#### JONES v. TOBACCO CO.

(Filed April 24, 1906).

Master and Servant — Proximate Gause — Shields for Saws — Appliances in 'General TJse — Evidence — General Custom.

1. In an action for damages for personal injuries, the failure of the defendant to provide a shield or covering for a saw running naked when such protection for the operative is a reasonable protection and in general use, would constitute negligence, and such negligence would be the proximate cause of the injury the plaintiff suffered, if the shield would have prevented it.

2. In order to show that shields for saws were in general use, plaintiff could show this by proving the general custom, or by showing that such a large number of factories and mills used the shields in similar work that the jury might draw the inference of a general custom.

3. Where the only negligence alleged and relied upon by plaintiff was that defendant negligently permitted the saw to remain without shield or hood and there was evidence tending to prove that defendant did furnish the proper shield, an instruction that “if the jury find from the evidence that defendant did furnish the hood, and the plaintiff refused to use it, and his failure to use . it was the proximate cause of the injury, he would not be entitled to recover,” is erroneous, for if defendant did furnish the hood, the question of proximate cause does not arise.

ActioN by J. P. Jones against R. J. Reynolds Tobacco Co., heard by Judge E. B. J ones and a jury, at the December Term, 1905, of the Superior Court of Eobsyth.

*203Action for damages for personal injury in wbicli the usual issues as to negligence, contributory negligence and damage were submitted. Erom the verdict and judgment rendered, defendant appealed.

J. S. Grogan for the plaintiff.

Watson, Buxton & Watson and Manly & Hendren for the defendant.

Brown, J.

Plaintiff was a box maker in defendant’s factory and as such operated a circular saw which projected through a table two or three inches and was alleged to be without any board or guard. The plaintiff testified that while at work he “reached out to remove some strips when my feet slipped from under me and I fell on my elbow, saving my face from the saw, my hand struck the back of the saw and cut off two of my fingers.” The specific and only negligence alleged in the complaint and relied upon by plaintiff is as follows: “That defendant, without due care, negligently permitted this saw to remain without guard or shield, although such shield and protection was generally furnished by owners and operators of such machinery, and within a week this defendant had guards on all'of its saws.”

1. We think there was some evidence of negligence to go to the jury. If the defendant failed to provide a shield or covering for a saw running naked when such protection for the operative is a reasonable protection and in general use, it would constitute negligence. Myers v. Lumber Co., 129 N. C., 254. The plaintiff undertook to show that such shields are in general use. He could show this by proving the general custom, or by showing that such a large number of factories and mills used the shields in similar work that the jury might draw the inference of a general custom. Marks v. Cotton Mills, 135 N. C., 292. If shields are a reasonable, usual and proper protection for the operative in *204tbe kind of work plaintiff was engaged in, and intended and calculated to prevent tbe very injury tbe plaintiff suffered, it is not only negligence not to provide tbem, but sucb negligence is tbe proximate cause of tbe injury, if tbe shields would bave prevented it.

2. There was evidence introduced by defendant tending to prove that it did furnish tbe proper shield, hood or screen for this saw operated by plaintiff and that be refused to use it. In that connection the judge charged, “But if you find from tbe evidence that defendant did furnish tbe hood or screen as it contends, and the plaintiff refused to use it, and bis failure to use it was tbe proximate cause of tbe injury, he would not be entitled to recover, and you would answer the first issue ‘no.’ ” To this charge defendant excepted. We think His Honor erred in submitting to tbe jury any question as to proximate cause in that connection. Tbe negligent act or omission of duty upon tbe part of tbe defendant must first be determined before it becomes necessary to ascertain tbe proximate cause of an injury.

If tbe defendant did furnish tbe hood or shield for the saw, then tbe allegation of negligence is fully met, and tbe court should bave directed tbe jury if they so find to answer tbe first issue no. There is then no question of proximate cause to be considered. If plaintiff refused to use tbe hood it is bis own fault. Tbe defendant discharged its duty when it caused a hood to be put over tbe saw.

Under tbe instruction given, tbe jury are not at liberty to determine that tbe hood was furnished and then answer tbe issue no, but before they can so answer it they must proceed to find something else, viz., that tbe plaintiff’s failure to use it was tbe proximate cause of the injury. If tbe jury shall find that tbe defendant furnished tbe hood or shield, there is no negilgence on tbe part of the defendant proved, and that should end tbe case.

New Trial.