McLean v. Andrews Hardwood Co.

Supreme Court of North Carolina

McLean v. Andrews Hardwood Co.

156 S.E. 528, 200 N.C. 312, 1931 N.C. LEXIS 310

CourtSupreme Court of North Carolina

DecidedJanuary 27, 1931

StatusPublished

Cited by1 cases

This text of 156 S.E. 528 (McLean v. Andrews Hardwood Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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McLean v. Andrews Hardwood Co., 156 S.E. 528, 200 N.C. 312, 1931 N.C. LEXIS 310 (N.C. 1931).

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Opinion

*314 ClaRksoN, J.

At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence, defendants made motions in tbe court below for judgment as in case of nonsuit. C. S., 567. Tbe motions of defendants were denied, and in tbis we think there was error.

Tbe evidence was to tbe effect that defendant, in connection with its mills operated a logging road. In tbis jurisdiction narrow-gauge logging road held “railroad,” within statute, as to employee’s contributory negligence. Stewart v. Blackwood Lamber Co., 193 N. C., 138. Contributory negligence is no bar to recovery, but mitigates, or diminishes, damages. See C. S., 3465, 3466, 3467, 3468, 3470.

Tbe evidence indicates that plaintiff brakeman and conductor was an alter ego and tbe duty was placed on him to see to tbe proper loading and inspection, and tbe injury be complains of was caused by bis nonperformance of duty for which be is barred from recovery.

In Christopher v. Mining Co., 196 N. C., at page 534, in speaking of tbe principle laid down in Mace v. Mineral Co., 169 N. C., 143 (Mace was not allowed to recover), tbis Court said: “In that case tbe foreman, an experienced miner, was killed in a mine by falling rock and dirt. Tbe workmen in tbe mine were under bis authority. Tbe manner and method of doing tbe work was left to tbe foreman’s judgment — be being in charge and bad to use due care to make tbe place to work safe, as be went, for those under him. As it were, under tbe circumstances, be made bis own place to work. Heaton v. Murphy Coal & Iron Co., 191 N. C., 835.”

In 3 Labatt, Master and Servant (2 ed.), sec. 1260, at p. 3498, we find: “A superior servant cannot recover for injuries caused by bis negligence in respect to tbe issue of orders, or in tbe matter of supervising tbe use, disposition, or movements of that part of tbe plant which is under his control.”

For tbe reasons given, tbe judgment of tbe court below is

Reversed.

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*314 ClaRksoN, J.

At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence, defendants made motions in tbe court below for judgment as in case of nonsuit. C. S., 567. Tbe motions of defendants were denied, and in tbis we think there was error.

Tbe evidence was to tbe effect that defendant, in connection with its mills operated a logging road. In tbis jurisdiction narrow-gauge logging road held “railroad,” within statute, as to employee’s contributory negligence. Stewart v. Blackwood Lamber Co., 193 N. C., 138. Contributory negligence is no bar to recovery, but mitigates, or diminishes, damages. See C. S., 3465, 3466, 3467, 3468, 3470.

Tbe evidence indicates that plaintiff brakeman and conductor was an alter ego and tbe duty was placed on him to see to tbe proper loading and inspection, and tbe injury be complains of was caused by bis nonperformance of duty for which be is barred from recovery.

In Christopher v. Mining Co., 196 N. C., at page 534, in speaking of tbe principle laid down in Mace v. Mineral Co., 169 N. C., 143 (Mace was not allowed to recover), tbis Court said: “In that case tbe foreman, an experienced miner, was killed in a mine by falling rock and dirt. Tbe workmen in tbe mine were under bis authority. Tbe manner and method of doing tbe work was left to tbe foreman’s judgment — be being in charge and bad to use due care to make tbe place to work safe, as be went, for those under him. As it were, under tbe circumstances, be made bis own place to work. Heaton v. Murphy Coal & Iron Co., 191 N. C., 835.”

In 3 Labatt, Master and Servant (2 ed.), sec. 1260, at p. 3498, we find: “A superior servant cannot recover for injuries caused by bis negligence in respect to tbe issue of orders, or in tbe matter of supervising tbe use, disposition, or movements of that part of tbe plant which is under his control.”

For tbe reasons given, tbe judgment of tbe court below is

Reversed.

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156 S.E. 528, 200 N.C. 312, 1931 N.C. LEXIS 310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mclean-v-andrews-hardwood-co-nc-1931.

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