#### J. B. FORSYTH v. THE ZEBULON COTTON OIL MILL COMPANY.

(Filed 5 November, 1914.)

‘1. Trials — Verdict, Directing — Evidence.

A verdict cannot be directed in favor of a plaintiff where tbe evidence is conflicting and therefrom the jury may find contrary to the plaintiff’s contention, or where there is evidence which will justify them in drawing an inference in defendant’s favor.

2. Master and Servant — Safe Place to Work — Negligence—Trials—Evidence —Questions for Jury.

Negligence is necessarily a relative term, depending upon the circumstances of each particular case, and the courts will not decide, as a matter of law, the question of negligence, where from the evidence the jury are justified in reaching a conclusion in favor of either the plaintiff or defendant; and where a plaintiff was an employee in the cotton-seed room of a defendant mill, to put cotton seed in a seed conveyor, where he had *180worked for several weeks, and there is evidence tending to show that the conditions were such that the seed were necessarily piled high in this room for the purposes of storing and feeding the conveyor.; that at the time of the injury these seed were piled so high that in leaving his work the plaintiff crawled between the end of the shafting, in operation, and the side of the house, and thus was injured by coming in contact with the shafting; and also evidence that there was another way out'which the plaintiff could have safely taken: it is Helé, it was for the jury to determine, as an issue of fact, whether the plaintiff was injured by the negligent failure of the defendant to provide him a safe way to leave his work.

Appeal by plaintiff from O. H. Allen, Jat April Term, 1914, of 'Wake.

This was a civil action, tried upon tbe following issues:

'1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged'in tbe complaint? Answer: No.

2. Did tbe plaintiff assume tbe risk of being injured while in tbe employ of tbe defendant ? Answer;-

3. Did tbe plaintiff, by bis own negligence, contribute to'bis injury? Answer:_

4. Wbat damage did tbe plaintiff sustain by reason of tbe injury? Answer:_

Tbe plaintiff moved for a new trial. Tbe motion was refused. Tbe plaintiff excepted and appealed from tbe judgment rendered.

Manning & Kitchin and J. G. L. Harris for flai/ntiff.

James H. Pou for defendant.

BkowN, J.

Tbe plaintiff sues to recover damages for an injury sustained by bim while in tbe employ of tbe defendant, alleged to have been caused by its negligence. There are no exceptions to tbe evidence taken and none to tbe charge of tbe judge upon tbe several issues. Tbe plaintiff rests bis whole case upon tbe refusal of bis Honor to give this special instruction, towit: “If you believe tbe evidence, you will answer tbe first issue Wes.’ ” Evidently all of tbe other special instructions prayed for by tbe plaintiff were given, or were fully covered by tbe charge of tbe court. As tbe plaintiff noted no exception to tbe charge, we assume that bis Honor charged tbe jury with bis usual fullness and care on all tbe issues and upon every pb'ase of tbe case presented by tbe evidence.

Tbe learned counsel for tbe plaintiff frankly admits that tbe form of tbe prayer is faulty, and in bis brief says: “We trust this will be waived by tbe Court in tbe interest of justice.” As we are of opinion that bis Honor properly refused to give tbe instruction; without regard to its form, we are not disposed to criticise its verbiage. It is well settled that tbe court-cannot direct a nonsuit and give judgment in favor of a defend*181ant on whom no burden rests, wben there is more than a scintilla of óvi-dence tending to prove plaintiff’s contention, or wben there is evidence from which a reasonable person might draw a deduction sustaining the plaintiff’s contention.

The converse of this rule is true, and for a stronger reason a verdict can never be directed in favor of a plaintiff when there is any evidence from which the jury may find contrary to the plaintiff’s contention, or where there is evidence which will .justify an inference contrary to such contention. Cotton v. R. R., 149 N. C., 229; Deppe v. R. R., 152 N. C., 79.

The evidence tends to prove that the plaintiff was employed in the cotton-seed room of the defendant to put cotton seed in the seed conveyor, in which position the plaintiff had been working for several weeks. The room in which the conveyor was operated was a large .room with a revolving shaft above, which operated the machinery. The room was 'usually filled with cotton seed, piled up high. The evidence shows that this was necessary in the operation of the defendant’s business, for the purpose not only of storing the cotto.n seed, but of feeding the conveyor.

At the time of the injury the cotton seed was piled up in the room so that the plaintiff, after work hours, crawled on his all-fours between the. end of the shafting and the side of the house, and, coming in contact with the shafting, was injured. The alleged negligence consisted in the failure of the defendant to provide a reasonably safe way for the plaintiff to get out of the building without climbing over the cotton seed near the revolving shaft in the manner in which he did.

There is evidence tending to prove that there was a way provided for the plaintiff and other employees to get out, and that it was possible for them to go from the place where plaintiff was working and cross over to the other side of the building, across the cotton seed, and in that way avoid the shafting and get to the door.

There is other evidence tending to prove that the plaintiff, with a few minutes work with a shovel, could very easily have shoveled aside the cotton seed and thus made his way to the door.

We are not prepared to say that the defendant was not guilty of negligence ; nor are we prepared to say that, in any view of the evidence in this case, the defendant was guilty of negligence, and that his Honor should have given the instruction asked. It is very difficult, in the character of business that this defendant was conducting, to keep a way open through such a commodity as cotton seed; but there is some evidence in this case that there was a way out, by which the plaintiff could reach the door with very little trouble by going around the pile- of cotton seed, and we think it was fairly a question for the jury to determine from all *182this evidence whether the defendant had failed to observe that reasonable care and precaution which the circumstances demanded in providing an exit from the cotton-seed room.

Negligence is necessarily a relative term, and depends upon the circumstances of each particular case. What might be negligence under some circumstances at some time or in some place may not be negligence under other circumstances or at any other time and place. All the surroundings or attendant circumstances must be taken into account if the question involved is one of negligence.

It is difficult to say as a matter of law, from all the evidence in this case, that the defendant failed to perform its duty to exercise reasonable care to protect the plaintiff from injury. From the very nature of the business, it must be impracticable at all times to provide the nearest, easiest, and most convenient method of exit from the cotton-seed room of an oil mill.

Taking all the circumstances into consideration, we think his Honor very properly left the question to be determined by the jury as to whether the defendant had provided, under all the circumstances, a reasonably safe and convenient exit for its employees. As his charge is not excepted to, we assume that in putting this matter before the jury the plaintiff had no grounds of complaint.

■ We have discussed this matter exclusively upon the question of negligence of the defendant, without regard to the contributory negligence of the plaintiff.

For the reasons given, we think his Honor very properly refused the instruction asked.

No error.