
    WILL WOOTEN v. CHARLES E. HOLLEMAN and JAMES W. DUNNEGAN.
    (Filed 12 April, 1916.)
    1. Master and Servant — Safe Place to Work — Duty of Master — Rule of the Prudent Man.
    The master is not held to the liability of an insurer or guarantor of his servant’s safety under the rule that it is his duty to furnish the servant a safe place to do the work required of him, hut only to exercise ordinary care to provide a place where the servant can do the work with reasonable safety.
    2. Same — Trials—Instructions.
    A requested instruction, in an action for damages for failure of the defendant to furnish his servant a safe place to work, alleged to have resulted in the injury complained of, that leaves out of consideration the negligence of the defendant under the rule of the prudent man, and makes his liability that of an insurer, is properly refused.
    3. Same — Concurrent Negligence — Independent Contractors.
    The rule holding the master liable in damages to his servant when the negligence of both concur in inflicting the injury on the latter eomp'ained of, depends for its application upon the fact of the master’s negligence, either directly or through his subcontractor, and a requested prayer for instruction tendered by the plaintiff which precludes this inquiry upon the evidence is properly refused.
    4. Appeal and Error — Trials—Requested Instructions — Issues.
    It is not erroneous for the trial judge to refuse special requests for instruction not addressed to the issues.
    
      Appeal -by plaintiff from Cline, J., at September Term, 1915, of Eobsyth.
    Civil action to recover damages for personal injuries alleged to bave been caused by tbe negligence of tbe defendant.
    Tbe defendant James W. Dunnegan, a building contractor, was employed by bis codefendant, Charles E. Holleman, to build a bouse for bim, wbicb was to be a turn-key job. In order to do a part of tbe work it became necessary to erect scaffolding on one side of tbe bouse. Dun-negan employed plaintiff as one of bis workmen and instructed bim and M. L. Miller, another of bis employees, to build tbe scaffold, and in doing so they failed to drive enough nails in tbe purlock by wbicb tbe scaffold or framework was fastened to tbe window-jamb of tbe bouse, tbe other end being nailed to a post. They put but one nail in tbe pur-lock, wbicb was pulled out by tbe weight, and this broke tbe scaffold, wbicb fell at one end, where tbe plaintiff was working, and caused bim to fall to tbe ground, thereby receiving the injuries for wbicb be brings this action.
    Tbe plaintiff offered testimony to tbe effect that be did not build tbe scaffold, nor did be help to do so, and that be did not drive tbe nail in tbe purlock, though be stated that be could bave discovered that there was only one nail in it bad be examined it, and there was nothing to prevent bim from examining it, as it was not bid, and if be bad seen it be would bave driven more nails into tbe purlock; but be did not examine, and simply did what be was told to do.
    There was evidence for tbe defendants wbicb tended to show that plaintiff was specially instructed to nail tbe scaffold securely, with a plenty of nails, as there would be considerable weight on it when tbe shingles were banded up and tbe men were on it at their work, and it was testified, further, that defendant Dunnegan gave instructions as to bow it should be placed and nailed. There was also evidence tending to show that, as between tbe two defendants and tbe plaintiff and bis co-employees, James W. Dunnegan was an independent contractor.
    Upon tbe issues submitted to tbe jury, tbe following verdict was rendered:
    1. Was tbe plaintiff injured by tbe negligence of tbe defendant J. W. Dunnegan, as alleged in tbe complaint? Answer: “No.”
    ■ 2. Was tbe said J. W. Dunnegan an independent contractor? Answer : .
    3. Was tbe plaintiff injured by tbe negligence of tbe defendant Charles E. Holleman, as alleged in tbe complaint? Answer: “No.”
    4. Did tbe plaintiff by bis own negligence contribute to bis injury, as alleged in tbe answer ? Answer: .
    5. What damages, if any, is tbe plaintiff entitled to recover? Answer : .
    
      Judgment in favor of tbe defendant having been entered on tbe verdict, tbe plaintiff appealed to tbis Court. .
    
      A. E. Holton and W. H. Beckerdite for plaintiff.
    
    
      J ones & Clement, Hastings & Whicker, S. J. Bennett, and Louis M. Swink for defendants.
    
   "Walker, J.,

after stating tbe case: Tbe exceptions in tbis ease were taken to tbe refusal of the court to give two requests for instructions, and to portions of tbe charge. Tbe instructions asked by tbe plaintiff are too narrow, as they omit tbe important element as to whether tbe failure of tbe defendants to furnish a safe place in which tbe plaintiff could perform bis work was due to their negligence. Tbe exceptions are predicated generally upon tbe assumption that tbe master must furnish a reasonably safe place to bis servant for tbe doing of bis work and reasonably safe appliances, in tbe sense that be is an insurer or guarantor of tbe servant’s safety, whereas tbe law requires only that be should exercise proper care in tbe discharge of tbis duty to bis servant. He cannot delegate tbis primary duty to another without being liable for bis negligence if injury results; but if tbis primary duty is assigned to another by him, and be still exercises due care and supervision in tbe performance of it, tbe law will not bold him responsible for any injurious result, tbe measure of bis duty being tbe exercise of ordinary care in furnishing a place where bis servant can work with reasonable safety.

It is true, as contended by tbe plaintiff, that where tbe negligence of tbe master and a fellow-servant concur in producing an injury to an employee, tbe latter, being himself free from blame, can recover damages for tbe injury from either or both; but tbis is because tbe master, as well as the fellow-servant, was negligent; and if there was no negligence on tbe part of tbe master, although tbe fellow-servant was negligent, tbe concurrent elements of liability do not exist. There must be tbe coexistence of tbe negligence of tbe master and that of fellow-servant. "Where tbis is tbe case tbe law will not undertake to apportion tbe negligence, but bolds tbe master liable because be contributed to produce tbe injury by bis failure to exercise due and proper care.

"We said in Marks v. Cotton Mills, 135 N. C., at p. 290, it is tbe negligence of tbe employer in not providing for bis employee a reasonably safe place in which to work that makes him liable for any resultant injury to bis employee who is himself free from fault; and referring later to tbis rule, we said in tbe same case, at marg. p. 291: “Tbe rule which calls for tbe care of tbe prudent man is in such cases tbe best and safest one for adoption. It is perfectly just to tbe employee and not unfair to bis employer, and is but tbe outgrowth of tbe elementary principle that the employee, with certain statutory exceptions, assumes the ordinary risks and perils.of the service in which he is engaged, but not the risk of his employer’s negligence. When any injury to him results from one of the ordinary risks or perils of the service, it is the misfortune of the employee, and he must bear the loss, it being damnum, absque injuria; but the employer must take care that ordinary risks and perils of the employment are not increased by reason of any omission on his part to provide for the safety of his employees. To the extent that he fails in this plain duty he must answer in damages to his employee for any injuries the latter may sustain which are proximately caused by his negligence.” We have approved that case and applied the same doctrine frequently since its decision. Patterson v. Nichols, 157 N. C., 407; Pigford v. R. R., 160 N. C., 93; West v. Tanning Co., 154 N. C., 48; Tate v. Mirror Co., 165 N. C., 273; Steele v. Grant, 166 N. C., 635, and more recently in Cochran v. Mills Co., 169 N. C., 57, where, quoting from Steele v. Grant, supra, we said: “The duty of the master to provide reasonably safe tools, machinery, and places 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 maintaining them in such condition as to afford reasonable protection to the servant against injury,” citing R. R. v. Herbert, 116 U. S., 642; Gardner v. R. R., 150 U. S., 349; R. R. v. Baugh, 149 U. S., 368. A late decision upon the question is very applicable to the facts of this case. In Gregory v. Oil Co., 169 N. C., 454, Justice HoTee says: “It is urged for the appellant that the duty of the master to provide his employee with a safe place to work is ‘primary, absolute, and nondelegable,’ and that for a failure in this respect the master was guilty of negligence, and, on the testimony, the jury could well find that there was concurrent negligence of the master and the employees who threw the bale on the platform. The position is sound in so far as it states the duty of the master to be primary and nondele-gable; but it is not ‘absolute’ in the sense that the employer of labor is ever an insurer of the safety of his laborers. He is held to the exercise of proper care in providing a safe place to work, and this, as a general rule, is the measure of his obligation,” citing Ainsley v. Lumber Co., 165 N. C., 122; West v. Tanning Co., supra. In Gregory v. Oil Co., supra, it is further said that where there is joint or concurring negligence of the master and a fellow-servant which produces the injury, the master is liable if the injured servant is free from fault; but in order to a proper application of the principle, the negligence of the employer must be first established. Both of the instructions requested by the plaintiff ignore this essential element of liability.

The most important of the facts to be found was the negligence of the defendants, and under neither of the defendants’ prayers would that fact have been passed upon by the jury. The form of the two prayers for instructions is also objectionable, as they are not addressed to any specific issue. Whitsell v. R. R., 120 N. C., 557; Earnhardt v. Clement, 137 N. C., 93; Satterthwaite v. Goodyear, ibid., 302; Lynch v. Veneer Co., 169 N. C., 173.

The ease of Gregory v. Oil Co., supra, sufficiently answers all objections to the charge of the court.

The duty of constant supervision and the exercise of ordinary care by the defendants as a condition of immunity from liability on their part is a pervasive feature of the instructions which were given by the court to the jury, and they have found the essential facts against the plaintiff’s contention. Not only did the presiding judge give prominence to the necessity of such care on the part of the employer as is required by applying the rule of the prudent man to the facts and circumstances in order to exonerate the master, but he kept it constantly before the jury as a fact to be found by them before there could be any liability of the defendants, and he gave the plaintiff, at the same time, the full benefit of the law as previously declared by this Court, following our decisions with painstaking care and close adherence.

It is not to be overlooked that there was evidence that plaintiff was associated with Miller in nailing the scaffold, and was himself responsible for the injury to himself as the result of his neglect to properly fasten the purlock to the jamb of the window, and, further, that he afterwards admitted that the injury was due to his own fault in thus failing to take proper precaution for his own safety. This, though it does not affect the legal aspect of the matter, may have had great weight with the jury.

We have carefully examined the case, and find no error in the record.

No error.  