158 N.C. 281 | N.C. | 1912
after stating the ease: The court, in addition to the instructions we have taken from the charge, told the jury that if the defendant set a pole in the ground which was unsound or unfit for use, or the defectiveness of which it could have ascertained at the time by the exercise of ordinary care, and also failed to brace or guy the pole, if the jury found that persons qf ordinary prudence used the guy or brace under such circumstances, they would answer the first issue, as to the defendant’s negligence, in the affirmative, provided they also
We emphasize the foregoing instruction of the court and the fact found by the jury to distinguish this case in limine from those cited by the defendant’s counsel as authorities for his contention that the duty of inspection rested upon the plaintiff and not upon the defendant. We believe that they all hold that this principle does not apply if the pole was originally unsound and unfit for use, and that it is the duty of a telegraph or telephone or electric light company, when it selects a pole for use in its line, to inspect it for the purpose of ascertaining if it is sound and fit. By parity of reason the same is the duty and obligation of a city to its employees when it constructs and operates an electric light plant of its own, for it is not a public or governmental function, but a private and corporate duty, in the discharge of which the municipality will be held to the same degree of liability as an individual in like circumstances. Fisher v. New Bern, 140 N. C., 506.
But we are of the opinion that a city does not perform its whole duty by merely selecting a sound and safe pole in the beginning, but it must, by proper and reasonable inspection, keep it sound and safe for the use of its employees and the protection of the public, and in this respect we can perceive no valid reason why its duty should be less strict than is generally required of a master to exercise reasonable precaution for the safety of his servant. This general duty has been thoroughly settled by the authorities. The master personally owes to his servants the duty of using ordinary care and diligence to provide for their use reasonably safe instrumentalities of service. Among these are a reasonably safe place in which to do their
Thp master is not entitled to time to discover defects in things which are defective when put in use. He should examine them before putting them in use. He cannot evade his responsibility in these respects by simply giving general orders that servants shall examine for themselves, before using the place, material, etc., furnished by him. The fact that a servant could, by care and caution, so operate a defective and dangerous machine as not to produce injury to his fellow-servants does not exempt the master from his liability for an omission to exercise reasonable care and prudence in furnishing safe and suitable appliances. The master fails to supply a “safe place” for work if he allows work to be conducted there habitually in a manner needlessly dangerous to, servants. The master is also personally bound, from time to time, to inspect and examine all instru-mentalities furnished by him, and to use ordinary care, diligence, and skill to keep them in good and safe condition. The duty of inspection is affirmative and must be continuously fulfilled and positively performed. Such duty is not discharged by giving directions for its performance, or by promulgating rules requiring it to be performed, or by employing competent and careful persons for that purpose. The master is not responsible for the want of repairs when he has neither actual nor
We think the principle applies to the case in hand. The question in one form was presented in Harton v. Telephone Co., 146 N. C., 429, and we then said: “The duty of reasonably careful' construction is followed by like care in maintenance and inspection. Joyce Elec. Law, 605. The duty of inspection, in regard to its frequency, cannot be made definite, but regard must be had to the character of the soil, the condition of the weather, the season of the year, and such other conditions as may affect the security of the poles and the safety of the traveling public.”
It is contended, however, by the defendant that the duty of inspection belonged to the plaintiff, and his failure to discover the defect in the pole was his own and not its fault. 'The proof is that the unsoundness of the pole was not apparent to the naked eye. It was below the ground and would not be discovered except by digging around the pole and removing the earth which concealed it.
We cannot yield assent to the argument, at least under the circumstances of this case, that such a duty was imposed upon the plaintiff in caring for his own safety, and we discover nothing in the evidence to indicate that the jdaintiff was guilty of any contributory negligence. In Barkley v. Waste Co., 147 N. C., 585, Justice Brown, in discussing the liability of the
There are two propositions stated in the quotation: (1) That the condition of the material, or lumber which entered into the construction of the scaffold was at least evidence of negligence. (2) That the plaintiff was not required, himself, to make more
There is one difference between tbe two cases, for in tbe case of tbe scaffold tbe servant was expressly told tbat it was safe, while in tbe case of tbe pole be was given an implied assurance tbat it was sound and safe, when be was ordered to climb it for tbe purpose of removing or adjusting tbe wires; but this is a difference in form and not in substance.
It is a general rule that tbe servant, in tbe absence of any warning from bis master, or knowledge of a defect, has a right to rely upon tbe safety of the instruments and appliances which he is required to use in tbe service, because it may fairly be presumed tbat tbe master has performed bis primary duty, tbat is, care in tbe original selection and subsequent inspection of such instrumentalities.
In Electric Co. v. Kelly, 57 N. J. L., 100, tbe company was held not to be liable for injuries to tbe plaintiff, Kelly, produced by tbe falling of a pole, but for tbe reason that tbe fall was caused by a weakness in tbe pole, brought about by a previous fall or by a defect which the evidence showed was not discovered by “tbe most rigid scrutiny.” But in deciding tbat case tbe Court, by Justice Magie, said very much tbat is applicable to our case: “There was no pretense in this case tbat tbe company had been guilty of any willful wrong to Kelly. His claim was, and is, tbat tbe injury he received was tbe result of a breach of a duty which tbe company owed him. Tbe better view of a master’s duty to a servant is tbat which, taking into consideration tbe well-settled doctrine that a servant, by accepting employment, consents to take tbe risk of all dangers obviously or naturally incident to such employment, imposes on the master a positive duty to take reasonable care and pre
While there is no evidence in this case upon tbe question whether tbe company made any inspection or not, tbe court virtually told tbe jury that it was not its duty to do so, if plaintiff was an experienced lineman (of which there was no doubt), and tbe duty of inspection was bis, provided the' pole was not originally defective. This instruction was, in our view, favorable to tbe defendant, because it made its duty “less extensive” than in law it really was. Tbe city was required to inspect its poles at reasonable intervals of time, for tbe safety of its employees and tbe public, as we have shown, and its failure to do so was negligence, and nothing appears in tbe evidence to show that it was not tbe proximate cause of tbe injury. If it bad made tbe proper inspection, tbe rottenness of tbe pole below tbe surface of tbe ground could easily have been discovered, for tbe wood was so badly decayed that it would crumble in tbe band under tbe slightest pressure. Edison Co. v. Street Railway Co., 17 Texas Civil App., was a ease in which it appeared
In S. W. Telegraph and Telephone Co. v. Wonghter, 19 S. W., 575 (56 Ark., 206), the Court held, upon a state of facts much like these in this ease, that it was the duty of the defendant (plaintiff in error) to have used reasonable care and diligence by an inspection to discover latent defects, and if ascertained to exist, then to warn its employee of the probable danger in ascending the pole. These are the words of the Court: “While he does not insure the safety of his servants, yet he is bound to take heed that he does not, through his own want of care and prudence, expose them to unreasonable risks or dangers, either from, the character of the tools with which he supplies them. or the place in which he requires them to operate. He is in duty bound not to expose them to danger of which he knows or has reason to know they are not aware. Before ordering them to perform any service, he should warn them fully of the latent dangers incident thereto, if there be any, of which he knows, or in the exercise of proper diligence ought to know; and this duty 'extends even to patent dangers when he knows the servant, by reason either of his youth or his inexperience,, is not aware of the danger to which he is exposed, or . . . which are unknown to the servant from any cause, and which cannot readily be ascertained except by a person possessed of peculiar knowledge, which he has no reason to suppose the servant possesses,’ ” citing many authorities. The appellate Court awarded a new'trial in that case, because the instruction of the lower court made it the absolute duty of the company to discover the defect, without any regard to the question of care or diligence in attempting to do. so.
Applying the law to facts similar to those in this case, the Court in McGuire v. Bell Telephone Co., 167 N. Y., 208, said: “If the pole had injured a passer-by, it would be no answer for the defendant to say that it did not own the pole. It was bound, both as to third parties and as to its own workmen, to erect and maintain a reasonably safe structure, and it had no right to use for that purpose an unsafe appliance, whether its own or that of a third party. By using the pole as part of its line, it adopted it as its own. As it would have been liable had the pole when first used been decayed and insufficient • for the purpose of carrying its wires and supporting its linemen, it was equally liable when the pole subsequently became unsafe from decay, which reasonable inspection would have discovered. The duty of the defendant was just as great to safely maintain as to safely construct, and that duty cannot be delegated so as to exempt the master from liability.” As said by the Court in the case just cited, “If each lineman was to dig around and test every pole before he ascended it, a large part of his time would be taken up by this work alone, and repeated tests would soon impair the stability of the pole itself”; and from this consideration it was deduced by the Court that the advantage to the company in undertaking itself to make the inspection is plain.
There are authorities in other jurisdictions which hold that it is the lineman’s duty to make the inspection, but the ruling in most of them if not all of them was influenced by facts or considerations not applicable to the case at bar. The uneon-
We conclude, therefore, that the motion of the defendant to nonsuit the plaintiff was properly overruled, and that there was no error in refusing the peremptory instructions it requested, to find for the defendant. There was evidence that the pole had not been inspected by defendant; that it fell three years after it was first set in the ground, when it should have lasted from six to sixteen or twenty years; that its condition, on inspection after it fell, was found to be very bad, it being rotten to the core; that the strain on it was apparently not sufficient to have broken a sound pole. These and other facts and circumstances, of which there was some evidence, were sufficient to carry the case to the jury, it being a primary and nondelegable duty of the master to see that hi's servants are not subjected to unnecessary risk or hazard by any failure on his part, in the exercise of due and proper care, to furnish a plant with instrumentalities adapted to the performance of the work, and reasonably sound, safe, at least in original structure; and this the defendant failed to do.
One other question calls for notice.' The defendant alleged that -the claim of the plaintiff had not been presented within the time fixed by its charter. But the jury have found, under proper instructions, that by reason of his injuries, which affected him both mentally and physically, the plaintiff was unable, during that period, to transact ordinary business or to present his claim, and that he did so within a reasonable time after he was
The other assignments of error, we think, are without merit.
No error.