Opinion
(Filed 16 March, 1932.)
Master and Servant C b — Evidence of employer's negligence held insufficient.
In this case held: evidence of employer's negligence was insufficient to be submitted to the jury in action by foreman to recover for injuries sustained when workman moving heavy barrels under his direction stepped on his foot.
APPEAL by plaintiff from Small, J., at October Term, 1931, of WAKE. Affirmed.
H. L. Swain for appellant.
Simms Simms for appellee.
This is an action to recover damages for personal injury alleged to have been caused by the negligence of the defendant. The defendant's motion for nonsuit was granted and the plaintiff excepted and appealed.
The plaintiff, an employee of the defendant, was in charge of a labor gang working in the defendant's yard in Raleigh. The allegation of negligence is concise. In reference to it the plaintiff testified: "I was instructed to stay with my gang of laborers and direct their work. If I did not do so I was hollered at. None of my superiors were around there when I was hurt. On the day I was hurt in August, 1927, I had received orders from Mr. Lane to straighten up some barrels of paint lying on a platform. The paint was used to paint box cars. Both old cars and new cars. It was full of paint and weighed six or seven hundred pounds. I told the three Negro men to grab hold of the barrel and end it up. I told them to grab it up. While they were doing this it became overbalanced and Richard Hall, in jumping to catch it stepped on my left foot. I was around there telling the Negroes what to do, I was bossing them. I told the men to go there and set up the barrel. I was three or four feet from the barrel when my foot was stepped on. There were some other barrels back on the platform and I could not have gotten further back but could have gotten to either side out of the way. I could have seen the movement of Richard Hall if I had looked and he could have seen me if he had looked."
The judgment of nonsuit was correct. Simpson v. R. R., 154 N.C. 51; Lloyd v. R. R., 168 N.C. 646; Potter v. R. R., 197 N.C. 17. Judgment
Affirmed.