#### R. R. MINCEY v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 19 March, 1913.)

1. Railroads — Master and Servant — Fellow-servant Act — Interpretation of Statutes.

Where two employees of a railroad company were instructed by their superior to do certain work, requiring the use of a ladder, and a ladder which had been discarded by the company is selected from several supplied by the company, which proves defective, the others being sound, and one of the employees sustains a fall because of the defect and receives the injury complained of and sues for damages therefor, Revdsal, see. 2646, known as the Fellow-servant Act, applies, and the plaintiff is not barred of his recovery if it should be established that his fellow-servant, who was his superior, selected the ladder without using reasonable care.

2. Same — Kind of Employment — Scope.

The provisions of the Fellow-servant Act (Revisal, 2646) applying to railroads do not require that the servant, at the time of the injury, should be engaged in the running or operation of a train, but applies to any other kind of service, whether more or less dangerous. Tméém v. Inmiber Co., 154 N. C., 237, cited . and approved.

3. Railroads — Master and Servant — Negligence—Duty of Servant— Reasonable Care.

Helé, in this case, that the court properly charged the jury, upon the question of defendant railroad company’s negligence in an action for damages for personal injury received by its employee, that the defendant was not liable for negligence if the danger was so obvious and of such a nature that the servant had equal opportunity as the master to understand and appreciate it, and, being permitted to do the work in his own way, failed in the exercise of reasonable care to avoid the injury.

*4684. Railroads — Master and Servant — Contract — Implied Promise— Safe Appliances — Defects—Knowledge of Master — Relative Duties — Ordinary Tools — Damages.

The duty of the master implied from the contract of hiring, and which he may not delegate to another so as to avoid responsibility, is to provide for his servant reasonably safe tools and appliances, and a safe place to do the work, and to maintain them in such condition as to afford him reasonable protection against injury; and if the servant is injured by reason of a defect "in an appliance necessary to be used by him. in performing a required service — in this case, a step-ladder — which is known to the master, and is unknown to the servant and not discoverable on his examination, while in the exercise of reasonable care, the master is responsible. The doctrine that it is not the duty of the master to inspect tools of simple construction, supplied for the use of the servant, does not apply to the facts of this case, distinguishing Mercer v. R. R., 154 N. C., 399.

Appeal by defendant from Garter, J., at September Term, 1912, of PENDER.

Plaintiff, while in the employ of defendant as a carpenter, was ordered by O. D. Lupo, who was foreman of Ms squad, to go with one E. E. Mason and repair a glass door of the paint shop. In order to do the repair work, it was necessary to use a ladder. There was evidence that Lupo told Mason to take the plaintiff with him and do the work. Mason got a ladder, as he testified, placed it against the side of the house and then climbed up the ladder and removed the broken panes in the door. Plaintiff then ascended the ladder with the new panes of glass, and when he reached a point near the top, the ladder broke, the glass dropped from his hands and he fell on the broken pieces and was seriously cut by them. The court submitted the usual issues in negligence cases, which were all answered in favor of the plaintiff, and from a judgment upon the verdict, defendant appealed.

0. D. Weelcs and W. P. Mcmgvm Turner for plaintiff.

Davis ■& Dmiá, II. L. Stevens, J. T. Bland, and K. 0. Bur-gwm for defendant.

Walker, J.

In this case there was some evidence to the effect that the ladder selected by Mason and used by him and *469the plaintiff in doing their work was lying in the shop with several others which appeared to be sound and serviceable, while the ladder in question had been broken on one .side and spliced, and it was contended by counsel for defendant that where the master has provided an adequate and readily accessible stock of suitable appliances, in good condition, from which the servant may make his own selection, and the imperfection of the one chosen, therefore, was or should have been apparent to the servant who selected it, the master is not responsible for consequent injuries to the servant, whether he made the selection or his fellow-servant, citing Labatt on Master and Servant, sec. 603. But this principle was fairly submitted to the jury by 'the court, as was the question of contributory negligence, and both were found against the defendant. The defendant relied also upon the general principle, thus stated by Labatt, sec. 333: “When the danger is obvious and of such a nature that it can be appreciated and understood by the servant as well as by the master or by any one else, and when the servant has as good an opportunity as the master, or as any one else, of seeing what the danger is, and is permitted to do his work in his own way, and can avoid the danger by the exercise of reasonable care, the servant cannot recover against the master for injuries received in consequence of the condition of things which constituted the danger. If the servant is injured, it is from his own want of care.” See, also, Whitson v. Wrenn, 134 N. C., 86; Covington v. Furniture Co., 138 N. C., 374; Denny v. R. R., 130 N. C., 340; Hicks v. Manufacturing Co., 138 N. C., 319; Taylor v. R. R., 109 N. C., 233. This, we think, was also substantially explained to the jury by the court, so far as it was applicable to the case. It must be remembered that these general rules must be somewhat restricted, when the negligence is imputed to a fellow-servant of a railroad employee, because of the Act of 1897, ch. 56, Revisal, sec. 2646, which charges'the master, if a railroayl company, with liability for the negligence of a coemployee or fellow-servant, as much so as if the delinquent servant had been the alter ego or vice-principal, and as such fully represented the master. Fitzgerald v. R. R., 141 N. C., 530. The statute operates alike “on all *470employees of tbe company, whether in superior, equal, or subordinate position.” Ibict., p. 534. We have also held that the Act of 1897 applies to an employee of a railroad company, whether at the time of the injury he was engaged in the running or operation of a train or in any other kind of service, whether more or less dangerous. Sigmon v. R. R., 135 N. C., 181; Mott v. R. R., 131 N. C., 234. In the recent case of Twiddy v. Lumber Co., 154 N. C., 237, Justice Solee, for the Court, considers the subject fully and clearly, reviewing all the authorities.

We have examined the charge in this case very carefully, in connection with the evidence, and it appears therefrom to be manifest that the jury decided the case upon the negligence of Mason, whether he be regarded as a vice-principal or simply as a fellow-servant of the plaintiff in performing the work assigned to them by C. D. Lupo, the company’s manager in that department of its service. There was ample evidence to support this finding of the jury, and as they have acquitted the plaintiff of any concurring or contributory negligence in producing the injury, the defendant must be held liable to the plaintiff in damages for the imputed wrong of Mason. The ladder which was used by the plaintiff under the direction of Mason, it appears, had been discarded by the company as unfit for use. It was spliced on one side, but that was not the side on which it after-wards ■ broke. Plaintiff examined it and thought it was safe and sound, before he mounted it. We need not inquire whether it was evidence of negligence to leave this ladder with others then in use, as the case was decided on another ground. The duty of the master to provide reasonably safe tools, machinery, and place to work does not go to the extent of a guarantee of safety to the employee, but does require that reasonable care and precaution be taken to secure safety, and this obligation, which is positive and primary, cannot be avoided by a delegation of it to others for its performance. The 'master’s duty, though, is discharged if he does exercise reasonable care in furnishing suitable and adequate machinery and apparatus to the servant, with a reasonably safe place and structures in and about which to perform the work, and in keeping and maintain*471ing them in sueb condition as to afford reasonable protection to tbe servant against injury. R. R. v. Herbert, 116 U. S., 642; Gardner v. R. R., 150 U. S., 349; R. R. v. Baugh, 149 U. S., 368; Steamship Co. v. Merchant, 133 U. S., 375. Tbis undertaking on tbe part of tbe master is implied from tbe contract of biring (Hough v. R. R., 100 U. S., 213), and if be fails, in tbe duty of precaution and care, be is responsible for an injury caused by a defect wbicb is known to bim and is unknown to tbe servant. R. R. v. McDade, 135 U. S., 554. These principles are fully supported by tbe following cases in tbis Court and apply to machinery and tools or implements of simple as well as complicated construction. Twiddy v. Lumber Co., supra; Reid v. Rees, 155 N. C., 230 (ladder case) ; Orr v. Telephone Co., 130 N. C., 627 (s. c. on rehearing, 132 N. C., 691); Avery v. Lumber Co., 146 N. C., 595; Cotton v. R. R., 149 N. C., 227; Marks v. Cotton Mills, 135 N. C., 287; West v. Tanning Co., 154 N. C., 44; Nail v. Brown, 150 N. C., 533, and Mercer v. R. R., 154 N. C., 399 (hammer case), opinion by Justice Allen; in wbicb it is held that tbe duty of inspection of tools and appliances does not extend to those of simple construction, such as hammers, chisels, spades, axes, and others of like kind, where tbe employee is assumed to have equal knowledge and ability with tbe master for discovering tbe defect, if any. He is required to use it and, therefore, is in a better situation to discover tbe imperfection of tbe implement and report it to tbe master for repair or tbe substitution of a new one. But tbis relaxation of tbe rule can have no application to a defect of wbicb tbe master is actually cognizant, and wbicb, as a reasonable man, be should appreciate is likely to result in injury to one using tbe implement as it is likely to be used, and wbicb is neither known to tbe employee nor of such a character as to be apparent from tbe observation wbicb may be expected to accompany its use. In such case tbe general rule of negligence is fully effective, and tbe master who knowingly and negligently exposes bis employee to a peril unknown to tbe latter must respond for the damage wbicb results.

It appears that plaintiff could not discover tbe defect in tbe ladder by an ordinary inspection or such as be could have made *472in tbe use of it, but tbe railroad company knew of its defectiveness and that it was not suitable for tbe use to wbicb it was to be applied. It must, therefore, answer for tbe resultant damage. Stark v. Cooperage Co., 127 Wis., 322. Tbe plaintiff actually made a proper examination of tbe ladder, before be used it, and failed to find anything indicating that it was weak or unsafe, and tbe jury exonerated him from any blame and naturally enough confined their further investigatiou to tbe negligence of Mason. It is true, tbe rule is that where fellow-servants are engaged in a common employment, each, in undertaking tbe service, assumes tbe risk that tbe others may fail in that care and vigilance wbicb are essential to bis safety; and under this rule, if applicable here, tbe defendant would not be liable; but not so, for tbe reason that tbe statute has excepted this class of cases from tbe general principle. It is too late now to question tbe policy or wisdom of making tbe exception in those cases of railroads where tbe special risk is no greater nor tbe particular kind of work more dangerous than when it is done in other employments. It may be discriminating and unjust to make the distinction, but such arguments should be addressed to tbe Legislature and not to us; who do not make tbe law, but simply construe it or declare what it is. Tbe argument that tbe statute was not intended to cover cases of this kind is met by tbe numerous decisions of this Court bolding tbe contrary”, and declaring what is tbe true meaning of tbe statute. Twiddy v. Lumber Co., supra.

We find no error in tbe case.

No error.