Key Ex Rel. Key v. Home Chair Co.

Pee Cubiam. The defendant demurred ore tenus on the ground that “the complaint does not state facts sufficient to constitute a cause of action. C. S., 511(6). The court below sustained the demurrer and in this we can see no error. There is no allegation in the complaint that the tool used was defective, nor any allegation showing that such defect was known to the defendant or ought to have been known in the exercise of due care, and that such defect was the proximate cause of the injury. On the contrary, what caused the injury is fully set forth, which we do not think is such negligence as gave plaintiff a cause of action against the defendant. The tool was simple, no defect in it; the place of work was such as required a stooping position, well known to Key, who was 19 years old. Hoeing, picking cotton, planting tobacco and potatoes, cutting wood, sawing logs, shoveling dirt and coal, sweeping and numerous ordinary affairs of life, all require the work to be done by stooping. The allegations that the tools and appliances were not such as in common use and were not modern, on all the facts, do not show negligence. The fact that the old simple method of sweeping required stooping, in the early days a bundle of broom-sage was used and then the manufactured broom with the handle, does not require one to furnish the servant (if the housekeeper does not perform the task) with a vacuum sweeper. In simple ordinary tools and appliances, where there are no defects, known, or in the exercise of due care should have been known, to the employer, and such defects are not the proximate cause of the injury, -the application of plaintiff’s requirement “such tools and appliances as are in common use and were not modern nor suitable tools,” on the facts here, -would *796 tend to destroy industry. The risk of employment would be too great to the employer. The very bope of a commonwealth is to encourage work and thrift and create industry, to give employment and by so doing make a happy and contented people. Sickness, ill-health and misfortune are a part of life’s burden which humanity must endure with patience. This burden we cannot put on an employer of labor unless negligence is shown. See Winborne v. Cooperage Co., 178 N. C., 88; Smith v. Bitch, 196 N. C., 72; Merritt v. Foundry Co., ante, 775. In Snipes v. Monds, 190 N. C., at p. 191, it is said: “Even after answering in the trial court, or in this Court, a defendant may demur ore tenus, or the Court may raise the question ex mero motu that the complaint does not state a cause of action.” Seawell v. Gole, 194 N. C., at p. 547. The judgment below is Affirmed.