Clements v. Elizabeth City Light & Power Co.

AlleN, J. The rule is well established that the duty imposed upon the employer to provide a reasonably safe place to work and reasonably safe tools and appliances is nondelegable (Mincey v. R. R., 161 N. C., 470), and so important and necessary do we regard this principle that we would not permit it to be modified or weakened by contract between the employer and employee requiring the employee to furnish his own tools and appliances. Indeed, if this should be allowed the rule could be easily abrogated, and the employer would be afforded the opportunity to contract against his own negligence. *56 We would therefore be inclined to grant a new trial if the verdict stopped with the first issue, but the jury has gone further and has answered the issues of contributory negligence and assumption of risk against the plaintiff, and in the consideration of these last issues it was proper to have before the jury all the facts and circumstances including the use of leather gloves, and upon the second and third issues the use by the plaintiff of the leather gloves belonging to him was given no effect except as a circumstance tending to establish the defendant’s contention on the issues of contributory negligence and assumption of risk. In Hicks v. Cotton Mills, 138 N. C., 320, and Pressly v. Yarn Mills, 138 N. C., 415, two leading authorities on the respective duties of employer and employee, after holding that the duty of the employer to furnish a reasonably safe place to work and reasonably safe tools and appliances is absolute, the Court says in the latter case: “On the second issue, that addressed to the question of contributory negligence, the judge charged the jury in substance that if they should find from the evidence that the injury would not have happened if the defendant had supplied the machine with a shifter, and this was the proximate cause of the injury, this would be continuing negligence and they should answer the second issue No,’ though the plaintiff may have been negligent in the use of the machine. As we have held in Hicks v. Cotton Mills, supra, this is not a correct proposition as to every negligent failure on the part of the employer to furnish a safe appliance by reason of which the injury occurs, and is not the law in cases of the character we are now considering. 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, the plaintiff cannot recover.” It has also been held that “When the danger is obvious and is of such a nature that it can be appreciated, and understood by the servant as well as by the master or by any one else, and when the servant has as good an opportunity as the master or any one else of seeing what the danger is, and is permitted to do his work in his own way and can avoid the danger by the exercise of reasonable care, the servant cannot recover against the master for the injuries received in consequence of the condition of things which constituted the danger. If the servant is injured, it is from his own want of care.” Covington v. Furniture Co., 138 N. C., 374; Mace v. Mineral Co., 169 N. C., 146. Applying these principles we find the evidence on the issue of contributory negligence full and almost uncontradicted, and as it has been submitted to the jury under instructions free from error, the finding thereon is sufficient to sustain the judgment. *57 The intestate of the plaintiff was a lineman of ten or twelve years experience. He knew the dangers of his employment and the tools and appliances he ought to use. He represented to the manager of the defendant at the time of his employment he had the tools and appliances necessary for his work and that he preferred to use his own. He discovered the need of repairs at the place where he was injured, and undertook to do the work in his own way and with tools selected by himself. He used leather instead of rubber gloves, and after he had detached the high-power wires on each side of the pole from the arm, instead of keeping them apart, which he could have done, thereby rendering them harmless so far as he was concerned, he placed them near each other, which was very dangerous, and thus brought about his death by his own want of care. The statement in the former opinion as to the use of gloves furnished by himself, thus considered in connection with the other circumstances, which are now fully developed, is free from criticism when restricted to the second issue. The evidence of Bains was competent to show special notice to the intestate of the danger of the work he was doing, and that he used a defective appliance of his own selection. The evidence of Lewis is immaterial in the view we take of the appeal, as it has no bearing on the second issue. No error.