{ "id": 8652494, "name": "W. B. FLANNER, Administrator, v. KINSTON COTTON MILLS", "name_abbreviation": "Flanner v. Kinston Cotton Mills", "decision_date": "1911-03-22", "docket_number": "", "first_page": "394", "last_page": "399", "citations": [ { "type": "official", "cite": "154 N.C. 394" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "134 N. C., 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272585 ], "opinion_index": 0, "case_paths": [ "/nc/134/0086-01" ] }, { "cite": "138 N. C., 319", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269374 ], "opinion_index": 0, "case_paths": [ "/nc/138/0319-01" ] } ], "analysis": { "cardinality": 488, "char_count": 10389, "ocr_confidence": 0.437, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2076084358586157 }, "sha256": "b4150430e2c8fda781d2dde809b36a35a275b96be6f4e068b4243a0c0c13e6ea", "simhash": "1:82cd8e554696d167", "word_count": 1874 }, "last_updated": "2023-07-14T20:16:36.957085+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. B. FLANNER, Administrator, v. KINSTON COTTON MILLS." ], "opinions": [ { "text": "Hoke, J\\,\nafter stating the case: Where negligent default has been established against an employer by reason of some breach of an arbitrary and independent duty which he owes to his employee, as in failure to supply \u201cmachinery known and approved and in general use,\u201d a disobedience of instructions on the part of the employee and its effect are to be considered and determined, as a rule, on the issue as to contributory negligence, involving also the question of whether such disobedience is the proximate cause of a given injury. Hicks v. Mfg. Co., 138 N. C., 319. But where there is no such arbitrary standard imposed or no breach of independent duty shown, and an employer having an ordinary piece of work done, gives instructions concerning it which provide and afford a simple and safe method of doing the work, he is entitled to have these instructions considered also in reference to his responsibility on the first issue; and if it is shown that conditions have been changed and work of the kind indicated rendered dangerous by reason of willful disobedience on the part of the employee and which the employer has not approved or encouraged, in such case no responsibility should attach; and this position, as a rule, is not affected by the view that the employee may take of his surroundings. On the first issue the question is, Has the employer done his duty? and under the circumstances suggested, he is entitled to have this question determined, having regard to the kind of work, the instructions given and the conditions established and the results that might be reasonably expected to follow if his instructions had been carried out.\nIn the present c\u00e1se all of the evidence tended to show that if the sides of the pit had been flammed or sloped, there was no danger attending the work, and the testimony on the part of the defendant was to the effect that the hands engaged in the work had been instructed to do it in that way. Thus the witness J. G. McDuffy, who was at that time the foreman and yard boss, speaking to the question of the employment of intestate and the instructions given, testified:\n\u201cMr. John Barfield was running the card-room; he asked me if I could give the man some work, and I told him I did not bave anything for him to do without he could go in the sand pit, and he said he would bring him out. He brought him out. I told him: 'Mr. Hawkins, I haven\u2019t anything for you to do unless you go in the sand pit.\u2019 He said: 'I will go in anywheres and work. I can ditch; I have done it, and I can dig for sand or anything else.\u2019 I said: 'If you are willing to go in, get a shovel.\u2019 He said: \u2018All right.\u2019 He took a shovel and went in the sand pit; that was in the morning somewhere between 6:30 and 1 o\u2019clock; I don\u2019t remember the time \u2014 something like that.\u201d\nQ.: Will you state if you gave him any instructions how the work was to be done ?\nA.: I did; not especially to him, but the whole crowd.\nQ.: Was he present?\nA.: Yes, sir. I told him to dig it with a flam \u2014 flam it down on either side; they hadn\u2019t reached the sand yet; they were about a foot' and a half from the top.\nThis witness further stated that a short time before the occurrence, he passed the jiit and, having noted that the intestate was digging under the north side of the pit, he said to the intestate: \u201c 'Mr. Hawkins, don\u2019t dig under there; if you can\u2019t get the sand without digging under there, come out of the hole.\u2019 I said: 'It will not do for you to dig under there.\u2019 He stuck his shovel down in the middle of the hole and looked up at me and said: 'When I get through with this hole there will be enough done.\u2019 I said: 'Don\u2019t dig under there any more; if you can\u2019t dig without digging under there, come out of the hole; you will make it cave in if you dig underneath.\u2019 He commenced digging right at the place where he was standing there by the box. \u25a0 I turned and went away.\u201d\nAnd the witness J. R. Richards, who was working with the intestate in the pit, testified that the pit had been cut from the top in a slope \u2014 \u201cflammed in on all sides.\u201d That Hawkins had commenced to cut under the side, and he heard the boss tell the intestate not to cut under the side in that way, and the witness himself told him to stop it.\nThe work was of a kind and character that any one of ordinary experience and observation would know tbat if tlie sides were undermined to any extent they were not unlikely to cave, and on the facts in evidence we are of opinion that the defendant was entitled to have the instruction given substantially as prayed for, and that the modification of the prayer made by the court constitutes reversible error.\nThe principle was declared and approved by this Court in Whitson v. Wrenn, 134 N. C., 86, and on authority of that and other cases of similar import we hold that the defendant is entitled to a new trial.\nVenire de novo.", "type": "majority", "author": "Hoke, J\\," } ], "attorneys": [ "Simmons & Ward, D. L. Ward, T. D. Warren, Loftin, Var-ser & Damson for plaintiff.", "Gui\u00f3n & Gui\u00f3n and Rouse & Land for defendant." ], "corrections": "", "head_matter": "W. B. FLANNER, Administrator, v. KINSTON COTTON MILLS.\n(Filed 22 March, 1911.)\n1. Master and Servant \u2014 Independent Duty to Servant \u2014 Contributory Negligence \u2014 Proximate Cause \u2014 Issues.\nWhere a negligent default has been established against an employer by reason of some breach of an arbitrary and independent duty which he owes to his employee, as in failure to supply \u201cmachinery known and approved and in general use,\u201d a disobedience of instructions on the part of the employee and its effects are to be considered and determined, as a rule, on the issue as to contributory negligence, involving also the question of whether such disobedience is the proximate cause of a given injury.\n2. Same \u2014 Ordinary Work \u2014 Instructions\u2014Disobedience\u2014Negligence.'\nWhere no breach of an arbitrary or independent duty of an employer to his employee is shown, and the former, having the latter to do an ordinary piece of work, gives him instructions concerning it which provide and afford a simple and safe method of doing the work, his instructions may also be considered in reference to his responsibility on the first issue, as to his negligence ; and if it is shown that conditions have been changed and work of the kind indicated rendered dangerous by reason of the employee\u2019s willful disobedience, that the emploj^er did not approve or encourage, no responsibility should attach to him; and this position, as a rule, is not affected by the view the employee may take of his surroundings.\n3. Same \u2014 Evidence\u2014Instructions.\nThe plaintiff was employed by the defendant to dig in a sand pit 13 feet long, 8 feet wide at the top and S feet deep. There was evidence for defendant tending to show that there was no danger in digging in the pit if the sides were \u201cflammed\u201d or sloped, and that in violation of instructions the plaintiff continued to dig straight down or undermine the side, and in consequence it caved in on him to his injury: Reid correct, an instruction tendered by defendant in substance, that if they believed the evidence of defendant they should answer the first issue, as to defendant\u2019s negligence, \u201cNo\u201d; and it was error to so modify the instruction as to make their answer to the issue depend upon whether the plaintiff, while in the pit, could see and appreciate his surroundings when digging in disobedience to his instructions.\nAppeal from Ward, J., at November Term, 1910, of Craven.\nCivil action. There was evidence on the part of plaintiff tending' to show that in July, 1908, plaintiff\u2019s intestate was killed by the caving in of a sand pit in which he was working as an employee of defendant; that this pit had been sunk by intestate, working with others, on the premises of defendant company for the purpose of procuring sand to make the brick for a smokestack which defendant intended to build, and at the time of the occurrence was about 13 feet long, 8 feet wide at the top and'on an average of 8% or 9 feet in depth; that the soil was sandy, showing a decided tendency to cave, and that it was negligence on the part of the company to direct or allow its employees to work in the pit without having the same shored or braced in some way to hold the sides in place.\nThe evidence of defendant tended to show that the soil was firm for 3 or 4 feet and then became somewhat seamed with sand, and below this, several feet, was the sand desired and suitable for making brick. That there was no occasion for bracing if the pit was properly dug, and many excavations of like kind and of greater size and depth had been made on the premises without such bracing and without harmful incident, by simply sloping the sides of the pit. That intestate had sought employment a few days before and was told that he could dig the pit and procure the sand for the purpose indicated, and that he was instructed expressly and directed to \u201cflam\u201d or slope the sides. That this was done in the main and the pit properly dug, but on the day of the killing the intestate, in violation of the instructions given, had at the depth stated dug the pit straight down and even undermined the sides by digging under the same. That 10 or 15 minutes before the killing the foreman or yard boss, passing the pit, observed that the intestate was digging improperly, and told him not to dig that way, and to stop it or'come out of the pit. The boss then passed to some other part of the yard and in 10 or 15 minutes the wall caved in and the intestate was killed. The ordinary issues in actions of this character were submitted, as to negligence of defendant causing intestate\u2019s death, contributory negligence on part of intestate, and damages. Among many other prayers for instructions, defendant\u2019s counsel requested the court to charge the jury that, if they believed the evidence of the defendant, the intestate was instructed to dig the sides of the pit inward, and not dig under the sides of the pit, and if the jury should find that such orders were disobeyed and such disobedience caused the injury, they should answer the first issue \u201cNo.\u201d The court gave the instructions with this modification, \u201cThat if the intestate Hawkins while in the pit could see and appreciate his surroundings, and dug under the sides of the pit in disobedience of orders and thereby caused the sides to give way, the jury should answer the first issue No.\u2019 \u201d\nThere was verdict for plaintiff; judgment, and defendant excepted and appealed.\nSimmons & Ward, D. L. Ward, T. D. Warren, Loftin, Var-ser & Damson for plaintiff.\nGui\u00f3n & Gui\u00f3n and Rouse & Land for defendant." }, "file_name": "0394-01", "first_page_order": 436, "last_page_order": 441 }