#### A. L. BENNETT v. THE CAROLINA MANUFACTURING COMPANY.

(Filed 13 May, 1908).

1. Negligence — Safe, Appliances — Evidence—Testimony as to Facts, Not Opinion.

When plaintiff: contends that the negligent failure of defendant to furnish a safety shield, in general use, to a buzz planer at which he was employed to work was the cause of his hand getting caught in the machinery and inflicting the injury complained of, it is .encumbent on him to prove, and it is competent for him to testify, -not as his opinion, but as to the facts within his own knowledge, that the shield had been upon- the planer and was taken off by defendant’s overseer, under his objection, to save time; that with the proper use of the shield his hand could not have been caught, explaining why, and that he would have used it properly. '(Maries v. Cotton Mills, 135 N. C., 287, cited and distinguished).

2. Same — Nonsuit—Some Evidence.

A motion as of nonsuit upon the evidence will not be sustained in an action for personal injury occasioned to plaintiff in operating, in the course of his employment, a buzz planer of defendant, when there is evidence tending to show that the use of the buzz planer without a shield is unsafe, and that the defendant’s overseer had taken away the shield to save time, under plaintiff’s objection that it was dangerous to do so.

ActioN tried before Ferguson, J., and a jury, at November Term, 1907, of MeckleNbueg.

Tbe following issues were submitted:

“1. Was tbe plaintiff injured by tbe negligence of tbe defendant?” Answer: “Yes.”

“2. Did tbe plaintiff by bis own negligence contribute to bis injury, as alleged in tbe answer?” Answer: “No.”

“3. Did tbe plaintiff assume tbe risk of being injured in tbe way be was injured while operating said machine?” Answer: “No.”

'“4. What damage is plaintiff entitled to recover?” Answer: “Two thousand two hundred dollars.”

Erom tbe judgment rendered tbe defendant appealed.

*621 Burwell & Gansler and Stewart & McRae for plaintiff.

Tillett & Gtuthrie for defendant.

Be.owN, J.

T'be plaintiff’s band was badly injured Avhile operating a buzz planer in defendant’s factory. Tbe plaintiff offered evidence tending to prove that tbe planer was equipped with a safety shield, which be was in tbe habit of using; that such was in general use on such machines, and that be used tbe shield “pretty much all tbe time.” Plaintiff gives this* account of why be did not have tbe shield when injured: “Martin, tbe foreman, asked me several times what it was for, and I picked it up and be told me to put it away. Then be asked me again what it was for, and I picked it up and put it on tbe machine and explained bow it worked, and be said, ‘Isn’t that in tbe way in doing rabbeting and little work on tbe machine?’ I said, ‘Yes; it will take two or three minutes to take it off and put it on, but it is better than to tear some man’s band up and disable him for life.’ He took it up and carried it upstairs, and I did not see it any more. I told him it would take two or three minutes to take it off-and put it on, but it was better to do that than to disable some man for life.”

Tbe following questions were allowed over defendant’s objection:

> “Q. If you bad bad that shield on there, could your band have bit tbe knives when it slipped off tbe piece of plank ?

> “A. No, sir; that safety guard would have tbe knives all covered over, with tbe exception of about an inch or an inch and a quarter of space where tbe knives cut tbe edge of tbe plank. It would be impossible for a man to get bis band in there unless be stuck it right down in that little crack.

> “Q. If you bad bad this guard while you were doing that work would you have bad it on tbe machine ?

> “A. Yes, sir.”

We think tbe exceptions untenable. It was encumbent on. plaintiff to prove that tbe absence of tbe shield was tbe imme-*622cliate cause of bis injury, and to do so be must prove that if be bad bad tbe shield be would have used it in tbe kind of work be was doing .at tbe time be was injured, and that the use of it would have prevented tbe injury.

This differs very materially from tbe evidence ruled out in Marks v. Cotton Mills, 135 N. C., 287. In that case tbe witness was permitted to give an opinion as to whether tbe cogwheels should not have been covered, in an endeavor on tbe part of plaintiff to prove negligence.

In this case tbe planer bad been covered and, according to plaintiff’s evidence, tbe shield taken away by tbe foreman to save time.

Tbe plaintiff was testifying to a fact within bis own knowledge and experience as to tbe efficacy of tbe shield as a protection, and was not giving an opinion. Shaw v. Manufacturing Co., 146 N. C., 235; Railroad Co. v. Blaker, 64 L. R. A., 81; Stewart v. Railroad, 141 N. C., 265.

Tbe motion to nonsuit was’properly overruled. Although tbe matter was in dispute, yet there was evidence to go to tbe jury that tbe use of buzz planers without shields is unsafe and constitutes negligence upon tbe part of tbe master. In this particular tbe plaintiff’s contention in that respect is fortified very strongly by evidence tending to prove that tbe particular planer furnished by defendant bad a shield which would protect tbe operator from just such an injury as plaintiff sustained, and that it was removed, against plaintiff’s objection, by defendant’s foreman, to save time.

We find nothing in tbe record upon which to base tbe defense of contributory negligence or assumption of risk. It is now settled that tbe servant does not assume tbe risks of injury arising from bis master’s negligence.

We think tbe charge- of his Honor is free from substantial •error, and that tbe contentions of tbe parties were fully and fairly explained to tbe jury.

No Error.