WaliceR, J.,
after stating tbe case: Tbe plaintiff alleged several acts of negligence in respect to tbe condition of tbe water tank at tbe time of tbe accident, and, of course, be is restricted to those specified. If be desired to show others, tbe proper way was to ask tbe court for an amendment, giving tbe defendants reasonable opportunity to amend their answer and prepare to meet tbe new phase of tbe case. Being thus confined to bis own statement of tbe particular acts of negligence, it was error for tbe court to instruct tbe jury as appears in tbe above excerpt from tbe charge.
But there is a still more fatal defect in this instruction. Tbe judge was attempting to state tbe law on this branch of tbe case, and there is nothing better settled than tbe rule tbat be must state it correctly, for any material omission is an affirmative error. A defect in apparatus is not sufficient of itself to charge tbe defendant with liability for negligence, unless tbe defect was either known to it or bad existed so long tbat tbe law will impute sucb knowledge, when tbe defect could have been discovered by a reasonable inspection of tbe machinery and implements, which should be made by tbe master at proper intervals to secure safety in their use by bis servants. This element of liability was entirely omitted from this instruction, and not even a reference made to it. Tbe eases have thoroughly established this principle in tbe law of negligence. Tbe following-cases will show tbat this is so:
Hudson v. R. R.,
104 N. C., 491;
Railway v. Barrett,
166 U. S., 611;
Patton v. Railway,
179 U. S., 658;
Railroad v. McDade,
135 U. S., 554;
Blevins v. Cotton Mills,
150 N. C., 493; Labatt on Master and Servant, sec. 119
et seq.
And to these cases we add a recent one (which was carried from this Court by writ of error to tbe Supreme Court of tbe United States), in which this same doctrine is discussed, and formulated according to tbe view of it as above stated.
S. A. L. Rwy. Co. v. Horton,
233 U. S., 492 (58 L. Ed., p. 1062), and especially tbe same case, on second appeal, 239 U. S., 595 (60 L. Ed., p. 458), where a water gauge was alleged to be defective and exploded. In tbe
Hudson case,
104 N. C., 491, we held tbat “Tbe burden is upon tbe servant who sues bis master for damages,
resulting from the use of defective machinery furnished by the latter, to establish
prima facie,
(1) that the machinery was defective; (2) that the defects were the proximate cause of the injuries; and (3) that the master had knowledge of them, or might, by the proper exercise of care and diligence, have acquired such knowledge.” Now, in this case, when the testimony is closely and carefully examined, it will be found that it is both ways as to this point. There is perhaps some evidence from which the jury might fairly and reasonably infer that if the tank or the pipe leading to it was defective, or that there was air in the latter which should have been expelled before using it, the defendant either knew it or should have known it by the exercise of ordinary care, and there also is testimony to the contrary, and some tending to show that the tank was put in good condition by repairs to it before the accident, and was in such condition just before the explosion took place. In view of this conflict of testimony, the case should have been submitted to the jury with proper instructions as to the law. A carrier is not liable for every accident that may occur and injure one of its employees, but, by the very terms of the Federal Employers’ Liability Act, only for those “due to its negligence.” Federal Employers’ Liability Act, by Eichie (2 ed.), page 122, sec. 53, and cases in notes. Extended comment is not required to further demonstrate the correctness of this rule as to the duties of the master to his servant, with respect to machinery and implements furnished to him by the latter, nor the citation of other authorities, though there are very many decisions of this and other State courts, and of the highest Federal courts, that might be added to those we have cited above.
We
will, though, refer especially to
Texas & Pac. R. R. Co. v. Barrett,
166 U. S., 617 (41 L. Ed., 1136), in this connection.
There is also another exception to which we should advert, as it may be repeated unless attention is directed to it. The court instructed the jury “that, under the law, it was the duty of the defendant to furnish to the plaintiff, while in its employment, a safe place to do his work and reasonably safe implements with which to do the work required of him.”' His Honor corrected this charge afterwards by instructing the jury that he should have told them that the defendant was required to furnish only “a reasonably safe place for the servant to do his work,” but left it otherwise intact. It is not the absolute duty of the master to furnish even a reasonably safe place for the servant to do his work, but the true and correct rule is that he must use ordinary care to provide for him such a place.
Choctaw O. & G. R. C. v. McDade,
191 U. S., 64;
Garner v. R. R.,
150 U. S., 359;
Washington & G. R. Co. v. McDade,
135 U. S., 570;
B. & O. R. R. v. Baugh,
149 U. S., 368. See, also,
Powell v. Anderson S. & T. P. Co.,
256 Pa. St., 618, and
Kryner v.
Gold Mining Co.,
184 Fed., 43.
Justice Brewer
said in
Patton v. Texas & Pac. R. R. Co.,
179 U. S., 658 (45 L. Ed., 361) : “It is also true that there is no guaranty by tbe employer that place and machinery shall be absolutely safe.
Hough v. Texas & P. R. R. Co.,
100 U. S., 213, 218 (25 L. Ed., 612, 615);
Baltimore & O. R. R. Co. v. Baugh,
149 U. S., 368, 386 (37 L. Ed., 772, 780); 13 Sup. Ct. Rep., 914;
Baltimore & P. R. R. Co. v. Mackey,
137 U. S., 72, 87 (39 L. Ed., 624, 630); 15 Sup. Ct. Rep., 491;
Texas & P. R. R. Co. v. Archibald,
170 U. S., 665, 669 (42 L. Ed., 1188, 1190); 18 Sup. Ct. Rep., 777. He is bound to take reasonable care and make reasonable effort; and the greater the risk which attends- the work to be done and the machinery to be used, the more imperative is the obligation resting upon him. Reasonable care becomes, then, a demand of higher supremacy; and yet, in all cases it is a question of the reasonableness of the care; reasonableness depending upon the danger attending the place or the machinery. The rule in respect to machinery, which is the same as that in respect to place, was accurately stated by
Mr. Justice Lamar,
for this Court, in
Washington & G. R. R. Co. v. McDade,
135 U. S., 554, 570, 34 L. Ed., 235, 241, 10 Sup. Ct. Rep., 1044.
Justice Lamar’s
statement of the law in this respect in 135 U. S., 554, referred to by
Justice Brewer,
is a strong and very lucid exposition of the subject, but it is not necessary that we should insert it verbatim here, as it can easily be found in the volume where it is reported, and it is substantially covered by
Justice Brenv&r’s
own version of the principle, as stated above. It also will be found stated by us in
Marks v. Cotton Mill,
135 N. C., 287, and the same case, 138 N.
Free access — add to your briefcase to read the full text and ask questions with AI
WaliceR, J.,
after stating tbe case: Tbe plaintiff alleged several acts of negligence in respect to tbe condition of tbe water tank at tbe time of tbe accident, and, of course, be is restricted to those specified. If be desired to show others, tbe proper way was to ask tbe court for an amendment, giving tbe defendants reasonable opportunity to amend their answer and prepare to meet tbe new phase of tbe case. Being thus confined to bis own statement of tbe particular acts of negligence, it was error for tbe court to instruct tbe jury as appears in tbe above excerpt from tbe charge.
But there is a still more fatal defect in this instruction. Tbe judge was attempting to state tbe law on this branch of tbe case, and there is nothing better settled than tbe rule tbat be must state it correctly, for any material omission is an affirmative error. A defect in apparatus is not sufficient of itself to charge tbe defendant with liability for negligence, unless tbe defect was either known to it or bad existed so long tbat tbe law will impute sucb knowledge, when tbe defect could have been discovered by a reasonable inspection of tbe machinery and implements, which should be made by tbe master at proper intervals to secure safety in their use by bis servants. This element of liability was entirely omitted from this instruction, and not even a reference made to it. Tbe eases have thoroughly established this principle in tbe law of negligence. Tbe following-cases will show tbat this is so:
Hudson v. R. R.,
104 N. C., 491;
Railway v. Barrett,
166 U. S., 611;
Patton v. Railway,
179 U. S., 658;
Railroad v. McDade,
135 U. S., 554;
Blevins v. Cotton Mills,
150 N. C., 493; Labatt on Master and Servant, sec. 119
et seq.
And to these cases we add a recent one (which was carried from this Court by writ of error to tbe Supreme Court of tbe United States), in which this same doctrine is discussed, and formulated according to tbe view of it as above stated.
S. A. L. Rwy. Co. v. Horton,
233 U. S., 492 (58 L. Ed., p. 1062), and especially tbe same case, on second appeal, 239 U. S., 595 (60 L. Ed., p. 458), where a water gauge was alleged to be defective and exploded. In tbe
Hudson case,
104 N. C., 491, we held tbat “Tbe burden is upon tbe servant who sues bis master for damages,
resulting from the use of defective machinery furnished by the latter, to establish
prima facie,
(1) that the machinery was defective; (2) that the defects were the proximate cause of the injuries; and (3) that the master had knowledge of them, or might, by the proper exercise of care and diligence, have acquired such knowledge.” Now, in this case, when the testimony is closely and carefully examined, it will be found that it is both ways as to this point. There is perhaps some evidence from which the jury might fairly and reasonably infer that if the tank or the pipe leading to it was defective, or that there was air in the latter which should have been expelled before using it, the defendant either knew it or should have known it by the exercise of ordinary care, and there also is testimony to the contrary, and some tending to show that the tank was put in good condition by repairs to it before the accident, and was in such condition just before the explosion took place. In view of this conflict of testimony, the case should have been submitted to the jury with proper instructions as to the law. A carrier is not liable for every accident that may occur and injure one of its employees, but, by the very terms of the Federal Employers’ Liability Act, only for those “due to its negligence.” Federal Employers’ Liability Act, by Eichie (2 ed.), page 122, sec. 53, and cases in notes. Extended comment is not required to further demonstrate the correctness of this rule as to the duties of the master to his servant, with respect to machinery and implements furnished to him by the latter, nor the citation of other authorities, though there are very many decisions of this and other State courts, and of the highest Federal courts, that might be added to those we have cited above.
We
will, though, refer especially to
Texas & Pac. R. R. Co. v. Barrett,
166 U. S., 617 (41 L. Ed., 1136), in this connection.
There is also another exception to which we should advert, as it may be repeated unless attention is directed to it. The court instructed the jury “that, under the law, it was the duty of the defendant to furnish to the plaintiff, while in its employment, a safe place to do his work and reasonably safe implements with which to do the work required of him.”' His Honor corrected this charge afterwards by instructing the jury that he should have told them that the defendant was required to furnish only “a reasonably safe place for the servant to do his work,” but left it otherwise intact. It is not the absolute duty of the master to furnish even a reasonably safe place for the servant to do his work, but the true and correct rule is that he must use ordinary care to provide for him such a place.
Choctaw O. & G. R. C. v. McDade,
191 U. S., 64;
Garner v. R. R.,
150 U. S., 359;
Washington & G. R. Co. v. McDade,
135 U. S., 570;
B. & O. R. R. v. Baugh,
149 U. S., 368. See, also,
Powell v. Anderson S. & T. P. Co.,
256 Pa. St., 618, and
Kryner v.
Gold Mining Co.,
184 Fed., 43.
Justice Brewer
said in
Patton v. Texas & Pac. R. R. Co.,
179 U. S., 658 (45 L. Ed., 361) : “It is also true that there is no guaranty by tbe employer that place and machinery shall be absolutely safe.
Hough v. Texas & P. R. R. Co.,
100 U. S., 213, 218 (25 L. Ed., 612, 615);
Baltimore & O. R. R. Co. v. Baugh,
149 U. S., 368, 386 (37 L. Ed., 772, 780); 13 Sup. Ct. Rep., 914;
Baltimore & P. R. R. Co. v. Mackey,
137 U. S., 72, 87 (39 L. Ed., 624, 630); 15 Sup. Ct. Rep., 491;
Texas & P. R. R. Co. v. Archibald,
170 U. S., 665, 669 (42 L. Ed., 1188, 1190); 18 Sup. Ct. Rep., 777. He is bound to take reasonable care and make reasonable effort; and the greater the risk which attends- the work to be done and the machinery to be used, the more imperative is the obligation resting upon him. Reasonable care becomes, then, a demand of higher supremacy; and yet, in all cases it is a question of the reasonableness of the care; reasonableness depending upon the danger attending the place or the machinery. The rule in respect to machinery, which is the same as that in respect to place, was accurately stated by
Mr. Justice Lamar,
for this Court, in
Washington & G. R. R. Co. v. McDade,
135 U. S., 554, 570, 34 L. Ed., 235, 241, 10 Sup. Ct. Rep., 1044.
Justice Lamar’s
statement of the law in this respect in 135 U. S., 554, referred to by
Justice Brewer,
is a strong and very lucid exposition of the subject, but it is not necessary that we should insert it verbatim here, as it can easily be found in the volume where it is reported, and it is substantially covered by
Justice Brenv&r’s
own version of the principle, as stated above. It also will be found stated by us in
Marks v. Cotton Mill,
135 N. C., 287, and the same case, 138 N. C., 401, where it was held: In all questions of negligence the standard by which to measure the liability of the employer to the employee, is that followed by the ideally prudent man. What was held in the first of the two cited cases (135 N. C., 290) is directly in point here, that “The employer does not
guarantee
the safety of his 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 fit and safe and 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. We believe this is substantially the rule which has been recognized as the correct one and recommended for our guide in all such eases. It measures accurately the duty of the employer and fixes
tbe limit of bis responsibility to bis employees.
Harley v. B. C. M. Co.,
142 N. Y., 31. Tbis Court bas said tbat all macbinery is to some extent dangerous, but tbe fact tbat it is dangerous does not of itself make tbe owner liable in damages. It is tbe negligence of tbe employer in not providing for bis employees reasonably safe macbinery and a reasonably safe place in wbicb to work tbat renders him liable for any resulting injury to them.” Tbat case was cited and tbe principle it states approved by tbe Court in
Pressly v. Yarn Mills, 138
N. C., 413, and bas been cited and approved in numerous subsequent eases.
There are other exceptions worthy of consideration if tbe result depended in any way upon them, but it does not, and we will not prolong tbis opinion in order to foreclose them.
Tbe action should be dismissed as to tbe Seaboard Air Line Railway Company, as tbe Supreme Court of tbe United States bas recently decided tbat there is no liability as to it.
Mo. Pac. R. R. Co. v. Ault,
Adv. Opinions of tbat Court, p. 647, No. 16,1 July, 1921. The plaintiff may continue, though, to prosecute tbe action against tbe Director General, under our present procedure, as will appear from C. S., sec. 602, where it is provided specially tbat a several judgment may be entered. Tbis is discussed fully in tbe dissenting opinion of tbe writer in
Kimbrough v. A. C. L. Ry. Co. and Director General, ante,
234, tbe Court being unanimous on tbis point. Reference is made to tbat opinion to avoid rejoetition.
There was error, in tbe respects indicated, because of wbicb another jury must be called.
New trial.