#### CHARLEY LINDSEY v. SUNCREST LUMBER COMPANY et al.

(Filed 23 December, 1925.)

Employer and Employee — Master and Servant — Negligence—Safe Place to Work — Tools and Appliances — Instructions—Appeal and Error— Reversible Error.

The requirement of an employer to furnish his employee a safe place to work within the scope of his employment, and suitable tools and appliances with which to perform it, is such only as requires ordinary care in relation to the surroundings; and an instruction upon the issue of negligence that such was the employer’s absolute duty, is reversible error.

Appeal by defendant from *Finley,*J./at May Term, 1925, of Haywood.

Civil action to'recover damages for an alleged negligent injury sustained by plaintiff, an employee of the defendant, on 2 September, 1922, while working as a “tong hooker” on one of the defendant’s loading machines which was being operated as a part of the equipment on the logging train, owned and operated by the defendant in connection with its manufacturing plant.

Upon denial of liability and issues joined, the jury returned the following verdict:

“1. Was the plaintiff injured by the negligence of the defendants, as alleged in the complaint? Answer: Yes.

“2. Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? Answer: Yes.

“3. What damage, if any, is the plaintiff entitled to recover? Answer: $1,800.”

From a judgment on the verdict in favor of plaintiff, the defendant appeals, assigning errors.

*Morgan <& Ward for plaintiff.*

*Alley & Alley for defendants.*

Stacy, C. J.

We deem it unnecessary to consider more than one *exception.*The following excerpt, taken from the charge as it deals with the issue of negligence, constitutes one of the defendant’s exceptive assignments of error:

> “In this connection the court charges you it is the duty of the defendant in a case of this kind to furnish reasonably safe place for its employees to work and to furnish reasonably safe tools and equipment with *845wbieb to work, and tbe failure to do that is negligence, and if you find tbis was so and it was tbe proximate cause of tbe plaintiff’s injury, it would be your duty to answer tbe first issue ‘Yes.’ ”

Tbis instruction, it must be conceded, as it was on tbe argument, is in direct conflict witb wbat bas been said in a number of recent cases, natably, *Murphy v. Lumber Co.,*186 N. C., 746; *Owen v. Lumber Co.,*185 N. C., 612; *Gaither v. Clement,*183 N. C., 455; *Tritt v. Lumber Co., ibid.,*830; *Smith v. R. R.,*182 N. C., 296.

It is not tbe absolute duty of tbe master to provide for bis servant a safe place or a reasonably safe place to work and to furnish bim reasonably safe appliances witb wbieb to execute tbe work assigned — sucb would practically render tbe master an insurer in every hazardous employment — but it is bis duty to do these things in the exercise of ordinary care. *Riggs v. Mfg. Co., ante,*256. Tbis limitation on tbe master’s duty is not a mere play on words, nor a distinction without a difference, but it constitutes a substantial qualification, or restriction, affecting tbe rights of tbe parties. *Cable v. Lumber Co.,*189 N. C., 840.

Tbe exception on tbe present record is clear-cut, and tbe issue of liability one of dispute, hence we must adhere to tbe decisions on tbe subject.

Tbe case was before us at tbe Fall Term, 1924, on a judgment of nonsuit, which was reversed. 189 N. C., 118.

New trial.