
    PHILIP NELSON v. SOUTHERN RAILWAY COMPANY.
    (Filed 24 November, 1915.)
    Railroads — Master and Servant — Safe Place to Work — Pedestrians—Defect in Crossties.
    Where the roadbed of a railway company is in good condition for the operation of its trains it does not ordinarily owe a duty to its enr-ployees to see that the crossties are sufficiently sound for their safety in walking along the track in the performance o£ their duties; and it is. held in this case that it was not responsible in damages to its civil engineer for an injury received by him while locating a sidetrack, by reason of a rotten place in a sill giving way under his weight, causing his foot to slip down about five or six inches to the ballast of the road, resulting in his injury; for such an accident is not attributable to the negligence of the master in failing to provide his servant a safe place to work, or to the want of exercising ordinary care in anticipation of such result.
    Appeal by defendant from Lyon, J., at the April Term, 1915, of Guilpoed.
    Civil action tried upon these issues;
    1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.
    2. Did the plaintiff by his own negligence contribute to his injury, as alleged in the answer? Answer: No.
    
      3. Did tbe plaintiff assume tie dangers and risks, as alleged in tie answer? Answer: No.
    4. What damages, if any, is plaintiff entitled ■ to recover ? Answer: $6,500.
    From tie judgment rendered tie defendant appealed.
    
      Brooks, Sapp & Williams for the plaintiff.
    
    
      Wilson & Ferguson for the defendant.
    
   BrowN, J.

On 26 June, 1914, tie plaintiff, being at tiat time a civil engineer for tie defendant, went to ELeysville, Ya., to make surveys for a sidetrack. Tie superintendent met iim tiere and siowed iim wiere tie track was to be located. Tie plaintiff tben went to work on iis survey. He went over tie track and marked stations on tie rails 100 feet apart, and tien located the sidetracks and took some levels. After this was finished he walked back over tie track to check tie stations. He testified tiat about three or half-past three in tie afternoon he was walking along tie track between tie rails checking these stations with iis notebook. After passing station 21, he stepped upon a erosstie from which a small piece D/4 inches by 6 inches “Y” shaped, shivered off under iis weight. His foot slipped down between tie ties into a space about five or six inches deep from tie top of tie tie to tie ballast. He stumbled, fell and dislocated iis knee cap.

Tie principle of law upon which plaintiff rests iis case is tiat defendant owed iim a duty to provide iim a reasonably safe place to do iis work. Tie plaintiff admits tiat he could have done iis work by walking outside of tie track on tie ground as well as between tie rails on tie ties, and tiat tie track was in perfectly safe condition for tie operation of trains and for all purposes for which a railroad track is intended.

From tie circumstances in evidence, we are unanimously of tie opinion tiat the injury inflicted on plaintiff was an accident, pure and simple, an unexpected and unforeseen result of a known cause, which ordinary foresight and precaution by defendant could not guard against.

As was remarked in tie consideration of this case, tie injury was as much tie result of an accident as tie hammer case (128 N. C., 264), or any other cases involving accidental injuries brought before us. To hold otherwise would make tie defendant an insurer against all possible injury, and tie master is not an insurer of tie servant’s safety.

All tiat can be required.of tie master is that he shall use due and reasonable diligence in providing safe and sound machinery, in providing a safe place, and in tie selection of fellow servants of competent skill and prudence, so as to make it reasonably probable tiat injury will not occur in tbe exercise of tbe employment. ' Labatt’s Master and Servant (2 Ed.), Yol. 3, sec. 919 ; Nail v. Brown, 150 N. C., 535.

Railway v. Reynolds, 20 S. E., 70, is on all-fours witb tbis. In tbat case a conductor bad gone back on tbe track for some necessary purpose, after stopping bis train. He walked across a trestle and stepped on a crosstie on tbe top of wbicb was a small bit of decayed sap, “V” shaped and seven inches long, wbicb under tbe pressure of bis foot shivered off, causing him to fall and sustain serious injury. Tbe Court said: “Tbe real and immediate cause of tbis accident was tbe slipping of bis foot upon tbe crosstie because of tbe giving way of tbe little piece of decayed sap upon its edge.”

Again tbe Court proceeds to say: “It did not appear tbat tbis crosstie was not otherwise sound and in all respects sufficient and suitable for tbe use for wbicb it was intended. It certainly was not the purpose of the company, in having ties, to malee a way for employees to wallc upon, hut to malee a safe roadbed for the running of its trains. Tbe simple truth is that the injury the plaintiff received was a mere casualty incident to tbe ordinary risks wbicb be assumed in accepting bis employment. Tbis seems too plain for argument. Accidents will happen, not only in tbe best regulated families, but upon tbe best regulated railways as well, and to allow tbe recovery to stand in tbe present case would be bolding tbe company liable for tbe consequences of a mere accident for wbicb it is in no fair view responsible.”

Other cases supporting tbis view are R. R. v. Rieden, 107 S. W., 665; Kerrigan v. R. R., 194 Pa. St., 98.

To require of a railroad company to discover every little “doty place” in every one of its thousands of crossties in order tbat its employees of every class may walk witb absolute safety on them would demand of it a degree of care and diligence almost beyond human endeavor. We are of opinion tbat tbe motion to nonsuit should be granted. It is so ordered.

Reversed.  