Opinion
12496
September 17, 1928.
Before H.P. GREEN, Special Judge, Spartanburg, September, 1925. Affirmed.
Action by Lawson Prisock against the International Agricultural Corporation. Judgment for plaintiff, and defendant appeals.
The following is the material part of the charge:
"Now, gentlemen, this is an action brought by what in law we call a servant and employee against a master, the employer. As has been explained in the arguments to you, the law says master and servant. That relation you will find in my speaking to you; so I explain that to you. The servant is the employee; the master is the employer.
"Where a master employs a servant, it is the duty of the master to furnish that servant with a safe place to work, and with suitable and safe appliances with which to do the work he requires to be done. That is the universal rule of law. It is usually said to be nondelegable by the master; that is to say, he can't shift it, can't get rid of it; that is, the duty to furnish a reasonably safe place to work, and reasonably safe appliances. It is also his duty to employ suitable and competent overseers and bosses; otherwise, he will be chargeable with negligence. Of course, it is the duty of the servant to perform the duty he has been delegated to do under the conditions which the master furnishes for him, unless it be that those conditions are so obviously and plainly dangerous that the servant would be taking a very great risk in performing them, and unless it be that an ordinary man under those circumstances would not undertake to do the work the master directs him to do; that would be what is called the assumption of risk.
"Now, the violation of that duty on the part of the master, from the failure to exercise ordinary care, is what the law books term negligence, and you will find in the complaint that the plaintiff has alleged that the master was negligent in failing to furnish a safe place to work. Now, I tell you that duty of the master is to furnish a safe place to work, and, if the injury results from want of ordinary care, that is what the laws books say is negligence. Now, if the master is negligent in performing his duty, and the servant on his part suffers injury, and the master's negligence is the proximate cause of the injury to the servant, the servant is entitled to recover from the master damages for the injury he has sustained.
"On the other hand, and it is a defense set up by the defendant in this cause, if under those conditions the servant himself is negligent in exposing himself to dangers which are obvious, which an ordinarily prudent man would not assume to do, but would quit his work, quit his job, before he would go on and do it, or get out of the way, whichever you choose, then I say, if a servant, in doing his work, is in such danger while performing his duty, and his negligence is the proximate cause of the injury as resulted, then the master is absolved from any liability to the servant For the law is that, where negligence of the servant joins in and concurs with the negligence of the master, and is the joint cause of the injury, why, then it is as much the servant's fault as the master's; then he can't recover. That is what is called the doctrine of contributory negligence.
"Negligence, as I say, is the performance of a duty in the absence of ordinary care. Ordinary care is what, under all the facts and circumstances, a reasonably prudent man would employ; the failure of that is negligence.
"Now, in the case at bar the defenses are contributory negligence and assumption of risk, which really merge in each other. Our Supreme Court has said it is difficult to say where one stops and the other begins. Now, these questions have arisen before in the Courts, and it has been their duty to define them, and state the law upon them. But the main principle is that the master is bound to furnish the servant with a suitable, safe place to work, with suitable and necessary appliances — safe appliances — to carry on the work, and if the evidence shows he has failed in that respect, then he is negligent. On the other hand, if the master is negligent, and the servant himself does his job in a careless, slovenly manner, so far as the particular question we are now concerned with, so that the acts are really not wholly due to negligence of the master, but if a servant, notwithstanding negligence of the master, had not exercised ordinary care, without which the injury would not have occurred, you would say the servant was as much at fault as the master, then you would find for the master.
"Now, gentlemen, supplementing a little further what I have said to you: It is the duty of the master to furnish a reasonably safe place to work, and, if the place is rendered unsafe by the action of the servant charged with such duty, it is the fault of the master. Any other servant in that case means a servant other than the servant who is complaining of the injury. It is also the rule of law for the master, not only to furnish a safe place to work, but to keep it safe; of course, the master's duty didn't stop at furnishing a place safe at one time, then by some act which he has caused to be done to render all of it unsafe, without notice or warning to his servant who is charged with performing his duty under those conditions, then he is liable.
"Now, of course, the warning and time comes in. Now, the notice of warning must be given at a sufficient time, and it must be adequate to allow the servant time to change his position, or to get out of the way of impending danger, in order to absolve the master from liability.
"Upon the assumption of risk: If the servant's employment is one which necessarily incurs some risk in doing it — the job — he is presumed in law to have assumed the ordinary risk of his employment; that is to say, the risk that ordinarily happens in the performance of the work which he is doing. But where — I call your attention right here — but where the place to work is ordinarily safe, and the servant assumes any risk which ordinarily comes with that, and the master has changed those conditions, then, in order for the servant to be bound by the assumption of risk, the changed conditions must be brought to the attention of the servant within a reasonable time for him to adjust his actions to the changed condition; otherwise, the master would be liable. An employee does not assume the risk of an emergency brought about by other servants in negligent operation or negligent change of the conditions under which he is working. Assumption of risk is based on knowledge or notice of danger and the apprehension and intelligent understanding of it. In other words, the knowledge, to charge a servant with assumption of risk, where the place to work is reasonably safe, but was rendered unsafe by act of the master through his other servants, then those changes must be brought home to the servant who is working there. If it puts the injured servant in such a place without having an opportunity of appreciating the danger, and, as this case says, `an intelligent understanding of it,' he must have time enough to do that, and it must be brought home to him in such a condition as he will understand; otherwise, the master would be charged in law with failure of ordinary care to his servant, and would be liable in consequence of that.
"Now, the defendant has asked me to charge you the following propositions:
"`(1) The duty of the master to furnish the servant a reasonably safe place to work must be considered in connection with the character of the work to be done. Some work is necessarily dangerous and of such character as to make it impossible for the master to furnish a safe place. The master is only required to furnish a reasonably safe place, having regard to the character of the work to be done and the dangers necessarily incident to it, and the conditions under which it must be done.'
"That is good law, and I so charge you.
"`(2) Where work which a servant is hired to do is necessarily dangerous, and the performance of the work is attended with dangers which are incident to the employment, then the servant assumes the risks of such incidental dangers, and he cannot hold the master liable therefor.'
"That is good law, but that must be brought to the attention of the servant, or it must be so obvious that a man of ordinary care and caution can see the danger.
"`(3) Furthermore, a servant assumes the risks of dangers and defects in the place of employment, which are open and obvious to him and known to him, if he remains in the service and employment without objection or complaint, and without any emergency or assurance of safety, or insistence by the master, even if such dangers and defects are due to the negligence of the master.'
"I charge you that the basis of that charge is that the defects are open and obvious to him; that is to say, they are such, or called to his attention, because, gentlemen, the essence and the law of assumption of risk is that the plaintiff knows it, knows what he is doing. You cannot assume a matter, and the consequences of it, unless you know the danger to which you are to be exposed to from it. You must know those dangers. If those dangers are obvious, you assumed the danger incident to it. A man up the street sees operation on a building overhead, with the warning, `Danger.' He sees a bricklayer above him laying brick. He knows, if he goes under there, that mortar and brick may fall on him. He assumes the risk in going under there. In his case, it is obvious. Anybody of ordinary care and caution would be warned by the character of the place where he was going that there was danger there.
"`(4) If the plaintiff was negligent, and the defendant was also negligent, and the negligence of plaintiff combined and concurred with that of defendant to cause the injury as the proximate cause thereof, the plaintiff could not recover on the cause of action for negligence.'
"That is correct law there. I charge you so. I have already charged you that. I charge it again.
"`(5) The plaintiff cannot recover in any view of the case, unless he has proven his claim by the preponderance of the evidence. If he has failed to do that, then you would stop right there, and find for the defendant.'
"That is good law. I so charge you.
"The plaintiff comes in Court charged with the burden of proving to the satisfaction of the jury by the preponderance of the evidence the cause of action which he alleges. He must prove to your satisfaction that the injury in this particular case was the result of the want of due care, or negligence, or as alleged in the complaint — I don't know whether that is insisted on or not — willfulness or wantonness on the part of the defendant. Willfulness, wantonness, means that there is a spirit either of animosity in which the act is done, unlawful act is done, or negligent act, or there is such a disregard of the rights of others as to amount to recklessness or willfulness on the part of the defendant in performance of those duties, so that if, from the evidence here, you can find there was negligence on the part of the defendant, and that negligence was done in a reckless, willful, wanton manner toward the plaintiff, or in such a way as to be disregardful of the rights of the employee, then you would, if you should find that the defendant is liable for damages, beside ordinary damages, find such an amount you think fit to punish the defendant, and to compensate plaintiff for such a willful, wanton disregard of his rights. All those questions have to be established by the preponderance of the evidence on the part of the plaintiff. The negligence of the defendant, or willfulness and wantonness of defendant, must be established by the preponderance of the evidence. He must satisfy you by the evidence, as ordinary, sensible, careful men, that the proof produced warrants the conclusion you reach.
"(6) Request to charge of defendant:
"`I charge you that it is the duty of a servant to watch out for known dangers in the performance of his work. If he is warned of an approaching danger, he must exercise reasonable care to avoid it. He cannot negligently stand in the way of a seen and known danger that may be approaching, and take chances on getting injured by it, and then hold the master liable for injuries caused by it.'
"I charge you that. That is good law.
"Now, gentlemen, I think I have covered all questions that have occurred to me on this matter. I think I have given all the law necessary to assist you in finding a verdict. If you find for the plaintiff, you will write your verdict upon the complaint, marked `Summons and Complaint.' If you find for the plaintiff you say, `We find for the plaintiff so many dollars actual damages,' and if you find punitive damages, so many dollars punitive damages, and sign your name as foreman. You write out the amount you find in words, and not in figures. If you find for the defendant, simply say `We find for the defendant,' and add your name as foreman."
"Mr. Osborne: Your Honor, I omitted it in my request to charge, in charging the duty of the master to the servant. I want you to charge that the law is, also, that the servant, in entering upon his employment, is charged with the duty to the master to exercise reasonable care on his part to avoid getting injured and to keep out of danger; that is the duty of the servant."
"The Court: That is the foundation upon which the doctrine of contributory negligence is based. If there was no duty on the part of the servant to avoid danger which is obvious to him, then the doctrine of contributory negligence would not arise. That is the idea.
"Mr. Perrin: I would like to ask your Honor to charge the jury that the defendant, in his two defenses as set up, two affirmative defenses, which must be proven by the preponderance of the evidence, just as the plaintiff has to prove his case. Also, if they find from the testimony that both plaintiff and the defendant have been negligent — if they find that the defendant has been willful and wanton — then plaintiff would recover.
"Mr. Osborne: That is, if plaintiff is also guilty of negligence.
"The Court: The defendant comes in, and he sets up defenses on his own part; not simply denies plaintiff's action, but defenses on his own part. So far as the defense he sets up of contributory negligence on the part of plaintiff, and of assumption of risk on the part of plaintiff, it is his duty to satisfy you by the preponderance of the evidence that those defenses have been established. It is the duty of the plaintiff, first, to convince you by the evidence, by the preponderance of the evidence, that the defendant has been negligent, or that the defendant has been negligent, willful, and wanton in the discharge of its duty. Now, if that had not been done, if you find that there was no negligence on the part of the defendant, and no willfulness or wantonness on the part of the defendant, which was a proximate cause of the injury, then you will stop right there; for the burden is on the plaintiff to show this. If, however, plaintiff satisfies your mind by the evidence produced on the stand here that the defendant was negligent, and was also both willful and wanton, or is willful and wanton, without negligence, then you will have to inquire further as to whether the defendant then establishes by the preponderance of the evidence the defenses as set up, to wit: Has the servant been negligent, and does his negligence combine with negligence of the defendant to make or cause the injury as the proximate cause, resulting in the injury which is complained of?
"Now, if defendant satisfies you that is so, that the negligence of the plaintiff himself, along with the negligence of the defendant, causes the injury, then you will find for the defendant, unless you find that the defendant has also been guilty of willfulness or wantonness. Contributory negligence is not a defense to willfulness or wantonness. If you find, therefore, that the defendant has been willful and wanton, and you also find that the plaintiff has been reckless, willful, or wanton in his conduct in the matter, then one will offset the other, and you will find for the defendant. I have made that as plain as I can."
The defendant now appeals upon the following exceptions, claiming error in his Honor's charge, to wit:
First. "Where a master employs a servant, it is the duty of the master to furnish that servant with a safe place to work, and with suitable and safe appliances with which to do the work he requires to be done. That is the universal rule of law. It is usually said to be nondelegable by the master; that is to say, he can't shift it, can't get rid of it; that is, the duty to furnish a reasonably safe place to work and reasonably safe appliances."
The error being that, in so charging, the Court erroneously laid down for the guidance of the jury a wrong principle as to the duty of the master in furnishing a place to work and instrumentalities with which to work, thereby charging them that the master owed his servant the absolute duty of furnishing him an absolute safe place to work and safe appliances, thereby placing upon the master an undue burden; it being submitted that the correct rule, as it should have been charged, was merely that the defendant was required to furnish a reasonably safe place and reasonably suitable appliances.
Second. Error in charging the jury as follows: "It is also his duty to employ suitable and competent overseers and bosses; otherwise, he will be chargeable with negligence."
It being respectfully submitted that his Honor, in so charging, placed an undue burden upon the defendant by charging that defendant owed the absolute duty to furnish suitable and competent overseers and bosses, when the correct rule is that the defendant is only required, at most, to furnish reasonably suitable and competent overseers and bosses, or to exercise reasonable care in the selection of overseers and bosses. It is further submitted that in so charging his Honor invaded the province of the jury by charging upon the facts, in that he stated to the jury that the failure of the employer to employ suitable and competent overseers and bosses, and regardless of the circumstances, and regardless of the use of reasonable care in selecting such overseers and bosses, would render the employer absolutely chargeable with negligence. It is submitted that his Honor had no right to state what facts would constitute negligence.
Third. Error in charging the jury as follows: "Now, I tell you that the duty of the master is to furnish a safe place. to work, and if injury results from want of ordinary care, that is what the law books say is negligence."
The error being (a) that the duty of the master is not to furnish a safe place to work, but merely to furnish a reasonably safe place to work, and his Honor placed an undue burden on the defendant. (b) In the last clause of said charge his Honor charged upon the facts, by telling the jury, in effect, what facts would constitute negligence, to wit, that the failure, regardless of the exercise of reasonable care, is what the law books say is negligence.
Fourth. Error in charging as follows: "But the main principle is that the master is bound to furnish servants with a suitable, safe place to work, with suitable and necessary appliances — safe appliances — to carry on the work, and, if the evidence shows he has failed in that respect, then he is negligent."
The error being (a) that his Honor placed an undue burden upon the defendant in requiring that defendant is absolutely bound to furnish a suitable and safe place to work and suitable appliances, whereas the true rule is that the master is only required to furnish reasonably safe appliances and a reasonably safe and suitable place to work; (b) and it was further error in charging that the mere failure of the master to furnish an absolutely safe place and safe appliances, and without regard to whether they may be reasonably safe and suitable, renders him liable for negligence.
Fifth. Error in charging as follows: "But if a servant, notwithstanding negligence of the master, had exercised ordinary care, without which the injury would not have occurred, you would say the servant was as much at fault as the master, then you would find for the master."
The error being that, in so charging, his Honor told the jury, in effect, that the defendant would not be entitled to a verdict on account of the defense of contributory negligence unless "you say that the servant was as much at fault as the master." It is submitted that the correct rule is that a servant may be defeated in his actions if he was guilty of negligence, no matter whether it was as great as the negligence of the master or not, if it combined and concurred with that of the master, so as to operate as the approximate cause of the injury, even though the servant may not have been as much at fault as the master. The charge left the jury to understand that the servant must have been as much at fault as the master; otherwise, the servant's contributory negligence would not be a defense.
Sixth. Error in charging the jury as follows: "It is also the rule of law for the master not only to furnish a safe place to work, but to keep it safe; of course, the master's duty did not stop at furnishing a place of safety at one time, then by some action which he has caused to be done to render all of it unsafe without notice or warning to his servant, who is charged with performing his duty under these conditions, then he is liable."
The error being that he erroneously placed upon the defendant the absolute duty of guaranteeing the safety of the place of work, whereas the master's duty was merely to furnish a reasonably safe place, and he erroneously told the jury that the failure on the part of the master to furnish an absolutely safe place and keep it safe was that the defendant would be liable, whereas he should have left it to the jury to determine from all the facts and circumstances whether or not the defendant would be liable, even though the place was not absolutely safe.
Seventh. Error in charging as follows: "Now, the notice of warning must be given at a sufficient time, and it must be adequate, to allow the servant time to change his position, or to get out of the way of impending danger, in order to absolve the master from liability."
The error being that the jury was thus told, in effect, that the master would be absolutely liable, and regardless of circumstances, and regardless of the pains and efforts made to give notice, if notice of warning was not given at a sufficient time to allow the servant time to change his position or get out of the way of danger.
Eighth. Error in charging the jury as follows: "That is to say, the risk that ordinarily happens in the performance of the work which he is doing; but where — I call your attention right here — but where the place to work is ordinarily safe, and the servant assumes any risk which ordinarily comes with that, and the master has changed those conditions, then in order for the servant to be bound by the assumption of risk, the changed conditions must be brought to the attention of the servant within a reasonable time for him to adjust his actions to the changed conditions; otherwise, the master would be liable."
The error being that his Honor thus erroneously placed upon the master the absolute duty of bringing to the attention of the servant knowledge of the changed conditions with sufficient time to enable the servant to adjust his actions to such changed conditions, without regard to the reasonableness of any efforts made on the part of the master to give to the servant reasonable notice of such changed conditions, and, further, he charged the jury that upon failure of the master to comply with the requirements of such charge that the master would be absolutely liable, whereas it is respectfully submitted that the master does not owe such absolute duty, but is merely required to exercise reasonable care to notify his servant of any changed conditions, and he would not be liable, except for a negligent failure to give such notice or warning.
Ninth. Error in charging the jury as follows: "An employee does not assume the risk of an emergency brought about by other servants in negligent operation or negligent change of the conditions under which he is working."
The error being that the correct rule is that an employee does assume the risks of defects and dangers due to the negligence of their fellow servants engaged with them in a common undertaking, and by said charge his Honor erroneously led the jury to understand that, even when a servant is engaged in some dangerous undertaking, as the plaintiff's employment naturally was, that if his fellow servants, by their negligence, in the operation of the work — for example, by failing to give warning, or by placing a truck in the way of the plaintiff, or otherwise — brought about a dangerous condition, and even though the plaintiff knew of such dangers, and such negligent acts, that the plaintiff would nevertheless not be held to assume the risks thereof."
Tenth. Error in charging the jury as follows: "If it [the master] puts the injured servant in such a place [a place rendered unsafe by act of the master] without having an opportunity of appreciating the danger, and this case says an intelligent understanding of it, he must have time enough to do that, and it must be brought home to him in such a condition as he will understand; otherwise, the master would be charged in law with failure of ordinary care to his servant, and would be liable in consequence of that."
The error being that he thus placed an undue burden upon the defendant, by making his liability for damages in this case absolute, if the plaintiff did not have sufficient time to see and appreciate the changed conditions or the impending danger, or if it was not brought home to him, so that he could understand it, and regardless of whether the master had exercised reasonable care and prudence to warn the plaintiff of the changed conditions and of the impending danger. Said charge was further erroneous as being a charge on the facts, by telling the jury what facts would constitute negligence and absolute liability.
Eleventh. It is further submitted that his Honor's charge as a whole, on the subject of the duty of the master to furnish a place of work and appliances, was confusing and erroneous, in that it placed an undue burden of responsibility and of liability upon the defendant, in holding the defendant to the duty of furnishing an absolutely safe place to work and absolutely safe appliances, instead of a reasonably safe place and reasonably safe appliances, and further rendered the defendant absolutely liable as a matter of law, if it failed, without regard to other considerations, to furnish a safe place and appliances.
Twelfth. It is further submitted that his Honor's charge as a whole, on the subject of the duty of the master to furnish competent fellow employees, was erroneous, in placing an undue burden upon the defendant by requiring it to furnish competent fellow servants, whereas the correct rule is that it was required merely to exercise reasonable care in the selection of such servants.
Thirteenth. The said charge was further erroneous, when considered as a whole, in that his Honor invaded the province of the jury in several particulars, in charging them what facts would constitute negligence, and what facts would create an absolute liability on the part of the defendant, and regardless of whether the defendant had acted negligently in the particulars mentioned.
Messrs. Bomar Osborne, for appellant, cite: As to safe place to work: 89 S.C. 378; 110 S.C. 374; 70 S.C. 477; 71 S.C. 57; 96 S.C. 426; 134 S.C. 31; 101 S.C. 83. Reasonable care only necessary in selection or employment of servants: 77 S.C. 554; 71 S.C. 57. " Fellow servant doctrine": 71 S.C. 56; 78 S.C. 380; 87 S.C. 449; 71 S.C. 53; 72 S.C. 269; 15 S.C. 457; 123 S.C. 199. As to proof of negligence in selection of employees: 89 S.C. 505. Contributory negligence: 81 S.C. 100. Charge on facts: 71 S.C. 59; 61 S.C. 563; 97 S.C. 111; 46 S.C. 218; 51 S.C. 460; 124 S.C. 314. Proximate cause is question for jury: 76 S.C. 63; 68 S.C. 64. When facts submitted to jury: A. E. Enc. L., 465; 55 S.C. 179; 66 S.C. 482.
Messrs. Perrin Tinsley, for respondent, cite: No error in charge here: 92 S.C. 112; 117 S.C. 122; 121 S.C. 85; Id., 190; 123 S.C. 320; 117 S.C. 517; 93 S.C. 420. Duties imposed on master by law: 78 S.C. 413; 117 S.C. 122; 121 S.C. 28; 124 S.C. 57. As to assumption of risk and negligence of fellow servant: 71 S.C. 57. " Contributory negligence": 120 S.E., 381.
September 17, 1928. The opinion of the Court was delivered by
This action by Lawson Prisock, as plaintiff, against the defendant, International Agricultural Corporation, was begun in the Court of Common Pleas for Spartanburg County, by service of summons and complaint in April, 1925, for recovery of the sum of $10,000.00 damages for personal injuries alleged to have been sustained by plaintiff by reason of certain alleged acts of negligence and recklessness of the defendant. The case was tried before Hon. H.P. Green, Special Presiding Judge, and a jury, at the September, 1925, term of Court for Spartanburg County, and resulted in a verdict for the plaintiff in the sum of $1,000.00. From the entry of judgment on the verdict, the defendant, pursuant to notice duly served, has appealed to this Court, imputing error to the Special Presiding Judge in the particulars set forth under the several exceptions, all of which involve the correctness of his Honor's charge.
The allegations of the complaint necessary for an understanding of the case are, in substance, as follows: That on March 2, 1925, the plaintiff was in the employ of the defendant as an inexperienced laborer, engaged in picking and breaking an acid or fertilizer compound from a large pile of acid, under the direction of defendant's agent; that the said pile of acid compound had become hardened, and for the purpose of facilitating the work of breaking up the same into smaller parts, for use in the fertilizer plant, dynamite was discharged therein; that the blasting was done while the plaintiff and the other employees were eating their dinner, "and the condition under which plaintiff worked was changed by said blasting, without the knowledge of or notice to the plaintiff of the increased danger"; that, while the plaintiff was thus employed, "the defendant's agents carelessly and recklessly changed the conditions under which plaintiff was working by blasting said pile of acid, and thereby loosening a large lump of said acid, at the top of the pile, and failed to notify plaintiff of the danger thereof, and the said block of acid fell off and upon and against the plaintiff, without fault or negligence on his part, and caused him serious injury to one of his feet, which was crushed, and his ankle broken, and other bodily injuries sustained"; and further alleged that the plaintiff was inexperienced in said work and ignorant of the danger incident thereto. In addition to the general charge of negligence and recklessness on the part of the defendant, the plaintiff alleges the following specific acts of negligence and wantonness as having caused his injury, to wit:
"That plaintiff received said injury while employed under the direction of defendant's agents, and the same was directly the result of the negligence and wantonness of the defendant (a) in failing to provide and maintain a safe and suitable place for plaintiff to work; (b) in employing incompetent agents and servants; (c) in failing to inspect the pile of acid compound after dynamiting it, and so as to determine if it was safe for plaintiff to continue their labors in the places assigned to them; (d) in failing to notify plaintiff of the danger incident to the work which he was doing; (e) in that defendant knew or ought to have known of such danger to plaintiff; (f) that defendant knew or ought to have known that plaintiff was ignorant of the danger."
The defendant set up the defenses of general denial, contributory negligence, recklessness, and assumption of risk. In considering the exceptions, we shall, for convenience, follow, in part, the grouping outlined by the appellant.
Under Exceptions 1, 3, 4, 6, and 11, the appellant discusses the proposition that his Honor, the Special Presiding Judge, instructed the jury, in effect, that it was the duty of the defendant to furnish the plaintiff an absolutely safe place to work in, and absolutely safe appliances to work with, and quotes in support of this contention under Exceptions 1, 3, 4, and 6 the following language attributed to his Honor:
First Exception: "Where a master employs a servant, it is the duty of the master to furnish that servant with a safe place to work, and with suitable safe appliances with which to do the work he requires to be done. That is the universal rule of law. It is usually said to be nondelegable by the master; that is to say, he can't shift it, can't get rid of it; that is, the duty to furnish a reasonably safe place to work and reasonably safe appliances."
Third Exception: "Now, I tell you that the duty of the master is to furnish a safe place to work, and, if injury results from want of ordinary care, that is what the law books say is negligence."
Fourth Exception: "But the main principle is that the master is bound to furnish servants with a suitable safe place to work, with suitable and necessary appliances — safe appliances — to carry on the work, and, if the evidence shows he has failed in that respect, then he is negligent."
Sixth Exception: "It is also the rule of law for the master, not only to furnish a safe place to work, but to keep it safe; of course, the master's duty did not stop at furnishing a place of safety at one time, then by some action which he has caused to be done to render all of it unsafe, without notice or warning to his servant who is charged with performing his duty under these conditions, then he is liable."
It is contended by appellant, as set forth and alleged under each of these exceptions, that by charging the jury in the language quoted his Honor, the Special Presiding Judge, thereby instructed the jury that it was the duty of the defendant, as stated above, to furnish the plaintiff an absolutely safe place to work in, and absolutely safe appliances to work with, and that such charge was prejudicial to the defendant, and constitutes reversible error. We do not agree with this contention. By reference to the language attributed to the Special Presiding Judge, quoted under the first exception, it will be observed that his Honor added these explanatory words: "That is, the duty to furnish a reasonably safe place to work and reasonably safe appliances." Also, his Honor, further on in his charge, again stated the principle in the following language: "It is the duty of the master to furnish a reasonably safe place to work."
It is true that his Honor did not make use of the word "reasonably" every time he referred to the place where the plaintiff was working and the duty devolved upon the defendant as the master, but under the law this is not necessary, and it is not practicable. It is incumbent upon the trial Judge to instruct the jury as to its duties, and a proposition of law once stated need not be restated. Furthermore, at the request of appellant, his Honor in charging defendant's first request, restated the principle in no uncertain terms as follows:
"The duty of the master to furnish the servant a reasonably safe place to work must be considered in connection with the character of the work to be done. Some work is necessarily dangerous, and of such character as to make it impossible for the master to furnish a safe place. The master is only required to furnish a reasonably safe place, having regard to the character of the work to be done and the dangers necessarily incident to it, and the conditions under which it must be done. That is good law, and I so charge you."
In our opinion, the instruction to the jury on this proposition of law was clear and sufficient, and the appellant's position is not well taken.
Second Exception — Under this exception, appellant imputes error to his Honor in charging as follows: "It is also his duty (referring to the master) to employ suitable and competent overseers and bosses; otherwise, he will be chargeable with negligence" — contending that in the use of this language his Honor "placed an undue burden upon the defendant, by charging that the defendant owed the absolute duty to furnish suitable and competent overseers and bosses, when the correct rule is that defendant is only required, at most, to furnish reasonably suitable and competent overseers and bosses, or to exercise reasonable care in the selection of overseers and bosses." Under our view, the language attributed to the Special Presiding Judge is not susceptible of the meaning placed thereon by the appellant. Furthermore, in stating that it was the duty of the master to employ suitable and competent overseers and bosses, his Honor did not, in our opinion, place an undue burden on the defendant, especially so when this part of the charge is considered in connection with the whole charge, which will be incorporated in the report of the case.
Fifth Exception. — Under this exception, appellant discusses the charge with reference to contributory negligence, and contends that his Honor, the Special Presiding Judge, committed prejudicial error in using the following language in the course of his charge to the jury:
"But if a servant, notwithstanding negligence of the master, had not exercised ordinary care, without which the injury would not have occurred, you would say the servant was as much at fault as the master, then you would find for the master."
While this part of the charge, isolated from the balance of the charge, could not be said to be clear and complete statement of the rule of contributory negligence, the defendant has no ground to complain, for, in our view, the language complained of is more favorable to the defendant than to the plaintiff, and, when this part of the charge is considered with the balance of the charge, it will be seen that the law of contributory negligence was made clear. The defendant's request on this proposition, which his Honor charged, was as favorable as the defendant could ask for, to wit:
"If the plaintiff was negligent, and the defendant was also negligent, and the negligence of the plaintiff combined and concurred with that of the defendant to cause the injury, as the proximate cause thereof, the plaintiff could not recover on the cause of action for negligence."
Seventh Exception. — Under this exception appellant discusses the rule as to impending danger, and contends that the Special Presiding Judge committed prejudicial error in using the following language in the course of his charge on this proposition:
"Now, the notice of warning must be given at a sufficient time, and it must be adequate, to allow the servant time to change his position, or to get out of the way of impending danger, in order to absolve the master from liability."
Appellant takes the position that by the use of this language to the jury his Honor, the Special Presiding Judge, instructed the jury, in effect:
"That the master would be absolutely liable, and regardless of circumstances, and regardless of pains and efforts made to give notice, if notice of warning was not given at a sufficient time to allow the servant time to change his position or get out of the way of danger."
We do not think the language attributed to his Honor susceptible of this construction. A reading of the entire charge shows clearly that the jury were instructed and impressed with the fact that recovery must be based on negligence, as the proximate cause of the injury, proven by the preponderance of the evidence; otherwise, a verdict must be rendered for the defendant. We fail to see any ground for complaint here.
Ninth Exception. — Under this exception, appellant imputes error to the Special Presiding Judge in not charging the jury correctly on assumption of risk and negligence of fellow servant, and especially complains of the use of this language in his Honor's charge:
"An employee does not assume the risk of an emergency brought about by other servants in negligent operation, or negligent change of the conditions under which he is working."
The language quoted is but a single sentence contained in his Honor's entire charge on the proposition under consideration, and must necessarily be read in connection with the balance of the charge on this line, in order to have a clear understanding of the instruction given the jury. When this is done, it will be clearly seen that the jury received proper instruction on this subject.
Eighth and Tenth Exceptions. — Under these exceptions, appellant argues the proposition that the Special Presiding Judge charged on the facts. We do not agree with this contention, and, after a careful study of the charge in its entirety, we are convinced that his Honor presented the issues involved in the case to the jury fairly and impartially, under proper instruction.
The eleventh, twelfth, and thirteenth exceptions point out on particular errors, and are too general in their scope to be considered; but, waiving that objection, in the opinion of the Court, the same are without merit.
The exceptions are overruled, and it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.
The rule is that the master must exercise reasonable care in furnishing the servant with a reasonably safe place to work and reasonably safe tools and appliances. The jury may well have construed the charge as imposing the absolute duty upon the master in these particulars.