#### D. L. BUCHANAN v. RITTER LUMBER COMPANY.

(Filed 13 January, 1915.)

1. Master and Servant — Safe Place to Work — Duty of Master — Railroads—■ Logging Roads.

The rule that an employer, in the exercise of reasonable care, must provide for his employee a safe place to do his work, and a failure of duty in this respect will constitute negligence, is very insistent in the case of railroads where a breach of such duty is not unlikely to result in serious and often fatal injuries; and logging railroads operated by steam power come within this principle and are held to the same standard of care.

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

In an action against a logging railroad compétny to recover damages for the wrongful death of the plaintiff’s intestate there was evidence tending to show that the intestate, within the custom of all employees of the defendant, and in connection with the discharge of his duties, was riding upon the running-board of the tender to the defendant’s steam locomotive, and was in some way struck from his position by a limb of a tree 5 to 7 feet long, and 1% to 2 inches in diameter, stuck into a hole on the right of way and projecting towards the roadbed at an angle of about 45 degrees, which had been thus placed for a week before, throwing him upon the track and the engine, running 3 or 4 miles an hour, running over him at about 70 to 75 feet further along; that the engine was- backing at the time, and the engineer was not looking back in the direction the engine was running, and was unobservant of the intestate’s danger until it was repeatedly called to his attention by persons along the right of way, whereupon he stopped his engine. Held, the evidence was sufficient to be submitted to the jury upon the question of defendant’s negligence in- permitting the limb to remain in this dangerous location and position, and whether the engineer should have perceived the intestate’s danger, after he was struck from the running-board, in time to have avoided killing him, under the doctrine of the last clear chance.

3. Master and Servant — Railroads—Negligence—Duty of Servant — Contributory Negligence — Proximate Cause — Trials—Questions for Jury.

The plaintiff’s intestate was killed by being struck from the running-board 'on the tender of defendant’s, locomotive by a projection extending from the side of the roadway, with evidence that it had been left there for a week or more, and that at the time the intestate was not holding to a hand-rail placed on the tender for his greater safety, and within his easy reach. Held, a prayer for instruction tendered by the defendant was properly refused which instructed the jury upon the duty of the intestate, under the rule of the prudent man, to take ordinary precautions for his own safety, leaving out the question as to whether his failure or omission to perform this duty was the proximate cause of the injury, which under the circumstances of this case were properly left to the determination of the jury.

4. Master and Servant — Vice Principal — Negligence — Contributory Negligence — Trials—Evidence—Questions for Jury.

There being evidence in this action to recover damages against a logging road company for the wrongful death of the iilaintiff’s intestate, an em*41ployee on the defendant’s logging road, that the intestate was struck from the running-board on the tender of the locomotive by a projection alongside the track, which the defendant had negligently permitted to remain there, when he was not holding to the hand bar provided for his greater security, and conflicting evidence as to whether he was in charge of the train at the time and should have observed the danger: it is Held, that the question of the intestate’s contributory negligence was one for the determination of the jury, involving also the existence of proximate cause.

5. Appeal and Error — Assignments of Error — Instructions—Court's Remarks —Harmless Error.

While there is a discrepancy in this case on appeal between the defendant’s requested prayer for instruction as set out in its assignments of error and in the record, it readily appears that the trial judge modified the instruction requested; and the exception to his statement that he gave the instruction requested is without merit, as it appears from his statement and the entire context that the court intended it for a modification, and the jury so understood it.

6. Trials — Instructions—Appeal and Error — Omission to Charge — Collateral Matters.

In an action for wrongful death, where the allegations involve and-the evidence chiefly relates to the question of negligence of the defendant in permitting an obstruction upon the right of way, knocking the intestate from the running-board of the tender of the locomotive, and also involve the doctrines of contributory negligence and the last clear chance, the failure of the court, in his charge to the jury, to advert to a p>hase of the evidence from which it might be inferred that the intestate may have been inadvertently knocked from the running-board by his companions, is not held erroneous, especially when requests for specific instructions thereon had not been preferred.

Appeal by defendant from Long, J., at July Term, 1914, of Mitchell.

Civil action to recover damages for alleged killing of plaintiff’s intestate.

There was evidence on part of plaintiff tending to show that on 23 April, 1910, the intestate, an employee of defendant company, then making $1 or $2 a day, a young man of 21 or 22 years of age, of good habits, industrious, of good vigor of mind- and body, was run over and fatally injured, dying soon after, by a steam engine of defendant company which was being operated over defendant’s ro.ad in the course of the company’s work; that at the time of the injury defendant was engaged in doing a large lumbering business in Caldwell County, N. 0., the mills being situate at Mortimer, in said county, and the logs being hauled there from a point about 4 miles further up, the company having a roadbed to that point with iron rails and steam engine of the ordinary kind used in such work, constructed so as to move backwards and forwards with equal facility and having a running-board 8 or 10 inches along the side and across the rear of the tender, about 10 inches above the track, where *42employees were accustomed to ride and where they might stand or move as the course of their duties should require, and there was a hand-rail higher on the tender to which they might hold as they stood or moved about; that the particular duties of the intestate, at the time, was as “top loader” — one who laid the logs straight and secured them as they were lifted onto the cars by machinery; the evidence of plaintiff tending to show that this was not a position of authority and that he directed the engineer only in -the sense that he gave him proper signals as a train of cars had to be moved backwards or forwards in efficient performance of the work; that the engineer was one Joe Effler, and, on the day in question, he was running the engine backwards over the road at 3 or 4 miles an hour; that intestate and three or four other employees were on the tender, and he and two others were standing on the running-board at the rear of tender, Garfield Hughes being on the outside to the right, the intestate next, and Arthur Blevins on the left, and, at a point not far from the logging yards, a hemlock limb, 5 to 7 feet long and 1% to 2 inches in diameter at the smaller end, which was stuck in a hole or pile of brush in the bank and projecting towards the roadbed at an angle of about 45 degrees, struck the intestate about the feet and in some way prized him off the engine, throwing him prone upon the track and, at about 70 or 75 feet further along, he was run over and fatally injured, dying in about an hour and a half. Several eye-witnesses testified to the fact that the 'intestate was knocked off the engine by the hemlock stick. There was evidence further for plaintiff tending to show that this stick had been in such a position, leaning towards the road, for a week; that the end was worn slick where it had scraped along the engine and cars; that there were signs of hemlock bark along the journal boxes of the engine and on the running-board, giving indication that the stick had been continuously rubbed by the passing cars. There was also a statement of this engineer, Joe Effler, who was afterwards examined as a witness for defendant, and which seems to have been admitted without objection, that he had noticed the stick and its position for a week before the occurrence. There was further testimony for plaintiff tending to show that when he was first knocked off there were calls and cries both from the crew and from persons outside the track to the engineer in the endeavor to attract his attention, but that he was looking out of the window at the side, and they failed to attract his attention, and the train ran, as stated, 70 to 75 feet up the track before the intestate was run over, and finally one man rushed up to the cab and called out to him, when he immediately stopped the engine, which was and had been moving at a very slow pace, not more than 3 or 4 miles an hour.

There was testimony on the part of defendant company to the effect that no stick had been seen in any position threatening the train before *43this occurrence; tbat the intestate’s position as top-loader gave him full authority over the train and crew, and tbat be was standing on tbe running-board, where be bad full opportunity to look ahead on tbe. track, and if there was any obstruction threatening tbe train be could have observed and noted it; tbat be was not bolding by tbe rail along tbe engine at tbe time, but was standing there smoking, with bis bands under tbe cape of bis overcoat; tbat Garfield Hughes, who was on tbe outside nearer tbe stick, avoided tbe collision and escaped barm by reason of bolding to tbe band-rail and lifting himself up, and, further, tbat tbe intestate, before bis death, bad said to several persons tbat be was, in some way, pushed off tbe running-board by one or both of tbe young men who were in there with him; tbat these men were there without permission, and tbe inference being tbat, in a playful scuffle between them, tbe intestate was unintentionally knocked off tbe engine.

On tbe ordinary issues in such action of negligence, contributory negligence, and damages, there was verdict for plaintiff, and defendant excepted and appealed.

J ohn G. McBee and Pless & Winborne for plaintiff.

L. C. Bell and Bernard & Johnston for defendant.

Hoee, J.,

after stating tbe case: It was earnestly urged for error by defendant tbat bis Honor refused to nonsuit plaintiff both on tbe pleadings and tbe evidence; but tbe position cannot be sustained. It is fully established with us tbat an employer, in tbe exercise of reasonable care, must provide for bis employees a safe place to do bis work, and a failure of duty in this respect will constitute negligence. Cook v. Cranberry Furnace Co., 161 N. C., 39; Jackson v. Lumber Co., 158 N. C., 317; Tanner v. Lumber Co., 140 N. C., 475.

An examination of tbe authorities will show tbat tbe position is very insistent in tbe case of railroads where a breach of duty in this respect is not unlikely to result in serious and often fatal injuries, and, in various cases, it has been held tbat these logging roads come clearly within tbe principle and are held to tbe same standard of care. Worley v. R. R., 158 N. C., 490; Sawyer v. R. R., 145 N. C., 24; Hemphill v. Lumber Co., 141 N. C., 487. In reference to these obligations, in Sawyer’s case, supra, it was said tbat “These logging roads, in various instances and in different decisions, have been described and treated as railroads and held to tbe same measure of responsibility ánd tbe same standard of duty,” citing Hemphill’s case, supra, and Simpson v. Lumber Co., 133 N. C., 96, and Craft v. Timber Co., 132 N. C., 156; and further: “This duty arises not so much from tbe fact tbat railroads are common carriers or g'licm'-public corporations as from tbe high degree of care imposed upon them on account of tbe dangerous agencies and imple*44ments employed and the great probability that serious and in many instances fatal injuries are almost certain to result in case of collision.”

Considering the present case in the light of these decisions, it is clear, we think, that the court would not have been justified in directing a non-suit, there being facts in evidence tending to show that for a week or more the defendant’s road had been left with a limb or snag deep in the ground at one end and leaning over towards the railroad track in such manner that it day by day scraped along the sides of the engine and cars and where it was liable, at any time, to cause an injury of some sort to the train or its employees. Hudson v. R. R., 142 N. C., 198; Drum v. Miller, 135 N. C., 204. Again, a nonsuit would have been improper because of facts in evidence tending to show that, after the intestate was knocked off the engine and was prone upon the track, the train, running at only 3 or 4'miles an hour, continued to move along the track for 70 or 75 feet before the fatal injury was received, and meantime persons on the train and off endeavored in every way to attract the attention of the engineer and failed to do it until one of them went right up to the cab, the testimony permitting the inference that he was looking out to the side and entirely inattentive to the movements of his train or the safety of the persons who were on it. In that aspect of the case the defendant company might well be held responsible by reason of the failure to avail itself of the last clear chance of avoiding the injury; this whether the intestate was or was not guilty of contributory negligence, as the term is generally used and applied. Snipes v. Mfg. Co., 152 N. C., 42. It was further contended that there was error committed in modifying certain prayers for instructions by defendant, chiefly in reference to the question of contributory negligence. Bequest No. 2, being to the effect that a servant is required to exercise ordinary care for his own safety, to observe the machinery and appliances used in connection with his work, and to discover those dangers which a man of ordinary prudence would discover, and, if he fails in this duty and is thereby injured as an immediate result, he cannot recover damages. “Therefore the court charges you that if you find by the greater weight of the evidence that plaintiff’s intestate was riding upon the rear of defendant’s engine, in plain view of the obstruction upon or over the track, and if you find there was an obstruction and he failed to observe same, and further failed to avail himself of the safety appliance, called the hand-rod in the evidence, and you further find that by using same he could have saved himself, the court instructs you that he was guilty of contributory negligence, and you would answer second issue ‘Yes.’ ” The court gave the instructions as prayed, with the modification, after the words, “could have saved himself,” by adding: “and you find that he was negligent in regard to these *45omissions and bis neglect contributed to the injury.” In other words, the court referred it to the jury to determine whether, upon the facts in evidence as suggested in the prayer, the intestate was negligent in failing to observe and note the obstruction and in failing to use the hand-rod, and whether such neglect on his part was a contributory cause of the injury.

In Russell v. R. R., 118 N. C., 1098, and in cases before that time, it was declared to be the correct principle that if, on a given state of facts, two men of fair minds could come to different conclusions as to the existence of negligence, the question must be determined by the jury, and that a like principle should prevail in reference to the question of proximate cause. The position has been since repeatedly upheld with us, and is also approved by the Supreme Court of the United States as the correct rule for the trial of causes of this character. Graves v. R. R., 136 N. C., 13; Ramsbottom v. R. R., 138 N. C., 39; Harvell v. Lumber Co., 154 N. C., 254; Alexander v. Statesville, 165 N. C., 528; Grand Trunk R. R. v. Ives, 144 U. S., 408; Davidson v. Steamship Co., 205 U. S., 187.

Applying the rule to the facts in evidence, we think that his Honor was clearly right in submitting the question as to the conduct of the intestate to the decision of the jury. True, there was testimony on the part of the defendant to the effect that he was “top-loader,” a position of authority, and that he had entire charge of the train and its crew; but there is also the permissible view that he was a young man of 21 or 22 years of age, getting only $1.50'to $2 per day; that he had only held the position a short while, and that his duty as top-loader was only to see that the -logs were properly laid and secured on the cars, and that he directed the engineer only in the sense that when they were engaged in loading he signaled the engineer when to move back and forth and as the necessities of the work required; and, in any event, he was not in charge of the train at that time nor in a position to direct or control its movements. He was only out on this running-board where the hands were accustomed to ride on their way to work, the train being in motion, and the duty on him, under such circumstances, to observe and note an obstruction of this character and correctly estimate its proper effect — a small stick,, leaning over towards the rail- — was a very different obligation from that incumbent on defendant company and its employees, charged with the especial duty of keeping the track and roadbed in a reasonably safe condition. In the latter case it would undoubtedly import menace tending to inculpate, whereas, to the intestate, it might very well be a question of debate and one that, under our law, must be referred to the jury.

On this exception there seems to be some discrepancy between the defendant’s assignment of error and the case on appeal, for, in the *46assignment, defendant substitutes for bis prayer tbe modification of it as contained in bis Honor’s charge, but tbe true bearing of tbe exception is readily ascertained from tbe case on appeal, showing that bis Honor modified defendant’s prayer for instruction, as stated.

Tbe further exception, that bis Honor prefaced this portion of bis charge by stating “this is defendant’s prayer for instruction,” is without merit. Tbe statement and tbe entire context shows that tbe court intended it as a modification of defendant’s prayer, and tbe jury must have so understood it.

Tbe prayer, in effect, requested tbe court to .rule on tbe question of intestate’s conduct as a matter of law, and bis Hon'or submitted it for tbe consideration of tbe jury; and tbe position, as we have stated, is in accord with our decisions. Tbe court was further requested to charge tbe jury that, “if they found that defendant bad provided a band-rail, conveniently located for tbe use and safety of persons riding upon tbe running-board at tbe rear of tbe tender, and that intestate was riding upon said running-board while tbe engine was in motion .and was standing up in easy reach of said band-rail, with bis hands in tbe bib of bis overalls, or in front of him, and be stood so at tbe time of bis fall, this within itself would be contributory negligence, and they should answer tbe second issue Nes.’ ”

Tbe court gave this and another prayer substantially similar, adding thereto that under tbe circumstances suggested tbe jury would answer tbe second issue “Yes,” provided they found further that tbe failure to use this band-rail “proximately contributed to tbe injury.” .

It is tbe accepted position, in actions of this kind, that on tbe two 'issues of negligence and contributory negligence tbe negligent conduct of defendant or of tbe claimant has no controlling significance unless it has been tbe contributory and proximate cause of tbe injury, or one of them.

In a case at tbe present term, McNeill v. R. R., 167 N. C., 390, the charge is approved to tbe effect “That in order to enable you to answer tbe first issue (that as to defendant’s negligence) ‘Yes,’ you must find that tbe train bad no headlight, and that not having a headlight was tbe cause and tbe proximate cause of tbe injury”; and Associate Justice Allen, in a well sustained opinion, shows that this is an essential requirement to tbe proper decision of such an issue. Tbe same principle prevails on tbe issue as to contributory negligence; it is a very important part of its correct definition, that it is tbe proximate cause of tbe injury.

Numerous authorities with us are in support of tbe position, and they bold, too, that where negligence is shown to have caused an injury, it is only in exceptional cases that tbe question of proximate cause can be *47withdrawn from the jury. Boney v. R. R., 155 N. C., 95; Farris v. R. R., 151 N. C., 489; Coley v. R. R., 129 N. C., 407; Brewster v. Elizabeth City, 137 N. C., 392.

It is true that the testimony shows that the intestate was standing on the running-board and had no hold of the hand-rail. It was shown, also, that another man standing by him was enabled to save himself after he saw the stick by catching hold of the hand-rail; but, as we have heretofore stated, the intestate had no part in directing.the train and was not in a position to control its movements. He was not charged with the special duty of looking ahead for its safety, nor did he have anything to do with keeping the roadway in repair. He was just riding on the engine to his work as the others were accustomed to do, and, as we have heretofore stated, the character of the obstruction was not such as to affect him with notice of a probable injury as a conclusion of law. If he had fallen off by the ordinary jars and jolts of the train’s movements, there might be more force in the position, but it is not at all a necessary conclusion that the intestate could have saved himself if he had taken hold of the rail, and, on all the facts as presented, we concur in his Honor’s view that, on the issue as to contributory negligence, the question of proximate cause was for the jury.

Defendant excepted, further, that his Honor in charging the jury “failed to instruct them at any point as to the law arising on the evidence and contention of defendants that some one of certain employees pushed plaintiff’s intestate from the engine and caused his death.” This, in any event, was only an omission on the part of his Honor, and the proceeding could very well be sustained on the ground that, if defendant desired that such a position be referred to, he should have made a request to that effect, as he did on the other points. Pardon v. Paschal, 142 N. C., 538; S. v. Worley, 141 N. C., 764; Simmons v. Davenport140 N. C., 407. But it is not necessary to rest the matter here on this principle. From a perusal of the record it plainly appears that the principal issue between the parties on the testimony was whether the -intestate was negligently knocked off by the stick or snag, or was pushed off by one of the other hands, and defendant’s counsel therefore did not think it necessary to make a request on the subject.

Plaintiff’s complaint was .that intestate was knocked off by this stick, negligently left as an obstruction on defendant road, and not otherwise, and there was no occasion for his Honor to make special reference to a different cause. In support of this view, it was stated on the argument for appellee, and not challenged, that counsel for plaintiff admitted in the argument before the jury that if the intestate was pushed off by one of the employees, his client had no cause of action, and this is no doubt *48the reason that the capable and diligent counsel did not think it necessary to have any reference to the matter made by the judge.

The exceptions to testimony are without merit, and were very properly not insisted on in defendant’s brief. Lynch v. Mfg. Co., 167 N. C., 98.

After careful consideration, we are of opinion that no reversible error appears, and the judgment on the verdict must be affirmed.

No error.