Samuel Spaulding, an Infant Under the Age of 21 Years, Whoinstitutes This Suit by His Father and Nextfriend, Junior Leroy Spaulding, Andjunior Leroy Spaulding, Appellants, v. Ads-anker Data Systems-- Midwest, Inc., a Corporation, Appellee.robert N. Johnson, Appellant, v. Ads-anker Data Systems-- Midwest, Inc., a Corporation, Appellee, 498 F.2d 517 (4th Cir. 1974)

In this diversity jurisdiction case we apply the law of West Virginia with respect to the duty of an employer to provide its employees with a reasonably safe place in which to work and reasonably safe appliances and instrumentalities with which to perform their assigned duties. The district court entered summary judgment against complaining employees Johnson and Spaulding and in favor of their employer Ads-Anker Data Systems-- Midwest, Inc. The question of whether the employer had, under the circumstances, a duty of ordinary care and failed to fulfill it was, we think, disposed of prematurely.¹  We reverse and remand for trial on the merits.

The employer (Anker) is a corporation selling and servicing cash registers. Johnson was employed as a salesman and Spaulding as a repairman. On June 18, 1970 they were traveling in Johnson's station wagon carrying cash registers on the rear deck. They alleged that as a result of a head-on collision with a truck the cash registers were propelled forward with such force that a 'second collision' occurred that contributed substantially to the injuries which each sustained.

It is well settled in the West Virginia law of master and servant that an employer is neither an 'insurer,' Linville v. Chesapeake & O. Ry. Co.,115 W.Va. 610, 177 S.E. 538, 539 (1934); Smith v. United Lumber Co., 71 W.Va. 749, 77 S.E. 330, 332 (1913), nor a 'guarantor,' Moll v. Bayha, 108 W.Va. 173, 150 S.E. 515, 518 (1929), of the safety of his employees. Equally well settled, however, is the following principle:

Generally, it is a master's duty to provide his servants reasonably safe and suitable tools and appliances sufficient for the work intended, and the servant may assume that the master has performed that duty; and whether the master has been negligent in that duty is generally a question for the jury under all the facts and circumstances.

Walls v. McKinney, 139 W.Va. 866, 81 S.E.2d 901, 904 (1954); Estep v. Price, 93 W.Va. 81, 115 S.E. 861, 862 (1923). The standard of care to be exercised in the performance of this duty has been further delineated as that of 'ordinary care and diligence . . . considering the character of the work in which he (the servant) is engaged.' Barr v. Knotts, 101 W.Va. 440, 133 S.E. 114, 115 (1926).

In concluding that there was no duty on the company's part to provide a protective cage or barrier for its employee's privately-owned vehicles, the district court emphasized that the vehicle was not only owned by the plaintiff-appellant (Johnson) 'but also that the defendant did not maintain, inspect or control it in any way.' The court added:

The measure of the master's duty to the servant, in reference to affirmative action for his safety, depends upon the extent to which he is allowed the opportunity or has the means or power for his own protection.

We agree, see Walls v. McKinney, 139 W.Va. 866, 81 S.E.2d 901 (1954); 56 C.J.S. Master and Servant 201, 210, but, except in a 'perfectly clear' case, it is for the trier of fact to infer whether an employer has sufficient opportunity, means and power to control the dangerous conditions of an instrumentality of employment. Had appellants' injuries allegedly resulted from defective brakes or tires, summary judgment would have been appropriate, for, absent special contract, an employer ordinarily has no duty to inspect and no power to control the maintenance of an employee's automobile. The defect here alleged, however, is the failure to provide special equipment (cage or barrier) without which, it is said, the transporting of the employer's machines is dangerous. The alleged danger was not only known to the company but the evidence suggests that installation of a protective barrier was the custom of the trade.²  Since both knowledge³  of the danger and the possibility of control are arguably present, it is for the jury to say whether the company breached its duty of ordinary care in failing to provide a barrier or other safety device for Johnson's car.

As to appellant Spaulding, the evidence before the district court on the motion for summary judgment reveals a further duty which may have been breached by the employer. In the taking of his deposition, Spaulding was asked how he happened to be in the Johnson car on the occasion of the accident. He responded: 'I come in to work that morning, and my boss told me to go with Mr. Johnson to Cyclone to repair a machine.' Even if it be assumed that the company had no control or supervision over the Johnson vehicle, it was 'under a duty not to order its servants into an obviously dangerous place,' Pritt v. West Virginia Northern R. Co., 132 W.Va. 184, 51 S.E.2d 105, 115 (1948), cert. denied, 336 U.S. 961, 69 S. Ct. 891, 93 L. Ed. 1113 (1949),⁴  or at least, knowing of the danger (as Johnson's deposition alleges), it was under a duty to warn Spaulding of the danger. Trimble v. Steele, 110 W.Va. 170, 157 S.E. 166, 167 (1931). Even if the duty to warn is negated when 'any adult of ordinary discretion should have comprehended all of the potentialities of the situation,' Linville v. Chesapeake & O. Ry. Co., 115 W.Va. 610, 611, 177 S.E. 538, 539 (1934), or when the danger 'was as obvious to plaintiff as it was to defendant,' Smith v. United Lumber Co., 71 W.Va. 749, 750, 77 S.E. 330, 331 (1913), still there may be a duty to warn a person of Spaulding's youth (19) and inexperience. See Shaw v. Hazel-Atlas Glass Co., 70 W.Va. 676, 74 S.E. 910, 911-912 (1912). 'Young or inexperienced employees . . . must be given instructions suitable to their age, intelligence and knowledge, and to the risk to be encountered.' W. Prosser, Handbook of the Law of Torts 80, at 548 (3d ed. 1964).

The motion for summary judgment was, under these circumstances, improvidently granted since genuine issues as to material facts are presented by appellants' depositions. The judgment of the district court is reversed and the case is remanded for trial on the merits.

Reversed and remanded.