#### J. P. CRISP v. KITCHEN LUMBER COMPANY.

(Filed 20 August, 1930.)

Master and Servant C I) — Where failure to furnish tool is not shown to he cause of injury and injury could not be foreseen, master is not liable.

An employer is not liable in damages to his employee for unanticipated accidents or for failure to furnish an implement when it is purely speculative as to whether the injury would have occurred had it been furnished.

Civil aotioN, before Moore, J., at January Term, 1930, of Graham:.

At tbe conclusion of plaintiff’s evidence there was judgment of non-suit.

Morphew & Morphew and Moody & Moody for plaintiff.

B. L. Phillips for defendant.

Per Curiam.

In substance tbe case is tbis: Tbe plaintiff and other workmen were engaged in removing trees, logs, stumps and rocks from tbe right of way of a proposed lumber road. Tbe foreman directed tbe plaintiff to assist in rolling a large chestnut log down tbe bill. There was a limb under tbe log, which, according to tbe evidence, projected about two feet beyond tbe log. When tbe log began to roll tbe limb was thereby released and flew up and bit plaintiff on tbe hip, inflicting injury. There was nothing to indicate to tbe foreman that tbe limb was likely to cause injury.

Tbe evidence leaves upon us tbe impression that tbe injury was tbe result of a mishap which sometimes creeps into tbe day’s work without fault or negligence on tbe part of anybody. For such, tbe law creates no liability.

Tbe plaintiff insists that a "peavey” was a tool approved and in general use for moving logs, and that if such an instrument bad been furnished be would not have been injured, but a “peavey” would not have prevented tbe limb from flying up upon being released from tbe log. Tbis contention, therefore, is sheer speculation, based upon tbe theory that tbe plaintiff would have been at tbe end of tbe “peavey” handle and out of reach of tbe flying limb. He might have been so situated at tbe time or might not, depending upon tbe progress of tbe work.

Reviewing tbe entire record, we are of tbe opinion that tbe judgment of nonsuit was properly entered.

AfErmed.