JESSE EDWARDS v. INTERSTATE CHEMICAL COMPANY.

(Filed 9 December, 1914.)

Negligence — Personal Injury — Warning of Danger — Proximate Cause.

While engaged with other employees in the defendant’s chemical plant in cutting a channel through phosphate in a bin, and sloping its sides, the usual method for removing the phosphate, the plaintiff réceived the injury complained of by a piece of phosphate falling upon him, with evidence on defendant’s part that the plaintiff was warned of the danger by its foreman in time to have avoided the injury had he obeyed. Held, error for the trial judge to instruct the jury upon the theory of plaintiff’s want of the exercise of ordinary care being the proximate cause of the injury, for the plaintiff cannot recover if his failure to obey the warning was the . proximate cause, and the defendant’s special prayer for instruction to this effect was erroneously refused.

Appeal by defendant from Adams, J., at June Term, 1914, of Meck-LENBURG.

Civil action, tried upon issues of negligence, contributory negligence, assumption of risk, and damage. Tbe jury found for tbe plaintiff upon eacb issue. From tbe judgment rendered, tbe defendant appealed.

Duchiuorth & Smith and E. R. Preston for plaintiff.

J. M. Robinson and Osborne, Coche & Robinson for defendant.

BeowN, J.

Tbe evidence tends to prove tbat tbe plaintiff was working for tbe defendant in its pbospbate bin, a large room containing pbospbate.

On Friday evening tbe plaintiff. and bis fellow-workers began removing pbospbate in tbe bin, tbe first work being to cut a cbannel tbrougb and slope back tbe sides. On Friday evening tbey cut tbe cbannel and sloped back tbe east side, tbat is, set it back like a railroad cut. On Saturday morning tbe plaintiff was sloping back.tbe west side, wben be was injured by a lump of pbospbate falling upon bim.

Tbe defendant requested tbis instruction: “If you find from tbe evidence tbat immediately before tbe plaintiff’s injury Jim Murdock was standing witbin a few feet of plaintiff; tbat Murdock tben and there warned tbe plaintiff tbat tbe pbospbate was about to fall, and told him to leave bis rake behind and get out of tbe way of said phosphate; tbat if tbe plaintiff bad heeded said warning be would have bad time to escape tbe danger; and if you should further find tbat tbe plaintiff failed to heed tbe warning thus given bim, if it was so given, and tbat such failure on bis part was tbe proximate cause of. the injury, it will tben be your duty to answer tbe second issue ‘Yes.’ ”

His Honor refused to give tbis charge, and changed it as' follows: “Upon tbe second alleged cause of contributory negligence tbe court *672charges that if you find that Murdock, who, it is contended by the defendant, was standing near the place at the time of the alleged injury, warned the plaintiff that the phosphate was about to fall, and called to him to get out of the way, and then by the exercise of ordinary care the plaintiff could have gotten out of the bin in time to prevent the injury, and that the plaintiff failed to exercise such care, and that his failure to exercise such care was the proximate cause of his injury, you will answer the second issue 'Yes.’ ”

It is admitted that Jim Murdock was the foreman, and, therefore, it was the plaintiff’s duty to obey his instructions. There is unequivocal evidence upon the part of the defendant that Murdock was with the plaintiff and shw that the large lump of phosphate had been loosened and was about to fall. Murdock ordered and warned plaintiff to come out, saying that the “stuff is coming.” This warning and order was repeated. There is evidence that the phosphate always gives two or three minutes warning before it falls, and that the plaintiff could have' escaped injury had he obeyed Murdock’s order instantly.

His Honor erred in the change made in the instruction. Defendant was entitled to the prayer as requested. The element of ordinary care and diligence does not enter into it. It was the plaintiff’s duty to obey the order and to heed the warning at once. Whitson v. Wrenn, 134 N. C., 86.

By introducing the element of ordinary care and prudence, the court deprived the defendant of the benefit of the facts testified to by Murdock. Hinson v. Tel. Co., 132 N. C., 460.

New trial.