Shorter v. Mooresville Cotton Mills

BkogdeN, J.

The right of plaintiff to recover damages in this action is based upon the theory that Pruitt, a fellow-servant, was incompetent, reckless and dangerous, and that Pruitt carelessly turned the pulley when the hand of plaintiff was exposed in a dangerous machine, and thereby inflicted serious and permanent injury.

The law presumes that an employer has properly performed his duty in employing his workers, and, therefore, he is not responsible for injuries to an employee attributable solely to the negligence of a fellow-servant. This principle was declared in Walters v. Lumber Co., 163 N. C., 536 , 80 S. E., 49 , as follows: “The presumption is that the employer has properly performed his duty in the respect suggested, and before responsibility can be fixed on him it must be established by the greater weight of the testimony that the employee has been injured by reason of the carelessness or negligence due to the incompeteney of a fellow-servant ; that the master has been negligent in employing or retaining an incompetent employee after knowledge of the fact, either actual or constructive.” The principle thus announced is fully supported by the decisions of the appellate courts and by all the leading textwriters.

In the case at bar, there is no evidence that the defendant was negligent in employing Pruitt. So that the liability of the defendant must rest upon either actual or constructive notice of the incompetency and carelessness of the servant complained of. The evidence shows that on the morning of the day he was injured plaintiff complained to his overseer of the carelessness and incompetency of Pruitt. Therefore, the plaintiff had done all that he could be required to do under the circumstances. He had no power to discharge Pruitt, and viewing his evidence in its most favorable light, it must be assumed that his complaints were made in good faith. These complaints were sufficient evidence of express notice to be submitted to the jury.

Nor in view of the facts disclosed by the record can the plaintiff be denied recovery as a matter of law by the application of the principle of assumption of risk. Upon this aspect of the case the law was settled in Walters v. Lumber Co., 165 N. C., 388 . The Court quoted with approval the following: “The hiring or retention of a servant whose unfitness for his duties, whether it arises from-his want of skill, his physical and mental qualities, or his bad habits, if known, actually or constructively, to the master, is culpable negligence, for which the master must respond in damages to any other servants who may suffer injury through that unfitness. The essential ground upon which the liability thus predicated is based is that The master impliedly contracts that he will use due *31 care in engaging tbe services of those who are reasonably fit and competent for tbe performance of tbeir respective duties in tbe common service.’ ” Tbe Court adding: “It therefore makes no difference that Milton Carden, whose negligence caused tbe injury, was a fellow-servant of tbe plaintiff, as tbe jury must have found that be was incompetent and that tbe master knew it before tbe plaintiff was hurt in tbe operation of tbe machine.”

Tbe question as to whether tbe recklessness of Pruitt was so obvious and injury therefrom so imminent that no person of ordinary prudence would continue to work with him, was a question of fact for tbe jury.

Maulden v. Chair Co., 196 N. C., 122 , 144 S. E., 557 .

Upon a consideration of tbe entire case we find no reversible error.

No error.