#### W. L. MACE, Administrator, v. CAROLINA MINERAL COMPANY and SEBE PITMAN.

(Filed 12 May, 1915.)

1. Blaster and Servant — Negligence—Safe Place to Worli — Duty of Servant.

The rule bolding the master to accountability in not furnishing his servant a safe place to work does not apply where the servant, an experienced man, necessarily, from the nature of the work, required, in its various stages, to construct the place with reference to his own safety, and his injury proximately results either from his own negligent act in failing to do so or in taking such reasonable and available precaution for his own safety as the dangerous character of his work required.

2. Same — Trials—Evidence—Nonsuit.

In an action to recover damages for the alleged negligent killing of the plaintiff’s intestate, the evidence tended to show that the intestate, on account of his experience and knowledge, had been employed by the defendant as foreman in its feldspar and mica mine, having sole charge and direction of those doing the mining; that in directing the work and assisting in digging out a piece of mica, the wall was undermined, causing it to fall on him and kill him. Seld, a judgment of nonsuit upon' the evidence was properly allowed.

Appeal by plaintiff from Long, at November Term, 1914, of Mitchell.

Action to recover damages for tbe alleged negligent billing of plaintiff’s intestate, Charles Buebanan. He was employed as foreman in defendant’s feldspar and mica mine, and was billed by tbe falling of a bank of overbanging dirt and rocb in tbe mine, wbicb defendant avers was caused by bis own negligent act, and not by its fault at all.

Tbe following testimony of plaintiff’s witness, Coleman Pitman, wbo worked witb deceased in tbe mine, will sufficiently explain tbe character of tbe evidence in tbe ease: “I was there when tbe dirt fell in. It was kinder undermined, and there was a block of mica sticking back in there, and we were taking that out, and it just fell over. By undermining I mean digging back under tbe bank. That bad been done all along tbe tunnel, and then we went after tbe block of mica as big as your double fist. I was tbe one that got tbe dirt from around tbe mica that evening. Tbe fall occurred about 2 o’clock. . . . Charlie Buebanan ordered us *144to get tbe spar out of there, and we dug in on tbe underside of tbe wall, under bis orders, to get out tbe feldspar. Ve did tbat tbat morning and also after dinner. . . . He was digging with us, and getting out tbe feldspar and telling the bands to do tbat. We dug in under there, getting feldspar, along until be got to tbe block of mica. We dug 2% feet and oyer back in there. He did not gire any order to dig any certain length of feet. He was helping us dig under there, and saw and knew bow far under we dug and tbat we were undermining tbe wall; be was helping to do it. We dug all along under tbe wall from tbe mouth of tbe cut up to tbe bead of tbe cut. It was under tbe wall on tbe right-band side we were digging. We discovered tbe mica along after dinner. We went back to work about 12 :30 or 1 o’clock. I discovered tbe block of mica on tbe right-band side of tbe cut in tbe wall under which we bad all been digging to get feldspar. Tbe block of mica was about 2 feet above tbe floor of tbe cut, or perhaps 18 inches; it was straight back into tbe wall; perhaps 18 inches from tbe bead of tbe cut. When I discovered it, I told Charlie Buchanan tbat I bad struck a block of mica, and be laughed and said to get it out, and I set to work with my pick and dug after it on both sides. There was a bard substañce around this mica. It was about tbe size of two bands, just in a kind of vein. I worked at it about ten minutes. I do not think I dug in a foot. It is pretty bard stuff. I stripped tbe mica and dug on all sides of it. I dug half a foot before I stripped tbe mica. I was working under tbe orders of Charlie Buchanan, the foreman. Then Charlie Buchanan told Clifton Buchanan to go for tbe drill, and I went to help Charlie Duncan sort and Clifton. Then Charlie Buchanan took bis pick and went to work. He did not say anything about my not knowing bow to dig mica. As quick as I stopped, be dug into tbe wall, and while be was digging tbe earth fell down on him and killed him. Digging on tbe underside of tbat cut removed tbe support for tbe dirt tbat was above it in tbe cut. Mr. Sebe Pitman came to me after it happened, and asked me tbe cause.of the trouble. I told him Charlie Buchanan was digging in there when it fell. He certainly dug in there and was removing tbe support for tbe dirt, and tbe dirt above there did fall on him. I did not notice bow deep be dug in before it fell. I do not remember what position be was in when tbe dirt fell. I did not see tbe dirt fall; I looked around after it fell. I was 6 feet from him. It fell out of tbe place in tbe wall, starting about 6 feet above, and fell down to where be was digging. No bole left in tbe wall much for it, just broke off and left a kind of smooth place. I do not know tbat it was deeper in tbe center. Tbe bole tbat was left in tbe wall was about as deep one place as another, I should think; I really do not know about tbat. Tbat cut was 15 or 20 feet deep. Tbat morning Charles Buchanan bad helped to dig out tbe feldspar along under tbe *145wall, 'and told tbe boys to dig it out. .He was digging for mica about where be bad been digging for feldspar. Tbe digging in' tbe morning bad weakened tbe wall on tbe rigbt-band side, and it was tbe same wall be bad undermined tbat be was digging tbe mica out of. Tbe tunnel where it bad run in bad undermined partly, and kept on going up with it. After I quit digging for mica, Charles Buchanan dug for it between • two and five minutes. Tbe digging I did was under bis orders. It was my duty to obey bis orders. We bad worked in tbat cut all morning. I do not remember where we dug first.1” ■,

A paper was banded by defendant’s counsel to plaintiff’s witness M. C. Duncan, it being a written statement by him as to tbe transaction, and be testified tbat it was true, as be understood it. It is as follows : “I was employed by tbe C. M. Co. on 24 April, 1914, and was working under orders of Charlie Buchanan, foreman of Deer Park Mine, No. 3, from whom I received all orders as to what duties to perform. On tbe morning of 24 April tbe open cut in which we were working bad straight, firm sides, with no overhang. . At about 9 o’clock tbe superintendent visited tbe mines, and no change of conditions bad occurred. About 11:30 o’clock Fule Pitman said to Buchanan tbat be bad struck a block of mica in tbe side of tbe cut, and Buchanan told him to go after it. This Pitman did, and afterward Buchanan joined him and commenced undermining tbe side, and about 2 :10 o’clock tbe overhang fell and buried Buchanan and Clarence Stewart.”

There was much evidence introduced by both parties, but tbe foregoing is tbe substance of its essential parts. At tbe close of tbe evidence tbe court ordered a nonsuit, and plaintiff appealed.

Charles E. Green, John C. McBee,.and J. W. Pless for plaintiff.

Blade & Wilson, W. C. Newland, and S. J. Ervin for defendant.

WaleeR, J.,

after stating tbe case: It appears in this case tbat tbe intestate of plaintiff bad been employed to work as foreman in tbe defendant’s service, and as overseer of tbe work performed by others placed under bis authority. He was an experienced miner, having been engaged in tbe business of mining for many years. Because of bis expertness thus acquired, tbe defendant was induced to take him into its service. Tbe work be was to do on tbe day of the- accident was left, in respect to tbe method and manner of doing it, to.bis own judgment, and be was perfectly free to exercise bis own comm'on sense and skill in doing it. According to tbe evidence and tbe' description of tbe conditions in tbe mine just before be was killed, be did no.t need any one to tell him tbat by digging under tbe projecting or overhanging bank of dirt and rock be was placing himself in a very dangerous position, as tbe unsupported bank would necessarily cave in when be removed tbe last prop tbat kept *146it in place. Any man of ordinary sense and common prudence would know of this danger and appreciate tbe risk of cutting out tbe foundation upon wbicb a bank of dirt rests and leaving it overbanging, without any support, brace, or prop to prevent its falling in and crushing him, as be was in tbe way and must needs be hurt. Tbe danger of such a place was so imminent that any ordinarily prudent man would not have so cut underneath tbe bank as to weaken its support and cause it to fall, or, if this was necessary to be done, would have taken measures to brace it in some way as tbe work progressed. 'This Court has often held that “an employer’s duty to provide for bis employees a reasonably safe place to work does not extend to ordinary conditions arising during tbe progress of tbe work when tbe employee doing bis work in bis own way can see and understand tbe dangers and avoid them by tbe exercise of reasonable care.” Simpson v. R. R., 154 N. C., 51. Tbe rule was well stated in Covington v. Furniture Co., 138 N. C., 374, as follows: “The general rule of law is that when tbe danger is obvious and is of such a nature that it can be appreciated and understood by tbe servant as well as by tbe master or by any one else, and when tbe servant has as good an opportunity as tbe master or any one else of seeing what tbe danger is, and is permitted to do bis work in bis own way and can avoid tbe danger by the exercise of reasonable care, tbe servant cannot recover against the master for tbe injuries received in consequence of tbe condition of things wbicb constituted tbe danger. If tbe servant is injured, it is from bis own want of care.” Warwick v. Ginning Co., 153 N. C., 262; House v. R. R., 152 N. C., 397; Hicks v. Mfg. Co.; 138 N. C., 319. In Armour v. Hahn, 111 U. S., 313, it was held that tbe obligation of a master to provide reasonably safe places and structures for bis servants to work upon does not impose upon him tbe duty towards them of keeping a building which they are employed in erecting in a _ safe condition at every moment of their work, so far as its safety depends upon tbe due performance of tbe work by them and their fellows. Tbe case of Cons. Coal and Mining Co. v. Floyd, 51 Ohio St., 542, has many facts in common with this one, and they are sufficiently similar in that respect to make it a good authority. There it appeared that tbe intestate was killed by tbe fall of slate from the roof of a mine, due to tbe failure to install props while tbe work was in progress. Tbe claim for damages was sought to be sustained by a class of cases wbicb bold that tbe duty of tbe master to provide a safe working place and machinery for bis employees cannot be delegated, so as to absolve tbe master from liability in case of failure of tbe vice principal to perform that duty. It does not seem necessary to review these cases. They are, as a rule, based upon tbe proposition that where tbe appliance or place is one wbicb has been furnished for tbe work in wbicb tbe servants are to be engaged, there tbe duty above stated attaches to tbe master. Tbe Court said: “We need *147not discuss this proposition, for we have not .that case. Here the place was not furnished as in any sense a permanent place of work, but was a place in which surrounding conditions were constantly changing, and instead of being a place furnished by the master for the employees within the spirit of. the decisions referred to, was a place the furnishing and preparation of which was, in itself, a part of the work which they were employed to perform. The distinction is shown in a number of cases, among which may be cited: Fraser v. Lumber Co., 45 Minn., 235; McGinty v. Reservoir Co., 155 Mass., 183; Coal Co. v. Scheller, 42 Ill. App., 619.” And so in Petaja v. A. I. Mining Co., 32 L. R. A. (O. S.), 435, the facts were that the plaintiff was injured by the fall of ore while working in the room of a mine used by the hands while excavating for ore and getting it out. It was decided, and affirmed on a rehearing, that the place where the injury occurred must have been furnished by the master, or be one which his duty to the servant required him to furnish and keep in a safe condition, before the ordinary rule of liability can be applied, and that the place then in question was not of that description. The Court said: “Now, if this room can properly be said to be a place furnished to the servants in which to carry on the master’s business and which he must, at his peril, keep in reasonably safe condition, as a factory or warehouse, then the case should have gone to the jury; but if it is not such a place, then it falls within that other rule, that the duty of the master is performed by using reasonable care or furnishing suitable material and employing capable and efficient men to do the work. In view of the case of Schrolder v. Flint and P. M. R. Co., 103 Mich., 213, and Beasley v. F. W. Wheeler & Co., 103 Mich., 196, cited in the former opinion, there is no doubt that a master must furnish a reasonably safe place for a servant to work if a structure is required for the carrying on of his business; and the briefs furnished in this case upon the part of the plaintiff would render us more assistance had they called our attention to cases establishing the claim that a master is obliged to make safe the place which the servant makes and occupies as a means of doing his work or which results as an incident of the work, although it necessitates his presence in a place to a greater or less degree unsafe. In such cases must the master stay with or follow up the servants, to be certain that they make the place safe, so that they or some of them be not injured? There are many cases which draw the distinction pointed out. Such a case is Beasley v. F. W. Wheeler, supra.” The same was held to be law in Fraser v. R. R. Lumber Co., 45 Minn., 237, where it was said: “An important consideration often overlooked is, whether the structure, appliance, or instrumentality is one which has been furnished for the work in which the servants are, to be engaged, or whether the furnishing and preparation of it is itself part of the work which they are required to perform.”

*148It was beld in St. L. and M. R. R. Co. v. Baker, 163 S. W. Rep., 152, that where a servant was employed to wreck a structure, such as an unsafe building, or to do blasting and excavating, the duty of keeping the place of work safe, if it was originally so, devolves upon the servant, and'not on the master. The rule that an employer must exercise ordinary care to provide a safe place of work for his employee was held in Riley v. Neptune, 103 N. E. Rep., 406, not to apply where from the nature thereof the conditions are ever changing, so as to increase or diminish the danger in the course of the particular work, the same being passing risks arising out of the nature of the work and of which the servant is as well informed as the master. L. P. Cement Co. v. Bass, 103 N. E. R., 483. It was held in Andrews v. T. Mining Co., 146 N. W. Rep., 394, that the doctrine of furnishing a safe place to the servant to do his work does not apply where a miner was killed while engaged in making “hitches” in which to place timbers to hold up the roof, “since he is required to make the piece of work safe as he went.” Nor, it has been said, does the rule of a safe place apply to building operations where conditions are continually changing, due to the acts of the servants themselves. Roshalt v. Worden-Allen Co., 144 N. W. Rep., 650. It was not necessary that intestate should have had any warning from the superintendent. He was an expert himself in mining, and it did not even require-that one should be so thoroughly experienced in such work as he was to know or understand that the work was dangerous, for a man of ordinary intelligence would know that to withdraw a prop or foundation from an object resting upon it would necessarily cause it to fall.

“1. An employer may ordinarily assume that an adult employee has that knowledge which is acquired' by common experience, and hence understands those dangers which may readily be known by common observation.

“2. AH adult employees are presumed to have some knowledge of the properties of nature, and the operation of natural laws, such as the law of gravitation.

“3. An employee assumes the risk of injury from obvious dangers, unless because of his immaturity, inexperience, or other disability he is incapable of appreciating the danger therefrom.” Riles v. Neptune, 103 N. E. (Ind.), 406.

No one should be allowed to justify or excuse his own improper conduct by alleging that he expected that another would prevent such conduct on his part. Houston, etc., Railroad Co. v. Clemmens, 55 Texas, 88. Intestate was the author of his own misfortune, and no one was to blame but himself. This is shown with as near an approach to a demonstration as anything short of mathematics will permit, as was said of a plain act of negligence in B. and P. Railroad Co. v. Jones, 95 U. S., 439. The same Court, in Bunt v. S. B. Mining Co., 138 U. S., 483, *149where an employee bad been killed by removing a post wbicb supported the roof of a mine, thus causing the roof to fall upon him, said: “Bunt participated in taking out the post with full knowledge of the danger, and after the post had been removed sat down under the shattered roof. Eecklessness could hardly go further. The evidence would warrant no other conclusion than that he took the risks of the work in which he was employed and that his negligence in the course of that work was the direct cause of his death.” The two cases are parallel with each other. The fact that there a post was taken out, and here some dirt was dug out, can make no difference. In this ease the danger of the place where intestate was working, and the cause of the accident, were due to his own careless act in undermining the upper wall of dirt, so that it lost its natural support and fell upon him. The recent case of Neville v. Bonsal, 166 N. C., 218, in which a servant was killed by an act of the foreman similar to the one that caused the intestate’s death, is applicable. We held the master liable because the foreman had been negligent in digging at the bottom of an embankment, which caused the upper layer of dirt to fall and kill the intestate of the plaintiff in that case. The Court there said: “The work was being done under the management of one Stowe, who, about three hours before the cave-in, ordered the plaintiff’s intestate to work at that place. • The evidence shows that Stowe was in and out of the pit all the time, and knew of the conditions. It is a fair inference from the evidence that Stowe took no precautions to prevent a cave-in before the supporting bank of dirt was removed. It was the duty of Stowe to take such precautions as the situation permitted, so as to prevent injury to his subordinates when the bank of dirt at the base of the pit was removed; ordinary prudence dictated it.” If the company was held liable because of its foreman’s culpable negligence in causing the death of the intestate by improperly excavating the bank of earth, so that its support was weakened and it fell, it follows that the company would not have been liable if the foreman himself had been killed by the same act of negligence, which would, in that case, have been the efficient and proximate cause of the. fatal injury. It was even held in Alteriac v. Coal Co., 161 Ala., 435, that “Where a miner of many years experience saw a pot- or bell-shaped rock in the roof of a mine, aud knew that it was more or less disconnected and liable to fall without warning at any moment, and after telling his superior of it, and that he would not work without timbers, but who returned to the work under the pot- or bell-shaped rock on being told to do so, and on the promise that the timber would be sent at once, assumed the risk incident to his return and work thereunder.” It must be borne in mind that this foreman of hands was himself a very experienced miner, and knew, as the evidence shows, what was the safe method of doing the work. It appears that those of even less experience in mining knew of the danger. If he *150bad been inexperienced and was put to do work of a dangerous character without proper warning or instruction, the case might be different. He knew of the danger and was fully able to take care of himself, and the fault was all his own. No man, by his own voluntary and negligent act, will be permitted to impose liability on another for its injurious consequences, for he will not be allowed to reap an advantage from his own wrong. Whitson v. Wrenn, 134 N. C., 86. The peril was obvious, and he should not have caused it or exposed himself to it.

It follows that there was no wrong committed by defendant which would make it liable for the intestate’s death, and the nonsuit was properly granted.

Affirmed.