a few days after his return from the hospital, and while blind, and suffering in mind and body from said injuries, and mentally incompetent and incapable of transacting any business, the defendant company by fraud and false representation secured his signature to an alleged release. The defendant denied that the release was procured by fraud and alleged that the plaintiff was competent to transact business at the time it was signed. There was evidence that the plaintiff was an inexperienced miner and did not know the danger of using the iron tamping rods; that the defendant knew that it was highly dangerous to allow its employees to use them, but decided to take the risk, as the company could get along faster and do more work. The jury found in response to (457) the thirteen issues submitted to it that the plaintiff was injured by the negligence of the defendant company; that he was not guilty of contributory negligence; that he did not assume the risk; that he was not injured by the negligence of a fellow-servant; that the plaintiff did not have sufficient mental capacity to execute the release; that the defendant had knowledge of plaintiff's mental incapacity; that the release was obtained by fraud and fraudulent representation, and that the amount ($372) paid the plaintiff at the time he signed the release was not a fair and reasonable consideration, and assessed the plaintiff's damages at $4,850.

The first exception is because the plaintiff's wife was allowed to testify as to his mental incapacity the day he signed the release. This was competent. Stewart v. Stewart, 155 N.C. 341; Clary v. Clary, 24 N.C. 78;Whitaker v. Hamilton, 126 N.C. 466; Horah v. Knox, 87 N.C. 485;Bost v. Bost, ib., 479.

Exception 2, for refusal of the motion to nonsuit, cannot be sustained. Exception 3 is because the court did not set aside the verdict, upon the motion of the defendant, on the ground that the jury having found the plaintiff mentally incompetent when he signed the release, and he having failed to allege and prove sanity since, he could not bring this action. If there was estoppel it was fully as much upon the defendant, who had alleged in its answer that the plaintiff had mental capacity. It is true, the jury found that the plaintiff was incompetent to sign the release 23 December, 1909, by reason of his physical and mental suffering at that time caused by his injuries, but there was no assumption that such suffering with the consequent mental and physical inability to attend to business continued down to the time of the trial, in October, 1911. Exception 4 was because the court signed judgment upon the verdict.

Exception 5 is because the court refused to instruct the jury that if "the plaintiff was negligent in any degree, and this was the proximate cause of his injury, they will answer the tenth issue `Yes.'" An instruction that if the plaintiff was "negligent in any degree" would simply confuse the jury, and has been condemned in another case at (458) this term. Beach Con. Neg., secs. 21-26; Thompson Negligence, secs. 170, 171, 172, and 267; 7 A. E. Enc., 383. The court properly refused to instruct the jury that if they believed the evidence to answer the tenth issue "Yes," and also in refusing to instruct the jury to make the same response if the plaintiff knew the danger of using an iron tamping rod. These are the 6th and 7th exceptions. In lieu of them the instruction of the court on these propositions was in accordance with our precedents.

The 8th, 12th, and 13th exceptions are because the court refused to instruct the jury to answer the issue as to fraud in obtaining the release in the negative. There was evidence tending to show fraud which was sufficient, if believed by the jury, to justify the finding of the issue in the affirmative. Among them was the evidence that the plaintiff's wife and brother were not permitted to be present in the office when the release was signed, but were left outside in the cold; that the release was executed in a few days after the plaintiff left the hospital, and while he was suffering great pain and mental anxiety occasioned by his injuries; that plaintiff was ignorant and unable to write, blind, and his hearing badly impaired; that, as he testified, he thought that he was giving a receipt for wages; that he had no friends or counsel to advise him; that the consideration paid was $372, whereas the jury found that $4,850 was reasonable and just compensation. These and other circumstances were sufficient to carry the case to the jury and justify its finding. Hayes v.R. R., 143 N.C. 128; Dorsett v. Manufacturing Co., 131 N.C. 259; Beanv. R. R., 107 N.C. 746.

The 9th exception is because the court modified an instruction asked by the defendant, that if the accident was caused by the manner in which the hole was loaded, to answer the issue as to the defendant's negligence "No" by adding: "If this was not a reasonably safe way of loading a hole."

Exception 10 is because the court instructed the jury "that it was the duty of the employers to instruct their employees in the use of dangerous machinery or dynamite before assigning them to such duty." This instruction was proper. Horne v. R. R., 153 N.C. 239. Exception 11 was on substantially the same grounds.

Exception 14 is because the court charged the jury that if they (459) found that the consideration paid for the release was grossly inadequate, that this was a circumstance which they could consider in passing upon the fourth issue, as to fraud in procuring the release. This charge was in accordance with Dorsett v. ManufacturingCo., 131 N.C. 259.

Exception 15 is because the court charged the jury, "That unless you find by the greater weight of the evidence that the plaintiff knew of the great danger in using iron tamping rods, and voluntarily and willingly made up his mind to run the great risk incident to using the same, then you should answer the twelfth issue `No.'" This charge is in accordance withHicks v. Manufacturing Co., 138 N.C. 320; Lloyd v. Hanes, 126 N.C. 359.

Exception 16 is because the court charged the jury "that the use of an iron tamping rod, if it was obviously dangerous, will not prevent the plaintiff from recovering from an injury resulting therefrom unless the apparent danger was so great that its assumption would amount to a reckless indifference to probable consequences." This is practically the language used by the Court in Coley v. R. R., 129 N.C. 411.

Exception 17 is because the court charged "That the servant assumes the risk ordinarily incident to his employment, but he does not assume the risk from dangers which arise from the failure of the master to furnish his servant reasonably safe and suitable tools with which to do the work required of him unless in the careful performance of the work with the tools furnished the inherent probabilities of injury are greater than those of safety." The defendant admits that this language is substantially what was said in Hicks v. Manufacturing Co., 138 N.C. 319.

The 18th and last exception is because the court erred in instructing the jury, "Where the master fails in his duty to the injured servant, this failure is the proximate cause of the injury; the fact that the negligence of a fellow-servant also commingles with it as a proximate cause will not exonerate the master from liability." This exception cannot be sustained. Thompson on Negligence, secs. 4856, 4857, 4858.

This Court said in Ramsey v. R. R., 91 N.C. 418: "The (460) charge of the court, when properly considered as a whole, was in accordance with the principle settled in the cases just cited. We are not permitted to select detached portions of the charge, even if in themselves subject to criticism, and assign errors as to them, when, if considered with the other portions of the charge, they are readily explained and the charge in its entirety appears to be correct. Each portion of the charge must be construed with reference to what precedes and follows it."

The defendant excepted at the time of settling the case on appeal "for that the court, at the instance of the plaintiff, sent up the contentions of the parties as a part of the charge, and put in a large part of the testimony in the form of stenographer's notes, instead of in narrative form." This exception was in accordance with the provisions of Rule 22 of this Court, 140 N.C. 494, and complies with the repeated decisions thereon. Cressler v. Asheville, 138 N.C. 482. As there was no point made on the judge's reciting the contentions of the parties, and they were not needed to enlighten the Court as to any of the exceptions, it was unnecessary to send them up, and it was also improper to send the stenographer's notes up in the form of question and answer, but the evidence should have been stated in narrative form, as we have so often ruled. The unnecessary matter thus sent up, we estimate at 40 printed pages, the cost of copying and printing which will be taxed against the appellee, as provided in Rule 22. Land Co. v. Jennett, 128 N.C. 3.

No error.

Cited: Speight v. R. R., 161 N.C. 86; Daniel v. Dixon, ib., 380;Deligny v. Furniture Co., 170 N.C. 203.