{ "id": 8624576, "name": "HORACE B. PETTY v. CRANSTON PRINT WORKS COMPANY, a Corporation", "name_abbreviation": "Petty v. Cranston Print Works Co.", "decision_date": "1956-01-13", "docket_number": "", "first_page": "292", "last_page": "305", "citations": [ { "type": "official", "cite": "243 N.C. 292" } ], "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": "38 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620996 ], "opinion_index": 0, "case_paths": [ "/nc/226/0433-01" ] }, { "cite": "66 S.E. 2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620100 ], "opinion_index": 0, "case_paths": [ "/nc/234/0181-01" ] }, { "cite": "35 S.E. 2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614641 ], "opinion_index": 0, "case_paths": [ "/nc/225/0601-01" ] }, { "cite": "70 S.E. 742", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "154 N.C. 399", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652505 ], "opinion_index": 0, "case_paths": [ "/nc/154/0399-01" ] }, { "cite": "62 S.E. 1093", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "149 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270121 ], "opinion_index": 0, "case_paths": [ "/nc/149/0227-01" ] }, { "cite": "69 S.E. 687", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "154 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651682 ], "opinion_index": 0, "case_paths": [ "/nc/154/0044-01" ] }, { "cite": "47 S.E. 493", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "135 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659800 ], "opinion_index": 0, "case_paths": [ "/nc/135/0474-01" ] }, { "cite": "111 N.E. 1050", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "217 N.Y. 382", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 75756 ], "opinion_index": 0, "case_paths": [ "/ny/217/0382-01" ] }, { "cite": "34 P. 2d 481", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "64 N.E. 2d 832", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "146 Ohio St. 212", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 1037098 ], "opinion_index": 0, "case_paths": [ "/ohio-st/146/0212-01" ] }, { "cite": "223 P. 2d 293", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "opinion_index": 0 }, { "cite": "11 S.E. 2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "218 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622138 ], "opinion_index": 0, "case_paths": [ "/nc/218/0525-01" ] }, { "cite": "144 S.E. 552", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624783 ], "opinion_index": 0, "case_paths": [ "/nc/196/0125-01" ] }, { "cite": "130 S.E. 29", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "190 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601259 ], "opinion_index": 0, "case_paths": [ "/nc/190/0308-01" ] }, { "cite": "44 A.L.R. 1079", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "44 A.L.R. 1048", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "15 Am. Rep. 387", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "56 N.Y. 124", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 519152 ], "opinion_index": 0, "case_paths": [ "/ny/56/0124-01" ] }, { "cite": "44 A.L.R. 932", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "29 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "opinion_index": 0, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "87 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 358", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615106 ], "opinion_index": 0, "case_paths": [ "/nc/242/0358-01" ] }, { "cite": "50 S.E. 448", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "138 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268645 ], "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/138/0038-01" ] } ], "analysis": { "cardinality": 1284, "char_count": 38600, "ocr_confidence": 0.575, "pagerank": { "raw": 6.223075032916658e-07, "percentile": 0.957238626653523 }, "sha256": "b23dce18dd99bcd153cae6b890c5c55704a87149c0c897693f26a4ec2190468c", "simhash": "1:76f6bd40dc4b8b89", "word_count": 6555 }, "last_updated": "2023-07-14T20:18:50.387183+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HORACE B. PETTY v. CRANSTON PRINT WORKS COMPANY, a Corporation." ], "opinions": [ { "text": "Bobbitt, J.\nThe facts disclosed by the evidence impel the conclusion that judgment of involuntary nonsuit was proper.\nTo recover damages for actionable negligence, plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach. Ramsbottom v. R. R., 138 N.C. 38, 41, 50 S.E. 448. Plaintiff\u2019s action is in tort. Even so, the duty owed by defendant to plaintiff arises from and is determined by the relationship subsisting between them. Pinnix v. Toomey, 242 N.C. 358, 87 S.E. 2d 893.\nPlaintiff was not an employee of Cranston. He was an employee of Piping Company; and as such was awarded compensation by the North Carolina Industrial Commission because this accident arose out of and in the course of such employment. Piping Company\u2019s compensation carrier paid the award and to that extent is interested in recovery by plaintiff herein.\nWhether J. E. Sirrine & Company, in arranging for the Piping Company to make the necessary repairs, was agent for Cranston, as contended by plaintiff, or acting for itself in discharge of a duty it owed Cranston, is immaterial. Piping Company was an independent contractor. In effect, plaintiff so alleged; and, by uncontradicted evidence, it is established. While the final result was subject to inspection both by J. E. Sirrine & Company and by Cranston, neither had any supervision of the Piping Company\u2019s work during its progress. Hayes v. Elon College, 224 N.C. 11, 29 S.E. 2d 137.\nThere is neither allegation nor evidence that Cranston was obligated by contract or otherwise to furnish a scaffold for use by Piping Company or its employees. Further, there is neither allegation nor evidence that Piping Company or its employees had used Cranston\u2019s scaffold or had worked for Cranston or in its plant on any prior occasion.\nPlaintiff\u2019s allegation is that Gaffney, Cranston\u2019s mill engineer, and Hill, alleged to have had charge of Cranston\u2019s equipment, particularly the scaffold, \u201chad authority to permit the use of said scaffold by plaintiff\u2019s employer.\u201d\nPlaintiff alleged that it was necessary for Piping Company\u2019s employees \u201cto have a scaffold or other elevated appliance to stand on in doing their work.\u201d For this purpose, they brought \u201cA\u201d ladders; and by means thereof they inspected the heaters. There is no evidence that Piping Company or its employees had prior knowledge that Cranston had a scaffold. They discovered it after arrival at Cranston\u2019s plant. Whether a sufficient platform could have been provided by extending planks between the \u201cA\u201d ladders does not appear. There is evidence that a scaffold was necessary to the performance of Piping Company\u2019s work. It is plain that a scaffold, especially a movable scaffold, was more convenient and better adapted to the work. It does not appear whether the casters could be removed so that the scaffold would, rest on stationary footings rather than on wheels. It is common knowledge that this may be done with scaffolds of this general type. In any event, the use of the casters facilitated the removal of the scaffold from place to place, as Piping Company\u2019s work required; and at each caster there was a device for locking the wheel when this was deemed necessary.\nThe evidence is sufficient to establish that Gaffney and Hill 'permitted, Piping Company\u2019s employees to use Cranston\u2019s scaffold when it was not otherwise in use by Cranston. Absent both allegation and evidence that Cranston was obligated to provide a scaffold for use by Piping Company and its employees, the conclusion reached is that Cranston did nothing more than permit Piping Company and its employees to use the Cranston scaffold if they saw fit to do so.\nSo far as the evidence discloses, this particular scaffold was standard equipment, which defendant had purchased and had used for two years. The evidence discloses no defect therein except such as related to the casters or screws by which the wheels were locked. There is no evidence that any locking device failed to function properly at any time until after Piping Company's employees had put the scaffold in use for their purposes. Was Cranston\u2019s relationship towards plaintiff such that the law imposed upon him the legal duty to exercise reasonable care to inspect the said locking devices on the scaffold during the period the scaffold was in use by Piping Company\u2019s employees so as to cast liability upon defendant in the event such an inspection would have disclosed defects therein?\nThe annotation in 44 A.L.R. 932-1134, under the caption, \u201cLiability of the contractee for injuries sustained by the contractor\u2019s servants in the course of the stipulated work,\u201d and decisions cited in the supplements, deal exhaustively with decisions in other jurisdictions, including the English cases, relating to a wide variety of factual situations. Cases are cited, including Coughtry v. Globe Woolen Co., 56 N.Y. 124, 15 Am. Rep. 387, in support of the proposition that \u201ca contractee who agreed to provide a contractor with a particular instrumentality for the purposes of the stipulated work is ordinarily liable for any injury which a servant of the contractor may sustain, during the progress of the work, by reason of a defect which was known to the principal employer, or which he might have discovered by the exercise of reasonable care, at the time when the instrumentality was turned over to the contractor.\u201d 44 A.L.R. 1048 et seq. Plaintiff cites Coughtry v. Globe Woolen Co., supra, as an authority upon which he now relies. On the other hand, cases are cited in support of the proposition that \u201cAn action brought by a contractor\u2019s servant to recover for injuries caused by a defect in an instrumentality gratuitously furnished by the contractee for the purposes of the stipulated work is maintainable, or not maintainable, according as the contractee had or had not actual knowledge of the existence of the defect at the time when the transfer of the instrumentality occurred.\u201d 44 A.L.R. 1079 et seq. The latter statement is in accord with the text in 35 Am. Jur., Master and Servant sec. 162, and in 57 C.J.S., Master and Servant sec. 604.\nIn Paderick v. Lumber Co., 190 N.C. 308, 130 S.E. 29, the death of plaintiff\u2019s intestate, an employee of an independent contractor, was caused by a defective \u201cskidder\u201d or \u201cloader,\u201d by means of which logs were placed on railroad cars. It was held that since defendant had agreed to furnish the loader for use by the independent contractor, the liability of defendant to plaintiff\u2019s intestate, in respect of defects in the loader, rested upon principles applicable to the relationship of master and servant. While there was no recovery in Moore v. Rawls, 196 N.C. 125, 144 S.E. 552, the basis of decision in the Paderick case was noted and the rule was restated.\nIn Cathey v. Construction Co., 218 N.C. 525, 11 S.E. 2d 571, heard on demurrer to the complaint, there was a general contract for the construction of a residence. The general contractor constructed a scaffold. After its use by the general contractor\u2019s employees, a roofing subcontractor and its employees used the scaffold. The scaffold fell, injuring an employee of the subcontractor; and it was alleged (1) that the materials out of which the scaffold was built were of insufficient strength and defective, and (2) that an employee of the general contractor negligently and without warning removed a support from the scaffold. It was further alleged that prior to the letting of the subcontract for the roof, there had been a long course of dealing between the general contractor and the subcontractor involving similar contracts and that \u201cit was understood between said parties, pursuant to the course of dealing between them, that the necessary scaffolds to be used in the installation of the roof on said dwelling would be furnished\u201d by the general contractor.\nIn holding that the demurrer should have been overruled, this Court referred to the Paderick case as authority, taking occasion to point out that the relationship between defendant and plaintiff was not that of master and servant; but that where the general contractor was obligated to provide the equipment necessary for plaintiff\u2019s use the law imposed upon him a like duty with plaintiff\u2019s employer in respect of providing equipment suitable and safe for the purposes for which it was to be used.\nIn the excerpt from Coughtry v. Globe Woolen Co., supra, and in the excerpt from 27 Am. Jur., Independent Contractors sec. 30, quoted in the opinion in Cathey v. Construction Co., supra, as in the Cathey case, liability is predicated on two bases: either (1) an express obligation to provide the equipment, or (2) an implied agreement to provide such equipment as a valuable consideration and inducement to facilitate and minimize the cost of performance of the work. In both the Coughtry and Cathey cases, the defective equipment was a scaffold, allegedly built of insufficient or defective materials or workmanship, built by the defendant for use, in part at least, for the very purpose for which it was being used when plaintiff was injured.\nThe facts here are readily distinguishable from the cases cited. Here Cranston had a piece of equipment which Piping Company chose to use rather than provide its own equipment of similar type. Cranston interposed no objection. Cranston had neither constructed the equipment nor was it obligated to provide it. Under such circumstance, we hold that Cranston had. no duty to inspect the equipment before and during the period it permitted the use thereof by Piping Company\u2019s employees. Cranston\u2019s duty, a breach of which would render it liable, was to disclose to Piping Company and its employees such defects in the equipment, if any, of which it had actual knowledge or notice, which might render the use thereof dangerous, which were not apparent to Piping Company and its employees.\nPlaintiff directs our attention to Sections 388 and 392 of the Restatement of Torts where in broad terms it is stated that the law imposes upon one who supplies to another a chattel to be used for the supplier\u2019s business purposes the duty to exercise due care to discover its dangerous character or condition, if such exists. We do not understand the authors to mean that one who permits an independent contractor or its employees to use a tool, appliance or equipment, solely as a courtesy and accommodation, is liable for failure to exercise due care to make reasonable inspection thereof before and during the period such use is permitted, simply because the ultimate result of the work to be done by the independent contractor is for the supplier\u2019s benefit and for which he must pay the independent contractor. Indeed, in explanation of Section 392, the author says: \u201cOne who employs another to erect a structure or to do other work and agrees for that purpose to supply the necessary tools and temporary structures, supplies them to the employees of such other for a business purpose. This is so irrespective of whether the structure or work when finished is to be used for business or residential and social purposes. On the other hand, if it is understood that 'the person who is to do the work is to supply his own instrumentalities, but the person for whom the work is to be done permits his own tools or appliances to be used as a favor to the person doing the work, the tools and appliances are supplied as a gratuity and not for use for the supplier\u2019s business purposes.\u201d The quoted explanation is not in conflict with the rule held applicable to this case.\nPlaintiff cites Martin v. Food Machinery Corp., 223 P. 2d 293, a decision of the District Court of Appeal, Fourth District, of California; Hilleary v. Bromley, 146 Ohio St. 212, 64 N.E. 2d 832, a decision of the Supreme Court of Ohio; and Kalash v. Ladder Co., 34 P. 2d 481, a decision of the Supreme Court of California. In these, and in Coughtry v. Globe Woolen Co., supra, we find expressions more favorable to plaintiff\u2019s view than in any other cases that have come to our attention. But when the facts of each case are considered, it is apparent that decision rested upon a ground not inconsistent with the view taken by this Court.\nIn Martin v. Food Machinery Corp., supra, the plaintiff was injured when a scaffold on which he was working broke, resulting from the use of defective materials. Defendant-owner was constructing a building. Its employees built the scaffold and used it in their construction work. Plaintiff was an employee of a subcontractor, who was doing the outside lathing and plastering on a cost-plus basis. The evidence disclosed that it was the custom for tradesmen and workmen, when following one another, to use the scaffold already constructed. Whether plaintiff was an invitee, under the facts presented, was held for determination by the jury. It is noted that in the Martin case, as in the Coughtry and Cathey cases, a stationary scaffold, constructed by the defendant, was involved, not a movable piece of equipment such as the scaffold owned by Cranston.\nIn Hilleary v. Bromley, supra, the second paragraph of the \u201cSyllabus by the Court,\u201d states the basis of decision as follows: \u201c2. Where a person agrees to place siding on a house and enters into a subcontract with another whereby the latter is to apply the siding and the former to supply ladders to be used in such work, such supplying is a bailment for the mutual benefit of the parties and the bailor is bound to exercise ordinary care in making the ladders safe for their intended purpose or to disclose to the bailee such defects in the ladders as it was the bailor\u2019s duty, in \"the exercise of ordinary care, to discover.\u201d\nIn Kalash v. Ladder Co., supra, the action was against the manufacturer of a ladder which collapsed while plaintiff was at work thereon in his employer\u2019s business. The principles applicable to a manufacturer of equipment as set forth in the leading case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas. 1916C, 440, were applied.\nEven where the relationship is that of master and servant, and the duty devolves upon the master to exercise due care to inspect at reasonable intervals, tools, appliances and equipment furnished by him to his servant for the performance of his work (Womble v. Grocery Co., 135 N.C. 474, 47 S.E. 493; West v. Tanning Co., 154 N.C. 44, 69 S.E. 687; Cotton v. R. R., 149 N.C. 227, 62 S.E. 1093), such duty does not apply to a simple tool, such as a hammer, axe, chisel, spade, etc., because \u201cthe employee, by using the tool, has had the opportunity to observe defects, and ... his knowledge is equal or superior to that of the employer.\u201d Mercer v. R. R., 154 N.C. 399, 70 S.E. 742. The reason underlying the rule relating to simple tools applies equally when the servant discovers that, unknown to his master, an appliance or equipment has become defective in the course of his use thereof, unless he makes such defect known to his employer so that the defect may be repaired or a new appliance or new equipment furnished or so that the master may instruct the servant to desist from further use of the defective appliance or equipment.\nThe relationship between Cranston and plaintiff was not that of master and servant. But in no aspect of the case would Cranston\u2019s liability to plaintiff be greater than if such were their relationship.\nIf plaintiff\u2019s evidence is accepted, plaintiff, in the course of his use of the scaffold, actually discovered the alleged defective condition of one or more of the casters or screws used therewith. His actual knowledge of the repeated failure of the locking device on one or more of the wheels was based on his personal experience with and use of the scaffold. When a person has knowledge of a dangerous condition, a failure to warn him of what he already knows is without significance. Perry v. Herrin, 225 N.C. 601, 35 S.E. 2d 883; Presley v. Allen & Co., 234 N.C. 181, 66 S.E. 2d 789. Here plaintiff alleges that the very defective condition of which he was fully aware was the proximate cause of his injury.\nIt is apparent that plaintiff\u2019s knowledge of the alleged defective condition of the scaffold was superior to that of Cranston. Indeed, Cran-ston had no knowledge thereof. Evidence of notice to Philpott, the storeroom keeper, and to Hunsinger, the steam-fitter\u2019s helper, rather than to Gaffney or Hill, whom plaintiff alleges were in charge of Cran-ston\u2019s equipment, including the scaffold, was not notice to Cranston. Too, the fact that Piping Company, plaintiff\u2019s employer, knew of the alleged defective condition, was not chargeable to Cranston.\nIt is further noted that there is no evidence that the locking device failed or that the scaffold rolled at any time when the equipment was used by persons other than Piping Company\u2019s employees, plaintiff and his co-workers.\nIn Deaton v. Elon College, 226 N.C. 433, 38 S.E. 2d 561, the plaintiff\u2019s intestate was an independent contractor. Judgment of nonsuit was affirmed. What is said by Barnhill, J. (now C. J.), is appropriate here: \u201cThe owner is not responsible to an independent contractor for injuries from defects or dangers of which the contractor knew or should have known, \u2018but if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is liable for resultant injury.\u2019 (Citations omitted.)\u201d\nAccording to plaintiff\u2019s testimony, Piping Company\u2019s employees, including plaintiff, shortly before plaintiff\u2019s injury, removed the brace on the scaffold adjacent to the heater on which they were working. Defendant contends with much force that the removal of this brace, considered with the weight and position of the workmen and the steel plate, so weakened the scaffold and platform that it should be inferred that they became unsteady dr shifted, causing plaintiff to lose his balance; and that any further movement of the scaffold was incident to the fall of plaintiff and of Cagle from the platform. Obviously, there was some movement of the scaffold or platform. Plaintiff and Ferguson testified that it rolled. However, it was physically impossible for them to see the casters or wheels from where they were standing on the scaffold, then holding and placing the steel plate against the heater.\nPlaintiff\u2019s testimony is direct and positive that the bolts were tightened and the wheels locked before plaintiff and his fellow-employees went upon the scaffold on this occasion. After the accident, no inspection was made to determine whether the threads on any cap screw were worn or stripped or whether any wheel was then unlocked. On the contrary, Cagle testified that he continued to use the scaffold, without alteration, for two weeks after the accident, during which time he had no trouble with the locking device. However, since we have reached the conclusion that the judgment of involuntary nonsuit should be affirmed on the basis of the legal principles declared above, we need not decide whether the testimony of plaintiff and Ferguson, considered in relation to the physical facts and undisputed evidence, is sufficient to support the plaintiff\u2019s allegation and theory of the case, namely, that the locking device failed and the scaffold rolled.\nThe court excluded a telegram and certain letters. These tend to show that from September, 1951, until Piping Company\u2019s employees got on the job in late January of 1952, Sirrine & Company, prodded by Cranston, had been urging Piping Company to go ahead with the work. However, as plaintiff frankly admits in his brief, these letters were offered solely for the purpose of showing that Cranston wanted the work to proceed as rapidly as possible. Admitted evidence tends to establish this fact. For that matter, in the salubrious but chilly air of Fletcher, North Carolina, in mid-winter, Cranston\u2019s desire that the deficiencies in its heating system be remedied without delay is obvious. The exclusion of these exhibits does not affect decision as to nonsuit.\nIt appears that plaintiff received serious personal injuries while in the employment of Piping Company. He was entitled to compensation benefits. He has received the compensation to which he was entitled under the Workmen\u2019s Compensation Act. No doubt the amount thereof was inadequate compensation for his injuries. Even so, we find no evidence in this record sufficient to impose liability upon Cranston for the unfortunate accident. Hence, the judgment of involuntary nonsuit is\nAffirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "G. T. Carswell and Robinson & Jones for plaintiff, appellant.", "Carpenter & Webb for defendant, appellee." ], "corrections": "", "head_matter": "HORACE B. PETTY v. CRANSTON PRINT WORKS COMPANY, a Corporation.\n(Filed 13 January, 1956.)\n1. Negligence \u00a7 17\u2014\nIn order to recover for actionable negligence plaintiff must establish (1) a legal duty, (2) a breach thereof, and (3) injury proximately caused by such breach.\n2. Master and Servant \u00a7 12\u2014\nIn an action by the employee of an independent contractor against the contraetee to recover for personal injuries, the duty owed by the contractee to the employee arises from and is determined by the relationship subsisting between them.\n3. Master and Servant \u00a7 4a\u2014\nWhere a subcontractor is employed to make necessary repairs in a heating system, subject to the right of the contractor and the owner to inspect but without the right of supervision during the progress of the work, the subcontractor is an independent contractor, and in regard to the liability of the owner for injury to an employee of the subcontractor, whether the contractor was an agent of the owner or was acting for itself in the discharge of a duty owed the owner, is immaterial.\n4. Master* and Servant \u00a7 12\u2014\nA contractee who furnishes an independent contractor an instrumentality for the performance of the work gratuitously without contractual obligation or usage requiring the furnishing of such instrumentality, is not under duty to inspect the equipment before or during the period of permissive use, but is under duty only to disclose latent defects of which it has actual knowledge or notice.\n5. Same\u2014\nThe liability of the contractee for injury to an employee of the independent contractor in the performance of the work cannot be greater than that of an employer to an employee.\n6. Same \u2014 Nonsuit held proper* in this action by employee of an independent contractor against contractee to recover for negligent injury.\n..Plaintiff, an employee of an independent contractor, was injured when he fell from a movable scaffold in the performance of his work. The allegations and evidence were to the effect that the scaffold was furnished by the contraetee, that at each caster of the scaffold was a set screw to lock the caster and wheel, hut that during the progress of the work it was discovered that the set screws were defective, and the contractor\u2019s employees obtained from the contractee\u2019s storeroom keeper a cap screw in lieu thereof, there being no set screws in stock, that the cap screw repeatedly became stripped in use and was several times replaced by another, and that while the employees of the independent contractor were at work on the top of the scaffold it suddenly rolled, causing plaintiff employee to fall to his injury. It further appeared that the contractor had his own \u201cA\u201d ladders, that the eontractee neither constructed the scaffold nor was obligated to provide it, and that its use by the employees of the contractor was merely permissive. Sold: Nonsuit was proper.\n7. Same\u2014\nWhere the evidence discloses that the employees of an independent contractor had actual knowledge of an alleged defect in the scaffold owned by the eontractee and used permissively by the employees of the contractor, failure of the eontractee to warn of the defect is without significance.\n8. Same\u2014\nWhere employees of an independent contractor permissively use the scaffold of the eontractee in the performance of their work, notice of a defect therein given the contractee\u2019s storeroom keeper or other employee rather than the eontractee\u2019s employees in charge of the equipment, is not notice to the eontractee, nor is notice to the contractor notice to the eontractee.\n9. Appeal and Error \u00a7 39e\u2014\nWhere the evidence admitted tends to establish a particular fact, the exclusion of other evidence offered for the purpose of establishing the same fact, cannot be prejudicial upon review of judgment as of nonsuit.\nAppeal by plaintiff from Patton, Special J., 21 March, 1955, Extra Term, of MeCklenburg.\nCivil action to recover damages for personal injuries, alleged to have been caused by the negligence of defendant. Plaintiff\u2019s appeal is from a judgment of involuntary nonsuit.\nPlaintiff was injured on Sunday, 2 March, 1952, between 8:30 and 10:00 a.m., when he fell from a rolling stage scaffold. This occurred while plaintiff, Ferguson and Cagle, employees of Industrial Piping Company, were at work on the scaffold platform, undertaking to replace and fasten on a heater suspended from the ceiling a steel plate about 5 by 8 feet in size and weighing about 75 pounds. Plaintiff was a steamfitter\u2019s helper. Ferguson was a steam-fitter welder. Cagle, a steamfitter, was foreman on this job.\nPiping Company\u2019s employees were at work in the manufacturing plant of Cranston Print Works Company, at Fletcher, N. C. The scaffold belonged to Cranston. It was kept in the plant. It had been used and was available for use by regular Cranston employees and by others, e.g., painters, who came in to do work in the plant, referred to as \u201ctransient employees.\u201d\nCranston\u2019s plant was built in 1948. J. E. Sirrine & Company, under a cost-plus contract, designed the plant and supervised its construction, including the heating system. In the Fall of 1951, the heating system wasn\u2019t functioning properly. Of the 30 heating units in the plant, some 15 to 23 of the heaters had frozen and \u201cbusted.\u201d Gaffney, Cranston\u2019s plant engineer, \u201ccalled on\u201d J. E. Sirrine & Company to remedy the deficiency, which Company made arrangements for the Piping Company, located in Charlotte, to go to the Cranston plant and do the necessary work.\nIn the latter part of January, 1952, Piping Company sent Cagle, foreman, and a crew of workmen, including plaintiff, to the Cranston plant. The equipment they took, for work on overhead heaters, consisted of \u201cA\u201d ladders. By use thereof, Cagle checked the heaters. The defective heaters were identified.\nThe ceiling of Cranston\u2019s plant was about 21 or 22 feet high at the location of the heater on which Piping Company\u2019s employees were working when plaintiff fell. Each heater was housed \u201cin a big box about 8 feet long and about 5 or 6 feet high and maybe 3 or 4 feet deep. There were fans in there, motors, heating coils and controls. They were mounted up in the ceiling of the plant.\u201d \u201cEach of these heaters was a separate unit.\u201d To gain access to the machinery inside the heater box, it was necessary to remove the steel plate, described above. In replacing it, it was necessary to hold the plate against the heater and adjust its position exactly so as to line up the holes in the plate with those within the heater box so that the plate could be fastened by means of screws. Piping Company\u2019s employees were attempting to do this when plaintiff fell.\nThe scaffold consisted of (!%\") metal tubing. As to height, it consisted of three 5-foot sections, one on top of the other(s). All three sections were set up and in use on the occasion plaintiff fell. The area at the top was a space 5x7 feet. The scaffold rested on four casters, one at each corner. At each caster was a set screw or wing bolt, with threads up to the head of the screw or bolt, which bolt could be tightened by hand. When tightened, this bolt would lock the caster and wheel. A threaded bolt, in the vernacular of the machinist, is a screw.\nBefore considering the evidence bearing more directly on the subject of defendant\u2019s actionable negligence, we look to the complaint.\nPlaintiff alleged, in substance: that \u201cit was necessary for them (Piping Company\u2019s employees) to have a scaffold or other elevated appliance to stand on in doing their work\u201d; that Cranston \u201cfurnished to the plaintiff\u2019s employer a rolling stage scaffold ... in doing the work\u201d it \u201chad contracted to do\u201d for Cranston; that Gaffney, Cranston\u2019s plant engineer, had the duty of keeping Cranston\u2019s equipment, particularly the scaffold, \u201cin good repair and in a safe condition for use and equipped with proper set screws\u201d; that Hill, Cranston\u2019s employee, \u201cwas charged with the duty of determining whether said scaffold was fit for use in connection with said work, and with the further duty of seeing that it was in good repair and safe for any use to be made thereof\u201d; that the scaffold \u201cwas equipped with rollers or wheels and set screws which were supposed to lock the rollers or wheels in place\u201d; and that when plaintiff and his fellow employees were at work thereon, the scaffold \u201csuddenly rolled away from the part of the heating equipment upon which the plaintiff was working while standing on said scaffold, causing plaintiff to fall between the scaffold and the heating equipment to the floor,\u201d and to sustain serious and permanent injuries.\nPlaintiff\u2019s specifications of Cranston\u2019s actionable negligence are, in substance: (1) that proper set screws were not used and those used were defective, on account of which the scaffold was not in a safe condition; (2) that such defects were not apparent to plaintiff; and (3) that Cranston failed to exercise due care to discover such hidden defects and to warn plaintiff thereof.\nBefore trial, judgment of voluntary nonsuit was entered as to Gaff-ney and Hill, originally defendants herein.\nGaffney, as Cranston\u2019s plant engineer, was \u201cin charge of maintenance, construction, and engineering work and in charge of the equipment as well as the building maintenance of the equipment.\u201d Hill was in charge of Cranston\u2019s \u201cheating system and was foreman of the pipe fitters, heating plant, boiler room.\u201d Conner was Cranston\u2019s chief mechanic. Philpott had charge of Cranston\u2019s storeroom for tools and parts. Hun-singer was employed by Cranston as a steam-fitter\u2019s helper.\nAfter Piping Company\u2019s employees started work, they located the scaffold. Plaintiff and Cagle went to a lumber pile in the yard on Cranston\u2019s premises, got some boards and made a platform for the top of the scaffold. \u201cThe boards were of random length . . .\u201d One or more extended some 14 inches beyond the cross-piece of the scaffold. Plaintiff testified: \u201cBefore going upon the scaffold, we locked the wheels by tightening the screws that fasten the wheels and got some boards and scotched each wheel up. We then climbed the scaffold and started taking the back off the heater, a cover in the back of the heater.\u201d\nAccording to plaintiff: Piping Company\u2019s employees used the scaffold 2 or 3 days before he \u201cnoticed anything about it moving.\u201d Then, when they were in process of taking the back off a heater \u201cthe scaffold rolled.\u201d They got down, \u201cunloosened all the pins (set screw or wing bolts) in the wheels and took them out . . . discovered that one pin the wheel had been \u2014 the threads on it had been stripped very bad.\u201d He took it to Philpott and asked for another pin. Philpott gave him a cap screw to replace the pin. It was different in that it did not have any flanges on it. \u201cBy flanges, I mean a wire pin running through the set screws that's in these wheels now (referring to exhibit in courtroom) so you could tighten it up with your fingers.\u201d \u201cThe one we got from the storeroom had to be tightened with a pair of pliers or a wrench.\u201d He took the cap screw to Cagle. It did not have the proper thread. Cagle and plaintiff took it back to Philpott, who then gave them a cap screw \u201cwith the proper thread.\u201d Plaintiff testified: \u201cHe said he had some (set screws) ordered and was supposed to be in that week.\u201d \u201cHe told me it (the cap screw) would hold and would work until the others came in.\u201d \u201cWe took the cap screw back and used it instead of a set screw.\u201d \u201cWe tightened it up and it held. The one that we took out of there would spin.\u201d Plaintiff testified: \u201cAfter the screw was stripped it was our practice to check that cap screw some eight or ten times a day.\u201d They did this each time they loosened the screws in order to move the scaffold from place to place. The cap screw was tightened with a wrench. After a while, \u201cwe discovered that the threads on that cap screw had become stripped, . . . would spin like the original set screw . . .\u201d When they found they couldn\u2019t tighten it with a wrench so as to make it hold, \u201cwe took it out and carried it to the storeroom and obtained another and put that cap screw in the scaffold.\u201d In all, at least three cap screws were so obtained and used. The set screw had more threads on it than the cap screw, threads- all the way up to the. bolt. Plaintiff\u2019s testimony relates to the use of these cap screws in-lieu of the set screw on which the threads had been stripped. His testimony does not identify the particular caster or wheel where this worn set screw was discovered.\nAccording to Ferguson: he got to the Cranston plant some two weeks after Cagle and plaintiff had started their work. After he had worked there some 3 to'5 days, \u201cwe was up on the scaffold\u201d when \u201cthe wheels rolled on it.\u201d He then examined the wheels, \u201cfound the holes to be defective and the screw hole in the caster was defective and that the bolts they had' put in them had also partially lost their threads.\u201d \u201cI found the set screws defective in two of the wheels. The sockets in the castings were defective, they were very badly worn. The new screw (sic) that were put in there still had some side motion in there. When we put a new screw in it would hold temporarily. ... I told the storekeeper, Mr. Philpott, that the sockets in these wheels were defective or something similar to that.\u201d They didn\u2019t have them, so they had to take cap screws instead. A set screw is \u201ccase-hardened.\u201d \u201cA cap screw is mild steel, ordinarily it\u2019s put in permanently to stay in one place. A set screw is put in to be changed at different times, therefore, it\u2019s hard.\u201d The two sockets that were worn were on the same side of the scaffold, the left side; and when plaintiff fell they were on the side plaintiff was on. Before plaintiff fell, \u201cMr. Hunsinger came to us to borrow the scaffold . . . and we told him that we had put them (boards) around there to try to keep the scaffold from moving and, of course, we pointed out the defective caster to Mr. Hunsinger. Then after we discussed the wheels and he took the scaffold and done some minor job, he had it for some time, and he brought it back to us then.\u201d\nAccording to Cagle: When they needed parts, \u201cI could borrow it from the parts room.\u201d Piping Company was to replace or pay for such parts. No conversation with Philpott is mentioned. When they found the set screw, where the threads were stripped, all set screws were good except the one. Later, they discovered that \u201cthe threads in one of the housings was stripped. ... At that time we decided to replace all the set screws\u201d and put them in. The \u201ccap screws we obtained matched and fit in there properly.\u201d This was three or four weeks before plaintiff fell. \u201cWe tightened them (the cap screws) with an adjustable wrench.\u201d\nDuring this period of five or six weeks before plaintiff\u2019s injury, Cran-ston employees came and got the scaffold at least three times. On one occasion, Gaffney notified Cagle that painters were coming in and would be using the scaffold over the coming week-end but that \u201che would see that from every week-end there on out\u201d Piping Company\u2019s employees \u201cwould have the scaffold.\u201d\nNow, coming to the occasion of plaintiff\u2019s fall and injury.\nAccording to plaintiff: He, Cagle and Ferguson were on the scaffold platform. Facing the open end of the heater box, he was at the left, Cagle was in the center and Ferguson was at the right. Plaintiff\u2019s right hand was under the steel plate, his left hand gripping the left end thereof. Ferguson\u2019s position was exactly reversed. Cagle was giving directions as to lining up the steel plate opposite the holes through which it was to be fastened by screws. The scaffold platform was placed \u201cflush up against the heater.\u201d \u201cWithout moving one of the cross-pieces in place, we couldn\u2019t get close enough to the heater to work on it. We took one of the cross-pieces off the scaffold so as to be able to work on the heater.\u201d The heater was a little longer than the scaffold. Cagle asked him to raise his end a little bit. When he did so, \u201cthe scaffold started rolling backwards and pitched me forwards down between the heater and the scaffold, causing me to go off head-first.\u201d He knew nothing more until he came to in the hospital. Before going upon the scaffold that day, \u201cwe checked all the set screws and them cap screws we had in the scaffold to make sure they were tightened, we jarred, I mean shook, the scaffold to make sure it was tight and we also made sure it was tight by putting a wrench on the cap screws and testing them with our hands, the set screws, and we also scotched the boards up under the wheels a little bit tighter.\u201d\nAccording to Ferguson: Under circumstances substantially the same as described by plaintiff, \u201csuddenly the scaffold began to roll away. Mr. Petty\u2019s side, . . . began to roll away from the heater.\u201d At the time of plaintiff\u2019s fall, the scaffold moved about 6 or 8 inches. After plaintiff and Cagle had fallen and he (Ferguson) had moved around, \u201cit kept on moving around about 3% to 5 feet on that end. My end didn\u2019t move any at all hardly, if any.\u201d\nAccording to Cagle: \u201cOn the occasion of his (plaintiff\u2019s) fall ... I felt some part of the scaffold shift a little bit and throw Mr. Petty off balance and at that moment we both fell through the heater.\u201d \u201cQ. But so far as you know, on that occasion the scaffold did not roll? A. Not that I know of.\u201d\nNo examination was then made of the casters, wheels, screws, etc. Cagle continued to work on the scaffold about two weeks after plaintiff was injured. Cagle testified: \u201cIt did not at any time during that period roll with me that I remember.\u201d\nOther evidence, largely unfavorable to plaintiff, need not be recited.\nAt the close of plaintiff\u2019s evidence, the court granted defendant\u2019s motion for judgment of involuntary nonsuit. Plaintiff excepted and appealed, assigning as error the rendition of such judgment and the court\u2019s exclusion of certain evidence offered by plaintiff.\nG. T. Carswell and Robinson & Jones for plaintiff, appellant.\nCarpenter & Webb for defendant, appellee." }, "file_name": "0292-01", "first_page_order": 332, "last_page_order": 345 }