#### M. G. MORRISETT v. ELIZABETH CITY COTTON MILLS.

(Filed 15 September, 1909.)

1. Issues, Sufficient — Contributory Negligence.

When the negligence of a fellow-servant is set up in bar of recovery and the judge below clearly gives the defendant the benefit of it by proper instructions under the issue of negligence, the refusal of the trial judge to submit a separate issue thereon is not error.

2. Issues — Evidence.

The refusal of the trial judge to submit an issue upon which no evidence whatever is offered is not erroneous.

3. Master and Servant — Fellow-servant.

One who is “second boss” in a cotton mill, under whose direction the plaintiff was employed to work, and was working at the time of receiving the injury complained of, is not his fellow-servant.

4. Negligence — Master and Servant — Res Ipsa Loquitur — Evidence —Nonsuit.

■ When the evidence tended to show that plaintiff, an employee, was injured while at work, in the course of his employment, on a certain machine while not running, and that it suddenly started, without explanation, inflicting the injury complained of, the motive power being under the management of other agents or employees of defendant, a motion to nonsuit upon the evidence was properly refused.

5. Contributory Negligence — Master and Servant — Officious Acts— Evidence.

The plaintiff was not guilty of contributory negligence in thrusting his hand into the machine to adjust it while it was not running, and he was not guilty of an officious act because he was directed to do so by the master representative.

Appeal from Peebles, J., January Term, 1909, of Pasquo-TANK.

These issues were submitted:

1. “Was the plaintiff injured by the negligence of defendant, as alleged? Answer: “Tes.”

2. “Did the plaintiff contribute to bis own injury, as alleged?” Answer: “No.”

3. “Did the plaintiff assume the risk of the injury suffered by him, as alleged?” Answer: “No.”

4. “What damage, if any, has plaintiff sustained ?” Answer: “Twenty-two hundred and fifty dollars.”

From the judgment rendered defendant appealed.

Aydlett & Ehringhaus for plaintiff.

H. S. Ward and O. E. Thompson for defendant.

*32Brown, J.

Tbe evidence tends to prove tbat plaintiff, a boy of sixteen years of age, was employed in defendant’s mill as “bead doffer,” whose duty it was to superintend tbe boys in tbe spinning department, wbo were engaged in taking off full bobbins and putting on empty ones. One Trueblood was a “second boss” in tbat department, and plaintiff was under bim, as well as McAbee, tbe general manager. It was not plaintiff’s duty to change tbe gearing and be bad never done so before be was injured.

On lp January, 1902, Trueblood ordered plaintiff to go with bim and change the gear. Plaintiff bad no previous experience, but undertook to change tbe gear under Trueblood’s direction, while tbe machine was stopped. While changing tbe .gear True-blood told plaintiff to loosen tbe nut, and while so engaged tbe machinery suddenly started up and the plaintiff was seriously injured.

1. Defendant tendered certain issues which tbe court refused to submit, to which ruling defendant excepted.

Tbe issues submitted by bis Honor are substantially tbe same as those tendered by defendant, with tbe exception of an issue relating to tbe negligence of a fellow-servant. It was not necessary that a separate and distinct issue should have been submitted in order to give defendant tbe benefit of tbat defense. Evidence tending to prove tbat tbe injury was caused, not by tbe negligence of tbe defendant, but by tbe negligence of a fellow-serv*ant, could have been presented under the first issue, and by proper instructions tbe jury could have been directed tbat if they found that tbe injury was caused by a fellow-servant, then they should answer tbat issue in tbe negative, for such negligence would not be tbe negligence of tbe defendant.

We think, therefore, tbat tbe exception cannot be sustained, as tbe issue tendered, while raised by tbe pleadings, is clearly embraced under tbe first issue, and when tbat is tbe case it is not error to refuse tbe issue tendered. Kirk v. Railroad, 97 N. C., 82; McAdoo v. Railroad, 105 N. C., 140; Paper Co. v. Chronicle Co., 115 N. C., 147.

Again, we find no evidence tendered or received which tends to prove tbat plaintiff was injured by tbe negligence of a fellow-servant of tbe plaintiff, and it is decided tbat a refusal to submit an issue on which there is no proof is not erroneous. Porter v. White, 128 N. C., 42.

. Trueblood was not in any sense a fellow-servant of tbe plaintiff, but, according to all tbe evidence, be succeeded Anderson as second boss in tbe spinning department, and was tbe immediate superior of plaintiff, wbo worked under him.

*332. On direct examination plaintiff’s witness, Anderson, was asked, “State whether or not it is dangerous to change the gearing with the belt on the loose pulley.” The court admitted the question and answer over defendant’s objection.

It is contended that the evidence offered was opinion evidence, and that it was not a matter about which an expert opinion couhlhave been given. ¥e think the learned counsel for defendant misconceives the character of the evidence. Anderson was a skilled operative and fully acquainted with the character of the machinery. When he stated that it was not safe to change the nut without taking the belt off the top pulley, he was conveying to the minds of the jury a fact gathered from his experience which was material and which could not have been put before them in any other way.

To cause the witness to give all the detailed knowledge and experience he had concerning the character of the machinery would have been useless, more so than to go into the details as to the value of a tract of land, concerning which opinions are always allowed. The distinctions between those cases in which •opinions may be expressed by experts only and those in which any person having means and opportunity to form an opinion may express it is well stated in Clary v. Clary, 24 N. C., 78. See, also, Wade v. Telephone Co., 147 N. C., 223, and cases cited; McKelvey, p. 230; Davenport v. Railroad, 148 N. C., 294.

The other exceptions to the evidence we deem it unnecessary to discuss. We have examined them and found them without merit.

3. We come next to consider the refusal to nonsuit, and that presents the question as to whether there is any evidence of negligence sufficient to take the case to the jury. The evidence affords no satisfactory explanation as to why the machinery started up just at the moment when plaintiff was adjusting-the nut; and unless the rule of res ipsa loquitur applies, the motion to nonsuit must be sustained. But we think this belongs to the class of cases wherein that doctrine holds good. The rule has been applied in a class of cases similar to this in Great Britain for many years. Scott v. Dock Co., Com. L. R., U. S., 134 (3 H & C.), and is recognized in most of the States of this Union.

Mr. Wigmore states that, in order that the rule should apply, the apparatus must be such that ordinarily no injurious effect is to be expected, unless from careless construction or operating, and that the injurious result must have taken place independent of any voluntary action of the person injured. Wig., sec. 2509.

The defendant has failed to explain why the machinery was *34started up just at tbe time when plaintiff was fixing a part of it. Machinery in proper condition, operated by a motive power controlled by human agencies, does not start a-going of its own accord. It must either be started or else it may start because something is out of order.

All of this is supposed to be within the knowledge of defendant’s agents, and therefore the defendant should explain #it, if possible. Nevertheless, the rule does not at all change the burden of the proofs or of the issue. It still remains with the plaintiff to establish negligence by a preponderance of evidence. But he may offer the “fact of the accident,” in cases like this, to the jury as some evidence of negligence. There is no presumption raised which must be rebutted. No artificial force is given to the rule, but the jury may give it such weight as they see proper as a fact in evidence, and, if nothing else is offered, find for or against the plaintiff, as they see fit. Womble v. Grocery Co., 135 N. C., 474; Stewart v. Carpet Co., 138 N. C., 60; Ross v. Cotton Mills, 140 N. C., 115.

The case last cited is very much like the present case, and, we think, is an apt authority, justifying his Honor in submitting the issue of negligence to the jury, and that negligence, as alleged in the pleadings, consisted in carelessly and negligently starting up the machinery while plaintiff was engaged in adjusting the nut.

4. We deem it unnecessary to consider seriatim the exceptions bearing upon the issue of contributory negligence, for in our opinion there is nothing whatever to support such defense.

In an able argument Mr. Thompson, for the defendant, contends that the plaintiff was engaged voluntarily, out of the line of his duty, in a dangerous work. We do not think the evidence sustains the learned counsel in his contention. It is true that plaintiff was doing something he had not done befol’e, but he was ordered to do it by his immediate superior. He was under True-blood’s control, and it was as natural that this boy of sixteen should obey him as that a pupil should obey his master. The plaintiff was not acting officiously, but in obedience to orders. Nor did he knowingly and carelessly place his hand in an obviously dangerous place. The machine was harmless when idle, and in that condition plaintiff ran no risk in adjusting the nut. He had a right to believe that it would remain motionless until he completed the work. It was the starting-up of the motive power at the critical moment that caused the injury and was its proximate cause, and his Honor might well have so instructed the jury.

Upon a review of the record we find

No error.