Cable v. Kitchen Lumber Co. ( 1925 )

Civil action to recover damages for an alleged negligent injury sustained by plaintiff, an employee of the defendant, on 22 April, 1924, while working as an "off-bearer" around a band saw in the lumber plant of the defendant company.

From a verdict establishing liability, and judgment thereon, the defendant appeals, assigning errors. Defendant assigns as error the following excerpt from the charge: "The court charges you as a matter of law that the duty devolves upon the defendant to furnish the plaintiff a reasonably safe place to work, reasonably safe machinery, appliances, and that they should be operated in a reasonably safe way."

This instruction is in direct conflict with what was said in Owen v.Lumber Co., 185 N.C. 612; Gaither v. Clement, 183 N.C. 455; Tritt v.Lumber Co., 183 N.C. 830; Smith v. R. R., 182 N.C. 296, and must be held for reversible error.

Speaking to the question in Murphy v. Lumber Co., 186 N.C. 746, it was said: "It is not the absolute duty of the master to provide for his servant a reasonably safe place to work and to furnish him reasonably safe appliances with which to execute the work assigned — such would practically render the master an insurer in every hazardous employment — but it is his duty to do these things in the exercise of ordinary care. Owen v. Lumber Co., supra. This limitation on the master's duty is not a mere play on words, nor a distinction without a difference, but it constitutes a substantial fact, or circumstance, affecting the rights of the parties. Tritt v. Lumber Co., supra."

It is conceded by the plaintiff that the exception to this instruction is well taken unless the error was cured in other portions of the charge. We do not find that it was so cured. A new trial must be awarded.

New trial.