After careful consideration of the demurrers filed to the declaration in this case and the arguments of counsel, the Court have reached the conclusion that the demurrer to the first count of the declaration should be sustained. The averment of negligence therein on the part of the defendant company seems to be simply that the employee, who was an Italian, did not understand English and was put under the charge of people who did not understand Italian.
The second count embraces the averment of an unsafe place, and we think the specifications therein are not such employments as an unsafe place would enter into at all, and therefore sustain the demurrer to that count.
In the fourth count the charge is that there were no sufficient rules published. In the specifications there the plaintiff does not rely broadly upon the fact that there were no proper rules, but upon other matters, and therefore we think that the specifications fail to show that any injury resulted from the absence of rules. We sustain the demurrer to the fourth count.
In the third count it is averred, however, that the injury resulted from a failure on the part of the defendant to employ a sufficient number of competent fellow-servants to assist in the work that was being done. We think with respect to that count that the demurrer should be overruled. We do not think that it is absolutely necessary that the ignorance of the employee of the risk should be averred.
(The declaration was thereupon amended in accordance with the above rulings, and the case was tried at the January Term, 1908, before Associate Judges Spruance and Boyce.)
*565Boyce, J., charging the jury:
Gentlemen of the jury:—Franscesco Valente, the plaintiff in this action, seeks to recover from the American Bridge Company, the defendant, damages for personal injuries, which, it is alleged, were occasioned by reason of the negligence of the defendant company, on the 18th day of July, A. D. 1906, while at work for the defendant company, on a gondola car, at Edge Moor, near this City.
The plaintiff by the several counts relied on in his declaration, charges substantially (1) that the defendant company negligently subjected him to unnecessary dangers and risks against which he could have been guarded by reasonable diligence on the part of the company; (2) that it negligently failed to provide him with a reasonably safe place in which to work; (3) that it negligently failed to make and promulgate proper rules for the government and protection of its employees; and (4) that it negligently failed to reasonably instruct him as to his duties and to warn him of the risks and dangers connected therewith.
The plaintiff is an Italian, and it is claimed that he is unable to speak or understand the English language; that originally, and for about a month and a half previous to the time of the accident, he had been employed by the defendant as a laborer for outside work under an Italian foreman; that on or about the 18th day of July A. D. 1906, by direction of another foreman, he was set to work on a gondola car, painting a long and heavy piece of structural iron which had been placed lengthwise on the car; that while so engaged, in obedience to his orders, he being in a stooping posture, other employees back of him undertook, without notice or warning to him, to remove and conduct by means of trolley cranes a like heavy piece of structural iron towards, over and upon said car, suddenly striking against the frame or column which he was painting, and caused the same to fall over and upon his right foot, and so crushed and injured it as that it was afterwards necessary to amputate it. It is claimed that the plaintiff was, at the time of the accident, in the exercise of due *566care and caution, and that he ,was ignorant of the risks and dangers incident to the work in which he was then engaged.
It is conceded that the plaintiff was seriously injured on the said 18th day of July, A. D. 1906, while engaged in painting an iron column which had been placed on said car shortly before the plaintiff had been directed to go on the car. The defendant denies, however, that the said injuries were occasioned by the negligence of the company, and insists that they were caused by one or more of the fellow-servants of the plaintiff engaged in a common employment; for which it is contended that the defendant is not legally liable.
The relation existing between the defendant company and the plaintiff, at the time of the accident, was that of master and servant.
The primary duties of the master so far as the pleadings and evidence in this case require us to enumerate, are these: He must furnish his servant with a reasonably safe place in or upon which to work, and promulgate rules for the government and protection of his servants in operating his business, where the extent of it exceeds the limits of his personal supervision. If the master fails to observe these primary duties imposed upon him and injury results to his servant for such failure, without the fault of the servant, he will be liable therefor on the ground of negligence. And he cannot delegate these duties to another and thereby escape liability for the non-performance of them.
If the servant is inexperienced and unacquainted with the dangers incident to the employment in which he is about to engage, it is the duty of the master to give him proper instructions as to the employment and to warn him against its dangers. The master may, in giving him such instructions and warnings, in the absence of knowledge to the contrary, assume that the servant has the knowledge and discernment which a person of his age and intelligence ordinarily possesses.
The place furnished in or upon which to work need not be the *567safest nor the best. It is sufficient if it be reasonably safe and adapted to the purpose of the employment.
The servant assumes no risk whatever as to the primary duties imposed upon the master, at the time he enters upon his employment; but he does assume all the ordinary risks incident to the employment, including the negligence of a fellow-servant in the same general employment. And the servant is required to exercise due care and caution in the course of his employment so as to avoid the dangers and risks of injuries incident thereto; for the master, if he has performed the primary duties required of him, is not an insurer of the safety of his servant.
This action is based upon the alleged negligence of the defendant. The burden of proving such negligence is upon the plaintiff, and it must be proved to your satisfaction by a preponderance of the evidence, for negligence is never presumed. Whether there was any negligence, at the time of the accident,, and whose, must be determined by you from the evidence, under all the facts and circumstances detailed to you by the witnesses
Negligence, in a legal sense, has been defined to be the failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. To entitle the plaintiff to recover in this action, he must satisfy you that the injuries complained of resulted from the negligence of the defendant, and that at the time of the accident he was without any fault or negligence which proximately entered into and contributed to his injuries. For if at that time his negligence did proximately contribute to his injuries, it would defeat his right to recover.
The burden of proving negligence on the part of the defendant rests upon the plaintiff, and the burden of proving negligence on the part of the plaintiff rests upon the defendant.
We have been requested to instruct you to render a verdict for the defendant. This we decline to do. And we submit to *568you the question, whether, under the evidence, considered in connection with the law announced to you by the Court, your verdict should be for the plaintiff or the defendant. In endeavoring to arrive at a proper verdict, you should determine from the evidence, (1) whether the defendant did furnish the plaintiff with a reasonably safe place in and upon which to work; and (2) whether the plaintiff, by reason of inexperience, inability to speak or understand the English language, and from want of proper instructions, was, in fact, without knowledge of the danger attending his work on the car.
If you find that the defendant did not furnish the plaintiff with a reasonably safe place in and upon which to work, or that the defendant did not properly instruct him as to the dangers incident to the employment, and that the injuries to the plaintiff resulted in consequence thereof without the fault or negligence of the plaintiff contributing thereto at the time, your verdict should be for the plaintiff. If on the contrary, you find that the defendant met these legal requirements, or failing to meet them, or ■ any of them, yet if the plaintiff did appreciate the danger attending his work on the car, and that at the time of the accident he was not in the exercise of that degree of care and caution which a person of ordinary prudence should have exercised under like circumstances, your verdict should be for the defendant. For if the plaintiff knew or ought to have known by the exercise of reasonable care and attention that servants of the company were engaged in loading the car on which he was working, and if he knew or ought to have known that the column which he was painting, if struck by another column, was liable to fall, he assumed the risk or danger incident thereto, and cannot recover, regardless of any question of the change in his employment.
Ordinarily in a case where the jury should find that the defendant had provided suitable and proper appliances and suitable and competent fellow-servants, the defendant would not be liable for injuries occasioned by the negligence of a fellow-servont in the same general employment. We submit to your de*569termination from the evidence which you have heard whether the persons engaged in loading said car were, or were not, the fellow-servants of the plaintiff engaged in painting the iron column which was first placed on said car.
You have heard the testimony in this case. You are the exclusive judges of the credibility of the witnesses and of the weight and value of their testimony. You should decide this case in favor of the plaintiff or the defendant according as you find the preponderance or greater weight of the evidence.
If you find for the plaintiff, the measure of damages would be such reasonable sum as will compensate him for his injuries, including therein his loss of time and wages, his pain and suffering in the past and such as may come to him in the future, and for such permanent injuries as he may have sustained, as well as any pecuniary loss from disability to earn a living since the accident or in the future as the result of such injuries.
Verdict for plaintiff for $500.00.
Note.—On May 24, 1909, on writ of error, the above judgment of the Court was reversed by the Supreme Court—Consisting of Nicholson, ch., Lore, C. J., and Grubb and Pennewill, J. J.—