Mercer v. Atlantic Coast Line R. Co.

• Decision Date: 22 March 1911
• Parties: MERCER v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

70 S.E. 742

154 N.C. 399

MERCER v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

March 22, 1911

Appeal from Superior Court, Edgecombe County; Peebles, Judge.

Action by Charlie Mercer against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

One suing for a negligent injury must show that defendant owed him a duty at the time of the injury, and that there was a breach of that duty causing the injury.

The plaintiff, an employé of the defendant, alleges that he was injured by the negligence of the defendant, in that the defendant failed to furnish him a safe tool with which to do his work. The defendant denied that it was negligent, and alleged that the plaintiff was guilty of contributory negligence. At the conclusion of the plaintiff's evidence, his honor entered judgment of nonsuit, and the plaintiff excepted and appealed.

G. M T. Fountain & Son and R. T. Fountain, for appellant.

F. S Spruill, for appellee.

ALLEN J.

A judgment of nonsuit having been entered, it is our duty to accept the evidence of the plaintiff as true, and to give to it the construction most favorable to him.

Viewed in this light, we think there was some evidence of negligence to be submitted to the jury, but we express no opinion as to its weight.

The evidence, if believed, establishes that the plaintiff had been in the employment of the defendant three or four years but that he had been working in the boiler corner only about a month before his injury; that at the time he was injured he was employed as helper or handy man to the boiler maker, and that it was his duty to obey the boiler maker and to watch the tools when he was absent; that it was the duty of the boiler maker to keep the tools in repair, and that he selected the tools with which the work was done at the time of the injury; that on September 11, 1909, the plaintiff was required by the boiler maker to aid him to cut slack rivets from an oil tank, and that they used a chisel and a sledge hammer weighing ten or twelve pounds; that the boiler maker held the chisel and the plaintiff was required to strike it with the hammer; that in doing so a piece of the iron chisel broke off and struck the plaintiff's eye; that the head of the chisel was twice as large as it ought to have been, was as thin as a knife blade, was beat out twice the size it ought to have been, and had scales all over it; that the plaintiff had only slightly looked at the chisel before his injury, and struck when the boiler maker said do so.

When an action is instituted to recover damages on account of negligence, the law casts the burden of proof on the plaintiff to satisfy the jury that the defendant owed him a duty at the time of his injury, that there has been a breach of that duty, and that this breach was the cause of the injury. If he fails in either, he cannot recover damages. We must, therefore, inquire into the relationship between the plaintiff and the defendant and the duties arising from it. As said by Justice Brown in Avery v. Lumber Co., 146 N.C. 595, 60 S.E. 647: "It has become elementary in the doctrine of negligence that the master owes a duty, which he cannot safely neglect, to furnish proper tools and appliances to his servant." "He satisfies the requirements of the law if, in the selection of his appliances, he uses that degree of care which a person of ordinary prudence would use, having regard for his own safety, if he were supplying them for his own use." Marks v. Cotton Mills, 135 N.C. 287, 47 S.E. 432; Nail v. Brown, 150 N.C. 535, 64 S.E. 435. This duty applies alike to the simple and the complicated tools, but the authorities agree that, after performing this duty, the law does not impose the same obligations with reference to the two classes of tools. When the tools and appliances are complicated, the employer must inspect them from time to time, and must see that they are maintained in a reasonably safe condition. Fearington v. Cotton Mills, 141 N.C. 83, 53 S.E. 662. This rule prevails because of the superior knowledge and better opportunity of the employer, as well as the increased danger to the employé.

But the rule is different in reference to tools that are simple, such as hammers, chisels, spades, axes, etc. In such cases the employer is not required to inspect, because the employé is presumed to be equally as conversant with the tool as the employer, and, being required to use it, is in better situation to discover its defects. Dompier v. Lewis, 131 Mich. 144, 91 N.W. 152; Railroad v. Larkin, 98 Tex. 228, 82 S.W. 1026, 1 L. R. A. (N. S.) 944; Meyer v Ladewig, 130 Wis. 566, 110 N.W. 419, 13 L. R. A. (N. S.) 684; Marsh v. Chickering, 101 N.Y. 399, 5 N.E. 56; Wachsmuth v. Electric Co., 118 Mich. 279, 76 N.W. 497. If the employer has provided a tool apparently safe and there is a latent defect--one that cannot be discovered by the exercise of ordinary care--and an injury is caused thereby, there is no liability. If the tool becomes defective by use, it can be readily discovered by the employé, and it is his duty to make the defect known to the employer, that the tool may be repaired or a new one furnished. Wachsmuth v. Electric Co., 118 Mich. 275, 76 N.W. 497; Railway v. Larkin, 98 Tex. 228, 82 S.W. 1026, 1 L. R. A. (N. S.) 944. This relaxation of the...