#### FEARINGTON v. TOBACCO CO.

(Filed April 10, 1906).

Master and Servant — Duty of Master — Appliances—Evidence — Negligence—Bes Ipsa Loquitur — Elevator.

1. An employer of labor to assist in the operation of railways, mills and other plants, when the machinery is more or less. complicated, and more especially when driven by mechanical power, is required to provide for his employees a reasonably safe place to work and to supply them with machinery, implements and appliances reasonably safe and suitable for the work in which they are engaged, and such as are approved and in general use in plants and places of like kind and character, and he is also required to keep such machinery in such condition, as far as this can be done, in the exercise of proper care and diligence.

2. In an action to recover damages for personal injuries, where there was evidence that plaintiff, an inexperienced hand, was ordered to help truck the tobacco up stairs; that the tobacco was first put on a truck and then pulled on the elevator, the tobacco being piled as high as plaintiff’s head; that there were no blocks on the wheels of the truck; that plaintiff stood behind the truck, between the truck and the side of the elevator floor, about 12 or 14 inches of space; that as the elevator was going up, it dropped several inches and the truck slipped and plaintiff was injured, held, there was evidence tending to show a negligent breach of duty on the part of the defendant.

3. Under the doctrine of res ipsa loquitur there was evidence to be considered by the jury as to the negligent and defective condition of the elevator.

ActioN by Arthur Eearington, by bis next friend, against tbe Blackwell Durham Tobacco Company, beard by Judge T. J. Shaw and a jury, at tbe October Term, 1905, of tbe Superior Court of Dubham.

Tbe plaintiff on bis examination in chief testified as follows : “I was injured sometime in June, 1903; bad been at work- in the defendant’s factory three days before tbe in*81jury, working in the skipping room helping to load eases of tobacco in a bos car wkick stayed on tke sidetrack in a few feet of' tke skipping room. In tke evening, Mr. Andrews, superintendent of tke defendant, came to me and told me to go up town and get kirn some tobacco; wken I came up witk tke tobacco be said, ‘Go in and kelp those fellows truck that tobacco upstairs.’ I told him that I had never worked on an elevator. He said, ‘Hell, you don’t want to work, do you?’ And I said, ‘I don’t want to work like that.’ He turned and went off and I went to work where he told me. Tke first load I carried up witk Thomas Fleming, second witk Howard -Smith, and got half way up tke building; tke tobacco was put on tke truck and then pulled on tke elevator; it was in sacks laid across tke truck; tke truck had wheels and was rolled on tke elevator; tke tobacco was piled on tke truck about as high as my head; I could not look over it; I stood behind tke truck, between the truck and the side of tke elevator floor; about 12 or 14 inches space was between where I had to stand. (Illustrates tke position of his feet, his right foot being slightly in advance of the left). I had one hand resting on tke tobacco sacks; as tke elevator was going up I was looking straight up, and tke elevator dropped several inclies; something gave me a knock on the left leg and I heard tke bone break and my right leg .shot out behind me; I fell witk my face on the truck and right foot out behind me, and caught the iron rod with my left arm. When tke elevator dropped tke truck did nothing except to slip to me; there were no blocks on the wheels of the truck — ran it right on and left it so; there were no blocks there to put under tke truck. They had me upstairs when I remembered anything,' and was then carried' to tke Lincoln Hospital, suffering intensely; it seemed like I had as soon been dead as living. My right foot was broken in two; heel string in foot pulled loose; left leg broken just above the knee. There is a knot on my right side where I fell up *82against the truck or something else. I left the hospital in ■about four weeks; was out something like two weeks and then went back and stayed nearly one month. My right foot is stiff and I limp as I walk. Drs. Manning and Carr attended me at the hospital. Dr. Carr is now dead. I suffered all the time I was at the hospital; my left leg gave me a lot of trouble, and pain in my side under my arm; it was nearly a year before I could walk without a-crutch. Before I was hurt I was getting $6.25. Since I have gotten out of the hospital I have not been able to do regular work from morning to night. I now stay in a restaurant, but do not do regular work.” There was other testimony tending to corroborate the plaintiff’s statement. Among other witnesses, Charles Eleming testified, “There were ten sacks of tobacco on the truck, each weighing about 150 pounds.”

At the close of the' plaintiff’s evidence the defendant moved to nonsuit the plaintiff, and on an intimation from His Honor that he would allow the motion, the plaintiff excepted, submitted to a nonsuit and appealed.

Manning & Foushee for the plaintiff.

Fuller & Fuller for the defendant.

Per Curiam:

In Hicks v. Mfg. Company, 138 N. C., 325, it is said to be accepted law that an employer of labor to assist in the operation of railways, mills and other plants, when the machinery is more or less complicated, and more especially when driven by mechanical power, is required to provide for his employees in the exercise of proper care a reasonably safe place to work and to supply them with machinery, implements and appliances reasonably safe and suitable for the work in which they are engaged, and such as are approved and in general use in plants and places of like kind and character. And an employer is also required to keep such machinery in such condition, as far as this can *83be done, in the exercise of proper care and diligence, citing Witsell v. Railway, 120 N. C., 557, and Marks v. Cotton Mills, 135 N. C., 287.

Applying these principles to the facts testified to by plaintiff, there was sufficient evidence tending to show a negligent breach of duty on the part of the defendant.

Under the doctrine of res ipsa loquitur there was evidence to be considered by the jury as to the negligent and defective condition of the elevator. Womble v. Grocery Co., 135 N. C., 474; Ross v. Cotton Mills, 140 N. C., 115.

Again, there was evidence to show a negligent placing of the truck on the elevator without any appliance or contrivance to hold it in position; and further, there was testimony to be considered tending to show a negligent order on the part of the foreman in directing an inexperienced hand to go on an elevator, under all the circumstances brought out, leaving him only a space of 12 or 14 inches in which to stand, and without any guards or rails or other means by which the plaintiff could protect or maintain himáelf in a secure position.

In case negligence of the defendant is established and the question of contributory negligence arises, this order of the foreman would be pertinent also in repelling an imputation of that kind. But so far as now disclosed there would seem to be very little, if any, evidence of contributory negligence to be considered.

There was error in directing a nonsuit, and the plaintiff is entitled to have his cause submitted to a jury. To that end a new trial is awarded.

New Trial.