
    F. G. HINES v. THE ROWLAND LUMBER COMPANY.
    (Filed 17 October, 1917.)
    1. Master and Servant — Safe Appliances — Contributory Negligence — Defenses — Instructions.
    It is tbe duty of an employer to furnish his employee a reasonably safe place to work, and implements and appliances reasonably safe with which to do it, which are known, approved and in general use; but ordinarily his failure to have done so will not of itself cut him off from the defense of contributory negligence on the part of his employee being injured in pursuance of the work required of him, a case of this kind not falling within the principle of the Greenlee and Trocoler cases, wherein the injury was caused by the failure of the defendant railroad companies to supply automatic car couplers.
    2. Same — Defects — Push Cars — Instructions—Continuing Negligence — Appeal and Error.
    Where the evidence is conflicting as to whether the plaintiff, an employee of the defendant, was riding, in the course of his employment, on a push car, or bogie, used chiefly for hauling steel rails for track construction, whether the car should have had a plank bottom or timbers across to lessen the aperture, whether the injury for which the damages are sought was caused by the plaintiff carelessly losing his balance, or by a tree negligently left on the right of way, it is reversible error for the trial judge to charge the jury that if the defendant was negligent in furnishing an antiquated appliance or equipment, hazardous to life and limb, and this was the proiximate cause of the injury, the negligence would be continuing and cut off the defense of contributory negligence, unless the plaintiff’s negligence amounted to recklessness.
    3. Limitation of Actions — Nonsuit—Statutes.
    Where a nonsuit is taken in an action brought within the time prescribed by the statute, the statute of limitations will not have run if suit is again brought within a year from the time of nonsuit. Rev., see. 370.
    Civil actiojv, tried before Cox, J., and a jury, at May Term, 1917, of WayNE.
    Tbe action was to 'recover damages for physical injuries caused by tbe alleged negligence of defendant company in not keeping its roadway in proper condition, and in supplying a defective car for tbe work plaintiff, an employee, was engaged in at tbe time, August, 1911.
    
      On denial of liability, plea of contributory negligence and statute of limitations, tbe following verdict was rendered:
    1. Was tbe plaintiff injured by tbe negligence of tbe defendant, tbe Rowland Lumber Company, as alleged in tbe complaint? Answer: Yes.
    2. Was tbe plaintiff guilty of contributory negligence, as alleged in tbe answer? Answer: No.
    3. Is tbe action barred by tbe statute of limitations, as alleged in tbe answer? Answer: No.
    4. Wbat amount of damages, if any, is tbe plaintiff entitled to recover? Answer: $3,750.
    Judgment on tbe verdict, and defendant excepted and appealed.
    
      Langston, Allen & Taylor for plaintiff.
    
    
      Stevens & Beasley, Murray Allen, and 11. W. Stubbs for defendants.
    
   Hoke, J.

There was evidence on tbe part of plaintiff tending to show tbat defendant was negligent in respect to tbe condition of its roadway, and on facts not dissimilar to those of Buchanan v. Lumber Co., 168 N. C., 40, plaintiff and others testifying tbat, in August, 1911, be, an employee of tbe company, was severely injured) as be was going to bis work on a push car, or bogie, used chiefly for hauling steel rails for track construction, and tbe injury was caused by plaintiff’s falling through this'car in tbe endeavor to avoid a tree tbat bad been cut away too close to tbe track, and dragging plaintiff along tbe track 30 or 40 feet before tbe car could be stopped.

There was evidence also tending to show negligence in tbe structure of tbe car, described by witnesses as a truck car, or bogie, for hauling steel rails, tbe body consisting of an oblong wooden frame, 9 feet long by 5% wide, built with four pieces of lumber, 6x8, braced by a piece of same dimensions across tbe middle, and braced further by iron rods and with steel bars across each end to bold tbe rails in place, plaintiff himself testifying tbat in several companies where be bad worked before this these cars either bad floors on them or, in addition to tbe cross-brace in tbe middle, they bad pieces of lumber of same dimensions running from each corner, crossing at tbe center, thus reducing tbe size of tbe opening and making them some safer for persons riding on them.

There was evidence on tbe part of tbe defendant tending to show tbat there was no tree nor obstruction near tbe track, but tbat plaintiff fell because he bad carelessly lost his balance, one witness testifying tbat plaintiff bad said to him tbat be just happened to jump on tbe car to ride to save walking and be fell over, and tbat it was as much bis fault as anybody’s. And, further, tbat tbe car was not designed for a passenger car, and tbat it was fit and proper for tbe purpose intended.

On this conflicting testimony, the court haying instructed the jury, without apparent objection, as to the duty of the company in respect to its roadway, charged the jury further on the issues as follows:

“The defendant is required to furnish to its employees safe, modern, appliances with which to work, and if the jury shall find that the defendant failed to furnish such appliances and equipment, and furnished in their place antiquated and dangerous appliances and equipment, hazardous to life and limb, and the failure to do so was the proximate cause of plaintiff’s injury, such failure on the part of the defendant, if the jury shall so find, was continuing negligence, which would cut off the defense of contributory negligence unless the negligent conduct of the injured employee shall amount to recklessness, and it would be the duty of the jury to answer the first issue ‘Yes’ and the second issue ‘No.’ ”

While the charge, subject to modification in some instances, as to the use of the term “modern,” might be upheld as an abstract proposition when applied to the facts of this record, it Could only mean, and was no doubt intended by his Honor to mean, that the evidence as to the structure Of the car permitted the inference that the defects suggested might constitute continuing negligence within the principle approved and applied in Greenlee v. R. R. and Troxler v. R. R., 122 N. C., 977, and 124 N. C., 189, and the jury were allowed and directed to consider the testimony in that aspect, both on the first and second issues. In this we think there was error, to defendant’s prejudice, for which a new trial should be allowed. These cases of Greenlee and Troxler, notable decisions in our jurisdiction, were cases in which the defense of contributory negligence was disallowed where an injury had occurred to employees by reason of a failure to equip railroad cars with automatic couplers.

While the position is approved and fully established with us in this and other like cases, it does not at all extend to any and every failure on the part of employers to provide their employees with proper implements and appliances. Speaking to the question in Hicks v. Manufacturing Co., 138 N. C., 330, the Court, in modifying the decision of Orr v. Telephone Co., 132 N. C., 691, said:

“If, however, it was intended by Orr’s case to decide that in any and every instance where there is a defective appliance negligently furnished by the employer, which becomes the proximate cause of the injury, the defense of contributory negligence is thereby withdrawn, then the Court does not think that the case in this respect was well decided.' There is nothing here said which must in any way be construed as indicating a doubt as to the wisdom and correctness of the Greenlee and Troxler cases, or a desire to modify or question them. They were both cases where there was a failure on the part of the railroad company to supply automatic couplers for the operation of their trains. The occupation was one of imminent peril, which these automatic couplers well-nigh entirely remove, and at a moderate cost. The failure to supjdy them was causing extended and ever-increasing disaster. Thousands of men throughout all portions of the country were being killed or maimed for life, and conditions were so alarming as to become a matter of national concern and the subject of national legislation. In the presence of such conditions, the Supreme Court of North Carolina, in advance of the operative effect of the national statute, announced the principle in Troxler’s case as follows: ‘Season, justice, and humanity, principles of common law, irrespective of congressional enactments and Interstate Commerce Commission regulations, require the employer to furnish the employee safe, modern appliances with which to work, in place of antiquated, dangerous implements, hazardous to life and limb, and the failure to do so, upon injury ensuing to the employee, is culpable continuing negligence on the part of the employer, which cuts off the defense of contributory negligence and negligence of a fellow-servant, such failure being the causa causans. It is negligence per se in any railroad company to cause one of its employees to risk his life and limb in making couplings which can be made automatically without risk.’
These opinions could be well justified and upheld on the ground that a 'failure to correct an evil of this magnitude, when it could be accomplished so effectually at an insignificant cost, was such a reckless and wanton disregard "of the lives and safety of employees as to amount to an intentional wrong, against which contributory negligence is no defense. They have, however, been approved and accepted as decisions eminently just and proper in applying the principles of the law of negligence to new and changing conditions, and can be upheld and supported both by reason and precedent.”

In this estimate of the Greenle and Troxler cases it is clear that this car has no proper place. Here, as in other ordinary cases, the defendant is required to supply for its employees “implements and appliances which are known, approved and in general use,” and there is testimony on the part of plaintiff tending to establish negligent default in this respect; but neither the car nor the defects suggested present such exceptional or extraordinary conditions as to withdraw the case from the usual and recognized principles in actions of this character and which make contributory negligence on the part of the employee a valid defense.

On the statute of limitations, while the transaction occurred in 1911 and present summons bears date in February, 1916, it appears that an action for the injury was commenced soon -after it occurred, in January, 1912, and prosecuted till January, 1916, wben a nonsuit was taken, bringing tbe case directly within section 370, Revisal, allowing an action begun within the time to be prosecuted within one year after nonsuit.

For the error indicated, there should be a new trial of the cause,'and it is so ordered.

New trial.  