Lee v. . Roberson

16 S.E.2d 459, 220 N.C. 61, 1941 N.C. LEXIS 472

Opinion

Stacy, C. J.

Tbe case was properly submitted to tbe jury. It is admitted that tbe defendant .bad a sufficient number of employees to bring him under tbe Workmen’s Compensation Act “and that be bad not done so.” Accordingly, without objection or exception, bis plea of contributory negligence was stricken out. Micbie’s N. C. Code of 1939, sec. 8081 (v).

Tbe defendant relies upon tbe simple tool doctrine. Newbern v. Great Atlantic, Etc., Tea Co., 68 F. (2d), 523, 91 A. L. R.,781. This cannot avail him on tbe present record, at least, not to tbe extent of shielding him from liability. King v. R. R., 174 N. C., 39, 93 S. E., 378; Wright v. Thompson, 171 N. C., 88, 87 S. E., 963; Ensley v. Lumber Co., 165 N. C., 687, 81 S. E., 1010; Reid v. Rees, 155 N. C., 231, 71 S. E., 315; Mercer v. R. R., 154 N. C., 399, 70 S. E., 742. It is true, tbe jury might have returned a verdict for tbe defendant, especially in view of tbe cross-examination of tbe plaintiff, but tbe evidence taken as a whole is such as to preclude a nonsuit.

No other question is debated on brief. Tbe verdict and judgment will be upheld.

No error.

BarNhill, J., dissents.