#### WOMBLE v. GROCERY CO.

(Filed May 17, 1904).

1. NONSUIT — Negligenee.

In this action for personal injuries, the evidence of the negligence of the defendant is sufficient to he submitted to the jury.

2. NEGLIGENCE — Personal Injuries.

In an action for injuries caused by the falling of an elevator, the falling thereof without some apparent cause is evidence of negligence in its original construction.

3. NEGLIGENCE — Master and Servant.

In an action for injuries caused by the falling of an elevator, a failure to inspect the same for eighteen months is evidence of negligence.

4. ASSUMPTION OP RISK — Negligence—Contributory Negligence.

A servant employed to operate a freight elevator does not assume the risk of injury owing to a fall of the elevator, in the absence of knowledge of any defect therein, and of any duty to inspect it.

5. ASSUMPTION OF RISK — Issues—NegUgenee.

In an action for injuries to a servant, contributory negligence is an affirmative defense, and any issue thereon must be tendered by defendant in order to be available.

ActioN by W. C. Womble against tbe Merchants Grocery Company, beard by Judge W. B. Allen and a jury, at February Term, 1903, of tbe Superior Court of Guilpobd County.

Tbe plaintiff alleged that tbe defendant company was engaged in tbe wholesale grocery business in tbe city of Greensboro, receiving and shipping large quantities of groceries and other goods, which were,, kept and stored in their *475store-house in said city; that said store-house was four stories high, in which there was an elevator for the purpose of carrying goods to the different floors and lowering them to the first floor for delivery and shipment. ■ That plaintiff was employed by defendant, and among other duties required of and imposed upon him was that of transferring from floor to floor goods as aforesaid by the use of the elevator; that said elevator was furnished by the defendant company. That the said elevator was defective in its construction and unsafe for the purposes for which it was used; that the defendant negligently failed to examine and inspect it, and that by reason thereof the defendant failed to ascertain its defective condition. That on the 31st day of August, 1900, while engaged in the work imposed upon him by the defendant, and not knowing of any defect in the elevator, plaintiff went upon said elevator in the discharge of his duty at the fourth floor of the said store; that by reason of its defective condition the cable or rope pulled out of its fastening, thus separating the elevator from the weight by which it was pulled, and by falling to the basement floor the plaintiff suffered serious injuries. The defendant denied the material allegations in the complaint, and alleged that the injuries sustained by the plaintiff was incident to the risk assumed by him in his employment, and that the proximate cause of such injury was the negligence of the plaintiff. The Court submitted the following issues to the jury: (1) “Was the plaintiff injured by the negligence of the defendant?” Answer. “Yes.” (2) “If so, what damage has plaintiff sustained?” Answer. “Three thousand dollars.”

From a judgment upon the verdict the defendant appealed.

Scales, Taylor & Scales, for the plaintiff.

W. P. Bynum, Jr., and King & Kimball, for the defendant.

*476Connor, J.

The defendant having demurred to the evidence and moved for nonsuit, its first exception is directed to 'the refusal of his Honor to sustain the motion. The plaintiff testified, in substance, that he entered the employment of the defendant on January 20, 1899, coining to Greensboro from Chatham County where he had lived up to that time; that he was hired to truck freight and handle goods. That the goods were trucked on different floors and carried from one floor to another on an elevator. That he had seen one or two elevators before entering the service of the defendant, but had never been on one and had never seen one work. In about a month after he entered the service of the defendant it removed its stock of goods to another building, and that the elevator by which he was injured was put into the building to which the defendant moved; that the elevator was a large one run by a wire cable; that it would run with good speed; that a rope was used in pulling the elevator up, and there was a cable that ran over a pulley; that there was a weight in a box two feet by six inches at the back of the elevator on the side of the wall, and that the box ran from the upper floor to the bottom of a five-story building, counting the basement, and that the weight ascended and descended; that it ran to the fourth story; that goods were carried up from one floor to the other by this elevator, and that when the elevator was loaded the plaintiff would get on it and pull it up; that at the time he got hurt he usually rode on the elevator; a man who wanted to carry goods from one floor to another generally got on the elevator and rode up, if there was not too many goods on the elevator, and that sometimes as much as two thousand pounds was put on, and that it was his duty to carry the goods from one floor to another, and that he did as others, rode on the elevator; that the proprietors and others rode on it; that he was certain he had ridden on the elevator *477with the president of the company; that no one had told him not to ride on the elevator. That on the day he was hurt there was six hundred pounds of goods on the elevator besides his own weight; this was a very small load. There was no understanding with him about inspecting the elevator, and it was no part of his duty to do so; that there was another man in the house that did more of that kind of work than the plaintiff; the elevator was never inspected while he was at work for the defendant, to his knowledge, that he knew of no defect in it. There was a stairway leading from one floor to another which was constantly used, and he had the option of going up and down the elevator, and rode on it of his own volition, and for the reason that everybody else rode on it; he did not ride on it all the time, sometimes walked down the steps, sometimes rode on the elevator, being merely a matter of choice; that he had been operating this elevator from the time it was put up early in 1899 to August, 1900, and that it was a new elevator. The box containing the weight ran alongside of the wall and extended from the basement floor up as high as the plaintiff’s head above the fourth floor, and that there was an open space in the box near the top and above the fourth floor, but that he had never noticed as to whether the condition of the weight and its fastening to the cable could be seen through this opening at the top of the box when the elevator car was at the bottom floor. The cable was a wire rope, composed of several strands of wire, and was about three-quarters of an inch in diameter, but he did not know how it fastened to the weight. That at the time of the accident he tqpk off the brake and the elevator fell from the fourth floor to the basement; that this took place when he stepped on the elevator and released the brake.

A witness introduced by the plaintiff testified that he was booker for the defendant at the time of the injury in question ; that the goods were taken to their proper place by the *478elevator, and. brought down in the same way when shipped. That the plaintiff’s duties were to take the list of goods given him by the shipping clerk and get the goods out and bring them to the front door and put them on the dray. The elevator was not used by the officers of the company, but he believed he had seen Simpson go up on the elevator, but not often; it Avas a freight elevator; that investigation Avas made by the company as to the cause of the falling of the eleAmtor and Avitness could see Avkere the planks Avere rough or uneven. After the accident AAdtness noticed fastening of the cable to the Aveight, and the cable was fastened by running through an eye in the Aveight and running back about eighteen inches, and the lapped portions Avere fastened Avith four clamps screwed together Avith bolts and nuts; that one clamp held the cable ends together and another fastened be^een that and the Aveight; that when witness first saAv clamps after accident they seemed to be all right and seemed to be securely fixed together; but the rope had slipped through; that the clamps were not loose; that the end of the cable Avas frayed; that the same clamps Avere used in fastening the cable back to the Aveight after the accident.

Defendant’s first contention is that upon the plaintiff’s eAÜdence his Honor should have dismissed the action. This contention presents the inquiry Avhether there Avas any' caú-dence that the eleAmtor was defective in its original construction or had become so by use, and AA^hether there Avas any evidence of negligence in failing to inspect the elevator.

We approAre the instruction given by his Honor in respect to the duty of the employer to furnish to his employee safe machinery and appliances. “When one enters the service of another it becomes the duty of the employer to provide safe appliances for his use. It also becomes the duty of the employee from time to time to give inspection to these appliances and to see that they are kept in proper repair. It is *479not the duty of tbe master to provide tbe safest and newest or best appliances, but tbe duty wbicb tbe law imposes upon him is that be furnish reasonably safe appliances, such as are in general use, and that be give such inspection to them as, from tbe nature of tbe appliances and tbe circumstances connected therewith, a man of ordinary prudence and judgment would have given.” This charge is amply sustained by tbe authorities. Labatt Master and Servant, section 14, and cases cited. The principle as applied to elevators used by employees is thus stated by tbe author of that very excellent work: “An employer may be held liable if tbe safetv devices which be is bound to provide for an elevator designed for tbe use of bis servants prove defective. Tbe employer must also respond in damages if an elevator, wbicb is either conducted specially for tbe conveyance of tbe servants or which, though constructed primarily for tbe carriage of freight, is also used with his acquiescence for tbe conveyance of servants, is in any other way abnormally dangerous to use.” Labatt Master and Servant, section 91; Boot Co. v. Jerman, 93 Md., 404, 86 Am. St. Rep., 428; Chesson v. Lumber Co., 118 N. C., 59. Tbe defendant, not controverting the duty which it owed to tbe plaintiff, insists that there is no evidence in the record proper to be submitted to the jury tending to show a breach of duty; that his Honor should, in response to its motion, have dismissed the action. It will be observed that the complaint avers negligence in that, first, the elevator was defective in its original construction; and, second, that the defendant negligently failed to inspect it; that an inspection would have shown the defective condition of the cable, etc. His Honor could not have dismissed the action because it is conceded that the elevator has been in use eighteen months, during which time the defendant had made no inspection. The motion was therefore properly refused. The defendant, however, excepts to his Honor’s charge, for *480the same reason upon, which the motion to nonsuit the plaintiff is based. His Honor having instructed the jury in respect to both aspects of the case, and the issue being general in its terms, if there is error in the charge in either aspect, the defendant would be entitled to a new trial. This Court could not see upon which view the jury found their verdict. Pearce v. Fisher, 133 N. C., 333. This therefore presents the question whether there was any evidence of a defective construction of the elevator. His Honor instructed the jury that the burden of proof was upon the plaintiff — • that he must show to them by the greater weight of the evidence that there was negligence on the part of the defendant, and that such negligence was the proximate cause of the injury. The elevator was operated by a wire cable which ran over a pulley; there was a weight in a box two feet by six inches at the back of the elevator on the side of the wall, and this box ran from the bottom to the upper floor; the weight ascended and descended as the elevator ascended and descended. A rope was used in pulling the elevator up. The cable was fastened to the weight, went through an eye, and lapped back some eighteen inches; the weight had torn some places in the shaft or box more than at other places; the marks were fresh; the shaft was boxed up all the way except a few feet at the top; shaft was made of rough, uneven planks. The lapped portion of the cable was fastened with four clamps screwed together with bolts and nuts; one clamp held the cable ends together and another fastened between that and the weight. The clamps after the accident seemed to be all right, and seemed to be securely fixed together, but the rope had slipped through; the clamps were not loose; the end of the cable was frayed. The same clamps were used in fastening the cable back after the accident. The plaintiff insists that this testimony entitled him to go to the jury upon the allegation of a defective construction of the elevator. He *481relies upon the principle announced by Gaston, J., in Ellis v. Railroad, 24 N. C., 138, that, although the burden is on the plaintiff to show negligence causing damage, when he shows damage resulting from the act of the defendant, which act with the exertion of proper care does not ordinarily produce-damage, he makes out a prima facie case of negligence which cannot be repelled but by proof of care or of some extraordinary accident which renders care useless.” This principle has been frequently applied in this State. Aycock v. Railroad,, 89 N. C., 321, and other cases. Applied to actions of this character the doctrine is thus stated by Labatt, section 834: “The rationale of this doctrine (spoken of in the. cases as res ipsa loquitur) is that in some cases the very nature of the action may of itself, and through the presumption it carries, supply the requisite proof. It is applicable when under the circumstances shown the accident presumably would not have happened if due care had been exercised. Its essential import is that, on the facts proved, the plaintiff has made out a prima facie case, without direct proof of negligence. * * * The doctrine does not dispense with the rule that the party who alleges negligence must prove it. It merely determines the mode of proving it, or what shall be prima facie evidence of negligence.” While it is true that the courts uniformly hold that a person or corporation operating an elevator for passengers are held to the highest degree of care, the same as common carriers, whereas one operating a freight elevator upon which employees ride in the discharge of their duty are held to a lower degree of care, this distinction does not affect the application of the doctrine of res ipsa loquitur. Houston v. Brush, 66 Vt., 346. Actions for injuries in either case are founded upon the averments of negligence — a breach of duty — the mode of proof may be the same. It may be that exculpatory evidence would be different. A defendant might be exonerated by showing a *482degree of care in one case which would be insufficient in the other. It is by no means clear that in employment where human life is concerned and exposed, the distinction in regard to the degree of care is well founded. “When an accident has occurred, and the physical facts surrounding are such as to create a reasonable probability that the accident was the result of negligence in such case, the physical facts themselves are evidential and furnish what the law terms evidence of negligence in conformity with the maxim res ipsa loquitur." Houston v. Brush, 66 Vt., 331.

In the note to Huey v. Gahlenbec, 6 Am. St. Rep., 792, the annotator says: “In s;uch case, however, it is hardly accurate to say that negligence is presumed from the mere fact of the injury, but rather that it may be inferred from the facts and circumstances disclosed in the absence of evidence showing that it occurred without the fault of the defendant. Such a case comes within the principle of res ipsa loquitur; the facts and circumstances speak for themselves, and in the absence of explanation or disproof give rise to the inference of negligence.” The doctrine is well illustrated in the case of Houston v. Brush, supra, the Court, Thompson J., after discussing the authorities and the reason upon which the doctrine is based, saying: “In the case at bar the defendants owed the requisite duty to the plaintiff to bring the case within the rule. It is evident that the accident would not have occurred if the pin had not worked out so as to cause the wheel to fall. Eor aught that appears, the pin would not have worked out if it had been securely fastened into the block when the block was first attached to the derrick and had been subsequently kept in that condition. It is not claimed that the pin could not have been fastened into the block so that it could not have worked out as it did. It did not appear that any new force or unforeseen or purely accidental occurrence intervened to remove the covering from *483tbe bead of tbe pin, thus causing tbe accident, but it occurred while the derrick was being put to its ordinary use. * * It was under tbe care and management of themselves (defendants) and their servants. Tbe working out of tbe pin was an accident which, in the ordinary course of things, does not occur if those who have the care and management of a derrick use proper care. The case standing thus, we think the jury had a right to consider the fact that the pin came out as it did, and from it draw the inference that the defendants had failed to exercise ordinary care.”

In Boot Co. v. Jumar, supra, the Court said: “If the jury believed that maintaining the sheathing over the elevator, and especially over the portion of it where the shifting ropes were located, made its operation in that condition dangerous, that was itself a defect that might have been discovered by the use of ordinary care and diligence in inspecting the elevator.”

In Windleman v. Colladay, 88 Md., 78, the plaintiff, an employee, was injured by the falling of a dumb-waiter through a shaft running from the first to the fifth floor. The fall was occasioned by the breaking of the rope holding the dumb-waiter, but there was no evidence to show how or why the rope broke. It was held that the jury were authorized to infer from the fall of the dumb-waiter, unexplained, that the injury was caused by the negligence of the defendant in not providing safe appliances.”” The Court said: “When something occurs which, in the ordinary course of events would not occur without negligence, then the familiar doctrine of res ipsa locjuitur is applied. This doctrine is particularly applicable to cases in which bodies fall, and fall in places where they are liable to do injury.”

In this case the contention was made that the doctrine of res ipsa loquitur did not apply between master and servant. It was rejected, the Court saying: “No authority was cited for this contention in the Court below and none can be *484found.” Howser v. Railroad, 80 Md., 148, 27 L. R. A., 151, 45 Am. St. Rep., 332; Malcairus v. Janesville, 67 Wis., page 25; Posey v. Scoville, 10 Fed. Rep., 140. In Guloch v. Edelmeyer, 15 Jones & S., 292 (88 N. Y., 645), it was held that “when an elevator fell without any apparent cause and injured the plaintiff, as ordinarily an elevator properly constructed and properly managed does not fall, and as that elevator did fall, the presumption is that there was something wrong either with the elevator or with the management of it, and that presumption would warrant a verdict for the plaintiff unless it were rebutted by the defendant’s evidence.” The doctrine was applied in Griffin v. Railroad, 148 Mass., 143, 1 L. R. A., 698, 12 Am. St. Rep., 526, to the unexplained spreading of the coupling link resulting in the separation of cars causing injury to an employee. It is said that while, either from the facts connected with the transaction, the manner in which the links spread, their appearance after the accident, or other circumstances, the jury could find that there was no negligence, yet the plaintiff was entitled to go to the jury. In Folk v. Schaffer, 186 Pa., 253, the injury was caused by the knot of a rope becoming untied and slipping. “There was no direct evidence of want of care in tying the knot, and the conclusion that it was improperly tied was an inference from the fact that it became untied. Ordinarily an accident would not have happened as this did if care had been exercised in tying the ropes. There was no difficulty in making them secure. Under the circumstances shown by the plaintiff the burden was thrown on the defendant to show that due care had been used, and in the absence of any explanation the jury might infer want of care. The defendants were not required to satisfactorily explain the cause of the accident, but they were bound to rebut the presumption of negligence arising from the attendant circumstances.” *485 Threadwell v. Whittier, 80 Cal., 514, 5 L. R. A., 498, 13 Am. St. Rep., 175; Springer v. Ford, 189 Ill., 430, 52 L. R. A., 930, 82 Am. St. Rep., 464. In Kearney v. Railroad, 5 L. R. (Q. B.), 411, Cockburn, C. J., says: “Now we bave tbe fact that a brick falls out of this structure and injures the plaintiff. The proximate cause appears to have been the looseness of the brick and the vibration of the train passing over the bridge acting upon the defective condition of the brick. It is clear therefore that the structure in reference to this brick was out of repair. It is clear that it was incumbent on the defendant to use reasonable care and diligence, and I think the brick being loose affords prima facie a presumption that they had not used reasonable care and diligence.” Scott v. Dock Co., Com. Law Rep. (N. S., 134, 320). In the light of the foregoing and many other authorities, his Honor correctly submitted the question of the defective construction of the elevator to the jury. It appears that the weights which should have ascended and descended, free from obstruction or unnecessary friction, struck against the sides of the box or shaft until they produced the condition described by the witness. The shaft or box was made of rough, uneven planks; how far this contributed to the rope slipping was for the consideration of the jury. They may well have found that in such respect the elevator, which includes all of its parts, was defective in its construction. The principle of res ipsa loquitur in such cases carries the question of negligence to the jury, not relieving the plaintiff of the burden of proof, and not, we think, raising any presumption in his favor, but simply entitling the jury, in view of all the circumstances and conditions as shown by the plaintiff’s evidence, to infer negligence and say whether upon all of the evidence the plaintiff has sustained his allegation. His Honor, in view of this principle, correctly said to the jury in response to defendant’s request: “Negligence on the part *486of defendant is not to be inferred from the mere fact that an accident occurred, and that in consequence thereof the plaintiff was injured,” etc. In regard to the second proposition, regarding the duty of inspection, we are of opinion, both upon reason and authority, that a failure to inspect an elevator approaches very near, if it does not constitute, negligence. The law is fully and ably discussed in Labatt on Master and Servant, chapter 11. “Negligence on the part of the master may consist of acts of omission or of commission, and it necessarily follows that the continuing duty of inspection and supervision rests on the master. It will not do to say that, having furnished suitable and proper machinery and appliances, the master can thereafter remain passive so long as they work well and seem safe. The duty of inspection is affirmative and must be continuously fulfilled and positively performed. Anything short of this would not be ordinary care. The duty of inspection being a positive and affirmative duty, to be continuously performed by the defendants, the Court could not say as a matter of law how often such inspection should have taken place, or that it was proper to omit it at some particular time. It was for the jury to say whether the defendants had used reasonable care in this respect. Houston v. Brush, supra; Labatt, 157. "We have, after a somewhat exhaustive examination of the authorities, found no case in which a failure to inspect an elevator for more than four months has been held sufficient to excuse the defendant. Labatt, section 158, note 6 — “Elevator.” A plaintiff was permitted to recover for injury where the clamp to which a derrick guy rope was fastened was inspected onlv once a week. Welch v. Cornell, 63 N. Y., 44.

In McGuigan v. Beatty, 186 Pa., 329, a failure to inspect a rope which held the weight for six months was evidence of negligence, the Court saying: “In addition to this there was an entire absence of testimony that the defendant had ever *487inspected tbe rope, and tbe absence of sncb proof affords an inference that tbe duty to inspect bad been neglected.” “An elevator needs, and should bave, constant care and inspection. The friction of tbe rope is constantly wearing tbe strands and when they part it is necessarily weakened.” Bier v. Mfg. Co., 130 Pa., 446. His Honor’s charge in respect to tbe dirty of inspection is in accord with tbe authorities. A careful examination of tbe entire charge shows that tbe principles given to tbe jury for their guidance and tbe contentions of tbe parties were stated with great clearness and accuracy. Tbe defendant, however, says that tbe plaintiff assumed the risk incident to bis employment in tbe use of tbe elevator, and that be was guilty of contributory negligence. Tbe last-defense, if sustained by any evidence, is not open to the defendant, as it tendered 'no issue upon tbe question. It is always an affirmative defense and tbe defendant carries tbe laboring oar. We find no evidence to sustain tbe plea if presented. Without discussing tbe question as to whether the doctrine known as assumption of risk comes within tbe same rule, we bave no hesitation in bolding that there is nothing in tbe evidence to sustain tbe defense. Appleton, J., in Buzzell v. Mfg. Co., 48 Me., 113, 77 Am. Dec., 212, says: “Tbe employee assumes tbe risks, more or less hazardous, of tbe service in which be is employed, but be has a right to presume that all proper attention shall be given to bis safety, and that be shall not be carelessly and needlessly exposed to risks not necessarily resulting from bis occupation and preventable by ordinary care and precaution on tbe part of bis employer.” There is no suggestion that the plaintiff knew of any defect in tbe elevator or any of tbe appliances for its operation, or that any duty was imposed upon him to inspect it. There is no aspect of tbe evidence in which tbe plaintiff can be said to bave assumed tbe risk incident to tbe negligence of tbe defendant. Lloyd v. Hanes, 126 N. C., *488 359. Tbe defendant’s first prayer was properly refused because there was no evidence to sustain it. The sixth prayer was substantially given, the others were given as asked.

Upon a careful examination of the entire record and the defendant’s exceptions and assignments we find no error. The judgment must be

Affirmed.