70 S.E. 742 | N.C. | 1911
The plaintiff, an employee of the defendant, alleges that he was injured by the negligence of the defendant in that the defendant failed to furnish him a safe tool with which to do his work. The defendant denied that it was negligent, and alleged that the plaintiff was guilty of contributory negligence.
At the conclusion of the plaintiff's evidence, his Honor entered judgment of nonsuit, and the plaintiff excepted and appealed.
The facts are sufficiently stated in the opinion of the Court by Mr.Justice Allen. A judgment of nonsuit having been entered, it is our duty to accept the evidence of the plaintiff as true, and to give to it the construction most favorable to him. *317
Viewed in this light, we think there was some evidence of negligence to be submitted to the jury, but we express no opinion as to its weight. (401)
The evidence, if believed, establishes that the plaintiff had been in the employment of the defendant three or four years, but that he had been working in the boiler corner only about a month before his injury; that at the time he was injured he was employed as helper or handyman to the boiler-maker, and that it was his duty to obey the boiler-maker and to watch the tools when he was absent; that it was the duty of the boiler-maker to keep the tools in repair, and that he selected the tools with which the work was done at the time of the injury; that on 11 September, 1909, the plaintiff was required by the boiler-maker to aid him to cut slack rivets from an oil tank, and that they used a chisel and a sledge hammer weighing 10 or 12 pounds; that the boiler-maker held the chisel and the plaintiff was required to strike it with the hammer; that in doing so a piece of the iron chisel broke off and struck the plaintiff's eye; that the head of the chisel was twice as large as it ought to have been, was as thin as a knife blade, was beat out twice the size is ought to have been, and had scales all over it; that the plaintiff had only slightly looked at the chisel before his injury, and struck when the boiler-maker said do so.
When an action is instituted to recover damages on account of negligence, the law casts the burden of proof on the plaintiff to satisfy the jury that the defendant owed him a duty at the time of his injury; that there has been a breach of that duty, and that this breach was the cause of the injury. If he fails in either, he can not recover damages.
We must, therefore, inquire into the relationship between the plaintiff and the defendant, and the duties arising from it.
As said by Mr. Justice Brown, in Avery v. Lumber Co.,
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.,
But the rule is different in reference to tools that are simple, such as hammers, chisels, spades, axes, etc. In such cases the employer is not required to inspect, because the employee is presumed to be equally as conversant with the tool as the employer, and, being required to use it, is in better situation to discover its defects. Dompier v. Lewis,
This relaxation of the rule requiring the employer to inspect presupposes that the employee, by using the tool, has had the opportunity to observe defects, and that his knowledge is equal or superior to that of the employer.
If the employee has no power of selection or opportunity for inspection, the employer is held to the duty of furnishing a tool reasonably safe, as in such case there is no equality of knowledge. This doctrine was applied to the use of a monkey-wrench in Stark v. Cooperage Co.,
In Rollings v. Levering,
In Guthrie v. R. R., 11 Lea, 372, the Court approves the recital of the following charge given at the trial: "He tells them if the plaintiff was furnished this maul for work by the foreman, and that the maul was worn and defective, and the plaintiff's eye was put out by reason of this defective condition, in such employment, and the defects known by defendant or its employees, whose duty it was to look after the condition of the maul, or if said employees having such duty might have known of the defects and need of repair, by the use of such diligence and skill as a prudent and careful man would have used in attending to such a matter, the defendant would be liable." To the same effect, Chicago v. Blivins,
The employee has the right to assume that these duties have been performed (Jones v. Warehouse Co.,
In this case there is evidence that the chisel was defective at the time the plaintiff was injured; that it was selected by the boiler-maker, under whose directions the plaintiff was required to work; that it was the duty of the boiler-maker to keep the tools in repair; that the plaintiff was injured in the performance of his duty, and there is no evidence that the plaintiff handled the chisel or that he had ever seen it before.
Martin v. Mfg. Co.,
This imposes upon the employer the duty of inspection, and renders him liable for injuries caused by defects which could have been discovered, which, we think, is ordinarily too exacting when applied to simple tools. The judgment of nonsuit is set aside.
New trial.
Cited: Reid v. Rees,
(405)