Waikee, J.
The defendant objected to testimony that there was a custom to use only one chain instead of two in moving material along the trolley, but when we examine the evidence relating to this question, we find that really what was meant by the “custom,” and what counsel denominated such in his questions to the witnesses was evidently considered by the witness as equivalent to what was actually done on these several or numerous occasions, when he witnessed the operations of the trolley in carrying material from one place to another. If the plaintiff was seeking to prove a general custom, and exception was properly taken to his effort in doing so, plaintiff’s counsel were not even moderately successful in showing such a custom, and the witness, who seemed to be very intelligent, and to understand the scope of the inquiry, when confined within its proper limits, gave an unobjectionable answer. For example, in answering the first question on this subject, he said: “Well, they were using only one chain; only custom I know.” This can mean but one thing, and that is that defendant was using only one chain in moving the trolley from place to place when loaded with beams or pieces of iron. If evidence of the custom in operating the trolley was incompetent, and there was any substantial evidence of it, we would not reverse upon such a slight, or rather attenuated departure from the true line of inquiry, when we can well see, from the answers of the witness, that it could not have worked injury to the defendant. We repeat what was said in Brewer v. Ring, 177 N. C., 484: “Courts do not lightly grant reversals, or set aside verdicts upon grounds which show the alleged error to be harmless, or where the appellant could have sustained no injury from it. There should be at least something like a practical treatment of the motion to reverse, and it should not be granted except to subserve the real ends of substantial justice. Hilliard on New Trials (2 ed.), secs. 1 to 7. The motion should be meritorious and not based upon merely trivial errors committed manifestly without prejudice. Eeasons for attaching great importance to small and innocuous deviations from correct principles have long ceased to have that effect, and have become obsolete. The law will not now do a vain and useless thing.” [367] S. v. Smith, 164 N. C., 476. Tbe sum and substance of wbat the plaintiff, as his own witness said, and intended to say, was that defendant always used only one chain, when two chains were necessary to balance the trolley and prevent it from capsizing, as it did,, and this assertion becomes more reasonable if not shown conclusively to be a correct one, when there is evidence to show that such trolleys are approved and in general use in other similar factories, and the only safe kind. But it would seem from the peculiar construction of the trolley and the uses to which it was applied that there should have been some contrivance to keep it on a balance, or in an upright position, so that it would not careen, or incline to one side, or lie over, and precipitate its load to the ground. If there was nothing to hold it straight, or on a level, just such a result as follows in this instance was the one most likely to ensue, just as a ship sailing on the wind is apt to get off its keel if there is no counteracting force applied to it. It was apparently a dangerous method of doing the kind of work the defendant was engaged in at the time.
Defendant complains that the judge did not follow the rule laid down in our cases as to the duty of the employee to his employer, and especially as it relates to his primary obligation to use ordinary care in providing a reasonably safe place to do his work, and reasonably safe and proper tools with which to do it. Smith v. R. R., 182 N. C., 296. But we think otherwise. It is an almost universal rule of the law that the charge of the judge must be taken as a connected whole; that is, it must be considered and construed in its entirety, and not by the process of selecting one portion as the object of attack when, if it is viewed in the light of its relation to all that was said by the judge, a very different meaning would clearly be revealed.
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Waikee, J.
The defendant objected to testimony that there was a custom to use only one chain instead of two in moving material along the trolley, but when we examine the evidence relating to this question, we find that really what was meant by the “custom,” and what counsel denominated such in his questions to the witnesses was evidently considered by the witness as equivalent to what was actually done on these several or numerous occasions, when he witnessed the operations of the trolley in carrying material from one place to another. If the plaintiff was seeking to prove a general custom, and exception was properly taken to his effort in doing so, plaintiff’s counsel were not even moderately successful in showing such a custom, and the witness, who seemed to be very intelligent, and to understand the scope of the inquiry, when confined within its proper limits, gave an unobjectionable answer. For example, in answering the first question on this subject, he said: “Well, they were using only one chain; only custom I know.” This can mean but one thing, and that is that defendant was using only one chain in moving the trolley from place to place when loaded with beams or pieces of iron. If evidence of the custom in operating the trolley was incompetent, and there was any substantial evidence of it, we would not reverse upon such a slight, or rather attenuated departure from the true line of inquiry, when we can well see, from the answers of the witness, that it could not have worked injury to the defendant. We repeat what was said in Brewer v. Ring, 177 N. C., 484: “Courts do not lightly grant reversals, or set aside verdicts upon grounds which show the alleged error to be harmless, or where the appellant could have sustained no injury from it. There should be at least something like a practical treatment of the motion to reverse, and it should not be granted except to subserve the real ends of substantial justice. Hilliard on New Trials (2 ed.), secs. 1 to 7. The motion should be meritorious and not based upon merely trivial errors committed manifestly without prejudice. Eeasons for attaching great importance to small and innocuous deviations from correct principles have long ceased to have that effect, and have become obsolete. The law will not now do a vain and useless thing.” [367] S. v. Smith, 164 N. C., 476. Tbe sum and substance of wbat the plaintiff, as his own witness said, and intended to say, was that defendant always used only one chain, when two chains were necessary to balance the trolley and prevent it from capsizing, as it did,, and this assertion becomes more reasonable if not shown conclusively to be a correct one, when there is evidence to show that such trolleys are approved and in general use in other similar factories, and the only safe kind. But it would seem from the peculiar construction of the trolley and the uses to which it was applied that there should have been some contrivance to keep it on a balance, or in an upright position, so that it would not careen, or incline to one side, or lie over, and precipitate its load to the ground. If there was nothing to hold it straight, or on a level, just such a result as follows in this instance was the one most likely to ensue, just as a ship sailing on the wind is apt to get off its keel if there is no counteracting force applied to it. It was apparently a dangerous method of doing the kind of work the defendant was engaged in at the time.
Defendant complains that the judge did not follow the rule laid down in our cases as to the duty of the employee to his employer, and especially as it relates to his primary obligation to use ordinary care in providing a reasonably safe place to do his work, and reasonably safe and proper tools with which to do it. Smith v. R. R., 182 N. C., 296. But we think otherwise. It is an almost universal rule of the law that the charge of the judge must be taken as a connected whole; that is, it must be considered and construed in its entirety, and not by the process of selecting one portion as the object of attack when, if it is viewed in the light of its relation to all that was said by the judge, a very different meaning would clearly be revealed.
Applying this rule to the charge in question, his Honor gave the following instruction as embodying a principle applicable throughout the case, as it relates to the master’s duty to exercise ordinary care, or not to be negligent, which itself means the absence of proper and commensurate care. He said: “The general rule is that those entering into the service of a common master become thereby engaged in a common service, and are common servants, and prima facie the common master is not liable for the negligence of one of his servants, which has resulted in an injury to a fellow-servant. There are, however, some duties which a master owes, as such, to a servant entering his employment. He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances, and machinery for the accomplishment of the [368] work necessary to be done. He must exercise proper diligence in tbe employment of reasonably safe and competent men to perform tbeir respective duties. If tbe master be neglectful in any-of these matters, it is a neglect of a duty wbicb be personally owes to bis employee, and if tbe employee suffers damage on account thereof, tbe master is liable. If, instead of personally performing these obligations, tbe master engaged another to do them for him, be is liable for tbe neglect of that other, wbicb, in such cases, is not tbe neglect of a fellow-servant, no matter what bis position as to other matters, but is tbe neglect of tbe master to do those things wbicb it is tbe duty of tbe master to perform, as such.” It will also be seen by a careful and intelligent consideration of tbe charge, such as tbe jury are supposed to have given it, that bis Honor, in other parts of tbe charge, clearly and explicitly stated that tbe obligation was one of ordinary care in performing bis duty to bis servant, and not altogether an absolute duty, or one wbicb may be performed regardless of tbe element of care. Marks v. Cotton Mills, 135 N. C., 287, approved in S. c., 138 N. C., 401. Having laid down this as the all-pervading rule, instead of tbe one imposing an absolute duty in this respect, as supposed by tbe defendant, be proceeded then to charge more particularly concerning tbe master’s duty, as follows: “While tbe master is not held to tbe requirement of guaranteeing tbe safety of bis workmen, or those engaged to work for him, in a factory of this kind, it is, nevertheless, bis duty to provide for them reasonably safe tools and machinery, and a reasonably safe place to work, and to keep them in such condition as to afford reasonable protection, and this duty being one personally required of him, be may not delegate it to another and escape liability for damages, if neglect of duty by tbe latter proximately causes injury to tbe servant while in tbe performance of bis duties.” And, again, instructing tbe jury respecting tbe master’s primary duties owing to bis servant, be said: “There are, however, some duties wbicb a master owes as such to a servant entering bis employment. He owes tbe duty to provide such servant with a reasonably safe place to work in, having reference to tbe character of employment in wbicb tbe servant is engaged. He also owes tbe duty of providing reasonably safe tools, appliances, and machinery for tbe accomplishment of tbe work necessary to be done. He must exercise proper diligence in tbe employment of reasonably safe and competent men to perform tbeir respective duties. If tbe master be neglectful in any of these matters it is tbe neglect of a duty wbicb be personally owes to bis employee, and if tbe employee suffers damage on account thereof, tbe master is liable. If instead of personally performing these obligations tbe master engaged another to do them for him, be is liable for tbe [369] neglect of that other, which, in such cases, is not the neglect of a fellow-servant, no matter what his position as to other matters, but is the neglect of the master to do those things which it is the duty of the master to perform, as such.”
It will be noted that his Honor uses a broad and sweeping expression (intended to cover and include every duty he had enumerated in the earlier portion of his charge) by the use of these terms: “If the master be neglectful in any of these matters, it is the neglect of a duty owing to his servant”; and, moreover, “the neglect is one he personally owes to him.” It will be observed here that he repeated what he had formerly said in opening his charge, that the standard and measure of the master’s liability is his neglect (or a failure to use ordinary care) as to any of those duties which he had recited, and he added that it would be such neglect as would impose liability upon him for any damage proximately caused by it.
We must say, in justice to the court, that the charge was carefully prepared and delivered, and should receive from us not a too liberal nor yet a too restricted construction, but a fair and sensible one, or such a one as we must infer from the clearness of its language an intelligent jury fully understood. If we acted upon any other principle, we would violate one of the cardinal and most practical rules in the law governing the granting of new trials, which is, in fact, but a corrolary from what we have already said of them, and which we may well repeat in substance.
The foundation of the application for a new trial is the allegation of injustice, and the motion is for relief. Unless, therefore, some wrong has been suffered, there is nothing to be relieved against. The injury must be positive and tangible, not theoretical merely. For instance, the simple fact of defeat is in no sense injurious, for it simply wounds the feelings or disappoints expectations. But this alone is not sufficient ground for a new trial. It does not necessarily involve loss of any kind, and without loss, or the probability of loss, there can be no new trial. The complaining party asks for redress, for the restoration of rights which have first been infringed and then taken away. There must be, then, a probability of repairing the injury, otherwise the interference of a court would be nugatory. There must be a reasonable prospect of placing the party who asks for a new trial in a better position than the one which he occupies by the verdict. If he obtains a new trial he must incur additional expense, and if there is no corresponding benefit he is still the sufferer. Besides, courts are instituted to enforce right and restrain wrong. Their time is too valuable for them to interpose their remedial power idly and to no purpose. They will only interfere, therefore, when there is a prospect of ultimate benefit, and in a practical [370] sense, some wrong lias been done which calls for redress. 3 Graham and Waterman on New. Trials, 1235; Hulse v. Brantley, 110 N. C., 134; Alexander v. Savings Bank, 155 N. C., 124; McKeel v. Holloman, 163 N. C., 132. See, also, Grice v. Ricks, 14 N. C., 62; Gray v. R. R., 167 N. C., 433; Brewer v. Ring, supra; S. v. Smith, supra.
Having fully and carefully considered the defendant’s exceptions, we find that no error appears in the case.
No error.