
    JOHN P. NAIL v. BROWN & WILLIAMSON.
    (Filed 28 April, 1909.)
    1. Evidence Rejected — Subsequent Offer to Admit — Harmless Error.
    Wlien tbe trial judge bas excluded certain evidence, which he thereafter, at the close of all the evidence, offered to admit, and there is no suggestion that the witnesses had been discharged, the error, if any, was cured.
    2. Instructions, Special — Offered Too Late — Appeal and Error.
    It is necessary to offer a prayer for special instruction in apt time, and the refusal of the trial judge to give a correct instruction, when tendered too late, is not reviewable on appeal.
    3. Negligence — Safe Appliance — Selection—Rule of the “Prudent Man.”
    It is culpable negligence, and not a mere error in judgment, which renders an employer liable to ■ the employee injured by reason of the use of an appliance furnished with which to work; and when the employer has selected one of several methods which are approved and in general use, with that degree of care that a person of ordinary prudence would have used, no liability will attach by reason of such selection.
    ■ AotioN for personal injury, tried before Ward, J., and a jury, at May Term, 1908, of Forsyth.
    
      Issues were submitted and answered by tbe jury, wbo found tbe first issue, relating to tbe alleged negligence of tbe defendants, in tbe negative. From tbe judgment rendered tbe plaintiff appealed.
    
      J. E. Alexander, A. E. Holton and Lindsay Patterson for plaintiff.
    
      Watson, Buxton &, Watson and Manly & Hendron for defendants.
   Brown, J.

Tbe plaintiff, while working in the factory of the defendants, was injured by the breaking of a belt, causing one of the books wbicb fastened the belt together to strike him on the bead and embed itself therein. Tbe belt was running parallel with the ceiling, some four or five feet above the bead of the plaintiff and some twenty feet from where be was standing. "While the machinery was in motion, in the usual manner, the belt parted, with a report like the sound of a gun, the belt boobs flying in several directions, one of them striking the plaintiff. It was the duty of the plaintiff to run the machine. Tbe evidence tended to prove that the belt was nearly new, having been in use only six months at the machine run by plaintiff.

Tbe allegation of negligence, stated in tbe complaint in different forms of expression, is a failure by defendants to furnish reasonably safe machinery and instrumentalities.

It is admitted in tbe brief of tbe learned counsel for plaintiff that tbe belt was new and without fault, but it is claimed that its ends were fastened together with belt books, and that they were not reasonably safe appliances for fastening belts. Tbe negligence averred relates not so much to tbe quality of tbe boobs used as to tbe method employed.

T. Among other exceptions to tbe evidence, it is contended that bis Honor erred in refusing to permit plaintiff to offer evidence tending to prove 'that on other occasions similar books bad been seen flying out of tbe same belt and also out of similar belts.

We find evidence "of this character in tbe record, admitted without objection'; and if further testimony along that line was desired or permissible, bis Honor opened tbe door for it by offering at tbe close of all evidence to permit plaintiff to offer it.

There is no suggestion that plaintiff bad discharged bis witnesses at tbe time; and we therefore think, if tbe exception bad merit in it, tbe offer of tbe judge destroys it.

Tbe remaining exceptions to evidence, we think, upon examination, are untenable and need no discussion by us.

2. Tbe plaintiff assigns as error tbe failure of tbe court to instruct tbe jury that if they believed tbe evidence they should answer tbe first issue “Yes.” This issue relates to tbe alleged negligence of tbe defendants. As tbe plaintiff failed to ask such instruction, “in writing, in apt time,” as stated in tbe record, tbe trial judge was not bound to give it, even if tbe plaintiff' were entitled to it.

We’ fail to see, however, upon tbe evidence, that tbe plaintiff would have been entitled to any such instruction bad be duly asked it.

Tbe employer does not insure tbe safety of bis workmen. He does not contract, expressly or impliedly, to furnish them an absolutely safe place to work in, but is bound only to exercise reasonable care .and prudence in providing such a place. He does not contract to furnish tbe very best appliances, but only such as are reasonably fit and safe for tbe purposes for which they are used.

He satisfies tbe requirements of tbe law if in tbe selection of bis appliances be uses that degree of care which a person of ordinary prudence would use, having regard-for bis own safety,, if be were supplying them for bis own use.

Where there is one- appliance only which is approved and in general use for performing a certain function, it is tbe master’s duty to use it. Where there are several appliances used for tbe same purpose, all of which are approved and in general use, tbe master fills tbe measure of bis duty if be exercises reasonable care in making a selection. It is culpable negligence which makes, him liable — not a mere error of judgment. We think this is tbe consensus of tbe best authorities. Horne v. Power Co., 141 N. C., 50; Phillips v. Iron Works, 146 N. C., 217; Young v. Construction Co., 109 N. C., 618; Harley v. Car Co., 142 N. Y., 31; O’Neal v. Railroad, 66 Neb., 638.

Mechanical devices are almost as numerous as medicinal remedies, and the only sure test of either is that of experience. Until that has pronounced a definitive judgment, a master who, in the exercise of ordinary care, selects that which in his opinion is best calculated to accomplish the purpose cannot be held responsible for the consequences. This record discloses that there are four ways of fastening belts — with hooks, leather lacing, wire lacing, glue or cement — all of which methods are approved and in general use. When an employer of labor is confronted with this condition of affairs he cannot be held negligent if he selects one of these known methods. '

We think that the instructions of the learned judge are clear and full, and that they fairly and accurately presented to the jury the contentions of the plaintiff and defendants and the law bearing thereon.

No Error.  