#### T. H. PIGFORD v. NORFOLK SOUTHERN RAILROAD COMPANY.

(Filed 25 September, 1912.)

1. Master and Servant — Dangerous Work — Sufficient Help — Contributory Negligence — Assumption of Risks.

A servant is not barred of bis recovery against tbe master, in bis action to recover damages for an injury negligently inflicted, because be continues to do tbe dangerous work wbicb occasioned tbe injury, unless tbe danger of bis doing so is so obvious and imminent that be therein fails to exercise that degree of care for bis own safety that be should have done under the rule of the prudent man.

2. Master and Servant — Dangerous Work — Master’s Negligence— Assumption of Risks — Proximate Cause.

When a servant is injured within tbe scope of his dangerous employment by a negligent act of tbe master in not furnishing him sufficient and competent assistance, and tbe master’s negligence is tbe proximate cause of the injury inflicted, tbe servant is not held to have assumed the risk of tbe master’s negligent act; and bis action is not barred unless bis own negligence contributed to tbe injury as the proximate cause. Revisal, sec. 2646.

3. Master and Servant — Contributory Negligence — Assumption of Risks — Mixed Law and Fact — Questions for Jury.

Upon issues of negligence, contributory negligence, and assump- „ tion of risks, no invariable rule of law can be laid down wbicb *94will be fully controlling, as the issues are usually of mixed law and fact, but only general principles to guide the jury in applying the evidence to the issues of the particular case under their consideration.

4. Master and Servant — Assumption of Risks — Contributory Negligence — Burden of Proof — Interpretation of Statutes.

While there is a marked distinction between the doctrines of assumption of risks and contributory negligence, it is proper, in pertinent cases, to consider the application of the law relating to an assumption of risk under the issue of contributory negligence, with the burden of proof on the defendant pleading it. Revisal, sec. 483.

5. Master and Servant — Dangerous Work — Proper Help — Duty of Master — Delegated Authority — Respondeat Superior.

The duty of the master to provide the servant with reasonably safe means and methods of work, such as proper assistance for performing his task, as well as a safe place and proper tools and appliances for the purpose, is one which he cannot delegate to another and escape responsibility.

6. Master and Servant — Dangerous Work — Relative Duties — Rule of Prudent Man — Negligence — Contributory Negligence — Assumption of Risks.

In measuring the extent of the master’s duty to the servant in furnishing safe methods, reasonable assistance, etc., for the latter to do dangerous work entrusted to him, the jury should consider their situation and opportunities, their comparative ability to know and realize the attendant perils and dangers, and all matters pertinent to the principal qu'estion of negligence and its proximity to the injury inflicted, under the rule of the prudent man.

7. Master and Servant — Dangerous Work — Insufficient Help — Simple Appliances — Contributory Negligence — Assumption of Risks.

The plaintiff was injured while employed by the defendant to help load a gondola car with iron rail. There was evidence tending to show that the rails had been crooked or twisted in a wreck, so as to make them more difficult to handle in loading, and that plaintiff asked his supervisor or superior officer for more help, and was told to go ahead and do the best he could with the help which had been furnished; that the plaintiff was injured in consequence by the turning of a crooked rail while he was loading it: Held,, it was -not necessary that the work should have been of a complicated character for the jury to find the defendant negligent under the evidence in this ease.

*958. Witnesses, Expert — Hypothetical Question — Sufficiency.

A hypothetical question asked an expert witness which substantially combines all of the facts and is sufficiently explicit for him to give an intelligent and safe opinion, which would justify a finding of all of these facts by the jury, is sufficient.

9. Attorney and Client — Jury—Improper Remarks — Prejudice—Appeal and Error.

For improper remarks made by opposing counsel while addressing the jury to be held for reversible error on appeal, it must appear that they have prejudiced the objecting party.

Appeal by defendant from Justice, J., at April Term, 1912, of CRAVEN.

Action for injuries alleged to have been caused by negligence. Plaintiff was employed by defendant and, at tbe time be was burt, was instructed by J. D. Spradlin, tbe supervisor and bis superior officer, to load a gondola car witb iron rails, wbieb bad been twisted and bent in a wreck and were very crooked. Defendant told Spradlin tbat be would want more belp. Tbe situation may be better described in bis .own words: “I told bim I would want more belp. I told bim I bad three men and my boy working witb me, and I didn’t tbink I bad belp enough to load it. He said, 'Go and try; do tbe best you can; it is tbe engineer’s orders.’ I went down and tried to load it, but I could not, and got burt. We were loading up tbe rail on a slide; tbat car was about 7 feet high. We bad laid some pieces of rail for a slide, and was putting it up tbat way. Tbe rail was top-beavy. I was in tbe center of it, and we got it up about 4 feet high, and it turned over on me, and I felt something tear loose. I bad bold of tbe rail.

“Q. Why did something tear loose? A. Because I was bold-ing tbe rail with all my strength; tbat is about all. I got burt, and we laid tbe rail down on tbe ground.

“Q. State why you got burt. A. Because I was trying to bold tbe rail; it was crooked and tbe rail was about to turn over in tbe center — about to fall; both ends were about to fall, and if it fell it would turn over on tbe men, and I got burt because I was trying to bold it up in tbat position” (indicating what be meant).

*96Plaintiff suffered a rupture, which, was progressive in its nature, and resulted in serious and permanent injury. After he was first hurt, Spradlin furnished the help asked for, and he then performed the work assigned to him. Three issues were submitted to the jury as to negligence, contributory negligence, and damages. There was nothing- said in the answer, nor was there any issue, as to, assumption of risk. The court charged the jury as to the duty of defendant to provide for its employees reasonably safe means and sufficient help to perform his work, and that if it had failed in this duty — the special act of negligence being the failure .to furnish necessary or adequate help — and this- was the proximate cause of plaintiff’s injury, they would answer the first issue “Yes”; and that if plaintiff undertook to do the work, after Spradlin had failed, upon proper application, to give him more help, and that a man of ordinary prudence would not have undertaken the performance of the task under the circumstances, or if plaintiff did not exercise ordinary care in the manner of doing the work, and either act of carelessness proximately caused the injury, they would answer the second issue “Yes,” the burden as to the first issue being upon the plaintiff, and as to the second, upon the defendant. There was a verdict for plaintiff, and defendant appealed from the judgment thereon.

Guión & Guión a/nd D. L. Ward for plaintiff.

Moore & Dunn for defendant.

Walker, J\,

after stating the ease: The duty of the defendant to supply help sufficient for the safe performance of the work allotted to the plaintiff is not questioned by the appellant, but it is contended that if it failed to do so, the plaintiff was guilty of such negligence in going on with the work, after the refusal to comply with his request, as bars his recovery, it being an act of contributory negligence on his part, which was the proximate cause of the injury to him. We cannot assent to this proposition, except in a qualified sense. The doctrine of assumption of risk is dependent upon the servant’s knowledge of the dangers incident to his employment and the ordinary risks he is presumed to know. But extraordinary risks, created by the *97master’s negligence,' if be knows of them, will not defeat a recovery, should be remain in tbe service, unless tbe danger to wbieb be is exposed thereby is so obvious and imminent that tbe servant cannot help seeing and understanding it fully, if be uses due care and precaution, and be fails, under tbe circumstances, to exercise that degree of care -for bis own safety wbieb is characteristic of the ordinarily prudent man. 26 Oyc., 1196-1203. We consider tbe rule.to have been settled by this Court in Pressly v. Yarn Mills, 138 N. C., 410, and subsequent decisions approving it.. Justice Hoke, for tbe Court, in that ease, approving what bad formerly been decided in Hicks v. Manufacturing Co., gave this clear statement of tbe rule, as deduced from tbe authorities: “While tbe employee assumes all tbe ordinary risks incident to bis employment, be does not assume tbe risk of defective machinery and appliances due to tbe employer’s negligence. These are usually considered as extraordinary risks which tbe employees do not assume, unless tbe defect attributable to tbe employer’s negligence is obvious and so immediately dangerous that no prudent man would continue to work on and incur tbe attendant risks. This is, in effect, referring tbe question of assumption of risk, where tbe injury is caused by tbe negligent failure of tbe employer to furnish a safe and suitable appliance, to tbe principles of contributory negligence; but it is usual and in most cases desirable to submit this question to tbe jury on a separate issue as to assumption of risk, as was done in this case. When tbe matter is for tbe jury to determine on tbe evidence, it may be well to submit this question to their consideration on tbe standard of tbe prudent man, in terms as indicated above. Tbe charge on tbe third issue substantially does this, and tbe language" used is sanctioned by tbe authorities,” citing Sims v. Lindsay, 122 N. C., 678; Lloyd v. Hanes, 126 N. C., 359; Coley v. R. R., 129 N. C., 407; Marks v. Cotton Mills, 135 N. C., 287.

There is a clearly marked line of divide between assumption of risk and contributory negligence, tbe former being confined to tbe ordinary perils of tbe service, and tbe servant could not be held by bis contract, or upon any other ground, at least, in a technical sense, to have assumed tbe risk of bis master’s negli*98gence, as tbe contractual relation is tbe other way; tbe master impliedly undertaking, by tbe contract of service, to exercise proper care for tbe servant’s safety by selecting reasonably fit and safe tools and appliances, and providing a reasonably safe place and a sufficient and competent force for tbe performance of tbe work, and, perhaps, other duties, not necessary to be .here enumerated. “ ‘He complies with tbe requirements of tbe law in this respect if, in tbe selection of machinery and appliances and tbe employment, of sufficient help, be uses that degree of care which a man of ordinary prudence would use, having regard to bis own safety, if be were supplying them for bis own personal use. It is culpable negligence which makes tbe employer liable, not a mere error of judgment. We believe this is substantially tbe rule which has been recognized as tbe correct one and recommended for our guide in all such cases. It measures accurately the duty of the employer and fixes tbe limit of bis responsibility to bis employee/ citing Harley v. B. C. M. Co., 142 N. Y., 31. So that tbe liability of tbe employer to tbe employee in damages for any injury tbe latter may receive, while engaged in bis work, depends upon whether tbe employer has been negligent. Avery v. Lumber Co., 146 N. C., 592; Barkley v. Waste Co., 147 N. C., 585.” Cotton v. R. R., 149 N. C., 227. If, therefore, tbe master is culpably negligent and tbe servant receives an injury which tbe law will impute to that negligence as its proximate cause, tbe master will be held liable in damages, because tbe master’s breach of duty was not by any means an ordinary peril of tbe service within tbe scope of tbe contract, but an extraordinary one, for which tbe master is liable, unless tbe servant’s own negligence contributed to the injury, and is considered to be its proximate cause. If tbe master, by bis own negligence, baa brought" about a dangerous condition with which tbe servant is confronted, tbe obviousness of tbe danger and tbe impression tbe situation would make upon a man of ordinary prudence and discretion with respect to bis own safety would determine tbe servant’s measure of duty to himself which tbe law will require of him under tbe circumstances, always bearing in mind that as tbe question of negligenee is composed of law and fact, it is diffi*99cult, if not impossible, to extract from the authorities a rule so nicely and comprehensively expressed as to fit all cases. There is no such touchstone in the law by which we can try and test the legal quality of any act of negligence, but with the general principle in hand, each case must be decided upon the facts peculiarly its own.

Subject to the Act of 1897, ch. 56 (Eevisal, sec. 2646), the servant assumes only the ordinary and incidental risks of the service, those which necessarily and naturally, in the course of things, accompany it, and which excludes the idea of any negligence of the master, and if the master negligently injures him, he must show negligence of the servant in order to defeat a recovery.

In several recent cases this question has been considered favorably to the views herein expressed. Justice Allen said in Norris v. Cotton Mills, 154 N. C., 474: “The charge to the jury was, we think, in some respects more favorable to the defendant than it was entitled to, and particularly as to the doctrine of assumption of risk, as the employee never assumes the risk of any injury caused by the failure of the employer to perform a duty which he cannot delegate, and the duty to provide a reasonably safe place to work is one of them.” Hamilton v. Lumber Co., 156 N. C., 519; Pritchett v. R. R., 157 N. C., 88.

It is better for the servant that his case should be decided upon a principle of contributory negligence, as it casts the burden of proof upon the defendant under our law. Pell’s Eevisal, sec. 483.

The defendant contended that when the plaintiff’s request for more help was refused, and he was directed to go on with the work and do the best he could without it, he should have quit the service and not have exposed himself to the danger which resulted in his injury. This would be a harsh rule to apply in such a case. There are many reasons, some humane, why it should not prevail. The master should be fair and just to his servant. It is best for both that he should be so. The latter is entitled to fair treatment, just compensation, proper facilities for doing his work and reasonable care and protection while engaged in it. The servant is not required to retire from the *100service or to refuse to go on with, bis work, unless, as we bave said, tbe danger is obvious, or be knows and appreciates it.. He may know of tbe risk without fully appreciating tbe danger. ’Whether such a situation was presented to him at tbe time- of tbe injury is a question for tbe jury, to be decided generally upon tbe rule of tbe prudent man.

We cannot do better than to reproduce here tbe carefully expressed views (by Justice Solee) in Hamilton v. Lumber Co., 156 N. C., at p. 523, as they seem to be specially applicable to tbe facts of this case:

“On tbe conduct of tbe intestate, while we bave held that our statute, known as tbe Fellow-servant Law, Revisal, sec. 2646, applies to these logging roads, we do not think that tbe terms of tbe law, giving a right of action to an employee injured by reason of defective 'machinery, ways, or appliances,’ refer to conditions as now disclosed in tbe testimony; tbe term 'ways,’ we think, having reference rather to roadways and objective conditions relevant to tbe inquiry and which it is the duty of tbe employer to provide. Tbe negligence, if any, imputable to defendant on tbe testimony,, is by reason of negligent directions given and methods established, by the employer, subjective in their nature and to which tbe statute on tbe facts presented was not intended to apply. It is well understood, however, that an employer of labor may be held responsible for directions given or methods established, of tbe kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N. C., 76; Shaw v. Manufacturing Co., 146 N. C., 235; Jones v. Warehouse Co., 138 N. C., 546, and where such negligence is established, it is further held, in this jurisdiction, that tbe doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475; Tanner v. Lumber Co., 140 N. C., 475), but tbe effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether tbe attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence .should quit the employment rather than incur them. Bissell v. Lumber Co., 152 N. C., 123; and on tbe issues, as to plaintiff’s conduct, *101tbe fact tbat tbe particular service was rendered with tbe knowledge and approval of tbe employer or bis vice principal or under bis express directions, if given, also tbe employee’s reasonable apprehensions of discharge in case of disobedience, etc.,' may be circumstances relevant to tbe inquiry.”

It is as much the duty of tbe master to exercise care in providing tbe servant with reasonably safe means and methods of work, such as proper assistance for performing bis task, as it is to furnish him a safe place and proper tools and appliances. Tbe one is just as much a primary, absolute, and nondelegable duty as tbe other. 'When be entrusts tbe control of bis bands to another,, be thereby appoints him in bis own place, and is responsible for tbe proper exercise of tbe delegated authority, and liable for any abuse of it to tbe same extent as if be bad been personally present and acting in tbat behalf himself. This principle is well settled. Shaw v. Manufacturing Co., 146 N. C., 239; Tanner v. Lumber Co., 140 N. C., 475; Mason v. Machine Works, 28 Fed. Rep., 228; R. R. v. Herbert, 116 U. S., 642; Shines v. Cotton Mills, 151 N. C., 290; Pritchett v. R. R., supra; Holton v. Lumber Co., 152 N. C., 68.

It may be assumed' tbat tbe law does not impose on tbe master any duty to take more care of bis servant than tbe latter should take of himself, their respective obligations in this respect being equal and tbe same — tbat is, to be careful and to adjust their conduct to tbe standard of tbe ordinarily prudent man. In measuring tbe extent of this duty, tbe jury will always consider their situation and opportunities, their comparative ability to know tbe peril of tbe service and to realize tbe attendant danger and any other circumstance shedding light upon tbe main or principal question of negligence and its proximity to tbe injury inflicted.

We cannot say, as matter of law, upon tbe evidence in this case, that tbe danger of continuing to load tbe car with tbe rails upon the slanting skid, without additional help, was such as to bar a recovery. Whether it was so great and obvious tbat no man of ordinary prudence would have gone on with tbe work in its presence was properly submitted- by tbe court to tbe jury, under what we bold to be correct instructions. Tbe charge, *102in every respect, seems to have been as favorable to the defendant as the law permitted or it had any right to expect. The judge would not have been warranted in practically taking the case from the jury by such a peremptory charge upon both of the issues upon negligence as he was requested to give. It was the province of the jury to find the facts, under instructions of the court as to the law. Nor does it make any difference that the work required of the plaintiff was not complicated, but simple in its nature. He was entitled, in any view of it, to a reasonably sufficient squad of hands to help him perform it. In this connection, we may well consider the case of Shaw v. Manufacturing Co., 146 N. C., 235, the facts of which are very similar to those in this case. The plaintiff, Shaw, was told to remove a bed-plate and plunger from one part of the defendant’s mill to another, and reported to the superintendent that he needed a large chain-block for the purpose. His request was refused, and he was directed to do the work with his two small chain-blocks. He protested that they were too small, and again asked for a larger chain-block, but was told to go ahead and use the small ones anyway. Shaw also applied for more help, but none was supplied. With reference- to these facts, this Court, by Justice Brown, said: “The evidence shows (further) that insufficient help was furnished (one man and three inexperienced colored boys), and, upon plaintiff’s protesting that such help was insufficient, Constable said he knew the three boys were not ‘worth a damn,’ but that they were all he had, and he directed plaintiff to go ahead, and promised to furnish more help, which he failed to do. Upon this uncontradicted evidence his Honor would have been justified in charging the jury that, if believed to be true, it proved that the defendant’s superintendent had been undeniably negligent in his duty to plaintiff.” The only difference between the two cases is that in the Shaw case the evidence -was held to be uncontradicted, while in this case it was disputed, and the court left it to the jury to find the facts, and they found that plaintiff’s version was the true one. This assimilates the cases, and they cannot be distinguished upon the ground that in Shaw's case one of the appliances was defective and unusable. The Court lays no *103particular stress upon that fact. Sufficient belp was just as necessary to safeguard tbe servant as flawless implements. Tbe two cases, in tbeir essential and controlling’ facts, are substantially alike, and tbe same rule must govern botb.

Defendant submitted many prayers for instructions. Some of tbem assumed facts as established wbicb were disputed, and others called upon tbe court to treat tbe question of negligence as one of law. Those that were proper in form, and applicable to tbe case, were substantially given. Tbe hypothetical question put to tbe. expert, Dr. Oaton, as to tbe cause of tbe hernia, while, perhaps, not as full as it might have been, combined substantially all tbe facts and was sufficiently explicit for him to give an intelligent and safe opinion. Tbe evidence would justify a finding of those facts by tbe jury. This is sufficient. Summerlin v. R. R., 133 N. C., 551; S. v. Bowman, 78 N. C., 509; S. v. Cole, 94 N. C., 958; S. v. Wilcox, 132 N. C., 1120.

There are other exceptions wbicb, upon a careful review of tbem, we do not think require separate discussion. Tbe central and controlling question relates to tbe conduct of tbe plaintiff in tbe presence of a dangerous situation thrust upon him by defendant’s negligence, in ignoring bis reasonable request for more belp to do tbe work of lifting tbe heavy rails, wbicb was made more difficult by tbeir twisted condition. Plaintiff, nevertheless, attempted to do tbe work by tbe command of tbe defendant’s superintendent and alter ego, Spradlin, who was in authority over him, with power to discharge him for disobedience of tbe order. Tbe jury did not think tbe danger was so obvious or menacing that a man of ordinary prudence would not have faced it in tbe effort to comply with the instruction to go ahead and do tbe best be could with the belp be then had. He was injured seriously in bis endeavor to follow Spradlin’s direction, and tbe jury having further found that it was a negligent order and that plaintiff was without fault, tbe defendant must answer to him in damages for tbe consequent injury.

Tbe delay in bringing tbe suit is, by itself, of no legal -significance. It was a circumstance for tbe jury to consider upon tbe general question, and was explained by the fact that tbe disease produced by tbe injury was almost imperceptibly slow in its progress and development.

*104If tbe remarks of plaintiff’s attorney, in bis address to tbe jury, were improper — tbougb we are not ready to admit it, but ratber tbink tbey were legitimate — it could not, in our view of tbe facts, bave so seriously affected tbe rights of appellant as to call for a reversal. There must be prejudice by tbe offending counsel of one party to bis adversary’s rights; to induce us to reverse. What counsel said was entirely too mild to hurt, even if it bad been not altogether fair in forensic debate, when some latitude must be indulged for tbe undue beat of argument and tbe excited zeal of counsel, and sometimes tbey must give and take, if there is no gross abuse of privilege. S. v. Underwood, 77 N. C., 502; S. v. Bryan, 89 N. C., 531; S. v. Suggs, ibid., 527; Devries v. Phillips, 63 N. C., 53; S. v. Tyson, 133 N. C., 692; Railway v. Wette, 68 Texas, 295.

We. bave- given good heed to tbe able and learned brief and oral argument of tbe defendant’s counsel, Mr. Moore; but after all has been said, and duly considered, we are unable to say that any error in the case has been discovered.

No error.