#### A. B. ENSLEY v. SYLVA LUMBER AND MANUFACTURING COMPANY.

(Filed 27 May, 1914.)

1. Master and Servant — Negligence—Duty of Master — Safe Appliances — Unskilled Servant — Minors—Duty to Instruct — Dangerous Machinery.

In addition to the ordinary duty of the master to furnish his servant a reasonably safe place to work and reasonably safe tools and appliances with which to do it, it is required, when’he has known or should have known that he had employed an inexperienced and youthful person to work at a power-driven and dangerous machine, that he give instructions to such employee • relative to the method of avoiding the dangers and operating the machine in safety, and he is liable in damages to the employee for a personal injury which has been directly and proximately caused him by the neglect of this duty.

2. Same — Trials—Evidence—Questions for Jury.

. The failure of the master to instruct a youthful employee as to the safe methods of operating a power-driven and dangerous machine will not of itself necessarily fix liability on the master, for if, notwithstanding, the employee had sufficient knowledge, or if, making proper allowance for his youth or inexperience, he acted without reasonable care, and in such manner as to negligently have brought the injury upon himself, the- master is riot liable, the question raised being one of fact to be determined by the jury, with the burden of proof on the plaintiff.

*6883. Same — Contributory Negligence — Proximate Cause.

The plaintiff:, 17 years of age, at the request of his father, was employed by the defendant company to work at its mill, and the officer of the defendant was informed that the plaintiff was young and inexperienced, and promised that the work intrusted to him should be done on the yard, outside the mill, where its character was less dangerous; but soon thereafter the plaintiff was ordered to work on the inside of the factory as “tailer” for a power-driven moulder machine, concerning the operation of which and its mechanical construction he had no knowledge. The next day the plank was stopped by a splinter of hard wood, and the plaintiff was told to raise the speeder bar, which he did, and then, in ignorance of the danger, and by reason of his inexperience, put his hand into the machine, and it was forced against the knives by the suction used to carry off the shavings,' to his serious injury: Held, the employment of the plaintiff, a boy of 17 years, was not negligence per se of the defendant, but that the injury, even if not directly received in the course of plaintiff’s employment, was so directly connected therewith, if proximately caused by the defendant’s negligence in employing' him, as to make the defendant liable; and the question of plaintiff’s contributory negligence was properly left to the jury under correct instructions, as also the matter of proximate cause.

Appeal by defendant from Ferguson, Jat October Term, 1913, of JacksoN.

Action to recover damages for injuries alleged to have been caused by defendant’s negligence. Plaintiff, at tbe time 16 or 17 years old, was employed by defendant, witb tbe j>romise of tbe manager that be should work outside tbe mill in a safe place. He was ordered to go inside tbe mill and tail tbe moulder, wbicb appears to be a dangerous machine to one not familiar witb its construction and operation, and was severely injured tbe next day by having bis band caught in tbe knives of the moulder.

Plaintiff testified: “I am the plaintiff in this action. Up to tbe time of tbe injury, I lived witb my father and helped on tbe farm. I never bad been about machinery. I reported for work to "Will Oliver, defendant’s foreman, on tbe morning of 5 July, 1906. He put me to loading lumber on a car on tbe yard. About 10 o’clock be instructed me to go inside tbe building and work at tbe moulding machine. I didn’t know what a moulding ma*689chine was. I. asked one of the men what he wanted me to do, and he said keep the lumber up and keep it graded. I said I didn’t know anything about grading it, but I could keep it up. I went to work tailing the moulder. I never had seen a moulder. • No one made a statement to me about the danger of the machine. Joe Davis was feeding the machine at the time.' I was to receive the lumber after it came out of the machine. No one was working at the machine except Davis and myself. The machine was run by steam power. The knives where I got cut make, about 3,500 revolutions a minute. They were about one-eighth inch above the surface of the machine. They were not explained to me, and I had never seen the machine stopped,' and it looked just like a solid piece of iron. I was hurt the next day about 2 o’clock; had been working at the machine about fourteen hours. The machine had-two knives. About 2 o’clock on the second day we were cutting a piece of ceiling and I didn’t know anything about how ceiling had to be dressed. I was a green man there. We let about 500 feet go through with just the top bead cut. Oliver came along about 1 o’clock and saw it, and began rearing on me; cursed me because I let it run through there wrong. I asked him why he didn’t show me how it was to be cut. I said he never showed me anything. About 2 o’clock there was a faulty piece of lumber coming through, and the bits or knives took too much hold on the lumber. A big splinter got hung over the knives. I didn’t know the knives were there. It stopped the board from coming through. I motioned to Davis, gave him a signal that there was something wrong. He stopped the feed and motioned to me to loose the pressure bar over the knives. • I did so. He started around to where I was, but before 'he got to me I stuck my hand in after the splinter. There is a suction pipe that carries the shavings to the boiler room for fuel. The suction pipe jerked my hand into the knives. I didn’t know the suction pipe was there. I hadn’t been told it was there. Nobody had told me the knives were there, and I couldn’t see them. I had never seen the knives. There was nothing over the knives to protect except the pressure bar and a board some *6905 inches above the bar; no Lood. I jerked my band out and fell back in Mr. Davis’s arms. I said: ‘My band is all cut up; send for tbe doctor; don’t let me bleed to death; you ought to have told me about those knives being there. I didn’t know the knives were there.’ ”

His father, J. B. Ensley, testified: “I asked McKee to give him (my son) work on the outside of the building where there wasn’t any machinery; that my son was young and awkward and didn’t know anything about machinery. McKee said he would try to do so, or would do so. That is about all the contract there was to it. The company was handling and sawing logs outside of the building. McKee said he would give him work on the outside. He was injured the second day after he went to work; went to work one day and was injured about 2 o’clock the next day. His hand was torn up and two of his fingers cut off'. It was bloody and looked like it was cut all to pieces.”

There was testimony for the defendant tending to show that the injury was not caused by any negligence on its'part, but by plaintiff’s own negligence, and the conflicting evidence was submitted to the jury by the court to find the facts. The jury returned the following verdict:

1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint ? Answer: Yes.

2. Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? Answer: No.

3. Did the plaintiff assume the risk of approaching the machinery and putting his hand in the box containing the knives, as alleged in the answer? Answer: No.

4. What damages, if any, is the plaintiff entitled to recover? Answer: Two thousand dollars ($2,000).

Judgment thereon, and appeal by defendant.

Walter E. Moore, McCall & Bennett, and 8. Brown Shepherd for plaintiff.

C. C. Cowan and Manning & Kitchin for defendant.

*691Waleer, J.,

after stating the ease: The plaintiff alleges that he was young and inexperienced, not having worked in a mill before; that for this reason his father had requested the defendant to give him work to do outside the machinery room, which the latter promised to do, but which it failed to do, but, on- the contrary, he was ordered to work in the building and was required to tail at a moulding machine, which means that he had to receive the lumber from the moulder after it was dressed by being passed through it. In operating the machine and doing the work of tailing, it was proper and usual to stand about 4 feet from it; but on the day of the injury a large splinter or faulty piece of lumber caused the bits or knives to grip it too tightly; the splinter hung on the knives and stopped the lumber. At this time he called to Davis, who stopped the feed and told him to loosen the pressure bar over the knives, which he did, and then put his hand in and reached for the splinter to remove it, when the suction from the pipe that carries the shavings to the boiler drew his hand to the knives, and he was badly cut by them. He says: “I did not know the knives were there, nor did I know the suction pipe was there.” There was no shield or hood over the knives.

The case has been argued before us upon the theory that there was no negligence of the defendant, and that plaintiff assumed the risk of his employment, or was guilty of contributory negligence when he undertook to stop the machine and thrust his hand into it for the purpose of doing so, and further, that he was not acting within the scope of his duties when he did so.

It is the duty of the master to exercise due care in furnishing his servant with a reasonably safe place to work and reasonably safe and proper machines, tools, and appliances with which to do the work, and, in the case of youthful or inexperienced employees, this further duty rests upon him: Where the master knows, or ought to know, the dangers of the employment, and knows, or ought to know, that the servant, by reason of his immature years or inexperience, is ignorant of or unable to appreciate such dangers, it is his duty to give him such instruction and warning of the dangerous character of the employment as *692may reasonably enable Him to understand, its perils.. But tbe mere fact of tbe servant’s minority-does not charge tbe master witb tbe duty to warn and instruct him, if be in fact knows and 'appreciates tbe dangers of tbe employment; and generally it is for tbe jury to determine whether, under all tbe circumstances, it was incumbent upon tbe master to give tbe minor, at tbe time of bis employment, or at some time previous to tbe injury, instructions regarding tbe dangers of tbe work, and bow be could safely perform it. It is tbe duty of a master who employs a servant in a place of danger to give bim such warning and instruction as is reasonably required by bis youth, inexperience, or want of capacity, and as will enable bim, witb tbe exercise of reasonable care, to perform tbe duties of bis employment witb reasonable safety to himself. 26 Cyc., 1114-1178; Turner v. Lumber Co., 119 N. C., 387; Marcus v. Loan, 133 N. C., 54; Walters v. Sash and Blind Co., 154 N. C., 323; Fitzgerald v. Furniture Co., 131 N. C., 636; Bolin v. Tobacco Co., 141 N. C., ‘ 300; Leathers v. Tobacco Co., 144 N. C., 350. Those cases fairly illustrate tbe rule as it has been applied by this Court, and tbe Fitzgerald case would seem to be essentially tbe same in its salient facts as this one, and if not entirely so, there is a sufficient likeness between them to make it a controlling authority. Tbe authorities elsewhere are in harmony witb our decisions.

“Tbe master may also be guilty of actionable negligence in exposing persons to perils in bis service which, though open to observation, they, by reason of their youth or inexperience, do not fully understand and appreciate, and in consequence of which they are injured. Such cases occur most frequently in tbe employment of infants. Tbe duty of tbe employer to take special cautions in such cases has sometimes been emphatically asserted by tbe courts.” Cooley on Torts, p. 652.

“Tbe law puts upon a master, when be takes an infant into bis service, tbe duty of explaining to bim fully tbe hazards and dangers connected witb tbe business, and of instructing bim bow to avoid them. Nor is this all: tbe master will not have discharged bis duty in this regard unless tbe instructions and precautions given are so graduated to tbe youth, ignorance, and in*693experience of tbe servant as to make him fully.aware of the danger to him, and to place him, with reference to it, in substantially the same state as if he were an adult.” Thompson on Negligence, 918.

“When the negligent act of the defendant naturally induced or offered opportunity for the subsequent act of a child, being of a character common to youthful indiscretion, and which, concurring with the defendant’s earlier wrongful act, produced the injuries complained of, the defendant will in general be held liable. Children, wherever they go, must be expected to act upon childish instincts and impulses. — a fact which all persons who are sui juris must consider, and take precautions accordingly. A person who places in the hands of a child an article of a dangerous character and one likely to do an injury to the child itself or to others, is liable in damages for injury resulting which is a natural result of the original wrong, though there may be an intervening agency (of the child) between the defendant's act and the injury.” Bailey on Personal Injuries, 1291.

It was said in R. R. v. Fort, 84 U. S., 553, in which a parent was suing for injuries to his son, who wa§ 16 years old: “This boy occupied a very different position (from an adult). How could he be expected to know the peril of the undertaking? He was a mere youth without experience, not familiar with machinery. Not being able to judge for himself, he had a right to rely on the judgment of Collett, and doubtless entered upon the execution of the order without apprehension of danger. Be this as it may, it was a wrongful act on the part of Collett to order a boy of his age and inexperience to do a' thing which, in its very nature, was perilous, and which any man of ordinary sagacity would know to be so.”

It appeared in Lynch v. Nurdin, 41 E. C. L. Rep., 422, that the defendant’s servant had left a horse and cart unhitched on the street, and plaintiff, with other children, was playing with the horse and climbing into the cart, when the horse moved away and injured him. The defendant set up the same defense as does the defendant in this case, that the minor had brought *694tbe injury upon bimself by bis own negligence and reckless act, but Lord Denman, tbe Obief Justice of tbe King’s Bench, after discussing tbe careless act of leaving tbe borse unbitcbed, said: “But tbe question remains, Can tbe plaintiff, tben, consistently witb tbe authorities, maintain bis action, having been at least equally in'fault? Tbe answer is that, supposing that fact ascertained by tbe jury, but to this extent, that be merely indulged tbe instinct of a child in amusing bimself witb tbe empty cart and deseited borse, tben we think that tbe defendant cannot avail bimself , of that fact. Tbe most blamable carelessness -of bis servant having tempted tbe child, be ought not to reproach tbe child witb yielding to that temptation. He has been tbe real and only cause of tbe mischief. He has been deficient in ordinary care; tbe child, acting without prudence or thought, has, however, shown these qualities in as great a degree as be could be expected to possess them.”

Tbe general principle is well stated and tersely applied in Iron Co. v. Green, 65 S. W. Rep. (Tenn.), 399, where .the same defense was made, as here, that tbe plaintiff’s wrongful employment of tbe child was not tbe proximate cause of tbe injury, and tbe Court said: “Defendant bad no right to employ this minor. While in its employment on its premises and foolishly playing witb panels, tbe property of tbe company, too heavy for bis strength to bold, yet witb boyish beedlessness disregarding this fact, this injury is inflicted upon him. Had be not been employed by this defendant, theie is no reason to suppose that be would have been on its premises when tbe temptation occurred to him to prank witb these panels to bis serious hurt. In each of tbe propositions presented by tbe respective parties to tbe suit we think there is causal'connection between tbe employment and tbe injury.”

Of course, we do not bold that tbe employment of tbe boy was negligence per se merely because be was under age, but tbe principles of those cases apply for tbe reason that, as tbe evidence shows, tbe father of tbe boy bad warned tbe defendant, not only of bis youth, but of bis inexperience as well, and exacted a promise that be would not be employed in tbe building *695about dangerous machinery, and after receiving this precautionary request and agreeing to comply with it, defendant violated the promise (Hanie v. Power Co., 151 N. C., 503), and, besides, exposed this inexperienced youth to the dangers of the machinery without any instructions as to what they were or as to how he could avoid them. It cannot, therefore, be heard to say, if we follow established principles in the law of negligence, that the injury is to be imputed to his own fault, when his alleged negligent act was directly induced by its own negligence in failing to take proper care of him when thus exposed to danger.

Discussing the analogy between the duties of employers to youthful employees and the- duty owing to those who are inexperienced, 1 Shearman and Redfield on Negligence (6 Ed.), sec. 219 and 219 a, thus states the rule applicable to both of these relations: “It is the duty of one who employs young persons in his service to take notice of their apparent £tge and ability, and to use ordinary care to protect them from risks which they cannot properly appreciate, and to which they ought not to be exposed. This is a duty which cannot be delegated; and any failure to perform it leaves the master subject to the same liability, with respect to such risks, as if the child were not a servant. For this purpose, the master must instruct such young servants in their work and warn them against the dangers to which it exposes them, and he must put this warning in such plain language as to be sure that they understand it and appreciate the danger. . . . The principles governing the employment of minors are, to a large degree, also applicable to the employment of inexperienced, ignorant, feeble, or incompetent servants. A master having notice of any such defect in a servant, no matter what his age may be, is bound to use ordinary care to instruct the inexperienced or ignorant and to avoid putting the feeble to work too heavy for their strength, and generally to refrain from exposing them to risks which they are not fit to encounter. When the master has notice of such ignorance or inexperience on the part of the servant as would make the ordinary risks of the business especially perilous to that serv*696ant, be must give tbe servant explicit warning of tbe danger, and not allow bim to undertake tbe work without a full explanation of its perils.” •

It will be seen, therefore, that tbe duty of tbe employer in both cases is practically tbe same. If tbe particular act of removing tbe splinter so as to start tbe machine again was not strictly within tbe scope of 'the boy’s duty, it was not such a departure from it as to disconnect or insulate tbe prior negligence of tbe defendant from tbe injury, and it was due altogether to the youth and inexperience of tbe boy and tbe lack of proper instruction as to tbe dangers to be anticipated and avoided in handling tbe moulder. “Where there is evidence tending to show that an injured employee did not have a reasonably safe place to work, or was not instructed as to tbe danger attending tbe act be was told to do, tbe question whether it was a reasonably safe place to work or whether tbe failure to warn bim of tbe danger was tbe proximate cause of tbe injury, should be submitted to tbe jury. Tbe evidence that there was a safe way to do this act did not warrant tbe withdrawal of tbe case from tbe jury, in view of tbe evidence in tbe case. When more than one inference- can be drawn as to tbe negligence, or tbe proximate cause, it is for tbe jury to determine. Dorsett v. Manufacturing Co., 131 N. C., 254; Marks v. Cotton Mills, 138 N. C., 401.” Holton v. Lumber Co., 152 N. C., 68.

We have carefully examined tbe charge of tbe court, and find it to be in strict accordance with tbe law of tbe case as now declared by us. Tbe court fully instructed tbe jury as to tbe duty of tbe defendant toward tbe plaintiff, and as to tbe latter’s measure of duty to himself, considering bis age and capacity for taking care of himself and avoiding danger. Tbe charge, in all'respects, was “sound and judicious” and presented tbe case to tbe jury clearly and correctly in every conceivable phase of it. It was for tbe jury to find tbe facts and apply tbe law as given to them by tbe court, and we can see no reason for interfering with tbe result.

No error.