#### R. H. URQUHART v. DURHAM AND SOUTH CAROLINA RAILROAD COMPANY.

(Filed 15 November, 1911.)

1. Railroads — Master and Servant — Safe Place to Work — Evidence —Questions for Jury.

The plaintiff, a brakeman on defendant railroad company’s train, demanded damages from the company in this action for an injury to his foot, which was mashed by the revolving wheel of an engine to a train upon which his services were engaged, and introduced evidence tending to show negligence in that the defendant furnished an old engine with a dangerous step and one placed too high up for safety in boarding a moving train, that defendant permitted a sprinkling hose to drip water on the step and form ice there, making the step more dangerous; that defendant *582did not instruct him, an inexperienced hand, in the discharge of his duties; that it was necessary for plaintiff to use this step in the performance of his duties; that he had been instructed to use this step, and had done so with the knowledge of the conductor, and that instruction had been given to another employee to remove the ice which had formed on the step, which had not been done, and that the ice was not seen by him in attempting to board the engine at night while running three or four miles an hour at a station: Held, the case was properly submitted to the jury upon the question of negligence and contributory negligence.

2. Railroads — Master and Servant — Safe Place to Work — Assumption of Risks.

The doctrine of assumption of risks has no application where an employee of a railroad 'company is injured in the discharge of his duties, proximately caused by defective ways or appliances furnished by the company which his employment requires him to use.

3. Defective Steps — Negligence.

A step to an engine or tender without sides thereto is a defective appliance.

4. Appeal and Error — Objections ancf Exceptions — Jury—Time for Consideration — Discretion of Trial Judge.

An exception that the jury considered the issues in an action for personal injury only twenty minutes before rendering their verdict will not be considered on appeal, the matter resting in the discretion of the trial judge to set aside the verdict or to send the jury back to reconsider their verdict, when it appears to him that there was misconduct on the part of the jury or a contemptuous or flippant disregard of their duties in giving consideration to the issues.

Appeal from Daniels, J., at March Term, 1911, of Dubham.

The facts are sufficiently stated in the opinion of the Court by Mr. Chief Justice Ciarle.

Bryant & Brogden for plaintiff.

Manning & Everitt and J. W. Hmsdale for defendant.

Clabk, C. J.

This is an action to recover damages for personal injury caused by the negligence of the defendant. The defendant took ninety-four exceptions, but abandoned fifty-one of them in this Court.

*583While tbe record is voluminous and tbe exceptions numerous, tbe matter for decision lies in a very small compass. Tbe case comes witbin tbe principles of law laid down in Coley v. R. R., 128 N. C., 534; s. c., 129 N. C., 407. Tbe plaintiff was employed by tbe defendant 1 December, 1907, as a brakeman on its road. Twenty-four days later be lost bis foot by reason, as be alleges, of negligence on tbe part of tbe defendant.

Tbe plaintiff contends there was negligence on tbe part of tbe defendant, in tbat (ft) it furnished an engine without a step, as was usual and necessary on railroads properly equipped; (&) tbat tbe step upon tbe tender was defective and dangerous and was too high to be reached with safety in boarding a moving train; (c) tbat it permitted water to drip from tbe sprinkler hose on tbe step of tbe tender and form ice there, making a dangerous place to board tbe train; and (d) tbat be, being a green band, without experience, was required, in tbe discharge of bis duties, to board tbe train, when in motion, without any proper warning or instructions as to bis duties and tbe dangers. He insisted tbat by reason of this negligence, when be undertook to board tbe moving train bis left foot slipped from tbe tender step, passed under tbe wheels of tbe moving tender, and was so crushed tbat amputation was necessary.

Tbe defendant admitted tbe absence of tbe step from tbe engine, contended tbat one was unnecessary, denied the other allegation of negligence, pleaded assumption of risk and also contributory negligence on part of plaintiff in attempting to board tbe tender as be did. It especially urged tbat plaintiff was rear brakeman, and should not have attempted to board tbe engine or tender at all.

In reply, plaintiff contended he bad' duties in tbe rear and front; tbat be boarded tbe engine and rode there as often as be did elsewhere; tbat be bad been ordered so to do; tbat this was necessary in tbe discharge of bis duties; was done in tbe presence of tbe conductor in charge of tbe train, and tbat tbe duties on tbe rear of tbe train were assigned by the superintendent of tbe road to another on tbe afternoon of tbe injury, in presence of tbe plaintiff, just a few hours before he (plaintiff) was hurt.

*584There was evidence that the plaintiff was inexperienced as a brakeman, that no written or printed rules were furnished him nor in use by the defendant, and that he was not instructed or, cautioned as to dangers incident to his employment. The plaintiff was discharging various duties as brakeman on the train, sometimes being in the coach and sometimes on the engine. The trained reached Wilson siding about dark and stopped to unload some freight. Plaintiff helped in the discharge of this duty, and when the freight had been unloaded, the conductor signaled the train forward. Plaintiff, in order to he in front, to change the switch at next station, undertook to mount the tender. The train was moving at the rate of three or foui-miles an hour. He could not mount the engine, because there was no step. A boy who was permitted to go on the train was also standing in his way. Plaintiff then caught the grab-iron on the tender and undertook to get on board by means of the step on the tender. There was but one step on the tender, which was 30 inches from the ground. The first effort resulted in his foot slipping off. He made a second effort, with the same result, and his foot that time slipped from the edge of the tender step, there being no side to the step or guard to prevent it. A hose sprinkler was leaking. From this cause the step was wet and covered with ice. The wheel was just a few inches from the rear of this step, and plaintiff’s foot when it slipped a second time passed in front of the wheel and was crushed between the wheel and iron rail. It was getting dark, and plaintiff did not know that ice was on the steps at that time. When the train started out that afternoon the superintendent had told the boy to knock the ice off, saying “some one was going to get their neck broke”; but the ice had not been removed.

There was also evidence that the defendant was using an old second-hand engine, that there was a grab-iron on the engine for the use of those mounting it, but no step on the engine. There was also evidence by experienced engineers that prior to the time of this injury steps for mounting engines and tenders were in general use which were made of iron with sides and backs to them, so that the foot when placed therein would not *585slip out. There is also evidence that such a step was in use on the only other engine on this road, and two steps on its tender. There is also evidence that this tender step was too high; that there was but one step 26 inches above the cross-ties and 30 inches from the ground; that it was dangerous, defective, and not a safe appliance; that it had no back to protect the foot from slipping through and no side-guards or pieces to keep the foot from slipping off; that it was á wooden step worn so that it was beveled, which caused it to slant; that the hose used by defendant for sprinkling the coal had been carelessly left above the step; that it was leaking, and the water dripping therefrom had frozen on the step, making it dangerous.

The defendant contended that the plaintiff was guilty of contributory negligence in that he failed to take hold of both grab-irons at the same time, which the defendant contended was the proper way. But it did not contend that the plaintiff had ever been instructed or warned by it to board the train in that way. The defendant also offered evidence that the plaintiff was a rear brakeman and should not have attempted to board the engine or tender, but offered no explanation of the fact that prior to the injury he had frequently ridden on the engine with the conductor without reproof.

TJpon all the evidence the case was properly submitted to the jury under a charge which followed our well-settled precedents, and the jury found that there was negligence on the part of the defendant and that the plaintiff was not guilty of contributory negligence.

There was no issue as to assumption of risk, and this Court has held in Coley v. R. R., 128 N. C., 534; s. c., 129 N. C., 407, and Biles v. R. R., 139 N. C., 532, that under the fellow-servant law, Bevisal, 2646, assumption of risk is not open to the defendant where the injury was proximately caused by defective ways or appliances.

Every phase of the contention of the parties in the case has been so often before the Court, and the judge in his charge and his rulings upon the evidence has so carefully followed the precedents, that it would serve no useful purpose to go over the *586exceptions in detail and reiterate our former rulings. No new proposition of law nor new application of an old one is presented.

Tbe last exception is that the jury did not remain out more than twenty minutes before bringing in their verdict. The case had doubtless been so fully,' carefully, and indeed minutely, presented to their consideration in' every aspect by the able counsel in the cause, both in' presenting the testimony and in arguing the case, as well as by the lucid instructions of his Honor, that the jury doubtless thoroughly understood the points at issue and did not need more time. Of that they are usually the best judges. We know of no rule by which this Court can estimate the time, or lay down a rule, as to how long a jury shall remain in consultation before bringing in their verdict. Of course, if there was misconduct on the part of the jury or a contemptuous or flippant disregard of their duties in considering a matter submitted to them, the trial judge is intrusted with the power and the duty to rebuke them and either send them back to reconsider the case or to set aside their verdict. But this is a matter which is left to his sound discretion, and cannot be intelligently reviewed by this Court.

No error.