#### OSCAR Y. SMITH v. SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 26 October, 1921.)

1. Pleadings — Scope of Inquiry — Instructions — Appeal and Error — Amendments.

The plaintiff, in his action to recover damages of the defendant for a personal injury alleged to have been negligently inflicted on him, is restricted to those acts of negligence he has specifically alleged in his complaint, or amendments thereto allowed by the trial court, affording the defendant opportunity to amend his answer and prepare to meet the new phase of the case; and a charge of the court is reversible error when it goes beyond this, and into extraneous matters, to the defendant’s prejudice.

2. Instructions — Material Omissions — Appeal and Error.

A material omission in the charge of the trial court to the jury of the principles of law involved upon a phase of the case he has assumed to instruct them upon is affirmative and reversible error.

3. Employer and Employee — Master and Servant — Safe Place to Work— Defects — Actual and Implied Knowledge — Inspection.

The defect in an apparatus which an employer has furnished to his employee to do the work required of him is not sufficient of itself to charge the employer, the defendant in the action, with negligence, causing the injury, for the plaintiff must show that the defect was either known to the defendant or had existed so long that the law will impute such knowl*291edge throng!! the failure of the defendant to have discovered it by reasonable inspection required of the employer at proper intervals to secure safety in its use by his servants.

4. Same — Railroads—Instructions—Appeal and Error.

Where an employee of a railroad required to place water in its locomotive at a water tank, has been injured while doing so by an explosion in the pipe through which the water was being carried for the purpose, and the evidence is conflicting as to whether the employee was acting therein in the proper manner and whether the employer had had the apparatus properly inspected, or should have previously discovered the defect of which it was unaware by the use of ordinary care, a charge of the court omitting these requisites upon the issue of defendant’s negligence, and in effect making the defendant’s liability to depend altogether upon whether or not there was a defect that proximately caused the injury, is reversible error.

5. Same — Federal Employers’ Liability Act.

Under the Federal Employers’ Liability Act it is not every accident which may occur in causing a personal injury to an employee while working with the machinery and appliances furnished by the employer, a railroad company, for him to do the work that will make the employer liable, but only for those “due to its negligence” under the rule of actual or implied notice.

6. Employer and Employee — Master and Servant — Negligence—Rule of the Prudent Man.

It is not the absolute duty of an employer to furnish his employee a reasonably safe place for the latter to do his work, the rule being that he must provide for him such a place, under the rule of the prudent man, in the exercise of ordinary care.

7. Actions — Parties—Dismissal as to One Party — Statutes—Prosecution as to Party.

In an action against a railroad company and the Director General of Railroads, following the opinion of the Supreme Court of the United States, there is no liability upon the railroad company, but the action may be continued against the Director General under the provisions of C. S., 602, that a several judgment may be entered. Kvrribrough v. R. R., ante, 234, cited and applied.

■Appeal by defendant from Gonnór, J., at tbe June Term, 1921, of Waice.

Plaintiff brought this action to recover damages for personal injuries alleged to have been sustained at Sanford, N. C., 18 July, 1919, by being thrown from a stand-pipe while putting water in the tank of an engine. Plaintiff testified that he was fireman on one of the engines being operated on the Seaboard Air Line Eailway while under Federal control, and that it became necessary for the engine to take water at Sanford; that the engine was properly placed, and he pulled the stand-pipe to the tender and around to the manhole and leaned against the stand-pipe to *292bold it down, and, as Re pulled tbe lever to release tbe water, tbe standpipe exploded and threw bim backwards. In explaining bis position wben leaning against tbe stand-pipe plaintiff testified tbat be assumed a sitting posture. Plaintiff also testified tbat be bad used tbis standpipe before tbe time of bis injury, tbat be would pull tbe lever about half way over and tbe water would come witb a rush. Tbe lever referred to was on top of tbe spout of tbe stand-pipe and was used to regulate tbe flow of water through tbe pipe and into tbe tank of tbe engine.

It will perhaps be better, or at least more accurate, to state tbe substance of tbe testimony for plaintiff substantialy in bis own language, or rather in tbat of bis counsel, as it is set forth in their brief, which we now do :

Tbe plaintiff testified tbat at tbe time of bis injury be was temporarily performing tbe duties of a railroad fireman; tbat be was a locomotive engineer by trade, and was employed on tbe Seaboard Air Line Railway on 18 July, 1919. The plaintiff testified in part as follows: Tbe engineer ran up to tbe stand-pipe. He told me to take water on tbe tender, and I went to take water. He stopped tbe engine right even witb tbe stand-pipe.' I pulled tbe stand-pipe to tbe tender and around to tbe man-bole and leaned against it to bold it down, and as I pulled tbe lever to release tbe water tbe stand-pipe exploded and threw me backwards. Tbe stand-pipe tbat I was leaning against exploded. . . . Before 18 July, I took water tbe same way I was taking it wben I got hurt. There was nothing unusual before tbis time. ... I bad seen different firemen take water at the same pipe, all the time. ... I was taking water on tbis day tbe same as they were. I was taking it in tbe same manner as I bad authority to take it. I was working tbe lever witb my left band. Tbe lever works tbe valves tbat let tbe water flow in tbe stand-pipe. . . . And I pulled it out to get water. . . . As you pull it toward you it opens tbe valve and tbe water comes in. . . . There was no place on tbe side of tbe spout tbat you could put your foot on and bold tbe spout down in tbe tank. I was not aware of tbe fact tbat there was more jiressure there than at any other standpipe. ... I pulled tbe lever up halfway, and, still bolding it down, I took a seat on tbe side and pulled the lever over, and tbat is wben it exploded. Tbat is tbe position I bad always assumed. I mean by tbe explosion tbat tbe pipe burst, and there was compressed air and water and it all came out at tbe same time. It was not solid force of water. There was a gush of air. Tbe air and water came out at tbe same time. Q. “What kind of noise was it making? A. A blow and a sudden jerk. Tbe blow was very strong and powerful. I bad never beard anything *293like that at a stand-pipe before. It all happened at tbe same time. I do not know bow high the stand-pipe was thrown by the explosion. The last I remember it was going up and I was going with it. Q. You stated, Mr. Smith, on cross-examination, that some time before that in resting on it you had felt it go down and come up — explain to the jury what it was doing? A. There was no force as there was that day. I don’t suppose it ever raised four or five inches. I was leaning there on it and pushed it down. I could not have done it on the day of the explosion. •

The defendant’s witness, J. L. Kelly, testified in part.: Something broke loose. I don’t know what it was. It pitched him 15 feet high. . . . A whole lot of stuff went up there with him. It exploded and he went up in the air. I did not see anything but a little water come out of that explosion. No; that little water would not have exploded with the tank that way. No; I did not hear the water running in the tank before that. I saw the piece break just as it was pulled down. I don’t know whether he had hold of the lever at that time or not.

The defendant’s witness, Yow, testified in part: I guess this standpipe exploded as soon as he pulled the lever. Yes; it suddenly exploded. . . . It was about as quick as lightning. He had not more than got it down when he reached up and got the lever. Just as he pulled it, it exploded. I was struck with the water. This whole arm was up straight. The explosion took place as soon as this man pulled the lever down. From where they picked him up I should say he went 20 feet into the air. ... I think he was thrown 50 feet.

The defendant’s witness, Gold, testified in part: That the column was 12 inches thick; that the ball was made of brass and was an inch thick. The ball was crushed and drawn in. . . . Mr. Owens, the pump repairer, was working on the same main that supplied this standpipe the day of Mr. Smith’s injury. . .* . Mr. Owens had the immediate supervision and upkeep of this stand-pipe.

Defendants offered the testimony of two eye-witnesses of the accident, neither of whom was connected in any way with the defendants, and they both testified that plaintiff straddled the spout of the stand-pipe and attempted to operate the lever while in that position. M. H. Gold, witness for defendants, testified that at the time of this accident he was division engineer in charge of the stand-pipe; that he went to Sanford on the day this accident occurred, and after the accident; that he had been there two days before and the stand-pipe was in very good condition; that there were two grab-irons on the spout by which you could pull it around, and there was sufficient room on the grab iron for a fireman to place his foot and hold the spout in position; that a fireman *294could stand on tbe tender and place bis foot on tbe grab-iron and bold tbe pipe in place; that by pulling tbe lever on top of tbe spout you could control tbe opening of tbe valve in tbe pipe so as to control tbe flow of water; that by pulling it gradually tbe water would flow gradually; tbat if tbe lever was pulled up .suddenly tbat would throw tbe entire pressure on tbe stand-pipe, and tbat would bave a tendency to straighten tbe pipe out at tbe end. This witness also testified tbat be examined tbe stand-pipe after tbe accident, and tbat there was no weak places in it. .

D. T. Owens, witness for plaintiff, testified tbat be was pump repairer, and on tbe North Carolina division of tbe railroad; tbat be remembers this identical stand-pipe; tbat be gave Mr. Gold notice of tbe condition of tbe stand-pipe before tbe accident; tbat every time be talked to Mr. Gold be spoke to him about tbe stand-pipe; tbat be told him be did not like it because it would give him trouble; tbat they were too weak for tbe pressure. Tbe witness further testified tbat tbe trouble with tbe stand-pipe was tbat it was leaking. He said tbat be worked tbe lever on this stand-pipe and tbat by working it slowly it would let tbe water in gradually, and if you pulled tbe lever suddenly tbat would cause tbe water to rush up suddenly. This witness further testified tbat tbe stand-pipe -was all right before plaintiff was injured; tbat it was in good working order, and there was nothing about it tbat was broken; tbat be inspected it on tbe fourth of tbe month before tbe accident and put it in good condition; tbat after tbe accident be could find no defect except such as was caused by tbe spout flying up; tbat tbe tank is 70 feet high-at Sanford.

At tbe conclusion of tbe evidence plaintiff admitted tbat be was employed in interstate commerce at tbe time of bis injury, and, over defendants’ objection, was permitted to amend bis complaint so as to allege tbat defendants were engaged in interstate commerce, and tbat be was employed in such commerce.

Tbe judge charged tbe jury, among other things, as follows': “I instruct you tbat if you find by tbe greater weight of tbe evidence in this case tbat this plaintiff, in tbe performance of bis duty, after tbe engine bad been placed opposite tbe water tank, took down tbe spout and placed tbe mouth of it in tbe tender in order tbat tbe water might flow, and further find tbat tbe usual and customary way was to pull tbe lever, and then find, gentlemen of tbe jury, tbat tbe plaintiff leaned bis weight upon tbe spout in order to bold it in position, and you further find that when tbe water did come tbat it came in such a rush and force as to throw tbe young man in tbe air, and further find tbat tbe violence with which tbe water came was due to some defect in tbe apparatus, or was *295due to carelessness on tbe part of tbe defendant, and if you find tbat sucb negligence was tbe direct and proximate cause of tbe injury, you will answer botb of tbe two issues ‘Yes.’ ”

Tbe jury returned a verdict in favor of plaintiff on all tbe issues, and fixed tbe damages at $40,000.

Judgment tbereon, and defendant appealed, assigning errors.

Armistead Jones & Son and Douglass & Douglass for plaintiff.

Murray Allen for defendants.

WaliceR, J.,

after stating tbe case: Tbe plaintiff alleged several acts of negligence in respect to tbe condition of tbe water tank at tbe time of tbe accident, and, of course, be is restricted to those specified. If be desired to show others, tbe proper way was to ask tbe court for an amendment, giving tbe defendants reasonable opportunity to amend their answer and prepare to meet tbe new phase of tbe case. Being thus confined to bis own statement of tbe particular acts of negligence, it was error for tbe court to instruct tbe jury as appears in tbe above excerpt from tbe charge.

But there is a still more fatal defect in this instruction. Tbe judge was attempting to state tbe law on this branch of tbe case, and there is nothing better settled than tbe rule tbat be must state it correctly, for any material omission is an affirmative error. A defect in apparatus is not sufficient of itself to charge tbe defendant with liability for negligence, unless tbe defect was either known to it or bad existed so long tbat tbe law will impute sucb knowledge, when tbe defect could have been discovered by a reasonable inspection of tbe machinery and implements, which should be made by tbe master at proper intervals to secure safety in their use by bis servants. This element of liability was entirely omitted from this instruction, and not even a reference made to it. Tbe eases have thoroughly established this principle in tbe law of negligence. Tbe following-cases will show tbat this is so: Hudson v. R. R., 104 N. C., 491; Railway v. Barrett, 166 U. S., 611; Patton v. Railway, 179 U. S., 658; Railroad v. McDade, 135 U. S., 554; Blevins v. Cotton Mills, 150 N. C., 493; Labatt on Master and Servant, sec. 119 et seq. And to these cases we add a recent one (which was carried from this Court by writ of error to tbe Supreme Court of tbe United States), in which this same doctrine is discussed, and formulated according to tbe view of it as above stated. S. A. L. Rwy. Co. v. Horton, 233 U. S., 492 (58 L. Ed., p. 1062), and especially tbe same case, on second appeal, 239 U. S., 595 (60 L. Ed., p. 458), where a water gauge was alleged to be defective and exploded. In tbe Hudson case, 104 N. C., 491, we held tbat “Tbe burden is upon tbe servant who sues bis master for damages, *296resulting from the use of defective machinery furnished by the latter, to establish prima facie, (1) that the machinery was defective; (2) that the defects were the proximate cause of the injuries; and (3) that the master had knowledge of them, or might, by the proper exercise of care and diligence, have acquired such knowledge.” Now, in this case, when the testimony is closely and carefully examined, it will be found that it is both ways as to this point. There is perhaps some evidence from which the jury might fairly and reasonably infer that if the tank or the pipe leading to it was defective, or that there was air in the latter which should have been expelled before using it, the defendant either knew it or should have known it by the exercise of ordinary care, and there also is testimony to the contrary, and some tending to show that the tank was put in good condition by repairs to it before the accident, and was in such condition just before the explosion took place. In view of this conflict of testimony, the case should have been submitted to the jury with proper instructions as to the law. A carrier is not liable for every accident that may occur and injure one of its employees, but, by the very terms of the Federal Employers’ Liability Act, only for those “due to its negligence.” Federal Employers’ Liability Act, by Eichie (2 ed.), page 122, sec. 53, and cases in notes. Extended comment is not required to further demonstrate the correctness of this rule as to the duties of the master to his servant, with respect to machinery and implements furnished to him by the latter, nor the citation of other authorities, though there are very many decisions of this and other State courts, and of the highest Federal courts, that might be added to those we have cited above. We will, though, refer especially to Texas & Pac. R. R. Co. v. Barrett, 166 U. S., 617 (41 L. Ed., 1136), in this connection.

There is also another exception to which we should advert, as it may be repeated unless attention is directed to it. The court instructed the jury “that, under the law, it was the duty of the defendant to furnish to the plaintiff, while in its employment, a safe place to do his work and reasonably safe implements with which to do the work required of him.”' His Honor corrected this charge afterwards by instructing the jury that he should have told them that the defendant was required to furnish only “a reasonably safe place for the servant to do his work,” but left it otherwise intact. It is not the absolute duty of the master to furnish even a reasonably safe place for the servant to do his work, but the true and correct rule is that he must use ordinary care to provide for him such a place. Choctaw O. & G. R. C. v. McDade, 191 U. S., 64; Garner v. R. R., 150 U. S., 359; Washington & G. R. Co. v. McDade, 135 U. S., 570; B. & O. R. R. v. Baugh, 149 U. S., 368. See, also, Powell v. Anderson S. & T. P. Co., 256 Pa. St., 618, and Kryner v. *297 Gold Mining Co., 184 Fed., 43. Justice Brewer said in Patton v. Texas & Pac. R. R. Co., 179 U. S., 658 (45 L. Ed., 361) : “It is also true that there is no guaranty by tbe employer that place and machinery shall be absolutely safe. Hough v. Texas & P. R. R. Co., 100 U. S., 213, 218 (25 L. Ed., 612, 615); Baltimore & O. R. R. Co. v. Baugh, 149 U. S., 368, 386 (37 L. Ed., 772, 780); 13 Sup. Ct. Rep., 914; Baltimore & P. R. R. Co. v. Mackey, 137 U. S., 72, 87 (39 L. Ed., 624, 630); 15 Sup. Ct. Rep., 491; Texas & P. R. R. Co. v. Archibald, 170 U. S., 665, 669 (42 L. Ed., 1188, 1190); 18 Sup. Ct. Rep., 777. He is bound to take reasonable care and make reasonable effort; and the greater the risk which attends- the work to be done and the machinery to be used, the more imperative is the obligation resting upon him. Reasonable care becomes, then, a demand of higher supremacy; and yet, in all cases it is a question of the reasonableness of the care; reasonableness depending upon the danger attending the place or the machinery. The rule in respect to machinery, which is the same as that in respect to place, was accurately stated by Mr. Justice Lamar, for this Court, in Washington & G. R. R. Co. v. McDade, 135 U. S., 554, 570, 34 L. Ed., 235, 241, 10 Sup. Ct. Rep., 1044. Justice Lamar’s statement of the law in this respect in 135 U. S., 554, referred to by Justice Brewer, is a strong and very lucid exposition of the subject, but it is not necessary that we should insert it verbatim here, as it can easily be found in the volume where it is reported, and it is substantially covered by Justice Brenv&r’s own version of the principle, as stated above. It also will be found stated by us in Marks v. Cotton Mill, 135 N. C., 287, and the same case, 138 N. C., 401, where it was held: In all questions of negligence the standard by which to measure the liability of the employer to the employee, is that followed by the ideally prudent man. What was held in the first of the two cited cases (135 N. C., 290) is directly in point here, that “The employer does not guarantee the safety of his employees. He is not bound to furnish them 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 the best known machinery, implements and appliances, but only such as are reasonably fit and safe and are in general use. He meets the requirements of the law if, in the selection of machinery and appliances, he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his 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 *298tbe limit of bis responsibility to bis employees. Harley v. B. C. M. Co., 142 N. Y., 31. Tbis Court bas said tbat all macbinery is to some extent dangerous, but tbe fact tbat it is dangerous does not of itself make tbe owner liable in damages. It is tbe negligence of tbe employer in not providing for bis employees reasonably safe macbinery and a reasonably safe place in wbicb to work tbat renders him liable for any resulting injury to them.” Tbat case was cited and tbe principle it states approved by tbe Court in Pressly v. Yarn Mills, 138 N. C., 413, and bas been cited and approved in numerous subsequent eases.

There are other exceptions worthy of consideration if tbe result depended in any way upon them, but it does not, and we will not prolong tbis opinion in order to foreclose them.

Tbe action should be dismissed as to tbe Seaboard Air Line Railway Company, as tbe Supreme Court of tbe United States bas recently decided tbat there is no liability as to it. Mo. Pac. R. R. Co. v. Ault, Adv. Opinions of tbat Court, p. 647, No. 16,1 July, 1921. The plaintiff may continue, though, to prosecute tbe action against tbe Director General, under our present procedure, as will appear from C. S., sec. 602, where it is provided specially tbat a several judgment may be entered. Tbis is discussed fully in tbe dissenting opinion of tbe writer in Kimbrough v. A. C. L. Ry. Co. and Director General, ante, 234, tbe Court being unanimous on tbis point. Reference is made to tbat opinion to avoid rejoetition.

There was error, in tbe respects indicated, because of wbicb another jury must be called.

New trial.