Pritchett v. Southern Railway Co.

after stating the case: There is no error in the rulings on the evidence.

The defendant alleges in its answer that the chip which entered the eye of the plaintiff came from the hammer he was using, and it was competent, for the purpose of meeting this contention, to show that on account of the condition of the hammer the plaintiff was not striking with it at the time he was injured. The evidence that the plaintiff would have completed his job upon which he was at work within one and a half minutes is of little importance, but is relevant to the inquiry. The plaintiff testified that the boring mill was not in operation when he began to work, and that the chip entered his eye almost instantly, and it was proper for the jury to have before them the length of time he would be engaged at work, in determining whether his conduct was negligent.

If the boring mill was not in operation, and he could complete his job in two minutes, the jury might say it was not imprudent to work with his face to the mill, and that he ought to have taken greater precautions for his safety if required to remain longer.

*100What the foreman said as he directed him to do the work, and evidence that the boring mill had thrown chips in the driving-box space before the day of the injury to the plaintiff, were properly admitted.

The burden was on the plaintiff to prove that the place where he was at work was unsafe, and that the defendant knew it to be so, of that it could have discovered it by the exercise of ordinary care (Hudson v. R. R., 104 N. C., 491; Nelson v. Tobacco Co., 144 N. C., 420; Blevins v. Cotton Mills, 150 N. C., 499), and evidence that a condition has existed for a long time is evidence of knowledge. Cotton v. Mfg. Co., 142 N. C., 531; Cotton v. R. R., 149 N. C., 227.

There are several assignments of error to the refusal to give certain special instructions, all of which, we think, were covered by the charge, but if not, they could not be ground for a new trial on this record.

At the close of the evidence, at 5 o’clock p. m., the judge adjourned court until 9 o’clock next morning. Upon the opening of court next morning, plaintiff tendered in writing his prayers for instructions, duly signed by his counsel. Counsel for defendant tendered in writing prayers for instructions, but which were not signed.

After the court had given to the jury the general charge, and while the court was reading to the jury the plaintiff’s prayers for instruction, defendant’s counsel signed the prayers which it had tendered unsigned as aforesaid, and handed them to the court. The court then read defendant’s said prayers numbered 1, 2, 7, 9, and 11. The court did not give defendant’s other pz’ayers except as contained in the court’s general charge to the jury.

The statute (Rev., sec. 538) is imperative that counsel must sign prayers for special instructions, and that upon failure to do so the judge may disregard them, and the judge need not put his refusal of the instructions on the ground that they were asked too late. As was said by the present Chief Justice in Posey v. Patton, 109 N. C., 457, “The law does that.”

That the instructions were not presented in apt time when signed and finally handed up, after the argument closed and the charge concluded, is well settled.

*101In Craddock v. Barnes, 142 N. C., 92, it was held that prayers for instructions in due form, ought to be considered, if requested before the argument begins, and Justice Walker there says: “The time within which instructions should be requested must be left to the sound discretion of the court, as in the case of many other matters of mere practice or procedure, and we will be slow to review or interfere with the exercise of that discretion ; but the presiding' judge should, and we are sure he always will, so order his discretion as to afford counsel a reasonable time to prepare and present their prayers. Counsel should perform this duty to their clients seasonably and with a proper regard for the right of the trial judge to require that he should have reasonably sufficient time to write his charge and to consider the prayers for special instructions; and what time is required by each must be determined by the nature and exigencies of each case.”

In Biggs v. Gurganus, 152 N. C., 176, the question is again considered, and Justice Brown cites with approval Craddock v. Barnes, supra, and says: “It is well settled that special instructions must be in writing and handed up before argument commences.”

The question remaining is the refusal of the motion to non-suit, and this involves the consideration of the duty which the defendant owed to the plaintiff, and whether the evidence, viewed in the light most favorable to the plaintiff, shows a breach of that duty, causing his injury.

In all courts where the common law is administered it is held that one cannot recover damages upon proof of negligence alone, and that he must proceed further and show that the negligence of which he complains was the real proximate cause of his injury. He cannot recover because a place where employees work is dangerous, unless he was injured by the unsafe place. He cannot say, There was an unsafe place in the shop where I was working, and while it is true I was not working at that place, I fell in another part of the shop and broke my leg, and therefore ask for damages.

The counsel in this case do not contend otherwise, but the difficulty arises in the application of the rule.

*102“We have repeatedly decided that an employer of labor is required to provide for bis employees a reasonably safe place to work.” House v. R. R., 152 N. C., 398, and “it is accepted law in North Carolina that an employer of labor to assist in the operation of railways, mills, and other plants where the machinery is more or less complicated, and more' especially when driven by mechanical power, is required to provide for his employees, in the exercise of proper care, a reasonably safe place, and to supply them with machinery, implements, and appliances reasonably safe and suitable for the work in which they are engaged, and such as are aioproved and in general use in plants and places of like kind” (Hicks v. Manufacturing Co., 138 N. C., 325), and “the duty of providing a reasonably safe place in which to work is one of the primary or absolute duties of the master; and when the master delegates the discharge of such duty to a servant, he represents the master, and the latter will be held responsible for the manner in which the duty is discharged.” Shives v. Cotton Mills, 151 N. C., 293.

The relative duties of the employer and employee, and the doctrine of contributory negligence and assumption of risk, as applied to the conduct of the employee, are well stated by Justice Hoke in Pressly v. Yarn Mills, 138 N. C., 416, in which he says: “It is suggested that if a negligent failure to furnish a shifter is declared to be the proximate cause of the injury on the part of the employer, by that same token the employee, working on when aware of the defect, is also negligent, and such negligence should be held to be concurrent, and to hold otherwise would require the master to take more care of the servant than the servant takes care of himself. This position finds support in some of the decided case, but the Court does not think it is in accord with the better considered adjudications on the subject. The position had its origin in some of the older decisions, rendered when the employment of labor was much more restricted and the implements and appliances were comparatively simple and attended with little danger. At that time it was considered of little consequence what the employee assumed, and as matter of fact he assumed the risk of almost everything that happened to him. As business enterprises, *103however, were enlarged, and extended, and machinery became more complicated, and larger numbers of men were being employed in its operation, it was found that the position here contended for was not a proper one by which to determine the relative rights and duties of employer and employee in regard to defective machinery and appliances. It was based upon an entirely erroneous conception, that there was a perfect equality of position between the two in respect to such defective appliances ; but nothing is further from the fact, and for the reason, chieñy, that the employer controls the conditions in which the employees do their work. His duty to furnish machinery and appliances reasonably safe and suitable, such as are approved and in general use, in the exercise of a reasonable care, is absolute. As a rule, he buys the machinery from the manufacturer or dealers, who are experts, and can change when he desires; he selects and employs a superintendent and skilled labor, and has the time and opportunity to inform himself as to the character of the machinery he buys and the hazards incident to its use, and, accordingly, the principle which holds the employee to an equality of obligation and responsibility in the respect suggested is unsound and unjust and has been rejected in the more recent and better considered cases.”

Negligence is the failure to perform a duty imposed by law. It is the failure to exercise that care which a man of ordinary prudence would have exercised under existing circumstances; and where conditions change, the degree of care required changes with them.

In former days, tools were simple, and the mechanic and his tools were inseparable. He used them daily, and by use became familiar with their qualities, and the dangers incident to his employment, and there was loss reason for holding the employer to a high degree of care than now, when complicated machinery, selected by the employer, is used, and when the employee is practically separated from his tools.

There are also in large shops, where many machines are in operation, as in the one where the plaintiff was working, dangers that are not traceable to any particular machine, but are incident to the business. These cannot generally be made the *104basis of a cause of action, but the knowledge that they exist imposes upon the employer the duty of exercising greater care.

Applying these principles, there was no error in denying the motion to nonsuit.

There was evidence that the plaintiff was employed on the day of his injury; that he had not, before this, seen the place where he was required to work; that when he began to work, the boring mill was not in operation; that there was much noise in the shop from machines; that it was necessary for him to face the boring mill in the performance of his duty; that as he began to work, the boring mill, which was boring brass, started and a brass chip struck him in the eye; that he was not using the hammer at that time; that chips from the boring mill are hot and those from the hammer cold; that his eye was blistered; that the chip taken from the eye was from the boring mill; that the boring mill was throwing chips in the space where he was working; that the boring mill had thrown chips into this place where employees were required to work several years; that shields around boring mills were in general use, and that they were movable and should be placed between the mill and the employee; that there was no shield between the mill and the plaintiff, and that if one had been there he would not have been injured.

There was much evidence to the contrary, but, on a motion to nonsuit, the law requires us to accept as true those facts which the evidence tends to prove, and we therefore hold that there was evidence of negligence on the part of the defendant which was the direct cause of the plaintiff’s injuries.

There was a conflict of evidence as to contributory negligence, and it was submitted to the jury, under proper instructions.

In our opinion, there was no aspect of the case in which the issue of assumption of risk arose. The doctrine is very generally applied that the duty to provide a safe place to work is an absolute duty, which cannot be delegated, and that the breach of this duty is negligence. It is also accepted law that the risks assumed by the employee are the ordinary risks of the employment, and that he does not assume the risk of the employer’s negligence.

*105It would seem to follow, when tbe jury answers tbe first issue “Yes,” and thereby establishes tbe negligence of tbe employer and that this negligence was tbe real proximate cause of tbe injury, that there can be no assumption of risk which will prevent a recovery.

It is, however, permissible to consider tbe knowledge of tbe employee, bis familiarity with conditions, and other circumstances, on tbe issue of contributory negligence.

Upon an examination of tbe whole record, we find

No error.