
    10127
    RICHARDSON v. UNION SEED & FERTILIZER CO.
    (98 S. E. 134.)
    1. Master and Servant — Injuries to Servant — Defective Tools— Obvious Dangers. — Where servant,) directed to paint rafters with creosote, selected defective brush, whose condition was obvious, and from the brush paint splashed in his eye, he could not recover, having assumed the risk.
    2. Master and Servant — Injuries to Servant — Duty to Warn. — A paint brush is an instrumentality of simple character as to which the duties of the master are not so strict as to require a warning of the defective condition of the brush.
    3. Master and Servant — Injuries to Servant — Master's Reliance on Servant's Care. — -The master has the right to assume that a man of ordinary intelligence and of full age and experience will know the condition of a paint brush and the risk, if any, in using it.
    Note. — As to assumption of risk, see note in 3 A. L. R. 1029;
    Before Whaley, County Judge, Richland, 11th July, 1918.
    Affirmed.
    Action by Paul Richardson against the Union Seed & Fertilizer Company. Judgment of nonsuit, and plaintiff appeals.
    
      Messrs. A. F. Spigener and A. W. Holman, for appellant,
    submit: The servant has the right to assume that the master has furnished suitable appliances, and he may proceed to work with such appliances unless the same are so obviously defective that no ordinarily prudent man would undertake to use the same: 85 S. C. 372; 82 S. C. 548; 84 S. C. 354. The facts of this case are easily distinguishable from the facts upon which the lazv was enunciated in the case of Wofford v. Clinton Cotton Mill: 74 S. C. 346.
    
      Messrs. Benet, Shand & McGowan, for respondent,
    submit : Plaintiff being an experienced workman, there was no reason for defendant to warn him of the possibility of .paint splashing in his eyes: 72 S. C. 239-40,. 243. . Plaintiff zvas charged with notice of the condition of the paint brush and 
      
      of the risk of using it, and having used it with full knowledge, he assumed the risk attendant upon its use: 75 S. C. 487; 72 S. C. 242-3; 72 S. C. 346; 80 S. C. 232. Instrumentalities of simple character, such as paint brush, hammer, broom, etc.., are in d different class from complicated machinr ery as to which an ordinary laborer has not the same knowledge as he has of the simpler instrumentalities mentioned, and the duties of the master in regard thereto are not so strict: 28 T. R. A. 771 (Mo.); (N. C.) Ann. Cas. 1912a, p. 1002, anc :ote, p. 1004.
    January 21, 1919.
   The opinion of the Court was delivered by

Mr. Justice Watts.

This is an appeal from an order of nonsuit as to the first cause of action set out in the complaint herein by County Judge Whaley upon trial in Richland county Court in July, 1918. The injury plaintiff complained of in the action arose from paint getting into his eyes, at the mill of defendant, in the city of Columbia. The plaintiff alleged two specifications of negligence: (-1) In failing to furnish him with safe; suitable, and proper tools and appliances to do the work required of him, in that the paintbrush wa.s old, worn, and stubby, and unfit for the purpose for which plaintiff was required to use it. (2) The paint was dangerous and poisonous. The element of negligence raised by exceptions and involved in this appeal is the one as to the defective paintbrush.

On the day of the accident Stevens gave the plaintiff a key, and told him to unlock the house where the creosote was kept, and to get .some creosote and a brush and paint some rafters. Plaintiff did so, and proceeded tc paint rafters, : nd while doing so some creosote splashed from ¿he brush into his eyes. He did not stop work then, and did not lose a day until he left employment of defendant, in February, 1917. Plaintiff selected the brush himself; the condition was obvious and patent; nothing hid about its condition. There was no reason for the defendant to warn him that paint might splash into his eyes. Defendant had the right to assume that, a man of ordinary intelligence and full age, and with experience as a workman, would know the condition of the paintbrush and the risk of using it, and, by having selected the brush and used it, with full knowledge of its condition, he assumed the risk attendant on its use. The paintbrush was an instrumentality of simple character different in character with complicated machinery, and the duties of the master in regard thereto are not so strict. The plaintiff, by the exercise of ordinary care and intelligence on making his selection ol the paintbrush and voluntarily using the same, with such knowledge, assumed the risk of the use of the brush, and should not be allowed to recover.

Exceptions overruled.

Judgment affirmed.  