#### H. N. WEST, Administrator, v. BREVARD TANNING COMPANY.

(Filed 14 December, 1910.)

1. Nonsuit — Evidence, How Considered.

Where a motion to nonsuit is made under the statute, the evidence must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove, and which is an essential ingredient of the cause of action, must be taken as established, as the jury, if the case had been submitted to them, might have found those facts from the testimony.

2. Master and Servant — Safe Place to Work — Appliances—Duty of Master.

The master is not a guarantor of the safety of the servant when engaged in the discharge of his duties, but he is required to use reasonable care and prudence in providing him a safe place to work^ and in the selection of such machinery and appliances as are reasonably fit and safe and in general use, and such as a man of ordinary prudence would use, having regard to his own safety, were he supplying them for his own personal use. He is not responsible for a mere error of judgment in their selection, if he exercises due care.

3. Master and Servant — Safe Place to Work — Appliances—Burden of Proof.

In order for a servant to recover damages of the master for an alleged failure to furnish safe machinery and appliances, the servant must show, (1) that the implement furnished by the master was, at the time of the injury, defective; (2) that the master knew of the defect or was negligent in not discovering it and making the needed repairs; (3) that the defect was the proximate cause of the injury.

4. Master and Servant — Safe Place to Work — Appliances—Defects— Notice Implied.

In this case, the unsafe construction of a platform dangerously situated, and erected and permitted to remain for a long time in an unsafe condition, upon which plaintiff was required to go in the performance of his duties, was evidence sufficient to give defendant implied notice thereof, in the performance of its duties to carefully inspect, at reasonable intervals of time, the implements, ways and appliances provided for the use of its servant.

5. Same — Negligence—Proximate Cause — Causal Connection.

In an action to recover damages for the wrongful killing of plaintiff’s intestate by defendant’s negligence in not furnishing *45him a safe place to work in its tanning works, there was evidence tending to show that the intestate, a lad of 1G years, was employed to oil machinery over vats of water heated from 200 to 210 degrees Fahrenheit, on a platform 8 or 9 feet square, upon which was placed the machinery, consisting of sprocket -wheels, belting, etc.; that the platform had been permitted to become filthy and greasy with oil, and was without a guard-rail, but surrounded by a beam forming a rim around its edges 10 inches high, leaving an insufficient space of 10 or 12 inches between the outer rim and the sprocket wheel within which the intestate had to step in oiling; 'that the usual covering of the vat had, in the lapse of time, been eaten away by acid used in tanning, and that plaintiff was killed by falling into the vat of hot water: Held, (1) evidence sufficient to go to the jury upon the question of defendant’s negligence in failing to provide the intestate with a safe place to work; (2) the failure to supply such a place was the proximate cause of the injury, there being no evidence in the case of contributory negligence; (3) the struggle of the intestate to keep from falling from the platform, as shown by the hand-prints and footprints on the grease and dirt, was evidence sufficient, in itself, to show that plaintiff had not otherwise fallen into the vat.

Appeal by defendant from Justice, J., at March Term, 1910, of BUNCOMBE.

Tbe facts are sufficiently stated in the opinion of Mr. Justice Walker.

Jones & Williams and Graig, Martin & Thomason for 'plaintiff.

Merrick & Barnard for defendant.

"WalkeR, J.

This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The defendant moved for judgment as of nonsuit, which motion was refused, and the only question for our consideration is, Was the evidence sufficient to be submitted to the jury, who found by their verdict that there was negligence which was the proximate cause of the injury, and that the intestate did not, by his own negligence, contribute to the injury which caused his death. In passing upon the single exception, we are restricted to a certain view of the evidence by a- well-settled rule of law which we have *46formerly stated as follows: “Where a motion to dismiss an action is made, under the statute, the evidence must be construed in the view most favorable to the plaintiff, and every fact which it tends to prove, and which is an essential ingredient of the cause of action, must be taken as established, as the jury, if the case bad been submitted to them, might have found those facts from the testimony.” Cotton v. R. R., 149 N. C., 227; Brittain v. Westhall, 135 N. C., 492; Freeman v. Brown, 151 N. C., 111; Deppe v. R. R., 152 N. C., 79.

Tbe statement of a few of tbe salient facts which tbe evidence tends to establish will suffice for tbe purpose of testing tbe soundness of tbe position taken by tbe defendant’s counsel in support of tbe motion for a nonsuit. Tbe defendant, at tbe time of tbe injury to tbe intestate, was a corporation engaged in tbe business of extracting tannic acid from chestnut wood by means of machinery and other appliances. Tbe process by wbicb this was done was fully explained by tbe witnesses. Tbe wood is chopped very fine and boiled in large vats or tubs 14 feet in diameter, tbe tops of wbicb were about 30 inches above the level of tbe floor of tbe defendant’s leecb-bouse. Over tub No. 1 there was a platform 8 or 9 feet square, on wbicb rested tbe machinery, consisting of sprocket wheels, belting, shafting chains and gearing. The platform was surrounded by a beam which stood above it about 10 inches, thereby forming a rim at its outer edge; tbe space betwe.en tbe beam and tbe machinery was in width about 10 or 12 inches, barely leaving room for a person to step between tbe sprocket wheel and tbe beam. This was tbe walkway for tbe use of tbe intestate in performing bis work. There was no railing around it. Tbe gangway and beam were covered with oil and grease and were very filthy and slippery. There was no lid or covering to tbe vat, tbe temperature of tbe liquid in wbicb ranged at times from 200 to 210 degrees Fahrenheit. There bad been a lid on tbe vat, but by long usage and tbe effect of tbe acid on tbe wood of wbicb it was made, it bad fallen off from decay. Tbe intestate was employed by tbe defendant as oiler of tbe machinery. He was 16 years old, and to perform tbe duty assigned to him be was required to go upon tbe platform at tbe *47point directly above tbe vat. While engaged in leaning over and oiling a part of tbe machines on 19 July, 1905, and, as tbe jury found, without any fault on bis part, bis foot slipped over tbe greased surface of tbe platform and beam and be fell in tbe seething caldron below, after struggling to save himself, and was so badly scalded that bis death soon followed from tbe injuries be received.

We cannot adopt tbe suggestion of tbe defendant that tbe intestate did not slip from tbe platform, but fell in tbe vat in some other way, because there is abundant evidence to show that, while no one saw tbe intestate when be fell, there were footprints and band-prints indicating that intestate bad slipped and attempted to catch as be fell from tbe platform. Upon this showing by tbe plaintiff — and we have not stated even tbe substance of all tbe evidence — the defendant contends that there is no sufficient proof of negligence. Tbe plaintiff, on tbe contrary, imputes negligence to tbe defendant in two respects: (1) That it failed to cover tbe vat of boiling liquid, when by tbe relative position of tbe vat and tbe platform over it and tbe peculiar construction of tbe latter, especially with reference to its width, tbe position of an employee required to use it in performing bis work was rendered dangerous. (2) That it neglected to provide a reasonably safe platform where tbe intestate could stand while oiling tbe machinery, and allowed tbe one it did provide to become saturated with oil and grease so that it afforded but a very precarious footing for tbe intestate and other employees, for whose use it was erected, and that they were thereby unnecessarily exposed to danger when performing their work.

Tbe master does not guarantee tbe safety of bis servant while engaged in tbe discharge of bis duties. He is not an insurer, and is not bound to furnish him an absolutely safe place to work in, but is required simply to use reasonable care and prudence in providing such a place. He is not bound to furnish tbe best known machinery, implements, and appliances, but only such as are reasonably fit and safe and in general use. He meets tbe requirements of tbe law if, in tbe selection of machinery and appliances, be uses that degree of care which a *48man of ordinary prudence would use, having regard to bis own safety, if be were supplying them for bis own personal use. It is culpable negligence which makes the employer liable, not a mere error of judgment. We believe this is substantially the rule which has been recognized as the correct one and recommended for our guide in all such eases. It measures accurately the duty of the employer and fixes the limit of his responsibility to his employee. So that the liability of the employer to the employee in damages for any injury the latter may receive while engaged in his work depends upon whether the employer has been negligent. In respect to instrumentalities provided by the master for the use of the servant, the latter, in order to establish his case, must show: (1) That the implement furnished by the master was, at the time of the injury, defective. (2) That the master knew of the defect, or was negligent in not discovering it and making the needed repairs. (3) That the defect was the proximate cause of the injury. Cotton v. R. R., 149 N. C., 227; Marks v. Cotton Mills, 135 N. C., 290; Harley v. B. C. M. Co., 142 N. Y., 31; Avery v. Lumber Co., 146 N. C., 592; Berkley v. Waste Co., 147 N. C., 585; Hudson v. R. R., 104 N. C., 491; Shaw v. Mfg. Co., 143 N. C., 131; R. R. v. Narrett, 166 U. S., 617. These duties which the master owes to his .servant cannot be delegated.

We may omit any discussion of the duty of the servant to inform the master of any defect found by him and of which the master is ignorant, as it is not essential to his liability for an injury upon the ground of negligence that he should actually know of the defect, for he owes to the servant another duty, which is to carefully inspect, at reasonable intervals of time, the machinery, implements, ways and appliances provided for the use of his servant in the performance of his work. 1 Labatt M. and S., secs. 154 and 157; Bailey’s Pers. Inj., sec. 2638; Leak v. R. R., 124 N. C., 455; Cotton v. R. R., supra. There is abundant evidence in this case to show that if the defendant did not have actual knowledge of the defect, it had what is its legal equivalent, the full opportunity, by inspection, to discover it. The defect in the platform was surely the proximate cause of the injury to the intestate, resulting in his death, so *49tbat tbe only remaining question to be considered is, Was tbe defect a negligent one or caused by tbe failure of tbe defendant to exercise tbat degree of care wbicb bis duty to bis servant required of bim under tbe facts and circumstances, as detailed in tbe record? We will proceed now to a brief discussion of tbis matter in tbe light of tbe established principle governing such cases.

Tbe jury have acquitted tbe intestate of any negligence, and we have found no evidence, or any combination of facts fairly inferable from tbe testimony, wbicb tends to impeach tbe correctness of tbis conclusion or to show any culpable negligence on tbe part of tbe intestate. It may fairly be deduced from tbe .evidence tbat if tbe platform bad been either wider or protected by a rail, or, in tbe absence of either of these precautions against injury to tbe servant, if tbe platform, as it was constructed, bad been kept clean or free from oil and grease wbicb made it slippery, tbe intestate could have oiled tbe machinery in safety, and tbe terrible agony wbicb be suffered and bis subsequent death would not have occurred. The adoption of a few simple and precautionary measures, comparatively inexpensive, would have prevented tbe injury and saved bis life.

Tbe plaintiff, in order to show negligence, was not confined to proof of any single or special defect, for be might rely upon all of them — the narrowness of tbe platform, its saturation with oil, and tbe absence of a guard-rail or other sufficient protection against slipping and falling into tbe vat.

In Aiken v. Mfg. Co., 146 N. C., 324, we held there was evidence of negligence, where it appeared that the plaintiff bad slipped on a platform, which bad become wet from the rain, and fallen to the ground. “There was ample evidence (said Justice Connor in that case) of negligence on the part of the defendant in failing to provide a reasonably safe way for the plaintiff to perform the service required of him. The failure to provide the platform or gangway with a railing approaches very closely to negligence per sej it clearly justified the jury in finding that it was dangerous.”

*50The case of Mundhenke v. Oregon City Mfg. Co., 1 L. R. A. (N. S.), 278, presents a state of facts much, like those we find in the record before us. The plaintiff slipped on a greasy floor while walking through an aisle or passageway and fell on machinery which was in motion, so that his hand was brought in contact with the gearing and severely injured. The Court said, with respect to the question of negligence: “The condition and pertinent fact are so peculiarly a matter for the jury that we are not disposed to take it away from them. The gearing was very near the place in which the plaintiff was depositing the filling, and a misdirection of the hand in but a few inches would carry it to the point of danger; and it is reasonably in-ferable that the slipping of the foot was the adequate proximate cause of the accident. It is but a humane duty that the employers of youth about factories should observe every reasonable precaution to protect the comparatively unwary from accident and disaster. If the gearing in the present case had been covered or hooded, which could have been done at a trifling expense, no accident could have happened; and if the aisle had been kept clean of grease, it is quite probable that the result would have been avoided.”

The evidence, in the favorable view to the plaintiff we are privileged to take of it, tends to show that the defendant did not comply with its duty to the intestate by providing him with a reasonably safe place to perform his work, in the exercise of that ordinary care and prudence in the conduct of its business which the law exacts of it, and it does not appear, at least with sufficient conclusiveness, that there was any fault on the part of the intestate which requires us to hold against him upon a motion to nonsuit.

The defendant has not pleaded the assumption of risk (Dorsett v. Mfg. Co. 131 N. C., 261; Bolden v. R. R., 123 N. C., 614), even if the danger to the intestate was so obvious in this instance, and under the facts and circumstances, as to require the application of that doctrine.

There was no error in the ruling of the court to which exception was taken.

Affirmed.