Gaither v. . ClementGaither v. . Clement
The plaintiff‘s statement of facts is substantially as follows: “The plaintiff, at the time of his injury, was in the employ of the defendant as a carpenter, having had no experience in concrete work. The defendant was engaged in erecting a brick and concrete building, and had laid the concrete floors in the building, same having been poured in forms made of wood and supported by 2-inch boards held up by timbers 4 x 4. For some reason it became necessary to drill holes through the second floor of the building, and the defendant‘s superintendent Cooper ordered the plaintiff and a fellow-servant to do so. The concrete of which the floor was composed had been set up three or four days, but the part where the plaintiff was working and in which the holes had to be drilled, had been run two or three weeks before. The wooden forms were still underneath the concrete. In order to drill the holes and do the work required of the plaintiff, the defendant furnished him a drill made of some of the reinforcing iron left over from use in the concrete. The plaintiff was aided in this work by a fellow-workman — one held the drill and the other hit it with a hammer. The drill was 2 1/2 or 3 feet long and about 1 1/2 inches in diameter. One end was flattened out and sharpened, the flat end being wider than the body of the drill. The plaintiff and his fellow-servant, after drilling one or two holes, were undertaking to get the drill out of the hole where it had become stuck. It could not be driven through because the top had become battered and flattened so that it would not pass through the hole; neither could it be pulled back, as the point had become stuck in the wooden form underneath the concrete. The defendant‘s superintendent, Cooper, gave orders for the plaintiff to go underneath and knock the drill back, while his fellow-servant stayed on top and held it. In obedience to this order the plaintiff went underneath, got a step-ladder, went upon it, and with a hammer weighing about 2 1/2 pounds struck the end of the drill; whereupon, with the first stroke a piece flew off the drill and hit him in the left eye, putting it out. It
The master is not an insurer of the servant‘s safety, but he is required to exercise ordinary care to provide reasonably safe instrumentalities wherewith, and reasonably safe places wherein, the servant shall do his work. In the discharge of this duty he meets the requirements of the law if he exercises that degree of care which a man of ordinary prudence would exercise having regard to his own safety, if he were providing such appliances or places for his own personal use. Marks v. Cotton Mills, 135 N.C. 290; Nail v. Brown, 150 N.C. 535; Mercer v. R. R., 154 N.C. 401. In Mercer‘s case, supra, Allen, J., said: “This duty applies alike to the simple and the complicated tools, but the authorities agree that after performing this duty, the law does not impose the same obligations with reference to the two classes of tools. When the tools and appliances are complicated, the employer must inspect them from time to time, and must see that they are maintained in a reasonably safe condition.” Fearington v. Tobacco Co., 141 N.C. 83. With reference to simple tools, the question of the employer‘s responsibility may generally be referred to his actual or constructive knowledge of defects from which injury may reasonably be expected to result. This principle has been frequently applied; as, for example, where the employer had provided a hammer that was not suitable for the work entrusted to the employee (Young v. Fiber Co., 159 N.C. 376); where a pin intended to secure a wheel on the spindle of a truck had been materially worn by long use (Cotton v. R. R., 149 N.C. 227); where a
The defendant contends, however, that the hurt inflicted could not have been foreseen, that it was an accident, and that there was no causal relation between the alleged negligence and the plaintiff‘s injury. As we have said, there was evidence tending to show that the defendant negligently furnished a defective drill, and that the plaintiff, in obedience to instructions attempted to “knock it back through the boards or wood, . . . whereupon a piece flew off the drill and hit him in the left eye.” The defendant says that the plaintiff only assumed that the particle of steel came from the drill; but the jury found it to be a fact. The defendant says that the proximate cause of the injury was the plaintiff‘s negligent use of the hammer; but this was a matter for the consideration of the jury. The principle discussed in Martin v. Mfg. Co., 128 N.C. 264, is not applicable where the employer has actual or constructive knowledge that the defect in a simple tool which he provides is of a kind importing menace of substantial injury (Thompson v. Oil Co., supra); and where there is evidence of concurring negligence on the part of the plaintiff and of the defendant the question of proximate cause must ordinarily be referred to the jury. True it is that where the danger is obvious and the servant has as good an opportunity as the master of seeing the danger, and can avoid it by the exercise of reasonable care, the servant cannot recover against the master for injuries received in consequence of conditions which constituted the danger. Labatt on Master and Servant, sec. 333; Mincey v. R. R., supra. But upon the evidence here we cannot hold as a conclusion of law that the alleged negligence of the plaintiff was the proximate cause
In view of what has been said, it is unnecessary to refer to the defendant‘s request for a peremptory instruction upon the second and third issues beyond saying that each of them embraced elements that were determinable only by the jury; and the defendant‘s prayer for the further instruction that it was the duty of the plaintiff to inspect the drill omits all reference to the exercise of due care, and, when considered in connection with the plaintiff‘s right to assume that the defendant had performed its duty, it was properly declined. Nor can we concur in the contention that the defendant was prejudiced by his Honor‘s observation that “a plaintiff may be guilty of contributory negligence and yet that negligence would not be the proximate cause of the injury.” The word “contributory” was inadvertently used by his Honor in defining “proximate cause,” and not in his instructions upon the second issue; and to conclude that the jury were misled would be practically equivalent to an abolition of the established rule that instructions to the jury must be considered in their entirety. Maney v. Greenwood, 182 N.C. 583; In re Hinton‘s Will, 180 N.C. 206. The necessity of adhering to this rule is apparent when we consider the specific instruction that the plaintiff could not recover if his negligence proximately caused or contributed to his hurt.
The seventh and eighth exceptions are addressed to the following instruction: “Now the law says, gentlemen, that it is the duty of the master, if he employs a servant, to furnish him a reasonably safe place to work, and if he does not, and the plaintiff is injured by the failure, by reason of the master failing to furnish the servant a reasonably safe place to work, or the employee a safe place to work, and if such failure is the proximate cause of his injury, then the law says he can recover if the defendant, the employer, was guilty of negligence. The law also says that it is the duty of the master to furnish the servant with reasonably safe tools and appliances with which to do the work, and, as a
The instructions excepted to are at variance with these authorities. His Honor inadvertently omitted therefrom the essential element of ordinary care and imposed upon the defendant the positive duty of providing a place and implements of a designated character. Therein is error which entitles the defendant to a new trial.
Let this be certified to the end that the matters in controversy may be submitted to another jury.
New trial.