assumption of risk doctrine in North Carolina

1929S., 3468.” In Hamilton v. Lumber Co., 156 N. C., at p. 523-4, speaking to the subject: “It is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but the effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether the attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence should quit the employment rather than incur th

1911It is well understood, however, that an employer of labor may be held responsible for directions given or methods established, of the kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N. C., 76 ; Shaw v. Manufacturing Co., 146 N. C., 235 ; Jones v. Warehouse Co., 138 N. C., 546 , and, where such negligence is established, it is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but tbe effect of

1929S., 3468.” In Hamilton v. Lumber Co., 156 N. C., at p. 523-4, speaking to the subject: “It is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but the effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether the attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence should quit the employment rather than incur th

1928Co., 146 N. C., 235 ; Jones v. Warehouse Co., 138 N. C., 546 , and, where such negligence is established, it is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation,. is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but the effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether the attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence should quit the employment r

1928Co., 146 N. C., 235 ; Jones v. Warehouse Co., 138 N. C., 546 , and, where such negligence is established, it is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation,. is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but the effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether the attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence should quit the employment r

1912It is well understood, however, that an employer of labor may be held responsible for directions given or methods established, of tbe kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N. C., 76 ; Shaw v. Manufacturing Co., 146 N. C., 235 ; Jones v. Warehouse Co., 138 N. C., 546 , and where such negligence is established, it is further held, in this jurisdiction, that tbe doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but tbe effect of

1928Co., 146 N. C., 235 ; Jones v. Warehouse Co., 138 N. C., 546 , and, where such negligence is established, it is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation,. is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but the effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether the attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence should quit the employment r

1912It is well understood, however, that an employer of labor may be held responsible for directions given or methods established, of tbe kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N. C., 76 ; Shaw v. Manufacturing Co., 146 N. C., 235 ; Jones v. Warehouse Co., 138 N. C., 546 , and where such negligence is established, it is further held, in this jurisdiction, that tbe doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but tbe effect of

1918It is held in this State that the doctrine of assumption of risk, even in cases where the same is applicable, does not extend to and include those risks and damages incident to the employer’s negligence. *561 In the recent case of Howard v. Wright, 173 N. C., 339 , the position as it obtains here is stated as follows: “The defense of assumption of risk is one growing out of the contract of employment and extends only to the ordinary risks naturally and usually incident to the work that the employee has undertaken to perform, and does not include risks and dangers incident to a failure on the p

1912Justice Allen said in Norris v. Cotton Mills, 154 N. C., 474 : “The charge to the jury was, we think, in some respects more favorable to the defendant than it was entitled to, and particularly as to the doctrine of assumption of risk, as the employee never assumes the risk of any injury caused by the failure of the employer to perform a duty which he cannot delegate, and the duty to provide a reasonably safe place to work is one of them.” Hamilton v. Lumber Co., 156 N. C., 519 ; Pritchett v. R.

1912R., 157 N. C., 88 .

1912R. , 157 N.C. 88 .

1912It is well understood, however, that an employer of labor may be held responsible for directions given or methods established, of tbe kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N. C., 76 ; Shaw v. Manufacturing Co., 146 N. C., 235 ; Jones v. Warehouse Co., 138 N. C., 546 , and where such negligence is established, it is further held, in this jurisdiction, that tbe doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but tbe effect of

1911It is well understood, however, that an employer of labor may be held responsible for directions given or methods established, of the kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N. C., 76 ; Shaw v. Manufacturing Co., 146 N. C., 235 ; Jones v. Warehouse Co., 138 N. C., 546 , and, where such negligence is established, it is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475 ; Tanner v. Lumber Co., 140 N. C., 475 ), but tbe effect of

1912Justice Allen said in Norris v. Cotton Mills, 154 N. C., 474 : “The charge to the jury was, we think, in some respects more favorable to the defendant than it was entitled to, and particularly as to the doctrine of assumption of risk, as the employee never assumes the risk of any injury caused by the failure of the employer to perform a duty which he cannot delegate, and the duty to provide a reasonably safe place to work is one of them.” Hamilton v. Lumber Co., 156 N. C., 519 ; Pritchett v. R.

1912Justice Allen said in Norris v. Cotton Mills , 154 N.C. 474 : "The charge to the jury was, we think, in some respects more favorable to the defendant than it was entitled to, and particularly as to the doctrine of assumption of risk, as the employee never assumes the risk of any injury caused by the failure of the employer *Page 82 to perform a duty which he cannot delegate, and the duty to provide a reasonably safe place to work is one of them." Hamilton v. Lumber Co. , 156 N.C. 519 ; Pritchett v. R.

2018App. 259 , 263, 257 S.E.2d 50 , 53-54 (1979) (emphasis added). 3 We observe our Supreme Court has held that "assumption of risk is not available as a defense to one not in a contractual relationship to the plaintiff." McWilliams v. Parham , 269 N.C. 162 , 166, 152 S.E.2d 117 , 120 (1967) ; see also Clark v. Freight Carriers, 247 N.C. 705 , 709, 102 S.E.2d 252 , 255 (1958) (finding that, where there was "no allegation in the pleadings tending to show any contractual relationship between the plaintiff and the [ ] defendants, the doctrine of assumption of risk [was] not available as a defense." (

1948Co., 73 Cal. App. (2d), 30, 165 Pac. (2d), 751 , the Court said: “There can be no doubt but that under the majority opinion (in the Ttiler case) it is error of a most serious nature to interject into a case, since 1939, the doctrine of assumption of risk, however disguised.

1925Wallace v. Power Co., 176 N. C., 558 .

1923R., 122 N. C., 961 . *193 Tbe doctrine of assumption of risk, although not entirely abolished by the Federal Employers’ Liability Act, has no application where .the negligence of a fellow-servant, which the injured party could not have foreseen nor expected, is the sole, direct, and immediate cause of the injury.

1918Co., 138 N. C., 319 -327.

1918It is held in this State that the doctrine of assumption of risk, even in cases where the same is applicable, does not extend to and include those risks and damages incident to the employer’s negligence. *561 In the recent case of Howard v. Wright, 173 N. C., 339 , the position as it obtains here is stated as follows: “The defense of assumption of risk is one growing out of the contract of employment and extends only to the ordinary risks naturally and usually incident to the work that the employee has undertaken to perform, and does not include risks and dangers incident to a failure on the p

1918It is held in this State that the doctrine of assumption of risk, even in cases where the same is applicable, does not extend to and include those risks and damages incident to the employer’s negligence. *561 In the recent case of Howard v. Wright, 173 N. C., 339 , the position as it obtains here is stated as follows: “The defense of assumption of risk is one growing out of the contract of employment and extends only to the ordinary risks naturally and usually incident to the work that the employee has undertaken to perform, and does not include risks and dangers incident to a failure on the p

1902Railroad Co., 129 N. C., 407 ) the view expressed by the Chief Justice— Douglas, J., saying (page 409) that our statute is “an un<-conditional abrogation of the kindred doctrine of fellow servant and assumption of risk, as applied to railroad companies” ; and on page 410, “We have, therefore, no hesitation in holding the Act of February, 1897, valid in its entiretly, and that it deprives all railroad companies operating in this State of the defense of assumption of risk, whether resting in contract express or implied, and whether pleaded directly or-under the doctrine of fellow servant.” No ca