Watson ex rel. Watson v. Warsaw Construction Co.

197 N.C. 586

• Court: Supreme Court of North Carolina
• Decided: October 23, 1929
• Status: Published

Opinion

Adams, J.

At 5 :30 in the afternoon of 2 February, 1928, tbe plaintiff received tbe dynamite caps from tbe defendant’s foreman and was injured by an explosion in bis pocket on tbe day following at 1:30. Tbe material allegations of negligence, -as set forth in tbe complaint, are tbe defendant’s failure to warn tbe plaintiff of danger in handling tbe caps and its failure to provide a safe box or container for their transportation. Let us consider each of these allegations in its relation to tbe plaintiff’s evidence.

As to tbe first, it is conceded to be tbe duty of an employer to warn his employees concerning dangers which are known to him, or which in the exercise of reasonable care should be known to him, and are unknown to his employees or are undiscoverable by them in the exercise of due care, and concerning dangers which, by reason of youth, inexperience or incompetency the employees do not appreciate. Under these conditions unless the servant is warned or instructed he does not assume the risk of such dangers, and if without fault or negligence on his part he receives an injury in consequence of not having been warned or instructed the master will be liable to him in damages. West v. Tanning Co., 154 N. C., 44; Norris v. Mills, ibid., 474; Steeley v. Lumber Co., 165 N. C., 27, 34.

For the present purpose, we may admit the proposition that where explosives are given to a messenger for transportation in a package apparently harmless, and he has no information or notice of their general character, and carries them with the care adapted to their apparent nature, the person delivering the explosives will ordinarily be held liable for injuries resulting from an explosion during the period of transportation. But without saying that the jury may not reasonably have inferred from the evidence that the defendant had been negligent in failing to warn the plaintiff of probable harm, we are confronted with the fact that no injury resulted to the plaintiff during the course of his employment — i. during the time he was engaged in obedience to the foreman’s orders in carrying the caps from the barn to the shack. His regular service was that of a teamster. The reason of requiring warning in appropriate cases is to impress upon the employee the necessity of keeping the danger in mind while performing the specific duties required of him and to give him information by which to determine whether he will continue in the service. 39 C. J., 489. As a rule an employer will not be liable for failure to instruct an inexperienced or ignorant employee unless the injury sustained during the employment resulted from the employee’s unskillfulness or want of knowledge.

With respect to the caps and the fuse the plaintiff’s employment ceased, as we have indicated, when he put them in the house. He had nothing more to do with them. His service was of short duration: not more than thirty minutes intervened between the time he received the caps -and the time he put them on the shelf. No accident or injury occurred on this short journey or while the particular employment continued. If the object of warning is to save the employee from injury while engaged in the service for which he is employed, the employer’s failure to warn him will not, as a general principle, be held for actionable negligence where no injury is sustained during the continuance of the service, and will not be regarded as having contributed to an injury which did not occur during the period to which the instruction was intended to apply. Mitchell v. R. R., 176 N. C., 645; Wilson v. Clark, 110 N. C., 364; Mather v. Rillston, 156 U. S., 391, 39 Law Ed., 464. For these reasons tbe plaintiff’s first position cannot be maintained.

The second proposition advanced by the plaintiff raises the question whether the defendant failed in another respect to exercise due care for his safety. >

The defendant had a right to assume that the plaintiff would obey the foreman’s instructions and leave in the house all the caps the foreman had given him. To meet this situation the plaintiff avers that the defendant negligently failed to provide a suitable container, and that on account of a defective lid five or six caps came out of the box while it was in the pocket of his overalls, and without his knowledge remained there until the explosion occurred in the afternoon of the day following. He contends that his right to recover damages is not dependent upon the existence at the time of the injury of any contractual relation between him and the defendant. His allegation is this: “The plaintiff noticed when he took the box from his pocket at the shack that one corner of the tin or copper lid was slipped up slightly, but did not know that any of the said caps had come out of the box into his pocket.” Elsewhere in the complaint he refers to the box as “containing one hundred caps and being made of tin with a loose and springy lid thereon.” Upon his allegations he rests the contention that the defendant by its foreman, while the temporary relation of master and servant existed, negligently put in operation a dangerous agency which, continuing after the relation had ceased, caused .an explosion which resulted in his injury. These allegations in their relation to the evidence must be considered in the light of familiar principles underlying the law of negligence.

The relation between the conception of negligence and liability in the field of trespass involves three propositions: (1) “For intentional injury done by the direct application of force a man is absolutely liable. (2) For injury done by the direct application of force under such circumstances that the law can ascribe to the actor an intention to do the harm, he is also absolutely liable. (3) But where the actual intention is absent and the circumstances are such that the law will not raise a presumption of intention against the actor, there liability cannot exist unless negligence, in the sense of some degree of blameworthy remissness or lack of care on the part of the actor is shown. In other words, negligence is essential to liability for unintentional injury, and it is a good defense in an action of trespass for unintended harm for the defendant to show that he was in no way negligent or to blame in doing the act which proximately caused the damage.” 1 Street’s Foundations of Legal Liability, 74.

The essential elements of actionable.negligence may be stated as (a) a failure to exercise commensurate care, (b) involving a breach of duty, (c) resulting proximately in damage to the plaintiff. Hale, on Torts, 449; Jaggard on Torts, cb. 12, see. 246. The degree of care required of persons having the possession and control of dangerous explosives has been variously defined as “the utmost,” “the bigbest,” “reasonable,” and “commensurate.” Brittingham v. Stadiem, 151 N. C., 299; 25 C. J., 185. But in modern legal thought the notion that there are degrees of negligence is not approved. In Wilson v. Brett, 11 M. & W., 113, Rolfe, B., assailing the propriety of distinguishing such degrees, insisted that negligence in any degree is merely negligence — a statement of the law to which our own decisions conform, except perhaps in reference to the law of bailment. Hanes v. Shapiro, 168 N. C., 24. It is said in Ridge v. R. R., 167 N. C., 510, 526, to be “generally conceded that there is no classification of negligence with respect to- the degree of care required in any given ease, as being slight, ordinary, and gross, as such a distinction can serve no practical purpose and is often very misleading. Steamboat New World v. King, 16 How. (U. S.), 469, 475; Milwaukee, etc., R. Co. v. Arms, 91 U. S., 489; 8 Enc. of U. S. S. C. Reports, pp-. 878, 879, and notes.” Also that “tbe requisite degree of care to be employed is that which is suited to the particular transaction being investigated, and reasonably commensurate with its circumstances and surroundings, that being supposed to be the care which any man of ordinary prudence will use, as dictated to him by a natural sense of bis own protection and safety, if bis personal rights were involved.” And in Commissioners v. Jennings, 181 N. C., 393, 400: “Counsel discussed before us at some length the difference between ordinary care, the bigbest degree of care and gross negligence, but we deem it unnecessary to draw any distinction between them. It is all but ordinary care, which means that degree of care which a. man of ordinary prudence would use in the same or similar circumstances.” Tbe degree of care which a person is required to exercise in a particular situation to absolve himself from the imputation of negligence may vary with the obviousness of the risk; but with respect to bis liability the ultimate question is whether be exercised due or commensurate care.

There is no substantial basis for the plaintiff’s contention that the defendant did not exercise the required care in providing a suitable container for the caps. It is generally held that “reasonable foresight of barm supplies the criterion for determining the preliminary question whether negligence exists in a particular case.” Tbe defendant contends that under the circumstances related by the plaintiff it could not reasonably have anticipated or foreseen the infliction of any injury. According to this theory foresight of barm is a condition of liability, the test of the defendant’s negligence being whether in the exercise of due care it could have foreseen, not necessarily the specific injury sustained, but consequences of a generally injurious nature. While a person may be charged with knowledge of that which as a reasonably prudent person he should have foreseen, he is not under any duty to foresee what a reasonably prudent person would not have foreseen, or under any obligation to provide against a danger he would not reasonably have anticipated. In Carter v. Lumber Co., 129 N. C., 203, 209, it is said: “No act or omission, though resulting in damage, can be deemed actionable negligence unless the one responsible could, by the exercise of ordinary care under all the circumstances, have foreseen that it might result in damage to some one. 16 Am. & Eng. Enc., 439; Pollock on Torts, 36, 37; Shear, and Redf. on Neg., 10. There must be, before a recovery can be had in actions for negligence, a breach of duty on the part of the defendant, and the act or omission, producing the breach of duty, culpable in itself, must be such as a reasonably careful man would foresee might be productive of injury; and one is not'liable for an injury which he could not foresee. Smith on Neg., 24; Blythe v. Water Co., 11 Exc., 781.” And in Drum v. Miller, 135 N. C., 204, 208: “There is a distinction, we think, between the case of an injury inflicted in the performance of a lawful act and one in which the act causing the injury is in itself unlawful or is at least a wilful wrong. In the latter case the defendant is liable for any consequence that may flow from his act as the proximate cause thereof, whether he could foresee or anticipate it or not; but when the act is lawful, the liability depends, not upon the particular consequence or result that may flow from it, but upon the ability of a prudent man, in the exercise of ordinary care, to foresee that injury or damage will naturally or probably be the result of his act. In the one case he is presumed to intend the consequence of his unlawful .act, but in the other, while the act is lawful, it mhst be performed in a careful manner; otherwise it becomes unlawful, if a prudent man in the exercise of proper care can foresee that it will naturally or probably cause injury to another, though it is not necessary that the evil result should be, in form, foreseen.” Also in Bradley v. Coal Co., 169 N. C., 255: “Before there could be a recovery on the part of the plaintiff it was necessary for him to show a breach of duty on the part of the defendant . . . some act or omission producing the breach culpable in itself and such as a reasonably careful man would foresee might be productive of injury; for one is not liable for an injury which he could not foresee.” Of like tenor are Winborne v. Cooperage Co., 178 N. C., 88; Jefferson v. Raleigh, 194 N. C., 479; and Street v. Coal Co., 196 N. C., 178.

But the foresight of harm as an element of actionable negligence must not be confused with foresight as an element or test of proximate cause. The idea that .a wrongdoer is liable in damages for all the consequences which flow from his wrongful act is sometimes expressed by saying that the consequences for which he is liable are those which he ought reasonably to have foreseen; but anticipation of harm as an element of negligence is distinct from the anticipation of consequences as an element of proximate cause. The latter phase is set forth in Brewster v. Elizabeth City, 137 N. C., 392; Wright v. Thompson, 171 N. C., 88; Whitt v. Rand, 187 N. C., 805, 808, and other cases. See 45 C. J., 656, 657, 913, 917.

The container was a small tin or copper box, the lid of which, according to plaintiff’s testimony, would come off easily, because the corners were loose and not fastened together. He said that to the best of his knowledge the lid was sprung and that he pushed it back when he took the box from his pocket: “I reached my hand in my pocket and then noticed that the lid was slipped up or had come off, but it went back on and I set it up ; seeing .and knowing that, I didn’t put my hand in my pocket to see if any of the caps had come out. I never thought about it.” When he retired at night he laid his pants by the side of the bed,' and the next day he wore them.

It is important to note the plaintiff did not say that any of the caps came out of the box and remained in his pocket; this is a matter of conjecture. He did not say that any of the caps exploded in his pocket. His words were, “I jumped down to get it (his whip), and when I hit the ground it fired. I don’t know what it was that fired.”

The plaintiff’s evidence considered as a whole does not disclose conditions from which we can conclude as a matter of law that the defendant should reasonably have foreseen that dynamite caps would' escape from the box and be carried in the plaintiff’s pocket for nearly twenty-four hours .and then, when subjected to a jar, explode and inflict the alleged injury, or, indeed, that any other injury would result. In the box there was manifestly no defect that was not as apparent to the plaintiff as to the defendant — -in any event nothing more than an ill-fitting lid; and if the plaintiff, after seeing the lid was loose, did not suspect that caps might have been left in his pocket, it is not reasonable to say that the defendant should be held to liability for failing in the exercise of due care to foresee such an unusual and unaccustomed contingency.

The motion for nonsuit should have been granted. Judgment

Reversed.