Reid v. Hans Rees' Sons Co., 155 N.C. 230 (1911)

May 17, 1911 · Supreme Court of North Carolina
155 N.C. 230

J. W. REID v. HANS REES’ SONS COMPANY, Incorporated.

(Filed 17 May, 1911.)

1. Master and Servant — Safe Tools and Appliances — Duty of Master.

The master owes a duty to its employee to furnish him proper tools and appliances with which to do the work required by his employment.

2. Same — Inspection — Simple Tools and Appliances — Notice of Defect — Promise to Repair.

The distinction drawn with reference to inspection owed by the master between simple and complicated tools and implements which he has furnished his employees for the purpose of their *231work has no application when a defect, which approximately caused an injury, had theretofore been called to the master’s attention, and he had promised to repair it, and the injury occurred within a reasonable time thereafter.

3. Same — Contributory Negligence — Questions for Jury.

Upon evidence tending to show that a master had furnished his servant a ladder for the performance of his duty in cleaning out a vat at a tannery, which had become worn and rounded at the ends and was dangerous for the purpose, without slats or stops on the slippery bottom of the vat to keep the ladder from sliding, and that it was customary for ladders so used to have spikes to avoid this danger, contributory negligence, as a matter of law, is not shown by the continued use of the ladder by the servant after notifying the master of the defective ladder and under promise of the master to make it safe with spikes.

4. Same — Assumption of Risk — Nonsuit.

Upon a motion to nonsuit upon the evidence, the evidence must be taken in its most favorable light to the plaintiff, and upon evidence tending to show that the defendant had furnished an improper ladder for the servant to clean out vats within a tannery, and which caused the injury complained of subsequent to notice of the defect given the defendant, and while the servant contimied to do the work for a short time under the plaintiff’s promise to repair or make the ladder safe. Held, it was for the jury to say whether the servant continued in the service for an unreasonable time after the promise to repair had been broken, or that the danger in using the ladder was so obvious and imminent as to charge him with having assumed the risk, or with contributory negligence.

5. Master and Servant — Defective Tools and Appliances — Duty of Servant.

A servant who has been furnished a defective tool or appliance by the master with which to do his work is required to prevent any consequent injury by the exercise of ordinary care, and if his negligent use therein proximately causes an injury he is barred’of his recovery therefor.

6. Master and Servant — Nonsuit—Defective Tools and Appliances— Safe and Unsafe Methods — Questions for Jury.

The plaintiff was injured in the course of his duty as employee of defendant by using a defective ladder the latter had furnished him fpr the purpose of cleaning out a vat at a tannery, and there was evidence tending to show that plaintiff was a tall man and that the use of the ladder was unnecessary. Held, though the *232ladder proved' to be dangerous and caused damages in this instance, it will not be adjudicated as a matter of law that plaintiff should have climbed out of the vat, so as to sustain a motion as of nonsuit.

Appeal by plaintiff from Lane, J., at tbe January Term, 1911, of McDowell.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Walicer.

Hudgins, W atson & J ohnston for plaintiff.

Bourne, Parher & Morrison for defendant.-

WaliceR, J.

Plaintiff brought tbis action to recover damages for injuries received while working in tbe defendant’s tannery in Asheville. His duty was to clean out tbe vats, and in tbe performance of tbis duty be was required to go into tbe vat and throw out tbe ginned bark, which was placed between tbe bides fqr the purpose of tanning them. In order to go into and come out of ’the vats it was necessary to use a ladder which was furnished by tbe defendant. Tbis ladder bad become worn at tbe ends which rested on tbe floor, so that they bad a round instead of a flat surface, and as tbe bottom of tbe vat was oozy and slick, tbe ladder was liable 'to slip when plaintiff was using it. Tbe top ends of tbe ladder rested against tbe wall of tbe vat. Ladders used for tbis purpose in tanneries have spikes at tbe bottom to prevent slipping, but tbis one bad no spikes, nor were there any slats or stops on tbe floor to brace or prop tbe ladder. Tbe defective condition of tbe ladder was called to tbe attention of T. E. Brice, tbe foreman of defendant, by tbe plaintiff, and be promised to have it remedied, but failed to do so, when be was again requested to have tbe ladder spiked so as to make it safe for tbe plaintiff in doing bis work, and be promised-to do so, but again failed to beep bis promise, and tbe plaintiff, while using tbe ladder in cleaning out tbe vat, was seriously injured by tbe fall of tbe ladder, due to its said defective condition. Tbe court entered judgment of nonsuit upon tbe evidence, and plaintiff appealed.

Tbe case should have gone to tbe jury. It is true that tbe master does not insure tbe safety of bis servant in tbe perform-*233anee of bis work, but it is a familiar and an elementary doctrine in tbe law of negligence, with reference to this relation, that he owes a duty, which he neglects at his peril, to furnish proper tools and appliances to his servant with which to do his work. We said as much in Marks v. Cotton Mills, 135 N. C., 287, and added: “He meets the requirements of the law if in the selection of machinery and appliances he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the employer liable.” The rule as thus stated was approved in Avery v. Lumber Co., 146 N. C., 595; Cotton v. R. R., 149 N. C., 227; Nail v. Brown, 150 N. C., 533; West v. Tanning Co., 154 N. C., 44; Mercer v. R. R., at this term. The case of West v. Tanning Co., supra, involved the same principle and substantially the same facts as does this case, and we there held that there was evidence of negligence. In Mercer’s case there is a distinction made, with reference to the duty of inspection, between simple and complicated tools and implements, but we need not consider it, as it appears that the plaintiff in this case gave the defendant notice of the defect in the ladder and the latter promised to remedy it.

As to the duty of the employer, which requires him to furnish to his employee reasonably safe and suitable tools and appliances with which to perform his work, even though they may be simple in their construction, we need only refer to the cases of Orr v. Telephone Co., 130 N. C., 627 (s. c., on rehearing, 132 N. C., 691), and Cotton v. R. R., 149 N. C., 227, both decided in favor of plaintiffs. In the former eases the plaintiff was hurt by the failure of the defendant to see that he used the proper implements in doing his work, lowering a telephone pole for the purpose of removing it, the implements required for the purpose being “spiked poles” and “dead men”; and in the latter the servant was furnished with a defective truck for transferring baggage, the pin which kept the wheel on the spindle having been bent so that the wheel fell from the spindle on which it revolved while the plaintiff was trucking baggage, and he was injured.

Plaintiff testified that the foreman told him the ladder had been used for some time and was safe, and that in reliance upon *234this assurance and the promise to repair it, which was once repeated, he continued to use the ladder. The plaintiff remained in the service a little longer, expecting daily a compliance with the promise. We cannot say, as matter of law, upon the evidence as it now appears, that the plaintiff continued in the service for an unreasonable time after the promise to repair had been broken- (Pleasants v. R. R., 95 N. C., 195), or that the danger in using the ladder was so obvious or imminent as to charge him with having assumed the risk or with contributory negligence. Pressly v. Yarn Mills, 138 N. C., 410. The evidence must be construed most favorably for the plaintiff in considering a non-suit, and whether he acted as a prudent man would have done under the circumstances is a question which is peculiarly for the jury to decide. The duty to exercise reasonable care in furnishing a ladder suitable and safe for the servant’s use in cleaning the vat was a primary and absolute one, and was therefore not delegable. If the master leaves the performance of this duty to another who takes his place, he must be held liable for any negligence on his part, as much so as if he had undertaken himself to perform it. He cannot thus shift his responsibility. The plaintiff had no choice in the selection of ladders, but could only use the particular one furnished. The defendant had been told of the defect and the danger attending the use of this ladder, and it was its duty to provide one reasonably safe, which it neglected to do. Mercer v. R. R., supra. It would be going beyond the decisions of this Court to hold that the plaintiff was guilty of negligence in law because he continued to use the ladder for a short time, when the defendant had promised to put it in safe condition, but failed to do so, and he had the right to rely upon this promise being kept. It was at least a question for the jury. If the plaintiff could have prevented the injury by the exercise of ordinary care, he was obliged to do so, and his negligence, if there was any, would bar his recovery if it was the proximate cause of the injury. In Pressly v. Yarn Mills, supra, Justice Hoke said: “The employee is not in such instances absolved from all obligation to act with reasonable care and prudence, and if there is negligence on his part, concurring as the proximate cause of the injury, he cannot recover.” But to avail itself *235of tbis principle, the defendant must, upon evidence, show that there has been such negligence as bars the action. The defendant argues that the plaintiff is a very tall man and should have climbed out of the vat. But the ladder was supplied by the defendant for going into and coming out of the vat, and it had been safely used for this purpose, with the assurance that it was still safe and would be made- safer, upon which the plaintiff relied. ~We cannot say, upon this evidence, that the plaintiff was required to 'climb out of the vat, even if the other method, in the single instance, proved to be dangerous, and for that reason the nonsuit was proper.

Our conclusion is that the case should have been submitted to the jury, with proper instructions as to the law, and there was error in dismissing the action.

New Trial.