77 S.E. 673 | N.C. | 1913
Plaintiff, while in the employ of defendant as a carpenter, was ordered by C. D. Lupo, who was foreman of his squad, to go with one E. E. Mason and repair a glass door of the paint shop. In order to do the repair work, it was necessary to use a ladder. There was evidence that Lupo told Mason to take the plaintiff with him and do the work. Mason got a ladder, as he testified, placed it against the side of the house and then climbed up the ladder and removed the broken panes in the door. Plaintiff then ascended the ladder with the new panes of blass [glass], and when he reached a point near the top, the ladder broke, the glass dropped from his hands and he fell on the broken pieces and was seriously cut by them. The court submitted the usual issues in negligence cases, which were all answered in favor of the plaintiffs and from a judgment upon the verdict, defendant appealed.
In this case there was some evidence to the effect that the ladder selected by Mason and used by him and the plaintiff in doing their work was lying in the shop with several others which appeared to be sound and serviceable, while the ladder in question had been broken on one side and spliced, and it was contended by counsel (469) *382
for defendant that where the master has provided an adequate and readily accessible stock of suitable appliances, in good condition, from which the servant may make his own selection, and the imperfection to the one chosen, therefore, was or should have been apparent to the serve who selected it, the master is not responsible for consequent injuries to the servant, whether he made the selection or his fellow-servant, citing Labatt on Master and Servant, sec. 603. But this principle was fairly submitted to the jury by the court, as was the question of contributory negligence, and both were found against the defendant. The defendant relied also upon the general principle, thus stated by Labatt, sec. 333: "When the danger is obvious and of such a nature that it can be appreciated and understood by the servant as well as by the master or by any one else, and when the servant has as good an opportunity as the master, or as any one else, of seeing what the danger is, and is permitted to do his work in his own way, and can be avoid the danger by the exercise of reasonable care, the servant cannot recover against the master for injuries received in consequence of the condition of things which constituted the danger. If the servant is injured, it is from his own want of care." See, also, Whitson v. Wrenn, 134 N.C.Covington v. Furniture Co.,
We have examined the charge in this case very carefully, in connection with the evidence, and it appears therefrom to be manifest that the jury decided the case upon the negligence of Mason, whether he be *383
regarded as a vice-principal or simply as a fellow-servant of the plaintiff in performing the work assigned to them by C. D. Lupo, the company's manager in that department of its service. There was ample evidence to support this finding of the jury, and as they have acquitted the plaintiff of any concurring or contributory negligence in producing the injury, the defendant must be held liable to the plaintiff in damages for the imputed wrong of Mason. The ladder which was used by the plaintiff under the direction of Mason, it appears, had been discarded by the company as unfit for use. It was spliced on one side, but that was not the side on which it afterwards broke. Plaintiff examined it and thought it was safe and sound before he mounted it. We need not inquire whether it was evidence of negligence to leave this ladder with others then in use, as the case was decided on another ground. The duty of the master to provide reasonably safe tools, machinery, and place to work does not go to the extent of a guarantee of safety to the employee, but does require that reasonable care and precaution be taken to secure safety, and this obligation, which is positive and primary, cannot be avoided by a delegation of it to others for its performance. The master's duty, though, is discharged if he does exercise reasonable care in furnishing suitable and adequate machinery and apparatus to the servant, with a reasonably safe place and structures in and about which to perform the work, and in keeping and maintaining them in such condition as to afford reasonable protection to the servant against injury.R. R. v. Herbert,
It appears that plaintiff could not discover the defect in the ladder by an ordinary inspection or such as he could have made in the use of it, but the railroad company knew of its defectiveness and that it (472) was not suitable for the use to which it was to be applied. It must, therefore, answer for the resultant damage. Stark v. CooperageCo.,
No error.
Cited: Kiger v. Scales Co.,
