dissenting: This is an action for personal injuries against F. C. Geer & Co., Wells Brothers Company, and Soper & McDonald. F. C. Geer & Co., owners of the lot in Durham, contracted with Wells Brothers Company to erect a five-story building in Durham in accordance with the plans and specifications of the architect.
Wells Brothers Company contracted with Soper & McDonald to construct all the steel and iron work of the building, Wells Brothers Company agreeing, to furnish the plank for covering the girders during the erection of the building, and a derrick and engine.
The defendants Wells Brothers Company as general contractors were in general and active charge of the building, supervising the subcontractors, to see that the work was done according to the plans and specifications, and, besides, they had agreed to furnish the necessary plank and the engine 'and derrick to use in the work of erection. These planks *678were laid between two girders, 16 feet apart; tbe laborers in tbe course of tbeir employment bad to stand tbereon. One of tbe planks, furnished by "Wells Brothers Company for that purpose, was a perfect plank on tbe top side, which alone was visible to tbe plaintiff, but on tbe bottom side there was a knot running diagonally across tbe plank. This knot extended not only entirely across tbe plank, but went almost through its entire thickness, but could be seen only on tbe bottom side. .The plank, which was therefore no stronger than the thickness between the knot and the up]5er side of the plank, broke when the plaintiff stood upon it, precipitating him four stories to the bottom of the building, whereby he was frightfully and fearfully injured. It is not denied that this defect was undiscoverable from the upper side of the plank by the plaintiff when he went out upon it for the purpose of doing his work, and the jury properly found that the plaintiff was not guilty of contributory negligence. There seems no controversy that the plank was defective, and that by its breaking the plaintiff was injured.
It is true that as between the contractor and the subcontractors it was agreed that the latter were to take the risk of the plank. But this did not relieve Wells Brothers Company of the responsibility to the employees, as it was their duty to furnish the plank. As between the contractors and subcontractors, the latter were liable to the former; and it is also true that the plaintiff, whether the contract had or had not contained that provision, could in any event have held the subcontractors liable. Both, however, were liable to the plaintiff, since Wells Brothers Company were in charge of the entiré work to supervise its execution, and had also agreed to furnish the plank.
The plaintiff was entitled to a lien upon the contractors in chief for the wages due him by the subcontractors, and he was equally entitled to rely upon the carefulness of the contractors in chief in furnishing the plank to the subcontractors to enable the workmen to prosecute their work. It does not appear in this case that the obligation of inspection was reserved to the subcontractors who employed the plaintiff, and it is immaterial. The general rule is that where the master (the contractor in chief) furnishes the platform, scaffolds, and supports for the use of the employees, he is liable for ordinary care and to see that they are reasonably safe. 26 Cyc., 1115. The defect here was not an improper construction by the subcontractors of the scaffold, or the floor upon which the plaintiff stood, but his injury was due solely to the defect in the plank which was furnished by Wells Brothers Company under their contract, and the defect therein should have been easily seen by Wells Brothers Company before delivery of the same to the subcontractors. The contract between them, that the subcontractors were to take the risk of defective plank, was a matter between them, *679and did not relieve Wells Brothers Company of tbeir primary liability to tbe employee, who, knowing that Wells Brothers Company were in entire charge and supervision of the building and were to furnish the plank for the workmen to stand on, could look to them for this defect in such plank which caused the serious injury. The plaintiff can hold them to liability for the legal consequence of these facts, whether he knew them at the time or not.
As to the defense that the negligence was that of a fellow-servant in laying this defective plank between the girders, it is sufficient to cite R. R. v. Peterson, 162 U. S., 346, where Peckham, J., said (as quoted in Steele v. Grant, 166 N. C., 645):
“The general rule is that those entering into the service of a common master become thereby engaged in a common service and are fellow-servants, and prima facie the common master is not liable for the negligence of one of his servants which has resulted in an injury to a fellow-servant. There are, however, some duties which a master owes, as such, to a servant entering his employment. He owes the duty to provide such servant with a reasonably safe place to work in, having reference to the character of the employment in which the servant is engaged. ... If the master be neglectful in any of these matters, it is a neglect of a duty which he personally owes to his employee, and if the employee suffer damage on account thereof, the master is liable. If, instead of personally performing these obligations, the master engaged another to do them for him, he is liable for the neglect of the master to do those things which it is the duty of the master to perform as such.” To same purport Avery v. Lumber Co., 146 N. C., 592; Tanner v. Lumber Co., 140 N. C., 475.
After the battle of Waterloo, in 1815, when England terminated the twenty-five years struggle with France, she did not give pensions to the soldiers disabled in that contest or subsequently destitute (notwithstanding the peerages and enormous sums granted to a few generals), but in lieu thereof rewarded them by a “permission to beg” if found needy and deserving, coupled with a provision that if any soldier should beg without such permission from his commanding officer, or of some court, he should be hanged. The attitude as to the “soldiers of industry,” the laborers upon whose exertions civilization rests, has also changed very slowly. It was long held by the courts that when a laborer was injured, though he might be one of many thousands in a common employment, yet if any other laborer was in any wise guilty of negligence which contributed to the injury of the laborer, the employer was not liable. It was first pointed out in this State by the opinion in Hobbs v. R. R., 107 N. C., 1 (in 1890), that this doctrine had been created by the courts and not by any statute. Thereafter, doubtless in consequence *680of tbat ’decision, tbe General Assembly enacted Private Laws 1897, cb. 56 (for some reason, never explained, tbis statute was put in tbe Private Laws of tbat session), wbicb is now Revisal, 2646, wbicb repealed tbe •doctrine as to railroad employees and also deprived tbe defendant in sucb cases of tbe defense tbat tbe employee “assumed tbe risk.” Tbis statute was before tbe Court on several occasions, but was settled finally in favor of its constitutionality in Coley v. R. R., 128 N. C., 534, reaffirmed on rehearing 129 N. C., 407 (tbougb two judges dissented), and bas ever since been beld valid in tbis State. Tbe modem and just doctrine tbat wben there are large numbers of employees tbe “business shall bear tbe loss” from injury to an employee, and tbat tbe whole burden shall not fall, as heretofore, with crushing effect upon tbe unfortunate employee and bis dependent family is now tbe attitude of tbe law as it bas been expressed by legislation, and later by tbe courts.. ■
As to railroad employees, tbe Federal statute, as well as our State statute, now provides tbat even if tbe employee of a railroad company bas been negligent himself, be shall not bear tbe entire loss of tbe injury, but tbat it shall be apportioned by tbe jury in proportion to tbe negligence respectively of tbe employer and tbe employee. In many States “Employers’ Liability” acts have been passed, making similar provision as to any injuries sustained by a laborer wben more than a certain number of employees are engaged in a common work.
In tbis case there was no evidence of either contributory negligence or assumption of risk by tbe laborer, and tbe jury have so found. Tbe evidence is solely of negligence on tbe part of "Wells Brothers Company, who furnished a defective plank upon wbicb tbe plaintiff, attempting to stand, was precipitated four stories and was fearfully injured. Tbe subcontractors are also liable to tbe plaintiff, because they should have inspected tbe plank, notwithstanding it bad been furnished by Wells Brothers and they bad agreed with Wells Brothers Company tbat they would be primarily liable for sucb defect. But tbat did not relieve Wells Brothers Company, who bad supervision of the work and who agreed to furnish tbe plank for sucb use by tbe employees of tbe subcontractors, from themselves making sucb inspection.
Tbe plaintiff, working for a living for himself and family, bad no opportunity to require, and could not be expected to run tbe risk of dismissal if be bad required, Wells Brothers Company to agree to furnish him with a safe place in which to work and a safe plank on wbicb to stand lest be should be precipitated four stories to bis "death or great bodily barm. He bad a right to rely upon tbe fact that Wells Brothers Comptoy were tbe contractors over tbe whole work and' bad also especially agreed to furnish tbe plank on wbicb be and bis fellow-laborers should work wben suspended on tbe iron girders at a giddy *681and dangerous beigbt, precipitation from which would entail death or terrible injury.
In Mechem on Agency, sec. 666, it is said: “If the principal was, by the terms of the contract, under obligations to the contractor to furnish the necessary machinery or appliances, or to supply a portion of the labor, he would be liable to the servant or agent of the contractor for an injury sustained by reason of his neglect to use due and reasonable care in selecting and supplying the proper machinery or appliances.”
In McCall v. Steamship Co., 123 Cal., 42, 10 L. R. A., 696, the defendant made the same contention as in this case, that there was no contractual privity between it and the plaintiff, who was the servant of the contractor, to whom it agreed to furnish certain tackle for unloading a cargo, and therefore did not owe him any duty. The Court in disposing of that proposition said: “But the rule is too firmly settled to be open to successful attack that where one agrees to furnish to a contractor material or appliances which he is to use in the performance of his tasks, the principal is liable to the servants and agents of the contractor for injuries which may result to them from his negligent or inadequate performance of his contract in this regard. The liability is not based upon the relationship of employer and employee, but it is construed by some of the courts that the contract is made with the contractor for the benefit of his employees, who have, therefore, their right to a recovery for any breach of it which results to their injury. By other courts the contractor is considered to be the dependent agent of his employer in these respects, and the doctrine of respondeat superior is brought into application. . . . But however that may bo, the principle itself is settled beyond possibility of successful contradiction.”