Harvell v. Weldon Lumber Co.
Supreme Court of North Carolina
Appeal by defendant from Ferguson, .J., at August Term, 1910, Of NORTHAMPTON. The plaintiff, an employee, was injured on a platform of tho defendant, on 22 April, 1909, while at his work.
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Appeal by defendant from Ferguson, .J., at August Term, 1910, Of NORTHAMPTON. The plaintiff, an employee, was injured on a platform of tho defendant, on 22 April, 1909, while at his work. He alleges in his complaint: “5. That for about'four months prior to said 22 April, 1909, there had been a hole in the floor of said platform about 10 inches wide and 4 feet long and located in the passway between said tracks running to kilns Nos. 2 and 3, which said hole was caused by the breaking of a plank which formed a part of the floor of said platform. “1. That on or about 22 April, 1909, it became…
1Opinion of the CourtAllen, J.
after stating tbe ease: Tbe defendant relies principally on a motion to nonsuit tbe plaintiff, but also contends tbat bis Honor did not instruct tbe jury as to tbe assumption of risk, wbicb is relied on as a defense, and tbat be erroneously submitted to tbem tbe question of tbe liability of tbe defendant, because of failure to properly repair tbe passway, insisting- tbat tbe only negligence alleged in tbe complaint is tbat alleged in paragraph 7.
Tbe doctrine of assumption of risk does not arise, as tbe defendant did not tender an issue or ask for an instruction tbereon. We do not tbink,…
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