#### GILBERT COOK, Administrator of L. C. TOLLEY, v. CRANBERRY FURNACE COMPANY.

(Filed 20 November, 1912.)

1. Master and Servant — Dangerous Instrumentalities — Dynamite— Safe Place to Work — Inspection—Negligence—Evidence—Proximate Cause — Questions for Jury.

When the master employs a servant to blast in his mine, it is his duty to make this mine as reasonably safe to work in as is practicable in such a dangerous vocation; and when, in an action to recover damages for a death wrongfully inflicted therein, there is evidence tending to show that the death was caused from a “failed hole,” loaded with dynamite, which should have theretofore exploded with other charged holes of like character, and the drill boss failed in his duty to have inspected the mines for such “failed holes,” and, contrary to liis duty, permitted the deceased to select a place for drilling which resulted in his exploding one of them, it is sufficient to be submitted to the jury upon the issue of defendant’s negligence, and it is for them to find whether this negligence of the defendant was the proximate cause of the injury under the circumstances.

2. Master and Servant — Contributory Negligence — Pleadings—Burden of Proof — Issues—Instructions.

When in an action for damages for the wrongful killing of plaintiff’s intestate the issues of negligence and contributory negligence are presented, the latter upon the theory that the deceased met his death while acting in disobedience of the defendant’s orders, as the proximate cause, requested instructions which refer this element of defense to the issue as to negligence are properly refused, as it is the duty of the defendant to plead such matters, and prove them under the issue of contributory negligence, unless it is proven by the testimony of the plaintiff.

Appeal by defendant from Adams, J., at Spring Term, 1912, of AVERY.

Civil action. These issues were submitted:

*401. Was tbe plaintiff’s intestate killed by tbe negligence of tbe defendant, as alleged in tbe complaint ? Answer: Yes.

2. Did tbe plaintiff’s intestate by bis own negligence contribute to tbe injury resulting in bis death? Answer: No.

3. Wbat damage, if any, is plaintiff entitled to recover? Answer: Tbirty-five hundred dollars ($3,500).

From tbe judgment rendered defendant appealed.

J. W. Ragland, F. A. Linney for plaintiff.

S. J. Frvin, Harrison Baird for defendant.

BeowN, J.

Tbe counsel for defendant in their brief state that “tbe only exceptions which will be argued are tbe third, which is to tbe refusal of defendant’s motion for judgment of nonsuit, and tbe fourth, fifth, sixth, seventh,‘and eighth, to the refusal of tbe defendants’ special requests for instructions, and to tbe action of tbe trial judge in refusing to give and apply such portions of these requests as were given, to tbe first issue.”

1. In our opinion, tbe motion to nonsuit was properly denied. Tbe defendant admits in its answer that it owed a duty to tbe plaintiff’s intestate to take reasonable precautions to prevent injury and to inspect tbe places where blasting was done, and to examine boles which bad been charged with dynamite and failed to go off.

Tbe evidence shows that tbe deceased was killed by an explosion of wbat is called a “failed bole,” which is a bole in which dynamite has been loaded and fails to explode with tbe general explosion. Tbe evidence of Stokes Freeman proves that it was bis duty as drill boss to make an inspection every day of tbe boles in tbe mine which bad failed to explode. He testifies that be did not make inspection of tbe boles in tbe morning-before tbe deceased was killed.

This witness further testifies that it was bis duty to locate three boles for tbe deceased to drill, but that be failed to do so; that be selected two boles only and left tbe deceased and Pender Tolley to locate tbe other, bole.

There is no evidence throwing any light upon bow tbe deceased happened to strike tbe “failed bole,” whether accidentally in locating tbe third bole or not. Tbe deceased bad tbe right *41to suppose tbat tbe inspection bad been made and tbat tbe drill boss bad located all tbe “failed boles,” and tbat be would be warned of tbeir proximity.

Tbe decisions of tbis Court bave settled tbe question tbat tbe defendant owed a duty to tbe deceased to make tbis mine as reasonably safe to work in as is practicable in sucb a dangerous vocation; tbat its drill boss failed in bis duty in making tbe proper inspection and search for “failed boles” on tbe morning of tbe disaster is an admitted fact. Whether sucb negligence was tbe proximate cause of tbe injury, tbe court properly left to tbe jury under tbe circumstances of tbis case.

2. Tbe prayers for instruction referred to in our opinion relate exclusively to tbe question of contributory negligence. For some reason which is not apparent to us, tbe learned counsel for tbe defendant insist that they be directed to tbe first issue, and in refusing to so apply them, we think bis Honor was correct.

Contributory negligence under our statute is a matter of defense, and tbe burden of proof is placed upon tbe defendant to establish it unless it is proven by tbe testimony offered in behalf of tbe plaintiff. Tbe allegation of contributory negligence in tbis case consists in an averment tbat tbe deceased disobeyed tbe orders of bis superior and that sucb disobedience was tbe proximate cause of bis death.

In Hicks v. Manufacturing Co., 138 N. C., 326, we said: “Tbis entire matter as to disobedience of orders and its effect should more properly be submitted under tbe issue of contributory negligence where tbe burden of proof can be placed on tbe defendant as required by tbe statute.”

We think, however, upon tbe second issue bis Honor gave tbe defendant in tbe matter of instructions all tbat it was entitled to when be instructed tbe jury in these words:

> “As to these matters, tbe court charges tbat if- you find by tbe greater weight of tbe evidence tbat tbe plaintiff’s intestate was doing bis work subject to tbe orders of tbe drill foreman, and tbat tbe drill foreman gave him instructions not to use tbe failed bole in tbe mine, and tbat tbe intestate, in violation of tbe orders of tbe drill foreman, drilled into a failed bole which *42was charged with dynamite or giant powder, and thereby caused the dynamite or powder to explode and kill him, and that he would not have been killed except for such disobedience of orders, you will in that event find that his failure to obey the instructions given was the proximate cause of his death, and your answer to the second issue will be 'Yes.’ ”

Upon a review of the whole record, we find

No error.