There was allegation and evidence tending to show that the plaintiff, an inexperienced workman, was employed by the defendants, who are bridge builders, and put to work by them in chiseling off a portion of a concrete bridge, without providing any spectacles or goggles for the plaintiff as a protection to his eyes from the flying *807fragments of stone and concrete, as was ordinarily used and customarily supplied by the employer in such work, especially when done in the country as was the case here. It was further in evidence that the defendants’ foreman had promised to furnish the plaintiff a pair of spectacles, similar to the pair he was wearing, after the plaintiff had complained to the foreman of being annoyed by dust and small particles of stone striking and lodging in and about his eyes. In the afternoon of the same day this promise was made, and while plaintiff was working in expectation of receiving the glasses, one of his eyes was punctured by a flying fragment of stone, or concrete, necessitating an operation for its removal and the substitution of an artificial eye. The injury occurred on 28 August, 1922, three or four days after the plaintiff had entered upon his-work with the defendants.
We think this evidence, taken in its most favorable light for the plaintiff, the accepted position on demurrer or motion to nonsuit, was sufficient to carry the case to the jury.
“A perusal of our decisions on the subject will show that in order for liability to attach, in case of simple, everyday tools, it must appear, among other things, that the injury has resulted from a lack of such tools or defects therein which the employer is required to remedy, in the proper and reasonable discharge of his duties, and that the lack or defect complained of and made the basis of the charge is of a kind from which some appreciable and substantial injury may be reasonably expected to occur.” Hoke, J., in Winborne v. Cooperage Co., 178 N. C., p. 90.
In Bilicki v. Shipbuilding Co., 147 App. Div. (N. Y.), 687, a case quite similar to the one at bar, recovery was denied upon the ground that the evidence did not show it customary for goggles (with glass fronts and wire sides, or with wire fronts and sides, or with isinglass fronts and wire sides) to be furnished the workmen at the instance of the employer. But here the evidence is to the effect that such was the custom where the work was being done out in the country and away from easy access for the .employees to secure such instruments of protection for themselves.
With respect to whether it. was customary for the employer, under the circumstances here presented, to furnish goggles or glasses to the workmen, his Honor instructed the jury as follows:
“If you find there was any such custom, then you would answer that first issue 'Yes’; if you answer that there was no custom and the defendant agreed to furnish the glasses, then you would have to inquire as to the time in which to furnish them and take into consideration the work there of the plaintiff until he was injured in the afternoon.”
*808Tbe defendants bave made tbis instruction tbe basis of one of tbeir exceptions, and we are of opinion tbat it must be sustained. Tbe bare existence of tbe custom would not import liability, even if it.were being violated at tbe time, for it is not admitted on tbe instant record tbat plaintiff’s eye was injured in tbe manner alleged. It would be necessary for tbe jury to find, in addition to tbe existence of tbe custom, tbat plaintiff’s injury was tbe proximate result of tbe nonobservance of sucb custom on tbe part of tbe defendants. Tbe instruction, as given, is defective in tbis respect.
In order to establish a case of actionable negligence in a suit like tbe present, tbe plaintiff must show: First, tbat there has been a failure to exercise proper care in tbe performance of some legal duty which tbe defendant owed tbe plaintiff, under tbe circumstances in which they were placed; and, second, tbat sucb negligent breach of duty was tbe proximate cause of tbe injury — a cause tbat produced tbe 'result in continuous sequence and without which it would not bave occurred, and one from which any man of ordinary prudence could bave foreseen tbat suéh a result was probable under all tbe facts as they existed. Ramsbottom v. R. R., 138 N. C., 41.
For tbe error, as indicated, there must be a new trial; and it is so ordered.
New trial.