Tritt v. Gloucester Lumber Co.

Per Curiam.

There were facts in evidence tending to show that on or about 4 June, 1921, plaintiff’s intestate, an employee of defendant company on the logging train in said county, while engaged in his duties .as'brakeman on one of defendant’s trains, fell, or was thrown or jolted off said train and run over and killed. There was testimony on the part of plaintiff tending to show that the falling from the train and the con•sequent death was caused by an unusual, unnecessary, violent jerking of the train, and also because of the defective condition of the roadbed at the place of the injury. There was testimony for the defendant to the •effect that the roadbed was in sound condition where the injury occurred, •and further, that there was no unusual or violent jerking of the train .at the time. In submitting these opposing views, the court, among other things, charged the jury as follows: “Now, the court instructs you that it was the defendant’s duty to provide a reasonably safe place for the plaintiff to work, and if it failed to provide such a safe iilace for him to work, and in consequence of that the death of intestate was caused, and ■those facts are found by the greater weight of the evidence, it is your duty ■to answer the issue 'Yes.’ ” It is the established rule in this jurisdiction that the obligation to provide for employees a safe place to work, or a reasonably sáfe place to work, is not absolute, but it is required that the *831 employer must do tbis in tbe exercise of ordinary care, and a charge tbat omits tbis as an element in tbe standard of duty will be beld for reversible error. Tbis is beld in Gaither v. Cement Co., ante, 450, where tbe correct position as approved and illustrated in numerous decisions is stated for tbe Court in an opinion by Associate Justice Adams.

In deference to tbat authority, which we regard as controlling on tbe facts of tbe present record, we are of opinion tbat for tbe error indicated defendant is entitled to a New trial.