Allen v. Brown Bros. Lumber Co.

Civil action to recover damages for an alleged negligent injury and killing of plaintiff's intestate.

There were facts in evidence tending to show that the deceased and his younger brother, on 29 June, 1920, employed by the defendant for the purpose, were engaged in stacking lumber on the defendant's mill yard. While working upon a pile of lumber some twelve or thirteen feet high plaintiff's intestate evidently fell to the ground and was killed. There were no eye-witnesses to the accident, but within five or ten minutes after the fall his body was found lying on the ground between the pile of lumber on which he had been working and the dock. The dock was approximately fifteen or sixteen feet high and about two or three feet from the pile of lumber. "One plank that had been on the dock was down there with him, but the other planks were still on the dock." Upon examination it was discovered that his neck was broken and some foam or froth was about his mouth. Whether the intestate fell in attempting to climb or step from the pile of lumber onto the dock, or by reason of some sudden fit or fainting spell, is a matter of conjecture.

At the close of plaintiff's evidence there was a judgment as of nonsuit. Plaintiff appealed. After a careful examination of the record we have discovered no evidence upon which the defendant may be held liable as for a negligent breach of duty.

A perusal of our decisions will show that in order for liability to attach, in a case of simple, ordinary, everyday employment and where the laborer is allowed to exercise his own judgment as to how the work should be done, it must appear, among other things, that the injury has resulted from some omission or defect which the employer is required to fulfill or remedy, in the proper and reasonable discharge of his duties, and that the omission or defect complained of and made the basis of the charge is of a kind from which some appreciable and substantial injury might be expected to occur when tested by the standard of reasonable prudence and foresight. Winborne v. Cooperage Co., 178 N.C. 88, and cases cited.

We are unable to find any error in the judgment of nonsuit.

Affirmed.