Bissell v. Greenleaf-Johnson Lumber Co.

Hoke, J., after stating the facts: Under a charge free from error the jury have accepted the plaintiff’s version of the matter, and, this being true, a clear cause of action has been established in plaintiff’s favor. Under repeated adjudications of this Court, we have held that an employer is required to provide for his employees a reasonably safe place to Work, and to supply them with appliances and implements safe and suitable for the purpose; and, even in cases where the doctrine of assumption of risk is applicable, it is not merely working in the presence of an obvious defect that will constitute contributory negligence. In Shearman and Red-field on Negligence, sec. 211, the authors state what they consider the correct rule as follows: “The true rule, as nearly as it can be stated, is that a servant can recover for an injury suffered from defects due to the master’s fault, of which he had notice, if under all the circumstances a servant of ordinary prudence, acting with such prudence, would, under similar condi *125 tions, have continued the same work under the same risk.” A statement that has been substantially affirmed by us in Pressly v. Yarn Mills, 138 N. C., 410, and other cases of like import. It is also well recognized that promises and assurances of needed repairs on the part of an employer will frequently relieve an employee of the charge of contributory negligence, which might otherwise be maintained against him. Shearman and Redfield, sec. 215, note 1; Springs v. R. R., 130 N. C., 186. While the principles just referred to were presented by counsel as arising on the testimony, they can hardly be considered as directly apposite to the case at bar; for we have held in several of the more recent cases that our statute, called the Fellow-servant Act, Revisal 1905, see. 2646, applies to these logging roads. Sawyer v. Lumber Co., 145 N. C., 24-27, citing Hemphill v. Lumber Co., 141 N. C., 487; Simpson v. Lumber Co., 133 N. C., 96; Craft v. Lumber Co., 132 N. C., 156. And under our decisions construing this statute, when an injury arises to an employee as the proximate result of a defect in the “machinery, ways or appliances of the company,” the defense of assumption of risk, as it ordinarily obtains, is not available to defendant. Coley v. R. R., 129 N. C., 409. There is, in fact, very little conflict in the testimony on the essential features of this demand. The superintendent, testifying for the company, admitted that the engine was without a cab for two or three weeks, and offers no satisfactory or sufficient explanation of the delay. On cross-examination this witness said “that he regarded the building of the cab as a convenience, but not a necessity”; and this is, no doubt, the reason that greater effort was not made to expedite the needed repairs. In our opinion, the case has been correctly tried, and the judgment must be affirmed. No error.