McKinney v. . Adams

Hoice, J. In Thompson v. Oil Co., 177 N. C., 279-282, the Court, in the opinion, speaking to the question chiefly presented, said: “It is the *564 accepted principle in tbis State that an employer of labor, in the exercise of reasonable cafe, is required to furnish his employees a safe place to work and provide them with implements, tools, and appliances suitable for the work in which they are engaged. Kiger v. Scales Co., 162 N. C., 133; Mincey v. R. R., 161 N. C., 467; Reid v. Rees, 155 N. C., 231; Hicks v. Mfg. Co., 138 N. C., 319. And it has been repeatedly held that the position may be recognized in the case of simple, ordinary tools, where the defect ‘is of a kind importing menace of substantial injury, having due regard to the nature of the work and the manner of doing it, and it is further shown that the employer knew of such defect or should have found it out under the duty of inspection ordinarily incumbent upon him in tools of that kind,’ etc. King v. R. R., 174 N. C., 39; Rogerson v. Hontz, 174 N. C., 27; Wright v. Thompson, 171 N. C., 88; Reid v. Rees, 155 N. C., 231; Mercer v. R. R., 154 N. C., 399.” And in further illustration of the principles pertinent, in Rodgerson v. Hontz, supra, a recovery was allowed for injuries caused by a defective cant-hook, negligently furnished an employee for use in loading and unloading heavy logs, being loaded on a train car, and speaking to the obligation of an employer of labor, in reference to simple tools, the Court stated the approved position as follows: “That an employer was not relieved of all obligation and responsibility in reference to such tools; and further, that when there was negligence in supplying tools of that character, or keeping them in order, and the defect was of a kind that reasonably imported menace of substantial physical injury, and the same was known to the employer, or if it should have been ascertained by him under the rules of inspection applicable to such cases, and having due regard to the nature of the defect and the use to which it was being put and all the attendant circumstances, liability might attach.” In this statement it appears as an essential element of liability “that in case of ordinary every-day tools the defect complained of must be one that imports menace of substantial injury.” And accordingly, in Morris v. R. R., 171 N. C., 533, recovery was denied when a hammer used in driving railroad spikes into cross-ties had worn slick and an employee having taken an unusual and awkward position with one foot on a pile of dirt, the hammer slipped from the head of a spike, whereby he was jerked down and injured. The Court being of opinion that in the ordinary use of such a tool, no such injury could have been reasonably expected, and therefore the injury should be properly classed as an accident. Again, in reference to these tools, it held that an employer of labor is not held to same careful inspection as in more complicated and *565 threatening implements, and may ordinarily rely upon the employee to discover defects observable in tbeir use, and at times to correct them himself. And applying the principle in Winborne v. Cooperage Co., 178 N. C., 88, where an employee sent to take down some old box cars some miles out on a logging road, and there found an old axe, which he in part used in the work, the axe being ill-fitted, or not having been used in some time, flew off the handle and the employee was injured, held that there was no breach of duty shown, the defect being in that the employee should have discovered for himself and remedied it. But in our opinion neither of the limitations on liability suggested in these cases may avail the defendant on the facts of this record, where the axe, with this open and observable defect, a limber, switchy handle, is personally given to the employee by defendant’s foreman and vice principal, and he is sent off into the woods to trim logs, and with no opportunity to fix it. There is here no question of proper inspection. The foreman must have known it, nor to one who has ever tried it can there be any doubt as to the menace of substantial injury. In our opinion the facts establish a clear breach of duty, causing the injury, and the motion for nonsuit was properly overruled. No error.