I-Ioke, J\,
after stating tbe ease: It is the accepted rale in this State, applied in numerous decisions of the Court, that “an employer of labpr, in the exercise of ordinary care, that care that a prudent man should use under like circumstances and charged with a like duty, must provide for his employees a reasonably safe place to do their work and supply them with machinery, implements, and appliances reasonably safe and suitable for the work in which they are engaged, and such as are known, approved, and in general use.”
Kiger v. Scales Co.;
162 N. C., 133;
West v. Tanning Co.,
154 N. C., 41;
Patterson v. Nichols,
157 N. C., 406;
Blevins v. Cotton Mills,
150 N. C., 493;
Pressly v. Yarn Mills,
138 N. C., 410;
Marks v. Cotton Mills,
135 N. C., 287;
Witsell v. Manufacturing Co.,
120 N. C., 557.
There has been no occasion with us to make extended or critical reference to that portion of this obligation referring to implements and appliances which are “known, approved, and in general use,” for in the causes in which the question has thus far appeared, the absence of such implements, etc., has been such as to permit the inference of negligence; the proximate cause of the alleged injury, and a perusal of the authorities cited, and many others of like kind, will disclose that this requirement, while peremptory in terms and effect, is in addition to the more general one of supplying appliances, etc., which are reasonably safe and suitable, and both are included in the general obligation on the employer to exercise the care of a prudent man in 'looking after the safety of his employees. Thus, in the recent case of
Kiger v. Scales Co., supra,
p. 136, the prevailing rule is stated by the Court as follows:
“It has been repeatedly hold in this State that in the exercise of reasonable care employers of labor are required to provide for their employees a safe place to do their work, and appliances safe and suitable to do the work in which they are engaged. And as a feature of this obligation, in the operation of mills and other plants where the machinery is more or less complicated, such employers are held to the duty of supplying machinery and implements which are known, approved, and in general use.”
And in
Marks v. Cotton Mills, Associate Justice Walker,
delivering tbe opinion, said: “The employer does not guarantee the safety of Ms employees. He is not bound to furnish them an absolutely safe place to work in, but is required simply to use reasonable care and prudence in providing such a place.He is not bound to furnish the best known •machinery, implements, and appliances, but only, such as are reasonably safe and fit and as are in general use. He meets the requirements of the law if in the selection of machinery and appliances he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the employer liable, not a mere error of judgment. ... It is the negligence of the employer in not providing for his employees safe machinery and a reasonably safe place to work that renders him liable for any resulting injury to them, and this negligence consists in his failure to adopt and use all approved appliances which are in general use and necessary to the safety of the employees in the performance of their duties.”
Speaking, then, further to this rule that an employer must furnish implements, etc., which are known, approved, and in general use, a fuller statement of the requirement is that where machinery is more or less complicated, and especially when driven by mechanical power, there must be supplied, for the employees, machinery, implements, and appliances which are “known, approved, and in general use by prudent and skillful employers and in well regulated concerns.” .From this we think it follows that an employer is not protected, as a conclusion of law, because he is operating a machine which is “known, approved, and in general use,” but, although such a machine or appliance may have been procured, if its practical operation should disclose that employees are thereby subjected, not to the ordinary risks and dangers incident to their employment, but to • obvious and unnecessary dangers which could be réadily removed without destroying or seriously injuring the efficiency of the implement, such conditions, if known or if allowed to continue, might permit the inference of culpable negligence against the
employer ¡"that be bad not, in tbe particular instan.ce, measured up to tbe standard of care imposed upon bim by tbe law; a position upheld by many authoritative cases and by text-writers of approved excellence.
Tex., etc., Ry. v. Behymer,
189 U. S., 468;
Wabash Ry. v. McDaniels, 101
U. S., 454;
Wilson v. R. R.,
29 R. I., 146;
Reichla v. Grueusfelder,
52 Mo. App. Rep., 44;
Block Co. v. Gibson,
160 Ind., 819;
R. R. v. Mugg,
132 Ind., 168;
Gadszewshi v. Barker,
131 Wis., 494;
Niho Wila v. Interstate Iron Co.,
103 Minn., 103;
Coin v. Lounge Co.,
222 Mo., 488; 3 Labatt on Master and Servant (2d Ed.), sec. 940; in 1st Ed., sec. 44; 26 Cyc., p. 1108.
In tbe case of
Wabash Ry. v. McDaniels, Associate Justice Holmes,
speaking to this question, said: “What usually is done may be evidence of what ought to be done; but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not.”
In
Reichla’s case,
52 Mo. App.,
supra,
it was held, among other things: When fencing can be resorted to without inconvenience, and its absence renders the machinery unnecessarily dangerous, the existence of a practice to use the machinery without it will not prevent the inference of negligence.” Speaking generally to the question in 26 Cyc., p. 1108, it is said: “While not conclusive on the question of negligence, evidence is generally admissible in an action for personal injuries to show whether or not the master’s machinery, appliances, ways, and methods are such as are in ordinary and general use by others in the saíne business; but customary negligence, either on the part of himself or others, is no defense to the master,” etc.
In Labatt,
supra,
the author refers to the correct statement of the rule we are discussing, as follows: “A doctrine which has been extensively applied may be enunciated thus: Where the only inference that can reasonably be drawn from the evidence' • is that the master conformed to the general usage of the average member of his profession or trade in respect to the adoption or retention of the instrumentality in question, he may be declared, as a matter of law, to have been in the exercise of due care. The language in which this doctrine is formulated or referred to
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I-Ioke, J\,
after stating tbe ease: It is the accepted rale in this State, applied in numerous decisions of the Court, that “an employer of labpr, in the exercise of ordinary care, that care that a prudent man should use under like circumstances and charged with a like duty, must provide for his employees a reasonably safe place to do their work and supply them with machinery, implements, and appliances reasonably safe and suitable for the work in which they are engaged, and such as are known, approved, and in general use.”
Kiger v. Scales Co.;
162 N. C., 133;
West v. Tanning Co.,
154 N. C., 41;
Patterson v. Nichols,
157 N. C., 406;
Blevins v. Cotton Mills,
150 N. C., 493;
Pressly v. Yarn Mills,
138 N. C., 410;
Marks v. Cotton Mills,
135 N. C., 287;
Witsell v. Manufacturing Co.,
120 N. C., 557.
There has been no occasion with us to make extended or critical reference to that portion of this obligation referring to implements and appliances which are “known, approved, and in general use,” for in the causes in which the question has thus far appeared, the absence of such implements, etc., has been such as to permit the inference of negligence; the proximate cause of the alleged injury, and a perusal of the authorities cited, and many others of like kind, will disclose that this requirement, while peremptory in terms and effect, is in addition to the more general one of supplying appliances, etc., which are reasonably safe and suitable, and both are included in the general obligation on the employer to exercise the care of a prudent man in 'looking after the safety of his employees. Thus, in the recent case of
Kiger v. Scales Co., supra,
p. 136, the prevailing rule is stated by the Court as follows:
“It has been repeatedly hold in this State that in the exercise of reasonable care employers of labor are required to provide for their employees a safe place to do their work, and appliances safe and suitable to do the work in which they are engaged. And as a feature of this obligation, in the operation of mills and other plants where the machinery is more or less complicated, such employers are held to the duty of supplying machinery and implements which are known, approved, and in general use.”
And in
Marks v. Cotton Mills, Associate Justice Walker,
delivering tbe opinion, said: “The employer does not guarantee the safety of Ms employees. He is not bound to furnish them an absolutely safe place to work in, but is required simply to use reasonable care and prudence in providing such a place.He is not bound to furnish the best known •machinery, implements, and appliances, but only, such as are reasonably safe and fit and as are in general use. He meets the requirements of the law if in the selection of machinery and appliances he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the employer liable, not a mere error of judgment. ... It is the negligence of the employer in not providing for his employees safe machinery and a reasonably safe place to work that renders him liable for any resulting injury to them, and this negligence consists in his failure to adopt and use all approved appliances which are in general use and necessary to the safety of the employees in the performance of their duties.”
Speaking, then, further to this rule that an employer must furnish implements, etc., which are known, approved, and in general use, a fuller statement of the requirement is that where machinery is more or less complicated, and especially when driven by mechanical power, there must be supplied, for the employees, machinery, implements, and appliances which are “known, approved, and in general use by prudent and skillful employers and in well regulated concerns.” .From this we think it follows that an employer is not protected, as a conclusion of law, because he is operating a machine which is “known, approved, and in general use,” but, although such a machine or appliance may have been procured, if its practical operation should disclose that employees are thereby subjected, not to the ordinary risks and dangers incident to their employment, but to • obvious and unnecessary dangers which could be réadily removed without destroying or seriously injuring the efficiency of the implement, such conditions, if known or if allowed to continue, might permit the inference of culpable negligence against the
employer ¡"that be bad not, in tbe particular instan.ce, measured up to tbe standard of care imposed upon bim by tbe law; a position upheld by many authoritative cases and by text-writers of approved excellence.
Tex., etc., Ry. v. Behymer,
189 U. S., 468;
Wabash Ry. v. McDaniels, 101
U. S., 454;
Wilson v. R. R.,
29 R. I., 146;
Reichla v. Grueusfelder,
52 Mo. App. Rep., 44;
Block Co. v. Gibson,
160 Ind., 819;
R. R. v. Mugg,
132 Ind., 168;
Gadszewshi v. Barker,
131 Wis., 494;
Niho Wila v. Interstate Iron Co.,
103 Minn., 103;
Coin v. Lounge Co.,
222 Mo., 488; 3 Labatt on Master and Servant (2d Ed.), sec. 940; in 1st Ed., sec. 44; 26 Cyc., p. 1108.
In tbe case of
Wabash Ry. v. McDaniels, Associate Justice Holmes,
speaking to this question, said: “What usually is done may be evidence of what ought to be done; but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not.”
In
Reichla’s case,
52 Mo. App.,
supra,
it was held, among other things: When fencing can be resorted to without inconvenience, and its absence renders the machinery unnecessarily dangerous, the existence of a practice to use the machinery without it will not prevent the inference of negligence.” Speaking generally to the question in 26 Cyc., p. 1108, it is said: “While not conclusive on the question of negligence, evidence is generally admissible in an action for personal injuries to show whether or not the master’s machinery, appliances, ways, and methods are such as are in ordinary and general use by others in the saíne business; but customary negligence, either on the part of himself or others, is no defense to the master,” etc.
In Labatt,
supra,
the author refers to the correct statement of the rule we are discussing, as follows: “A doctrine which has been extensively applied may be enunciated thus: Where the only inference that can reasonably be drawn from the evidence' • is that the master conformed to the general usage of the average member of his profession or trade in respect to the adoption or retention of the instrumentality in question, he may be declared, as a matter of law, to have been in the exercise of due care. The language in which this doctrine is formulated or referred to
would, if taken literally, often convey tbe idea that the generality of the usage and the similarity of the business or establishment of which the usage is adduced as a standard of comparison are the only points to be considered, and that the manner in which that business or establishment is conducted and the character of the persons engaged in it are not material factors in the question to be determined. But it is clear that, under the general principles of the law of negligence, these latter elements must be material, and that the test really propounded is not usage of any employers, however imprudent or unskillful, or of any concerns, however ill regulated, but the usage prevailing -among prudent and skillful employers and in well regulated concerns.”
The same general principle is involved and the doctrine indirectly approved in a line of well considered eases holding that a promise by an employer to make additions or structural changes in a machine required by the accepted standards of prudence will be as efficacious to repel the assumption of risk as a promise to repair,
Suchomel v. Maxwell,
240 Ill., 231;
Barny Dumping Boat v. Clark,
112 Fed., 920;
Homestake Mining Co. v. Fullerton,
p. 923, and the position is cle6arly recognized in the recent and. well considered case of
Rogers v. Manufacturing Co.,
157 N. C., 484.
The case at bar was submitted to the jury in the light of these general principles, and we find no valid reason for disturbing the results of the trial. "While it was proved that the machine in question was one that was “known, approved, and in general use,” there were also facts in evidence tending to show “that in its practical operation the machine oftentimes would hurl these blocks'or pieces of wood back-towards the operator with tremendous force” — a constant menace of serious injury, and one of which had caused the intestate’s death; that this had been going on for some time,, and there were numerous dents made in the wooden wall 20 feet back of the workman, giving evidence of the force of the impact and of the continued existence of the condition complained of; and, further,.that by broadening the iron spring to 5 or 6 inches, which could have been done at a
small cost and without impairing tbe usefulness of the machine, the defect could have been removed and the danger practically avoided. These facts, if accepted, permit the inference of negligence on the part of the employer, and justifies the conclusion reached by the jury.
In our opinion, the learned judge, in his carefully restricted charge, has laid down the correct rule for the" guidance of the jury, and the judgment on the verdict is affirmed.
No error.