Chesson v. John L. Roper Lumber Co.

23 S.E. 925, 118 N.C. 59

Opinion

Avery, J.:

A master hot only owes to his servant the duty of using ordinary care to procure sound and safe appliances and machinery, but also to provide for him a place in which to do his work and a way of access to and departure from it, that are reasonably safe. 1 -Shearman & Eed. Nog.,-sec. 194, and note; Buzzell v. M'f'g Co., 48 Me., 113. On entering into employment, the servant has a right to assum'e that the "master has discharged this duty (Railroad v. Hines, 132 Ill., 161; 22 Am. St. Rep., 515, and note; Carter v. Oil Co., 34 S. C, 211; 27 Am. St. Rep., 817) and may without culpability act upon that assumption until some defect becomes so apparent, that by exercising ordinary care in the regular course of his employment, he might discover it. The employer has a right to have and use imperfect methods and tools, and to ask others to enter into his employment to aid him in such use, and in so doing he does not undertake to insure the employee. Rogers v. Railroad Co., 97 Mich., 265. If the appliances or machinery are not the best, the servant contracts in contemplation of the kind or variety used and impliedly assents to their continued use till the courts declare it culpable to fail to procure something better and safer, because it has became reasonable on account of improvements in methods or machinery to require the master to do so. Mason v. Railroad, 111 N. C., 482. But the other implication which arises out of such agreements imposes upon the employer the duty of exercising greater care to protect the employee from injury due to the defective condition of appliances than is required of the latter in guarding against accident. The servant is culpable if he fail to discover such a defect as would have been apparent, without a thorough examination, if he had used ordinary diligence to discover it. The master is answerable on the other hand whether the servant is injured by defective ways, implements, machinery or appliances, if a proper inspection could have prevented it. While the master may not be required always to furnish the best machinery, appliances, ways and houses, he is under legal obligation to examine and inspect from time to time all of these things, that he may supply for his servant, if the safety of the latter depends upon their condition, and to use ordinary care and skill to'discover and repair such defects in them as are calculated to expose the servant to peril in the course of his employment. Shear- man & Red., supra, Sec. 194; Vosberg v. Railroad Co., 94 N. Y., 374; Gotlich v. Railroad, 100 N. Y., 467; Mann v. Railroad, 111 N. C., 482; Hudson v. Railroad, 104 N. C., 491. The employer is chargeable with notice of a disorder or deficiency in anything which it is his duty -to keep in reasonably safe condition, if a proper inspection would have disclosed its existence.

The plaintiff was injured while loading trucks with lumber, because the stringers that supported the floor of the platform which he was required to use were rotten, when an ordinary examination would (as a witness testified) have disclosed its defect. The defendant was therefore negligent in that aspect of the evidence if it failed to have such inspection made, or if it failed to repair the stringers within a reasonable time after discovering their condition. The two carpenters employed to inspect the platform and make needed repairs were, in so far as that duty was concerned, not fellow servants of the plaintiff, but representatives of the company. Railroad Co. v. Herbert, 116 U. S., 642. The plaintiff entered into no contract to incur risks arising from the negligence of the alter ego of the company, which is in contemplation of law its own culpability, but only such as were caused by the carelessness of those in a common employment with himself. Railroad v. Ross, 112 U. S., 383. The- plaintiff asked the court to instruct the jury that it was the duty of the carpenters employed for the purpose, to make a reasonably diligent inspection, and if they failed to do so the defendant was guilty of negligence. In lieu of this the court told the jury that “if the defendant provided, in the beginning, a safe and proper platform and appointed competent and proper servants to keep it so, it performed its duty to the plaintiff, unless it actually knew of the alleged defects, or by reasonable diligence might have known of them, or knowing failed to remedy them.” The carpenters being pro hac viee the embodiment of its authority, the company was negligent, if they failed to make an inspection, especially where there was testimony tending to show that an examination would have disclosed the condition of the platform and probably have prevented the injury. "When requested to apply the law to the evidence, it was error in the court to refuse the specific instruction asked and leave the jury to guess or arbitrarily determine what was reasonable diligence on the part of the defendant, and whether it owed its employee the duty of seeing that a proper inspection was actually made by its agents appointed for the purpose. Emry v. Railroad, 109 N. C., 589. If the jury believed that a reasonably careful examination of the platform by the carpenters would have disclosed the fact that it was unsafe for the purpose for which it was used, and would have given the company such timely notice of its condition as would have enabled it by dire diligence to have remedied the defects and prevented the injury, they ought to have been made to understand by more specific instruction than was given, that such omission of dnty was the proximate cause of the accident, because in that view of the testimony it was the neglect to improve the last clear chance to obviate it. Pickett v. Railroad, 117 N. C., 616. Whatever may be the rule elsewhere, it is error according to the settled law of this State to leave the jury to determine what is ordinary care or reasonable diligence under any given circumstances, and to decline to give proper instructions which will enable them to apply “ the rule of the prudent man ” to given phases of the testimony introduced by the parties. Kahn v. Railroad, 115 N. C., 638; Haynes v. Gas Co., 114 N. C., 203; Joyner v. Roberts, 114 N. C., 389. Where the facts are admitted and not more than one inference can be drawn from them, the question whether there has been negligence is for the court. Deans v. Railroad, 107 N. C., 686. "Where the evidence is conflicting, or where more than one inference may be deduced from it, it is the duty of the court upon a proper request of counsel to instruct the jury whether in any particular aspect of the testimony there was negligence as alleged in the pleadings. Knight v. Railroad, 110 N. C., 58. For the error in refusing the instruction asked and substituting that given, the plaintiff is entitled to a

New Trial.