#### OSCAR WARWICK, by his next friend, v. LUMBERTON COTTON OIL & GINNING COMPANY.

(Filed 19 October, 1910.)

Master and Servant — Safe Place to Work — Knowledge of Servant— Evidence — Nonsuit.

It appearing that plaintiff was employed in defendant’s cotton seed mill, among other things, to throw cotton seed into a hole in a conveyer running the entire length of the seed house in a straight line in its center, located about two and one-half feet *263above the floor, being box-shaped, within which there was a revolving screw which carried the cotton seed away, the holes in the conveyer being 12 x 18 inches, and fitted with boards for opening and closing them; that implements had been furnished with which to throw the seed in these holes, but that while plaintiff was doing this with his hands, leaning or standing on a pile of seed, the seed slipped or gave way, causing plaintiff’s foot to slip within the conveyer, causing the injury complained of; and that plaintiff was permitted to do this work in his own way. Held, There being no special knowledge required to do the work, or complicated machinery, the doctrine that the master should have provided a safe place to work has no application, and a motion of nonsuit should have been allowed.

Appeal from W. li. Allen, J., at the May Term, 1910, of ROBESON.

These issues were submitted:

1. Was tbe plaintiff Oscar Warwick in tbe employ of tbe defendant at tbe time of tbe injury alleged in tbe complaint? Ans., Yes.

2. Was tbe injury received by plaintiff caused by tbe negligence of tbe defendant, as alleged in tbe complaint ? Ans., Yes.

3. Did tbe plaintiff, by bis own negligence, contribute to bis own injury? Ans., No.

4. Did tbe plaintiff voluntarily assume tbe risk involved in feeding tbe conveyer by assuming a position wbicb be knew was dangerous? Ans., No.

5. Wbat damage, if any, is tbe plaintiff entitled to recover of tbe defendant on account of its negligence ? Ans., $4,000.

From tbe judgment rendered tbe defendant appealed.

Wishart, Britt & Britt for plaintiff.

McIntyre, Lawrence & Proctor for defendant.

BkowN, J.

Upon tbe trial below tbe defendant moved to non-suit. Tbe refusal of tbis motion constituted tbe only assign- - ment of error necessary to consider.

Tbe testimony tends to prove tbat plaintiff at tbe time of tbe injury was working in defendant’s oil mill and got bis foot in tbe conveyer whereby be was seriously injured. Tbis conveyer consists of a wooden box, about eighteen inches square, within wbicb is a rapidly revolving iron screw, by means whereof tbe *264cotton seed are conveyed from tbe seed bouse to tbe screens to be cleaned and from tbence to tbe gins to be reginned and from tbence to other parts of tbe plant. Tbe conveyer is located about 2 1-2 feet above tbe floor and runs in a straight line through tbe centre of tbe seed bouse and for tbe entire length thereof — some hundred or more feet. At intervals of six feet along tbe top of tbe conveyer there are boles 12x18 inches, through which tbe seed are fed into it. When a bole is not in use, a board is fitted back over tbe opening and tbe opening closed up. It is admitted tbe conveyer and mill are properly constructed.

Tbe room in which this conveyer was situated was full of heated cotton seed and tbe office of tbe conveyer is to convey them elsewhere in tbe mill to be crushed. These cotton seed were piled up all around tbe conveyer and at tbe time of tbe injury plaintiff was standing or leaning upon a pile of seed feeding tbe conveyer. Tbe seed slipped or gave way and plaintiff’s foot was thrown into tbe conveyer and injured.

It was not denied by plaintiff but that defendant furnished shovels and seed forks for use in shoveling seed into tbe conveyer, and it was admitted by plaintiff that at tbe time be received tbe injury be was standing upon.tbe seed with bis foot elevated two feet immediately above tbe opening to tbe conveyer, and that be was raking in tbe seed with bis bands and not using tbe tools provided for that purpose. We are unable to see any evidence of negligence upon tbe part of tbe defendant.

Tbe business required that tbe room be used for storing seed; tbe purpose of tbe conveyer as a labor-saving device required that tbe seed be all around and about it. There is no special knowledge required to throw tbe seed in a bole. There was no complicated machinery committed to plaintiff’s care. He bad equal knowledge of tbe conditions with defendant, and was allowed to do bis work in bis own way. We have repeatedly held that while an employer of labor is required to provide for bis employees a reasonably safe place to work, this rule does not apply to ordinary every-day conditions, requiring no special care, preparation or provision, where tbe defects are readily observable, and where there is no good reason to suppose tbe injury *265complained of would result.” House v. R. R., 152 N. C., 398. The rule is well stated by Mr. Justice Connor in Covington v. Fur. Co., 138 N. C., 377. “The general rule of law is that when the danger is obvious, and is of such a nature that it can be appreciated and understood by the servant as well as by the master or by any one else, and when the servant has as good an opportunity as the master or anyone else of seeing what the danger is, and is permitted to do his work in his own way and can avoid the danger by the exercise of reasonable care,, the servant cannot recover against the master for the injuries received in consequence of the conditions of things which constituted the danger. If the servant is injured, it is from his own want of care. This rule is especially applicable when the danger does not arise from the defective condition of the permanent ways, works or machinery of the master, but from the manner in which they are used, and when the existence of the danger could not be well anticipated, but must be ascertained by observation at the time”’

The plaintiff voluntarily got on the pile of seed and was throwing the seed into the conveyer with his hands. He was not directed by the defendant to assume the position he was in or to use his hands in place of the shovel provided for the purpose. It is highly probable that had the plaintiff used the tools provided he would not have been hurt. At any rate we are unable to see from plaintiff’s own evidence that the defendant failed to perform any duty it owed him.

The unfortunate injury was plainly the result of an accident against which ordinary foresight could not guard. Brookshire v. Electric Co., 152 N. C., 669.

The motion to nonsuit should have been allowed and the action dismissed. It is so ordered.

Eeversed.