Steele v. Grant

Walkeb, J., after stating the facts: There was evidence of negligence in this case, which we must assume was properly submitted to the jury in the charge of the court, as the latter was not sent up. The general rule as to the duty of'the master in respect to the place of his servant’s work, and tools and. appliances furnished to him for the purpose of doing the work, and as to structures which he is engaged in erecting, was conceded, — 641 — and may be thus formulated: Tbe duty of tbe master to provide reasonably safe tools, machinery, and place to work does not go to tbe extent of a guarantee of safety to tbe employee, but does require that reasonable care and precaution be taken to secure safety, and tbis obligation, wbicb is positive and primary, cannot be avoided by a delegation of it to others for its performance. Tbe master’s duty, though, is discharged if be does exercise reasonable care in furnishing suitable and adequate machinery and'apparatus to tbe servant, with a reasonably safe place and structures in and about which to perform the work, and in keeping and maintaining them in such condition as to afford reasonable protection to the servant against injury. R. R. v. Herbert, 116 U. S., 642; Gardner v. R. R., 150 U. S., 349; R. R. v. Baugh, 149 U. S., 368; Steamship Co. v. Merchant, 133 U. S., 375. This undertaking on the part of the master is implied from the contract of hiring. Hough v. R. R., 100 U. S., 213. The rule was stated and applied in Mincey v. R. R., 161 N. C., 467, citing the above authorities, and it has been frequently recognized in many other cases. The difficulty is not in the expression of the principle, but in the application of it to any given statement of facts. But this case does not present any such difficulty, as the facts are simple and practically pncontro-verted. It was the plain duty of the defendant, when plaintiff was ordered to work on the fifth floor of the house he was then building, to see, in the exercise of proper care, that he had a reasonably safe place and surroundings for the performance of the task assigned to him, viz., putting in the cut-off plank to receive the concrete and hold it. It is hardly necessary to argue that he failed to do this, for construing the evidence most favorably for the plaintiff, as we are required to do, it appears that the head block had to be raised in order to do the work, and it was accordingly raised and placed upon the stiff knee. Owing to the nature of the latter, this produced a dangerous condition, and plaintiff suggested that it be done another and a safe way, but his suggestion was not heeded, and he was ordered to adopt the dangerous way, with the promise that he would be protected in his work against injury from the head block by keeping the — 642 — elevator still, which, if it bad been done as promised, would have prevented tbe injury. But the elevator was moved, and the shafting or stiff knee being too weak to support and hold the head block, it swung around and caught the plaintiff, inflicting the injuries of which he complains. The elevator was placed there to be used, and not to remain idle. It was likely to be started at almost any moment, unless proper precaution was taken to prevent it. The j>osition of the plaintiff was safe if the elevator was not moved, but by reason of the weakness of the shaft or stiff knee, it was rendered dangerous if it was moved. So we have a case where the master uses a defective appliance to hold up the head block at the top of the elevator, and this combines with the negligence or willfulness of some one, in moving the elevator, to cause the injury. We have two acts of negligence cooperating to produce the injury, neither one of which would have done so without the presence of the other. These are reasonable inferences the jury might have made from the evidence as it is now presented, and they were properly allowed to pass upon it. It is a familiar principle that the negligence of the master, when uniting with some other negligence, and the two together directly causing the injury, makes the master liable, even though his negligence was only a contributing cause, and the other cooperating negligence was that of his employee’s fellow-servant or of a stranger. The law will not, under such circumstances, apportion the liability, but requires the master to be sure, when one of his servants is negligent and injures another servant in the same employment, that he is free from culpable blame; otherwise the law will hold him responsible to the injured servant, as much so as if his own negligence had been the sole cause of the injury. Moore v. Contracting Co., 149 N. C., 177. This doctrine was applied in that case, citing 12 Am. and Eng. Enc. of Law (2 Ed.), p. 905, where it is said: “It is a familiar principle that where an injury is caused by the concurring negligence of two persons, either or both may be held responsible. The application of this general rule in the law of master and servant is not affected by the fellow-servant doctrine. Where the negligence of the master is combined with — 643 — 'tbe negligence of a fellow-servant in producing tbe injury, and tbe negligence of neither is alone tbe sufficient cause, both tbe master and tbe fellow-servant are liable, and tbe injured servant may maintain bis action against either or both together. Tbe application of this rule occurs mostly in cases where tbe master is sued. That a master is liable for an injury to bis servant caused by tbe concurrent negligence of himself and a fellow-servant, but -which would not have happened bad tbe master performed bis duty, is clear; it is only where tbe negligence of a fellow-servant is tbe whole cause of tbe injury that tbe master is excused. And while contributory negligence may relieve a master from liability, it must be that of tbe person injured; it is immaterial that tbe negligence of a third person contributed to tbe injury. If, therefore, a servant who is himself free from negligence receives an injury, caused in part by tbe negligence of bis master, or, what amounts to tbe same thing, of a servant for whose negligence tbe master is-responsible, and in part by that of a fellow-servant, be can maintain an action against bis master for such injury.” Tbe principle has found frequent and varied expression in tbe books. Where a seaman was killed by tbe explosion of a steam valve, due to tbe concurring negligence of tbe master in arranging tbe pipe to which it was attached in an unsafe manner and tbe negligence of tbe servant in opening .the valve, it has been held that tbe master was liable. Southern Pacific v. Dacasta, 190 Fed. Rep., 689; 111 C. C. A., 417. “A master is liable for tbe injury to bis servant, who is free from contributory negligence, where it is caused by tbe concurrent negligence of tbe master or bis vice principal and a fellow-servant.” 26 Cyc., 1302. “A servant does not assume tbe risk from tbe negligence of a fellow-servant augmented by that of tbe master.’-’ Humphrey v. Raleigh C. and C. Co., 80 S. E. (W. Va.), 803. It has been said that while an employee cannot recover for personal injuries if tbe negligence of a fellow-servant was tbe proximate cause of tbe injury, if tbe injury is caused by tbe employer’s negligence, as by furnishing defective machinery, tbe employee may recover even though tbe negligence of a fellow644 servant was a contributory cause of tbe injury. Helley v. Perkins Machine Co., 102 N. E., 944. It bas also been beld tbat an employee can recover for an injury caused by tbe negligence of bis employer in providing a defective angle cock on tbe air-brake bose of an engine about wbicb be worked, although tbe negligence of tbe engineer in moving tbe train while be was between tbe cars was also a proximate cause of tbe injury. Watson v. A. C. L. Railway, 74 S. E., 121. Tbe duty of a master to provide reasonably safe tools and machinery and place to work does not go to tbe extent of a guarantee of safety, but does require tbat reasonable precautions be taken to secure safety; and this obligation cannot be avoided by delegating it to others. Tbe duty of exercising reasonable care in furnishing suitable and safe machinery and appliances, and keeping them in repair, is a personal obligation which tbe master cannot rid himself of by delegating it to an agent to perform. If instead of himself performing tbe positive obligations wbicb be owes to bis servants, tbe master engages another to do them for him, be is liable for tbe neglect of tbat other, wbicb is tbe neglect of tbe master to do tbe things wbicb it is bis duty to perform. It therefore follows tbat tbe duty of tbe master is not performed by tbe appointment of an agent to supply reasonably and adequately safe in-strumentalities for the servant, but be is liable if tbe agent fails to do so. It being tbe duty of tbe master to exercise reasonable care to furnish suitable machinery and appliances and repair and inspect tbe same in proper instances, and to provide a reasonably safe place in wbicb to do tbe particular work assigned to bis servant, be cannot interpose as a defense to an action for an injury to tbe employee tbe neglect of another servant to perform tbat duty for him; nor, where the negligence charged against him is tbe failure to. supply a reasonably safe place to work, tbe master cannot escape liability upon tbe ground tbat a particular act of negligence was tbat of a fellow-servant. Tbe negligence of tbe latter must be unmixed witb bis own in order tbat bis plea can be available to him, provided tbe negligence of tbe two united and constituted tbe proximate cause of tbe injury. These principles are fully sustained in the following — 645 — cases: B. and O. R. Co. v. Baugh, 149 U. S., 368; Hough v. T. and P. R. Co., 100 U. S., 213; N. P. R. Co. v. Peterson, 162 U. S., 346; U. P. R. Co. v. Snyder, 152 U. S., 684; N. P. R. Co. v. Herbert, 116 U. S., 642, where the subject is exhaustively discussed. They are also approved in Barkley v. Waste Co., 147 N. C., 585 (s. c., 149 N. C., 287); Tanner v. Lumber Co., 140 N. C., 475; Avery v. Lumber Co., 146 N. C., 592. It has been held by us that this duty of the master to exercise due care in furnishing his servant with reasonably safe machines and in-strumentalities with which to do the work and a reasonably safe place in which to perforin it, cannot be safely neglected by him, and his failure in this duty exposes the employee “to extraordinary risks and hazards.” Moore v. R. R., 141 N. C., 111. The master is not only liable to his servant for the neglect of a nonassignable duty, that is, one that is primary, personal, and positive, and for the neglect of his representative if he delegates it, and for his own neglect even if it unites with that of a fellow-servant, causing the injury, but he is also liable “when the other servant occupies such a relation to the injured party, or to his employment in the course of which his injury was received, as to make the negligence of such servant the negligence of the employer.” Q. S. S. Co. v. Merchant, 133 U. S., 375. The principle was well stated and applied in N. Pac. R. v. Peterson, supra, where Justice Peckham said: “The general rule is, that those entering into the service of a common master become thereby engaged in a common service and are fellow-servants, and prima facie the common master is not liable for the negligence of one of his servants which has resulted in an injury to a fellow-servant. There are, however, some duties which a master owes, as such, to a servant entering his employment. He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. He also owes the duty of providing reasonably safe tools, appliances, and machinery for the accomplishment of the work necessary to be done. He must exercise proper diligence in the employment of reasonably safe and competent men to perform their respective duties, — 646 — and it bas been held in many States that the master owes tbe further duty of adopting and promulgating safe and proper rules for tbe conduct of bis business, including tbe government of tbe machinery and tbe running of trains on a railroad track. If tbe master be neglectful in any of these matters, it is a neglect of a duty which be personally owes to bis employee, and if tbe employee suffer damage on account thereof, tbe master is liable. If, instead of personally performing these obligations, tbe master engages another to do them for him, be is.liable for tbe neglect of that other, which, in such case, is not tbe neglect of a .fellow-servant, no matter what bis position as to other matters, but is tbe neglect of tbe master to do those things which it is tbe duty of tbe master to perform as such.” Applying this well settled doctrine to tbe case in band, we find that tbe lift or-elevator was in a defective condition, which was called to tbe attention of tbe foreman. If be, or any subordinate to whom he'intrusted this primary duty of tbe master to cure tbe defect or to guard against its evil consequences, neglected tbe duty, tbe defendant, as master, was responsible just tbe same as if be bad been personally present and acting for himself; and there was also some evidence from which tbe jury might have inferred that Bailey, tbe foreman, stood, in bis relation to tbe defendant, as a vice principal. But there was superadded to tbe default of tbe master, in having defective shafting, tbe express promise of tbe foreman that be would see to it that tbe servant’s position was not made dangerous thereby, while be was engaged in performing bis work. That is, in its legal character and essence, not unlike a promise to make needed repairs, called to tbe master’s attention by tbe servant, in which case tbe rule is thus stated in 1 Labatt on Master and Servant (Ed. of 1904), sec. 421: “After tbe servant bas shown that there bas been a promise, actual or implied, on tbe part of tbe master, and that this promise amounts to an. undertaking to remove, not only a danger, but a danger by which be himself is threatened, be still bas tbe onus of proving that tbe inducing motive of bis continuance in tbe employment was bis reliance upon tbe fulfillment of tbe promise. Recovery — 647 — cannot be bad where tbe only reasonable inference from tbe testimony is tbat tbe servant continued work, not because be relied on tbe master’s promise, as given, but merely because of an expectation, based on tbe defendant’s babit, tbat be would make tbe repairs in question. But tbe mere fact tbat tbe servant bas some suspicion tbat tbe master’s assurances will not be made good is not enough to deprive him of bis right of action. "When complaining of defective instrumentalities or machinery it is not necessary tbat tbe servant shall state in exact words tbat be apprehends danger to himself by reason of tbe defects, nor need there be a formal notification tbat be will leave tbe service unless tbe defects be repaired or remedied. It is sufficient if, from tbe circumstances of tbe case, it can be fairly inferred tbat tbe servant is complaining on bis own account, and tbat be was induced to continue in tbe service by reason of tbe promise.” We cannot, therefore, say tbat there was any assumption of risk or contributory negligence on tbe part of tbe plaintiff. As tbe evidence is now presented, there was none. It does not appear who moved tbe elevator — whether it was done by Lee, tbe labor foreman, or one of bis subordinates, or by a stranger. In tbe view we take of tbe case, it can make no material difference by whom it was moved, as it was tbe duty of tbe master, who bad made tbe promise through bis representative, to use due care in protecting tbe plaintiff while at bis work, and there is evidence tbat this was not done. It was held in Keating v. Hewatt, 99 N. E. (Mass.), 479, a case much like this one in its facts, tbat an employer is responsible for injury to an employee resulting from tbe foreman’s negligent failure to protect tbe employee against injury at a machine, after assuring him tbat it would not start while be was working at it, and tbat it could be found by tbe jury tbat tbe injury was due solely to tbe negligent failure of tbe foreman to secure this promised protection after be (bad exposed tbe plaintiff to danger. For such negligence of tbe foreman, tbe employer is responsible. Floettle v. R. R., 41 N. J. Sup., 792. We said recently in Lynch v. R. R., 164 N. C., 249: “In Whitson v. Wrenn, 134 N. C., 86, tbe master bad instructed tbe servant to do tbe work in a way tbat was safe, and be elected — 648 — to disobey the orders and do it in a dangerous way, and we beld that be could not recover for the injury caused by a departure from his instructions, because the fault was all his own. Not so here, but the contrary. It is the converse of that case. The servant selected a safe method of doing the work, and the master ■ordered him to desist and do it in a dangerous way. The injury was, therefore, caused by the master’s fault, and fixes him with responsibility for it. There is no pretense that the servant was guilty of any contributory negligence, and could not be, under the facts. Orr v. Telephone Co., 132 N. C., 691.” That case was approved, at the same term, in Watson v. R. R., 164 N. C., 176. "We, therefore, conclude by the application of well defined principles of the law that the case was properly submitted to the jury. The only exception taken in the record and discussed in the brief was directed against the refusal to nonsuit, and that matter, as we have seen, was correctly decided by the court, in almost any view we can take of the. evidence for the plaintiff, and certainly so when we adopt the one most favorable to him. No error.