#### DEVOE C. CLINARD v. CLINARD ELECTRIC COMPANY.

(Filed 15 December, 1926.)

1. Master and Servant — Employer and Employee — Safe Place to Work— Sufficient Help — Nondelegable Duty — Rule of Prudent Man.

It is tbe nondelegable duty of tbe master to furnish to bis employee doing work of a dangerous character in the course of tbe employment required of him, reasonably safe tools and appliances in general use for tbe doing of tbe particular work, and such help of others as is reasonably required therefor.

2. Same — Insurer.

Tbe measure of liability of tbe master to his servant in failing to1 furnish him reasonably safe tools and appliances with wbicb to perform a dangerous duty in tbe course of bis employment, is that of an ordinarily prudent man, and not that of an insurer of tbe servant’s safety under tbe existing conditions.

3. Evidence — Negligence—Issues—Questions of Law — Questions of Pact —Jury—Instructions.

Where all tbe evidence upon tbe trial of a personal injury case wherein negligence of defendant is alleged, admits of only one inference, tbe *737question of negligence is one of law, and where therefrom more than one inference of the material ingredients of negligence arise, the fact of negligence is for the determination of the jury under proper instructions of the law from the court.

4. Master and Servant — Employer and Employee — Duty of Master— Reasonably Safe Tools and Appliances — Simple Tools.

While the master is required to furnish the servant engaged in dangerous work reasonably safe simple tools, under the rule of the prudent man, the servant experienced in their use, is presumed to have knowledge as to whether their continued use is dangerous, and ordinarily the master is not required to inspect them to see that they have not become unsafe. .

5. Same — Contributory Negligence.

The failure of the master to furnish the servant reasonably safe tools and appliances to perform dangerous services, does not alone render the master liable for an injury to his servant, under the rule of the prudent man, but it is required that the injury was proximately caused by the failure of the master to perform his duty, or that the servant was not guilty of contributory negligence without which the injury in suit would not have occurred.

6. Master and Servant — Employer and Employee — Negligence — Safe Tools and Appliances — Evidence—Accessibility—Questions for Jury.

Where the servant is injured while engaged in the course of his dangerous employment, and there is evidence in defendant’s behalf that he had furnished all safe tools, appliances, etc., where the work was done and at the time of the injury in suit, it is for the jury to determine, under' conflicting evidence, in proper instances, not only the fact of the tools, etc., having been furnished, but also, whether they were reasonably accessible to the servant at that time.

7. Negligence — Contributory Negligence — Rule of the Prudent Man.

Where the servant is engaged in dangerous work, in the course of his employment, he is required for his own safety to use such care as one of ordinary prudence would have used under like circumstances, just as this rule would apply to the duty of the master upon the issue of contributory negligence.

8. Master and Servant — Employer and Employee — Servant’s Continuing to Work Under Instructions — Contributory Negligence — Negligence.

An employee^ engaged in dangerous work, anticipating danger from continuing to work with insufficient help, does not bar his right of recovery for a resulting injury, if the immediate injury was not in his contemplation, and he continued under his employer’s instruction, with the belief that with the assistance furnished, he could overcome the danger by doing so.

9. Master and Servant — Employer and Employee — Dangerous Work— Tools and Appliances — Sufficient Help — Implied Knowledge.

Held, under the facts of this ease, the unloading of a steel tank two feet in diameter and eight feet long, weighing 530 pounds, with projecting rivets in it, from a truck to be carried down a stairway into a cellar *738where it was to be connected to a water system in a public school building, as a matter of common knowledge requires for the purpose rope, wire, or like appliances, and sufficient help, and which should have been anticipated by the master.

Appeal from *Webb, J.,*at May Term, 1926, of Eoesyth. Affirmed.

Tbis is a civil action for actionable negligence by plaintiff against defendant. It was tried at December Term, 1925, in Eorsytb County Court.

Tbe usual issues of negligence, contributory negligence and damage were submitted to tbe jury. They answered “No” to tbe first issue, “Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint?” and did not answer tbe other two issues.

Tbe plaintiff assigned some fifteen errors and appealed to tbe Superior Court. Tbe only material one we consider is tbe charge of tbe Eorsytb County Court judge, as follows:

(Assignment of Error No. 9.) “Tbe second allegation of negligence, that tbe defendant negligently failed and neglected to furnish tbe plaintiff proper tools and appliances for doing tbe work which be was engaged in at tbe time be sustained tbe injury complained of in bis complaint, is not before you, and tbe court is not submitting that second allegation; so when the court refers to tbe allegation of negligence that tbe plaintiff alleges it will be relative to tbe allegation of negligence that tbe defendant failed to furnish sufficient and proper help for doing tbe work be was engaged in doing.”

Tbe Superior Court judge sustained tbis assignment of error and remanded tbe action to tbe Eorsytb County Court, and tbe judgment rendered in tbe Forsyth County Court be set aside and ordered a new trial. From tbis judgment defendant appealed to tbe Supreme Court and assigned error. The other necessary facts will be set forth in tbe opinion.

*Ratcliff, Hudson & Ferrell for plaintiff.*

*Swinh, Clement, Hutchins &*Feimstm- *for defendant.*

ClabksoN, J.

Tbe defendant introduced no evidence.

We are of tbe opinion that tbe Superior Court judge was correct in sustaining tbe assignment of error No. 9. Tbe complaint alleges: “(a) That defendant negligently failed and neglected to furnish tbe plaintiff with sufficient and proper help for doing tbe work be was required to do and which be was engaged in at tbe time of tbe injury herein complained of. (b) Tbe defendant negligently failed and neglected to furnish tbe plaintiff proper tools and appliances for doing tbe work which be was engaged in at tbe time be sustained tbe injury complained of herein.”

*739Tbe defendant, in its further answer, says: “Tbe plaintiff bad at bis command any tools and appliances wbicb be required or needed in tbe execution of tbe work of bis department; that tbe defendant bad in its place of business at tbe time of tbis accident ropes, tackles, and other equipment that could have been used by tbe plaintiff bad be so desired.”

Tbe evidence on tbe part of plaintiff was to tbe effect that be was in tbe employ of defendant in its water system department; that on tbe morning of 15 June, 1925, be, with another mechanic, was assigned to install a tank in tbe Mineral Springs School building. Tbe tank was round, 8 feet long, 2 feet in diameter, concave at one end and convex at tbe other, and weighed 530 pounds, and made of steel. It was to be put in tbe basement of tbe school building. To do tbis it bad to be carried down a concrete stairway 15 feet long and 4 feet wide. The stairway ended on a small passage about 4 feet wide and 6 feet long, surrounded by a brick wall except a door 3 feet wide leading into tbe boiler room in wbicb it bad to be carried. To unload tbe tank tbe truck was backed up' towards tbe steps leading down into tbe basement, and tbe tank tilted over tbe truck until tbe concave end rested a little inside tbe stairway. While sliding tbe tank off tbe truck it caught on tbe truck at a point where a row of rivets ran around tbe middle of tbe tank. Tbe plaintiff was down tbe stairway assisting with tbe helper to slide it down tbe stairway off tbe truck. All at once tbe tank jerked loose, and when it did it slid down tbe stairway and caught tbe plaintiff against tbe brick wall at tbe foot of tbe stairway and cut off bis leg. It was contended that plaintiff at tbe time requested more help, but it was refused. “You will have to get by tbe best way you can.” There was evidence that' defendant furnished no appliances or tools of any kind for unloading tbe tank. On tbe other harid, defendant contended that plaintiff was employed as tbe bead mechanic, bad been in tbe employ of tbe company five years and bad installed twenty-five to thirty tanks in various places; that plaintiff was instrúcted to get some negroes to work on tbe job, wbicb included digging a trench, a mechanic in tbe department, and two negroes were assigned to do tbe work and tbe truck driver — three men loaded tbe tank at tbe shop and there were three who unloaded it. When tbe tank was half-way off tbe truck it was caught by tbe rivets and tbe mechanic asked plaintiff to call tbe two negroes who were near by digging tbe ditch to help unload, wbicb plaintiff refused to do. Tbe question of insufficient help was submitted to tbe jury. *Cherry v. R. R.,*174 N. C., p. 263; *Johnson v. R. R.,*191 N. C., p. 75.

Plaintiff testified, without objection, “The company bad furnished no tools or appliances for getting tbis tank in tbe basement.” Tbis is tbe crux of tbe case.

*740Tbe defendant in its -brief says: “Had tbe plaintiff, in tbe case before tbe court, shown tbat a rope and tackle, ropes, skids or wbat-not were customarily used, or could bave been used, and by tbe use of same tbe injury would not bave occurred, tbey might bave made out a case, but they did not show any of these things.”

3 Labatt’s Master and Servant (2 ed.), p. 2478, sec. 924a, in note, says: “In *Mercer v. Atlantic Coast Line R. Co.,*154 N. C., 399, tbe Court held tbat tbe rule requiring tbe master to use ordinary care to furnish reasonably safe appliances applied alike to the simple and complicated tools; but tbat tbe master is not required to inspect simple tools, because tbe employee is presumed to be equally as conversant with tbe tool as tbe employer, and, being required to use it, is in a better situation to discover tbe defects.” And at p. 2479 it is said: “It does not seem entirely logical to say tbat tbe master is under no obligation to exercise ordinary care to furnish reasonably safe appliances, simply because those appliances chance to be of a simple character.”

In *Winborne v. Cooperage Co.,*178 N. C., 90, it is said: “A perusal of our decisions on tbe subj’ect will show tbat in order for liability to attach, in case of simple, every-day tools, it must appear, among other things, that, tbe inj’ury has resulted from a lack of such tools or defects therein which tbe employer is required to remedy, in tbe proper and reasonable discharge of bis duties, and tbat tbe lack or defect complained of and made tbe basis of tbe charge is of a kind from which some appreciable and substantial inj'ury may be reasonably expected to occur.” *Whitt v. Rand,*187 N. C., 807.

Our decisions are to tbe effect “tbat an employer of labor, in tbe exercise of reasonable care, must provide for bis employees a safe place to do their work and supply them with machinery, implements and appliances safe and suitable for tbe work in which tbey are engaged, and to keep such implements, etc., in safe condition as far as this can be done by tbe exercise of proper care and supervision.” *Riggs v. Mfg. Co.,*190 N. C., at p. 258, and cases cited.

Tbe employer is not an insurer and tbe negligence of the employer must be the proximate cause of tbe injury. In *Ins. Co. v. Boone,*95 U. S., 117, it is said: “Tbe proximate cause is tbe dominant cause, not tbe one which is incidental to tbat cause, its mere instrument, though tbe latter may be nearest in place and time to tbe loss. . . . 'The inquiry must always be whether there was an intermediate cause disconnected from tbe primary fault and self-operating, which produced tbe injury.’ ” *Inge v. R. R., ante,*at p. 530.

“A cause tbat produced tbe result in continuous sequence and without which it could not bave occurred, and one from which any man of ordinary prudence could bave foreseen tbat such a result was probable *741■under all tbe facts as they existed. *Ramsbottom v. R. R.,*138 N. C., 41.” *Lea v. Utilities Co.,*175 N. C., at p. 463. In *Hudson v. R. R.,*176 N. C., p. 492, *Allen, J.,*confirming tbe above rule, says: “To wbicb we adhere, witb tbe modification contained in *Drum v. Miller,*135 N. C., 204, and many other cases, that it is not required that tbe particular injury should be foreseen, and is sufficient if it could be reasonably anticipated that injury or barm might follow tbe wrongful act.” *DeLaney v. Henderson-Gilmer Co., ante,*647.

Tbe degree of care required of an employer in protecting bis employees from injury, a few variants of this form may be stated: “It is such care as reasonable and prudent men would use under similar circumstances.” “Such care as a prudent man would exercise under similar circumstances.” In tbe words of tbe Supreme Court' of tbe U. S., “Tbe master is bound to observe all tbe care wbicb prudence and tbe exigencies of tbe situation require, in providing tbe servant witb machinery or other instrumentalities adequately safe for use by tbe latter.” *Hough v. Texas & P. R. Co.,*100 U. S., 213, 24 L. Ed., 612. “Such care as ordinarily prudent persons exercise under tbe same or similar circumstances.” “He uses that degree of care 'which a man of ordinary prudence would use, having regard to bis own safety, if be were supplying them (appliances) for bis own personal use.’ *(Cotton v. North Carolina R. Co.,*149 N. C., 227; *Marks v. Harriet Cotton Mills,*135 N. C., 287.)” “It is clear that tbe entire failure to furnish any instrumen-talities or materials in a case where tbey are necessary for tbe servant’s protection is not less a breach of tbe duty to furnish proper instrumen-talities or materials than is tbe furnishing of instrumentalities or materials wbicb fall below tbe legal standard of safety. A servant who bases bis right of action on tbe total lack of requisite appliances must show that, under tbe circumstances, tbey were reasonably necessary for bis protection from a danger wbicb tbe master knew or ought to have known to be incident to tbe work, and that tbey were either not obtainable at all, or were not readily accessible. When tbey are not available for use at tbe actual place of work, it is for tbe jury to say whether tbey are reasonably accessible in such a sense as to absolve tbe master from tbe charge of negligence.” Labatt, *supra,*p. 2435. *Sou. R. v. Moore,*49 Kan., 616, 31 Pac., 138, servant’s foot crushed by rail owing to tbe want of any proper appliances for loading it on a flat car. *Rushing v. R. R.,*149 N. C., 158, failure to furnish books^ for moving heavy timbers. Charge as follows sustained: “That if tbe jury should find, by tbe greater weight of tbe evidence, that lug books were, at tbe time of tbe injury, used by railroads doing like work, such as moving heavy timbers, then it was tbe duty of tbe defendant to furnish tbe foreman witb lug books; and should you further find, by tbe greater *742weight of the evidence, that the timber which the plaintiff was handling was such timber, because of weight, length, ground and surroundings, as would lead a man of ordinary prudence to see it was safer to use lug hooks than to use his hands, then failure of defendant to provide, and have them for use, would be negligence, and should the jury find that this negligent act was the proximate cause of the injury, they should answer the first issue ‘Yes’.”

In *Murdock v. R. R.,*159 N. C., 131, on page 132, speaking of the use of a special kind of tongs used for handling heavy steel rails, weighing about 850 pounds, the Court said: “Indeed, it ought hardly to call for proof that it was negligence not to furnish an appliance so long in use and so well known.”

In *Bailey v. Meadows Co.,*154 N. C., p. 71, it is held: “That it is the duty of the master to furnish the servant proper appliances to do dangerous work, if there are such in general use, is well settled. *Orr v. Tel. Co.,*130 N. C., 627. This negligence of the master ‘consists in his failure to adopt and- use all approved appliances which are in general use and necessary to the safety of the employees in the performance of their duties.’ *Marks v. Cotton Mills,*135 N. C., 290. The master is not required to adopt every new appliance as soon as it is known.” The duty of an employer to use due care to furnish sufficient help, tools, etc., to the employee is held in *Pigford v. R. R.,*160 N. C., p. 93, to be “a primary, absolute and nondelegable duty.”

It will be noted in the *Bailey case, supra,*it speaks of *dangerous work.*In such cases the appliances must be such as are in general use. The removal of the steel tank weighing 530 pounds is not necessarily dangerous, although the method of doing it may be. Simple appliances or instruments as a matter of common knowledge and observation, such as ropes, chains, etc., and sufficient help may, under certain circumstances, of necessity be needed.

As to contributory negligence of the employee, the degree of care, a few variants of this form will be stat.ed:

“Contributory negligence in its legal significance is such an act or • omission on the'part of plaintiff, amounting to an ordinary want of care, as concurring or cooperating with the negligent act of defendant, is the proximate cause or occasion of the injury complained of.” “Any want of ordinary care on the part of the person injured, which combined and concurred with the defendant’s negligence and contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred.” “But if any degree, however small, of the causal negligence, or that without which the injury would not have occurred, be attributable to the defendant, then the plaintiff, in the absence of any contributory negligence on his part, *743would be entitled to recover; because tbe defendant cannot be. excused from liability unless tbe total causal negligence, or proximate cause, be attributable to another or others., ‘When two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, he is liable.’ *Wood v. Public Corporation,*174 N. C., 697, and cases there cited.” *White v. Realty Co.,*182 N. C., p. 538. “In short, it is a want of due care, and there is really no distinction or essential difference between negligence in the plaintiff and negligence in the defendant, except the plaintiff’s negligence is called contributory negligence. The same rule of due care, which the defendant is bound to observe, applies equally to the plaintiff.” *Moore v. Iron Works,*183 N. C., 439; *Construction Co. v. R. R.,*184 N. C., 180; *Boswell v. Hosiery Mills,*191 N. C., 549; *Malcolm v. Cotton Mills, ibid.,*729.

It is not enough that plaintiff had reason to believe that there was an insufficient number of men to do the work and his strength was not equal to the task without simple appliances or instruments. For, if the danger or risk of doing the work was not such as to threaten immediate injury, and plaintiff, by reason of his employer’s instructions, was led to believe that he could carry his part of the load by the use of care and caution as a prudent man under similar circumstances, and he proceeds to do the work with the exercise of such care, without sufficient help and the simple appliances or instruments, he is not barred from recovery from the employer for the injury received. *Crisp v. Thread Mills,*189 N. C., 89; *Holeman v. Shipbuilding Co., ante,*236.

“What is negligence is a question of law, and when the facts are admitted or established is for the Court.” Burdick on Torts (2 ed.), 429. In *Russell v. R. R.,*118 N. C., 1111, it is stated thus: “Where the facts are undisputed and but a single inference can be drawn from them, it is the exclusive duty of the court to determine whether the injury has been caused by the negligence of one or the concurrent negligence of both of the parties.” *Hinnant v. Power Co.,*187 N. C., at p. 293, and cases cited. In the present case the facts are disputed. The burden is on plaintiff to establish negligence and on defendant to establish contributory negligence.

It is a matter of common knowledge and observation that a rope, wire, or such like, is a simple appliance or instrument that can be used in holding a steel tank with rivets on it'weighing 530 pounds, as in the present case, the tank being round, 2 feet in diameter and 8 feet long. The place and surroundings of the basement of the school building where this round steel tank was to be placed was known, or, in the exercise of ordinary care, ought to have been known to defendant.

*744It is a question for tbe jury to say whether or not defendant, the employer, used such care as a reasonable and prudent man would use under similar circumstances to furnish plaintiff with sufficient men and simple appliances or instruments to do the work and was such failure the proximate cause of the injury.

For the reason given the judgment is

Affirmed.