Morrison v. . Cannon Mills Co.

ScheNOic, J.

It should be noted in tbe outset that there was no relationship of master and servant or of employer and employee existing between tbe defendant, tbe Cannon Mills Company, and tbe plaintiff, John L. Morrison, and that there was no contractual relation existing between tbe plaintiff, or bis employer, and tbe defendant. Tbe plaintiff was an employee of tbe Southern Oil Transportation Company and was engaged in driving a truck of bis employer in hauling caustic soda from Canton, North Carolina, to Concord, North Carolina. In fact, it appears from plaintiff’s testimony that be has received an award from tbe transportation company under tbe Workmen’s Compensation Act based upon the injury alleged in this action. Therefore, it would appear that the defendant, the Cannon Mills Company, .owed no duty to the plaintiff to furnish him either a safe place in which to work, proper appliances and equipment with which to work, or sufficient help and assistance to assure safe performance of the work.

However, entertaining the view, as we do, that the plaintiffs own evidence establishes his contributory negligence, it may be conceded, though it is not decided, that the defendant was negligent in that its employee furnished to assist in unloading the caustic soda from the tank on the truck to the receiving tank at the plant of the defendant quit the work before the unloading was completed, thereby leaving the plaintiff alone to disconnect the connecting hose and pipe of the truck and receiving tank, and in failing to provide water near-by to be used to wash off the caustic soda in the event it came in contact with the body of those engaged in the unloading, which two acts of negligence are most strongly urged in plaintiff’s brief.

The plaintiff’s own testimony was to the effect that the employee of the defendant informed him (the plaintiff) that he was quitting the work as quitting time had arrived and he would receive-no pay for overtime, and further that the plaintiff knew that there was no water immediately available at the place where the caustic soda was being unloaded, and notwithstanding this information and knowledge of the assistant quitting the work and of the absence of water near-by, the plaintiff alone attempted to disconnect the hose of the tank of the truck from the pipe of the receiving tank and in so doing caustic soda was blown out of the hose and pipe oh to him, which could not be immediately washed off, and he was thereby injured. If it was negligence on the part of the Cannon Mills Company to fail to furnish an assistant to help in the unloading of the caustic soda, a dangerous undertaking, or if it was negligence on the part of the Cannon Mills Company to fail to have water near-by the place of unloading, and these two derelictions were both known to the plaintiff, and, notwithstanding this knowledge, he undertook alone the task of unloading, his action in so doing manifested a failure to use due care for his own protection in the performance of hazardous work, the danger of which was known to him, and constituted negligence that contributed to the.plaintiff’s injury, and such being the case, under the decisions of this Court, the action was properly dismissed and the judgment as in case of nonsuit was properly entered.

The judgment of the Superior Court is

Affirmed.