Connor, J.,
after stating the case: It is the duty of the employer to furnish to his employee reasonably safe appliances with which, and a reasonably safe place in which, to discharge his duties and to maintain and keep them in such condition, and there is a correlative duty of the employee to exercise reasonable care in using the appliances and means furnished him. These- are the cardinal principles upon which the duties and liabilities of employer and employee are based. They include, of course, the duty of the employer to properly inform the employee of unusual or extraordinary danger and hazard incurred in the employment and the duty of the employee to avail himself of the information thus derived and instruction given him. These propositions are entirely independent of any question of assumption of risk or the duty of furnishing safety appliances prescribed by statutes or by the courts as in
Troxler's case.
The principle is well stated in a recent work on the subject: “At common law, the master impliedly agrees to use reasonable care to provide reasonably safe
premises and places in and about which the servant is required to work, to furnish reasonably safe and suitable machinery .and a sufficient supply of proper materials, tools and appliances for the work to be done and at all times during the continuance of the work to repair and keep in the same safe and suitable condition.” Dresser Employer’s Liability, 192;
Chesson v. Lumber Co.,
118 N. C., 59;
Whitson v. Wrenn,
134 N. C., 86;
Creech v. Cotton Mills,
135 N. C., 680;
Bottoms v.
Railroad, 136 N. C., 472;
Hicks v. Manfg. Co.,
138 N. C., 319;
Pressly v. Yarn Mills,
138 N. C., 410. While some difference of opinion exists as to the manner of applying the principle in the trial of causes, when seeking to fix the legal liability for an injury, the courts are unanimous regarding the general principles. We find no valid objection to His Honor’s instruction to the jury regarding the defendant’s duty to establish and maintain a system of wires, when charged with electricity, by using every means for the safety and protection of its employees known to science and in general use, and to constantly and repeatedly, at short intervals, inspect its own and other wires liable to come in contact with them. Insulation is a positive duty. There was ample evidence to sustain the plaintiff’s contention that there was negligence in that respect. The defendant says however that may be, it had furnished to plaintiff a perfectly safe place and appliance for the purpose of performing his duty. That before entering upon the performance of the duty he was instructed how to do the work safely and that after entering upon the employment he was told to regard every wire as bare and live as a precaution. That notwithstanding the very peculiar and unexpected conditions by which the wire at the pole on Eront and Dock streets became charged with electricity, the plaintiff would have been absolutely safe if he had used with reasonable care and can-tion the means and appliances furnished him. That if
be bad obeyed instructions given bim, it would bave been impossible for bim to bave sustained any injury. That notwithstanding tbe proximity of tbe post to tbe frame of tbe iron awning, be bad room to stand upon tbe wooden steps and lower tbe lamp. It was tbe office of the third prayer for instruction to present defendant’s contention to tbe jury in that aspect of tbe case. We are of tbe opinion that there was evidence which, if accepted by tbe jury, tended to sustain tbe defendant’s contention. Tbe third prayer for instruction is directed to tbe second issue. It presents to tbe jury the question whether tbe defendant bad furnished a safe method and place for plaintiff to do bis work and whether by the exercise of reasonable care and prudence in tbe use of such method he could bave lowered and trimmed tbe lamp, without coming in contact with tbe iron awning. We think that defendant was entitled to bave this question submitted to tbe jury. There was evidence upon which tbe jury may bave found tbe fact to be as contended by the defendant. There was also evidence tending to sustain tbe plaintiff’s contention. In this condition of tbe evidence it became a question for tbe jury. It was clearly tbe duty of tbe defendant to furnish to tbe plaintiff a reasonably safe place and reasonably safe means to enable bim by tbe exercise of reasonable care and caution to do tbe work in safety. Whether it bad done so, was a question for tbe jury. It is true that His Honor said to tbe jury that it was tbe duty of tbe plaintiff to use ordinary care and “If be failed in this duty and this was tbe real cause of tbe injury, then he would be guilty of negligence, and it would be your duty to answer tbe second issue “yes.” This was correct so far as it went and in tbe absence of any more specific prayer it would not be open to defendant to complain. Tbe real controversy upon this issue was whether, notwithstanding tbe negligence of defendant in permitting its wire to become and remain for an unreasonable length of time without insulation, it bad, in
providing a place and method for doing Ms work, insulated the plaintiff from contact with the wire. In other words, defendant contends that it had made a double provision for the safety of its employees — first, by insulating its wire — and if for any reason that failed by insulating the employee from contact with the wire. That “as a matter of precaution” it had instructed plaintiff “to consider the current as being on the line, never depend upon the insulation, always consider all wires as bare and live.” That it had, in addition to this instruction, provided appliances, which, if used with reasonable care and caution, insulated the plaintiff from danger. The burden of establishing this contention was upon defendant. We think that if established with the further fact that plaintiff failed to exercise “reasonable care and prudence” in the use of these means, the defendant is not liable to the plaintiff for the injury sustained. While it is true that parties are not entitled to have their contentions submitted to the jury in the precise language which they may adopt, it is also true that if the prayer for instruction is correct in itself and there is evidence to sustain it, the court should give the instruction either in the form requested or substantially so: “Where instructions are asked upon an assumed state of facts which there is evidence tending to prove, and thus questions of law are raised which are pertinent to the case, it is the duty of the judge to answer the questions so presented and to instruct the jury distinctly what the law is, if they shall find the assumed state of facts; and so in respect to every state of facts which may be reasonably assumed upon the evidence.”
State v. Dunlop,
65, N. C., 288. The rule is clear and we are quite sure that His Honor was of the opinion that he had complied with it. He did state at length and fairly the contentions of'the parties, but upon a careful examination of the charge, we do not think that he instructed the jury in substantial compliance with the defendant’s third prayer. There appears to have been but little controversy in regard to the condition of
tiie system and. tbe source of tbe trouble witb tbe wire near tbe pole on Dock and Front streets.
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Connor, J.,
after stating the case: It is the duty of the employer to furnish to his employee reasonably safe appliances with which, and a reasonably safe place in which, to discharge his duties and to maintain and keep them in such condition, and there is a correlative duty of the employee to exercise reasonable care in using the appliances and means furnished him. These- are the cardinal principles upon which the duties and liabilities of employer and employee are based. They include, of course, the duty of the employer to properly inform the employee of unusual or extraordinary danger and hazard incurred in the employment and the duty of the employee to avail himself of the information thus derived and instruction given him. These propositions are entirely independent of any question of assumption of risk or the duty of furnishing safety appliances prescribed by statutes or by the courts as in
Troxler's case.
The principle is well stated in a recent work on the subject: “At common law, the master impliedly agrees to use reasonable care to provide reasonably safe
premises and places in and about which the servant is required to work, to furnish reasonably safe and suitable machinery .and a sufficient supply of proper materials, tools and appliances for the work to be done and at all times during the continuance of the work to repair and keep in the same safe and suitable condition.” Dresser Employer’s Liability, 192;
Chesson v. Lumber Co.,
118 N. C., 59;
Whitson v. Wrenn,
134 N. C., 86;
Creech v. Cotton Mills,
135 N. C., 680;
Bottoms v.
Railroad, 136 N. C., 472;
Hicks v. Manfg. Co.,
138 N. C., 319;
Pressly v. Yarn Mills,
138 N. C., 410. While some difference of opinion exists as to the manner of applying the principle in the trial of causes, when seeking to fix the legal liability for an injury, the courts are unanimous regarding the general principles. We find no valid objection to His Honor’s instruction to the jury regarding the defendant’s duty to establish and maintain a system of wires, when charged with electricity, by using every means for the safety and protection of its employees known to science and in general use, and to constantly and repeatedly, at short intervals, inspect its own and other wires liable to come in contact with them. Insulation is a positive duty. There was ample evidence to sustain the plaintiff’s contention that there was negligence in that respect. The defendant says however that may be, it had furnished to plaintiff a perfectly safe place and appliance for the purpose of performing his duty. That before entering upon the performance of the duty he was instructed how to do the work safely and that after entering upon the employment he was told to regard every wire as bare and live as a precaution. That notwithstanding the very peculiar and unexpected conditions by which the wire at the pole on Eront and Dock streets became charged with electricity, the plaintiff would have been absolutely safe if he had used with reasonable care and can-tion the means and appliances furnished him. That if
be bad obeyed instructions given bim, it would bave been impossible for bim to bave sustained any injury. That notwithstanding tbe proximity of tbe post to tbe frame of tbe iron awning, be bad room to stand upon tbe wooden steps and lower tbe lamp. It was tbe office of the third prayer for instruction to present defendant’s contention to tbe jury in that aspect of tbe case. We are of tbe opinion that there was evidence which, if accepted by tbe jury, tended to sustain tbe defendant’s contention. Tbe third prayer for instruction is directed to tbe second issue. It presents to tbe jury the question whether tbe defendant bad furnished a safe method and place for plaintiff to do bis work and whether by the exercise of reasonable care and prudence in tbe use of such method he could bave lowered and trimmed tbe lamp, without coming in contact with tbe iron awning. We think that defendant was entitled to bave this question submitted to tbe jury. There was evidence upon which tbe jury may bave found tbe fact to be as contended by the defendant. There was also evidence tending to sustain tbe plaintiff’s contention. In this condition of tbe evidence it became a question for tbe jury. It was clearly tbe duty of tbe defendant to furnish to tbe plaintiff a reasonably safe place and reasonably safe means to enable bim by tbe exercise of reasonable care and caution to do tbe work in safety. Whether it bad done so, was a question for tbe jury. It is true that His Honor said to tbe jury that it was tbe duty of tbe plaintiff to use ordinary care and “If be failed in this duty and this was tbe real cause of tbe injury, then he would be guilty of negligence, and it would be your duty to answer tbe second issue “yes.” This was correct so far as it went and in tbe absence of any more specific prayer it would not be open to defendant to complain. Tbe real controversy upon this issue was whether, notwithstanding tbe negligence of defendant in permitting its wire to become and remain for an unreasonable length of time without insulation, it bad, in
providing a place and method for doing Ms work, insulated the plaintiff from contact with the wire. In other words, defendant contends that it had made a double provision for the safety of its employees — first, by insulating its wire — and if for any reason that failed by insulating the employee from contact with the wire. That “as a matter of precaution” it had instructed plaintiff “to consider the current as being on the line, never depend upon the insulation, always consider all wires as bare and live.” That it had, in addition to this instruction, provided appliances, which, if used with reasonable care and caution, insulated the plaintiff from danger. The burden of establishing this contention was upon defendant. We think that if established with the further fact that plaintiff failed to exercise “reasonable care and prudence” in the use of these means, the defendant is not liable to the plaintiff for the injury sustained. While it is true that parties are not entitled to have their contentions submitted to the jury in the precise language which they may adopt, it is also true that if the prayer for instruction is correct in itself and there is evidence to sustain it, the court should give the instruction either in the form requested or substantially so: “Where instructions are asked upon an assumed state of facts which there is evidence tending to prove, and thus questions of law are raised which are pertinent to the case, it is the duty of the judge to answer the questions so presented and to instruct the jury distinctly what the law is, if they shall find the assumed state of facts; and so in respect to every state of facts which may be reasonably assumed upon the evidence.”
State v. Dunlop,
65, N. C., 288. The rule is clear and we are quite sure that His Honor was of the opinion that he had complied with it. He did state at length and fairly the contentions of'the parties, but upon a careful examination of the charge, we do not think that he instructed the jury in substantial compliance with the defendant’s third prayer. There appears to have been but little controversy in regard to the condition of
tiie system and. tbe source of tbe trouble witb tbe wire near tbe pole on Dock and Front streets. Tbe most seriously controverted phase of tbe case was directed to tbe second issue. While, as indicated by tbe uniform decisions of'this court, certainly of late years, there is no disposition to relax tbe principles upon which tbe primary duty of tbe employer to furnish to and keep in repair, reasonably safe ways, appliances and methods for tbe performance of tbe duties of bis employees, and to give notice of extra hazards and dangers incident to such work and tbe machinery usefl therefor, nor to extend tbe doctrine of tbe assumption of risk, we think tbe correlative duty of tbe employees to exercise reasonable care and observe that degree of caution which their own safety as well as the interest of tbe employer demands, to avoid injury both to themselves and to tbe public, should be enforced. Tbe rule as applied to employees in tbe service of electric companies is thus stated: “When tbe employee if provided witb implements or apparatus, by tbe use of which be may be able to avoid injury to himself, a failure on bis part to use such implements or apparatus will prevent recovery for any injury received by him which might have been averted by tbe use thereof.” Joyce on Elec., section 668. Eor failure' to give the instruction prayed, there must be a
New Trial.