#### SYLVESTER MATHIS v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 20 March, 1907).

Negligence — Plaintiff’s Duty — Repairing.—When under instructions from Ms superior officer tlie plaintiff, in repairing a piece of maelainery, with knowledge of its defects, negligently caused an injury to himself in such manner as it was his duty in repairing to prevent, he cannot recover, and Revisal, sec. 1905, has no application.

Civil actioN, tried before Jones, J., and a jury, at the January Term, 1907, of the Superior Court of Wayre County. Judgment for defendant. Plaintiff appealed.

Plaintiff sues to recover damages sustained by reason of injury caused by alleged negligence of defendant, in that while in the employment of defendant he was directed to make certain repairs on a spout in water-tank used by defendant, and that “defendant failed in its duty, in that said spout was defective and out of repair, which fact was well known to defendant’s road-master in charge of section upon which plaintiff was employed.” Defendant denied all allegations of negligence and averred contributory negligence on part of plaintiff.

Plaintiff testified: “I was employed by defendant for seven or eight years, and was, in April, 1905, section-master, Dudley Section. My duties were to keep up tracks, look out for buildings along track, keep fire from buildings. Was near Dudley; got a letter from Captain Johnson, road-master, to look out for the water-tank.. I went down one morning and pulled on side-track down to tank. One of the hands called my attention to the waterspout hanging over track. I turned hands around and put one of them to pulling other side of track back, that is, level up the track. I then went up on the water-tank; found one chain that holds the weight hitched *163to waterspout was broken. I called for tbe bumper, Hagans, to bring me a piece of wire. He brought tbe wire and banded it to me on a stick. I pulled cbain down, put my wire into tbe weight and fastened it to tbe chain. There are two small chains that bold up tbe weight of tbe spout. -Just as I pulled down tbe other cbain booked to tbe weight, one of tbe small chains next to me broke, and tbe spout flew around and snatched me off and I fell on tbe ground. * * * I received a letter from tbe roadmaster, Johnson, about this tank, instructing me to go there and repair it. * * * He told me to look after .the tank; chains were rotten.”

Tbe plaintiff testified in regard to tbe character and extent of bis injuries, and about going to tbe hospital. Tbe defendant introduced no .testimony in regard to tbe injury or tbe manner in which it was inflicted, but introduced a record showing that, upon bis application, tbe plaintiff bad, on 11 January, 1905, become a member of tbe Relief Department, and bad, subsequent to tbe injury, received benefits from tbe said department. Tbe defendant upon tbe entire evidence moved for judgment of nonsuit. Tbe motion was allowed, .and tbe plaintiff appealed.

Dortch & Barham, for plaintiff.

Aycoch & Daniels for defendant.

CoNNOR, J.,

after stating tbe case: We concur in tbe opinion of bis Honor that, upon bis own testimony*, tbe plaintiff is not entitled to recover. The evidence does not disclose the use of a defective “appliance or way” by reason of which tbe injury was sustained, and does not, therefore, come within the statute, Revisal, see. 2646. Tbe plaintiff, being told that tbe chain controlling the action of the spout was rotten, went, by direction of tbe roadmaster, not to use or operate tbe spout, but to repair tbe cbain, or put a new one *164in; knowing, therefore, that it was rotten, be negligently pulled it and thereby caused it to do the very thing he was directed to prevent. The language of the Court in Dartmouth Spinning Co. v. Acord, 84 Ga., 16, cited in defendant’s brief, is in point: “Precisely because it is unsafe for use, repairs are often necessary. The physician might as well insist on having a well patient to be treated and cared for as the machinist to have sound and safe machinery to be repaired. The plaintiff was called to this machinery as infirm, not as whole; * * * so far as appears, no one knew more of the state and condition of the machinery than he did; and the object of calling him in the room was that he might ascertain the cause of the trouble and apply the remedy.” Pressly v. Yarn Mills, 138 N. C., 418. We do not wish to be understood as saying that the mere fact that an employee who is engaged in the work of repairing machinery is barred of recovery, if injured by defective ways or appliances furnished for that purpose. 'A number of cases in our reports show the contrary. If the platform upon which plaintiff stood for the purpose of discharging his duty had been rotten or otherwise insecure, or the wire furnished him to repair the spout unfit, and by reason thereof he was injured, there would be no doubt of his right to recover. The plaintiff was sent to repair the spout by replacing the rotten chain with a sound one. He pulled the rotten chain and it broke. We cannot see in this evidence any breach of duty on the part of the defendant. The judgment of nonsuit was correct, and must be

Affirmed.