— after stating the facts: Where a servant rests his claim to damages against 'his employer upon the ground that he has been injured by defective machinery, furnished by the master to be used in the course of his employment, the burden is cast upon him, as plaintiff, to prove negligence prima facie, or subject himself to judgment of non-suit. It is a well settled rule that he cannot relieve himself of the onus thus imposed upon him until he offers testimony tending to show:
1. That the appliance or machinery was defective.
2. That the injury was due to such defect as the proximate cause.
3. That the attention of the master had been called to the defect, or that, in the exercise of a degree of care, commensurate with the character of the machine, he ought *501to have had knowledge of it. Thompson on Neg., p. 996, §12; ibid., p. 984, §11 (2); Gibson v. The R. R Co., 46 Mo., 163; M. & O. Railroad Co. v. Thomas, 42 Ala. Rep., 672.
Some writers, who are generally recognized as authority, contend that the servant is required to show affirmatively, also, that he did not know of the fault in the machinery to which the injury was due, and that it was not so apparent that he could, with ordinary observation, have discovered it. 3 Hard. R. L. Cases, § 385; Woods’ Law of M. & S., §382; Beach on Con. Neg., §123. The weight of authority, as well,as the force of sound reasoning, sustain the rule, however, that it is incumbent on the defendant — if it would avoid liability for injuries caused by machinery furnished to. the servant, when its agents knew, or ought to have known, of its dangerouá*condition — to aver in the answer, and to prove on the trial, that the latter, knew when he entered the_ service, or discovered during the term of service and before he was injured, or by the exercise of ordinary observation or reasonable skill and diligence in his department of service, might have known that the appliance complained, of was unsafe. 2 Thomp. on Neg., p. 1008, §15; Onus Probandi, 127, 128; Greenleaf v. Illinois Central Railroad Co., 29, Iowa, 14. In. Shearman & Redfield on Negligence (§,99) the rule as to the onus probandi, .in cases of this kind, is stated as follows: “In actions brought .by servants, against their masters,.the bjirden of proof, as to the master’s knowledge, or culpability, in lacking . knowledge, of the, defect which led to the injury, whether in the character of a fellow-servant or the. quality of the material used, rests qpon the plaintiff.. But the plaintiff, having proved the fault of the. master in this respect,, the burden of. proving that the plaintiff also knew of .such .defect, and commenced, or con-, tinued, his service, with such knowledge, rests upon the defendant. This fact being proved, it is then for the plain*502tiff to show, if he can, that the defendant induced him to continue his work by promising to remedy the defect.”
While a, servant, in contemplation of law, contracts with reference to the danger of injury from fellow-servants in a common employment, and to the peril incident to the use of unsafe appliances, to which his attention is called before contracting, yet, if he first discovers this dangerous condition, after accepting employment,- and wilfully continues to incur- the risk incident to the service, such voluntary exposure of his person is held to be contributory negligence on his part, and he is held not to be entitled to recover damages for an inj ury due to such defects, because of his own carelessness, and not on the ground that he agreed to sub-' ject himself to hazards of which he could not have known. Patterson R. & L., § 327; Wharton on Negligence, §197; Pleasants v. Railroad Co., 95 N. C., 195. Our statute (Laws of 1887, ch. 33) requires that contributory negligence, when relied on as a defence, shall be set up in the answer and proved on the trial, and makes the rule applicable where an action is brought by an employee against his employer. We think, therefore, that his Honor erred when he instructed the jury, that if they found that the engine was defective, unsafe, and insecure, it devolved upon the defendant to show that its condition was not, and could not, by the exercise of reasonable care and caution, have been known to its officers and agents. The learned Judge, who tried the case, seems to have been misled by misconstruing the language used by the Court in Warner v. Railroad Co., 94 N. C., 250. The burden of proof was not directly, nor, as we conceive, even incidentally, discussed in that case. The questions were, first, whether complaint contained a statement of facts sufficient - to constitute a cause of action; and, second, whether, if it was a defective statement of a cause of action, the answer was such that the doctrine of aider applied so as to cure any defect in the complaint. The Court decided, upon *503the first point, that the complaint contained a sufficient statement of a cause of action, when the plaintiff alleged, in the third and fourth paragraphs, that the defendant company “conducted itself so carelessly, negligently and unskillfully, in this behalf, that it -provided and used an unsafe, defective and insecure locamotive,” and “ that for want of due care and attention to its duty in that behalf, &c., * * * the boiler, connected with the engine of said locomotive, by reason of the unsafeness, defectiveness and insecurity thereof, exploded,” in consequence of which explosion plaintiff’s intestate was killed “ without any negligence or want of care on his part.” It was held, in substance, that this was a sufficiently specific declaration that the death was caused by the carelessness of the defendant, and that the fact that the defendant either- knew, or, by the exercise of ordinary care, might have ascertained, the dangerous condition of the engine, was evidence to sustain the general allegation of carelessness, in providing defective machinery for the servants of the company, but was not an essential part of the allegation itself.
The second point decided was, that if the complaint contained a defective statement of a cause of action, the defendant had averred in his answer, first, that the engine had been repaired and was in good condition; and, second, that if it was unsafe, when it exploded, it became so after it was repaired and inspected, “ without the knowledge thereof on the part of the defendant,” and the defects were cured under the rule as to aider.
In the case of Cowles v. R. R. Co., 84 N. C., 309, it is true that the Judge who tried the case below, instructed the jury that it was the duty of the defendant company “ to furnish safe cars, supplied with necessary machinery and appliances to render them secure, and, if the jury believed that it had failed in this, and thereby the plaintiff had been injured, without any neglect or want of skill on his part, then they *504should find the issues submitted in favor of the plaintiff, without regard to the conduct of the engineer.” But the Court'say: “The defendant’s exception, as argued before us, does not go to any portion of his Honor’s charge as given, but only to his refusal to give that specially ashed for.” The instruction asked was intended fcyraise the question whether the testimony did not disclose the fact that the injury was due to the carelessness of a fellow-servant of the plaintiff. It was, therefore, entirely unnecessary that this Court should determine whether the charge of the Judge was erroneous, for failure to tell the jury that it was incumbent on the plaintiff to show that the defendant company either knew, or by reasonable diligence, might have discovered, the condition of its cars. The Court declared that the testimony was too meagre to determine whether the engineer occupied the relation of fellow-servant to the plaintiff, and, as the defendant had failed to show error, the verdict must stand. In the discussion of abstract 'principle’s that' follow this announcement, the Court used the language which, counsel insist, imposes liability on a railroad company for injuries to its employees caused’ by unsafe machinery, whether the company had either notice or opportunity to discover the defect or not. We understand the Court to have assumed in the argument in that case, that the company did know of the dangerous condition of the cars because, upon the admitted facts, the defect was so 'obvious that it must have be'en seen cm inspection. This view seems clearly correct, when we consider that the learned Justice who delivered the opinion said, in conclusion, in reference to the case of Gibson v. The R. R. Co., 46 Mo., 163: “This last case has been treated by Thompson in his work on Negligence as a leading one on those subjects, and we think that our conclusions in this case are in accord with the principles enunciated in those cases.” The Judge who tried that case below told the jury that if they found, “ from the evidence, that the appa*505ratus for coupling by which the plaintiff was injured, from its make and construction was unsafe, and the defendant kneio thereof, or might have known thereof, by the exercise of reasonable corre and diligence, the defendant is "liable,” &c. (see p. 167). In commenting upon this- instruction, which had been excepted to, the Appellate Court said (p. 167): “ But the instruction given for the respondent , is well supported by authority and is founded on reason. “If, by reasonable and ordinary care and prudence, the master may know of a defect in the machinery he operates, it is his duty to be advised, and not needlessly expose his servants or employees to hazard, peril or mutilation.” The qualification as to the liability of the master in this case is, therefore, the same given by Thompson, Wharton, Beach, "Wood, and other leading text writers, and insisted on by the defendant in the prayer for instruction. . , .
It is not essential that we should consider any. of the other errors assigned, but as the case may come before us again it is best to advert to two other exceptions. We think there was no error in refusing to charge, as requested, that there was no exidence that the engine was unsafe or defective, or that the injury was caused by. the dangerous condition of the engine. The testimony of the witnesses Hudson, Ferguson, Huske, Jackson and Sullivan tended to show that the engine was in a dangerous condition ; and that' of Bard, Bynum, Murray and Hudson that'the injury might have been "due to the fact that it'was not subject to'the control of the engineer. It is not within oür-province-to pass upon the weight of' the evidence. We only decide ■ that it was sufficient to require .the"Court to'submit 'the base -terthe jury. There was error in ’the instruction n's to the burden of proof, for .which them must be a new-trial.