#### GREGORY v. EASTON COTTON OIL COMPANY.

(Filed 15 September, 1915.)

1. Master and Servant — Employee—Vice Principal — Eellow-servant—Joint Negligence — Trials—Principal—Burden of Proof.

Where the negligence of the master and a fellow-servant concur in producing an injury, the injured employee, himself being free from blame, can recover judgment from either or both; but where the negligence of the employer is made to depend upon an order of his vice principal or manager, his negligence must first be established, having regard to the character of the order, the position and authority of the person to whom it was given, and the attendant circumstances.

2. Master and Servant — Employee—Vice Principal — Negligence—Orders to Servant — Demote Damages.

Where, acting under the orders of the manager of a cotton-seed oil plant, the assistant manager goes upon a platform whereon bales of cotton are thrown at frequent intervals from the door of a ginhouse elevated above, the time being at night and the platform insufficiently lighted by- the light from the ginhouse door, and the assistant manager, being-in charge, tells the hands in the door to look out for him, in which they acquiesce, but, while getting the samples, the assistant manager is injured by a bale of cotton being thrown upon the .platform through the door and rebounding upon him, which is the negligence alleged in his action to recover damages of the company: Held, the defendant company is not held to reasonably anticipate the conditions under which the injury occurred, or that it would result therefrom, and the damages, being too remote, are not recoverable.

*4558. Master and Servant — Employer—Duty of Master — Safe Place to Work— Reasonable Care.

Tbe master may not delegate to another bis duty to provide bis servant a safe place to work, but this does not require bim to provide an absolutely safe place for tbe purpose, or insure tbe safety of bis servant, tbe measure of bis duty being that be should exercise proper care in providing a safe place to work.

Appeal by plaintiff from Justice, J., at Spring Term, 1915, of Peb-QUIMANS.

Tbe facts are sufficiently stated in tbe opinion of tbe Court.

Charles Whedbee and P. W. McMullan for plaintiff.

W. A. Worth and L. T. Seawell for defendant.

Hoke, J".

Tbe facts in tbe case tended to sbow tbat, at tbe time of tbe occurrence, tbe defendant company owned and operated a cottonseed oil mill in tbe town of Hertford, N. C., and in connection therewith a cotton gin and press; tbat tbe gin and press were so constructed tbat tbe floor where tbe cotton was baled was 9 or 10 feet above a platform running along tbe building, and, as tbe cotton was pressed into bales, it was thrown by tbe bands from a door of tbe ginhouse down onto this platform, rolling as it might chance in tbe fall; tbat when tbe gin was being operated there was perhaps a bale of cotton rolled out of tbe gin on tbe platform something like every fifteen minutes; tbat W. N. Gregory was manager of tbe plant, and plaintiff was tbe assistant, having general charge of tbe machinery, and having immediate charge of tbe gin and press and its work; tbat on tbe evening of 17 December, 1913, and it was then dark, plaintiff was directed by tbe manager to bring him a sample of “cotton Enters,” these Enters being then on tbe platform about 10 feet straight off to tbe side from tbe door of tbe ginhouse. There was no light on tbe platform, but there were lights in tbe ginhouse which threw some light on tbe platform when tbe gin door was open, but not so as to light tbe place where tbe witness was directed to go. Witness procured a sack and started to get tbe Enters, and as be went tbe laborers operating tbe gin were in tbe gin door, and plaintiff held up bis bag and told them be was going to draw samples and to look out for bim. They nodded their beads, “All right”; tbat plaintiff bad been there before to get Enters in tbe daytime, but never before at night; tbat plaintiff then proceeded to get tbe Enters, and while be was so engaged tbe hands in tbe gin threw a bale of cotton on tbe platform; it struck the pile of bales already thereon, and rolled down on plaintiff’s leg, breaking it just above tbe ankle, etc., causing bim much suffering and loss of time, etc. Plaintiff is still employed at tbe plant and getting tbe same wages. Witness, testifying in bis own behalf, stated that be knew tbe bales were being thrown out on the platform, and tbat *456be was liable to be hurt if tbis was done while be was engaged in getting tbe linters. Upon these, tbe facts chiefly relevant, we are of opinion that plaintiff was properly nonsuited.

It is true, as contended by defendant, that where tbe negligence of tbe master and a fellow-servant concur in producing an injury, tbe injured employee himself being free from blame, can recover judgment from either or both. Tbis has been several times recognized in decisions of our Court, as in Wade v. Contracting Co., 149 N. C., 177; 62 S. E., 919, and other eases; but, in order to a proper application of. tbe principle, tbe negligence of tbe employer must be first established, and, having regard to tbe character of tbe order, tbe position and authority of tbe person to whom it was given, and tbe attendant circumstances, we fail to see anything in it that justifies a finding of actionable negligence against tbe defendant company. There is no testimony tending to show that employees of tbe defendant were customarily called on to work on tbis platform while bales of cotton were being dumped upon it, and which might have been made tbe occasion of imputing negligence, whether there was or was not a light. Nor was tbe order given to some subordinate employee or outside messenger, improperly sent to do a dangerous piece of work; but it was an exceptional order, given by the managet to bis assistant, who, according to tbe evidence, bad immediate charge of tbe gin and its work and tbe bands employed there. Having been directed to get these linters from tbe platform at tbe time and under tbe circumstances stated, be should have stopped tbe gin work until be procured the linters, if tbis was necessary to bis protection. As a matter of fact, be did signal to bis bands to “look out for him, and they nodded acquiescence and agreed to it”; but their failure to act ón their agreement must, in our opinion, be imputed to them alone, and not to defendant, for, as heretofore stated, tbe order of tbe manager to get tbe linters having been given to a man of experience, fully aware of incidental dangers, and having immediate charge and control of tbe gin, there was no reason to suppose that such a one would not take tbe necessary steps to protect himself, and tbe giving of tbe order, therefore, should not be considered as tbe proximate cause of tbe injury within tbe meaning of tbe issue. There was no reasonable ground to foresee that an injury would result. Brewster v. Elizabeth City, 137 N. C., 392, 49 S. E., 885; Ramsbottom v. Railway, 138 N. C., 38, 50 S. E., 448.

It is urged for tbe appellant that tbe duty of tbe master to provide his employee with a safe place to work is “primary, absolute, and nondel-egable,” and that, for a failure in tbis respect, tbe master was guilty of negligence, and, on tbe testimony, tbe jury could well find that there was concurrent negligence of tbe master and the employees who threw tbe bale on the platform. Tbe position is sound in so far as it states tbe duty of tbe master to be primary and nondelegable; but it is not “abso*457lute,” in the sense that the employer of labor is ever an insurer of the safety of his laborers. He is held to the exercise of proper care in providing a safe place to work, and this, as a general rule, is the measure of his obligation. Ainsley v. Lumber Co., 165 N. C., 122, 81 S. E., 4; West v. Tanning Co., 154 N. C., 44, 69 S. E., 687. And in the present instance the company, through its manager, 'having given the order to the assistant, who had full charge of the gin, the only agency that created any danger, there was no good reason to foresee that an injury would occur, and no responsibility, therefore, should attach. The case comes rather under the principle approved and applied in Lane v. Railroad, 154 N. C., 91, 69 S. E., 780, and wé find no error in the judgment as rendered.

Affirmed.