#### D. A. BARKLEY v. SOUTH ATLANTIC WASTE COMPANY.

(Filed 2 December, 1908).

Employer and Employee — Negligence of Employee — Construction of Scaffold — Vice Principal.

When an employee lias been instructed by tbe employer to do certain work upon a scaffold, and be was injured, owing to a negligent and faulty construction of tbe scaffold by another employee entrusted to build it, it is not necessary that tbe employee entrusted to build tbe sc'affold be a vice principal, in order to bold tbi? employer liable for an injury which is tbe proximate cause of tbe negligent act.

ActioN tried before Moore, J., and a jury, June Term, 1908, of Mecklenburg. Defendant appealed.

Brevard Nixon, J. F. Newell and J. D. McOall for plaintiff.

Morrison & Whitlock for defendant.

Pee. Curiam.

As tlie learned counsel for tlie defendant were prevented by unavoidable delay, from favoring us with an argument, we liave given their carefully prepared brief, as well as the record, a very careful examination. There are no assignments of error presented in their brief relating to the rejection or admission of testimony. All the alleged errors pointed out and discussed relate to the charge of the court. To discuss them seriatim is unnecessary and would be simply in large measure repeating what has been said in the opinion of Mr. Justice Brown on the former hearing of the case. 147 N. C., 586.

There is abundant evidence to show that Michael in his relation to plaintiff was not a fellow servant but a vice" principal, applying the test contended for by the defendant. But whether Michael was a fellow servant or not is not essential in the determination of this case.

We have held that “the defendant company owed to its employees, who were directed to work on this scaffold, the' *288duty to exorcise due care in selecting materials reasonably suitable and safe for its construction.” p. 587.

There is evidence that the defendant delegated the performance of this duty to Michael and, therefore, whatever place in its service Michael filled, the defendant is responsible for the manner in which he discharged this duty Tanner v. Lumber Co., 140 N. C., 475, and cases cited in former opinion.

The law of this case was settled on the first appeal, and the questions now presented are almost exclusively of fact. We think his Honor correctly presented the matter to the jury in the light of our former opinion.

No error.