#### McKINLEY McMAHAN v. CAROLINA SPRUCE COMPANY.

(Filed 24 December, 1920.)

1. Employer and Employee — Master and Servant — Duty of Master — Safe Place to Wort — Negligence—Contributory Negligence — Evidence— Questions for Jury — Trials.

The master’s duty is to furnish, bis employee a reasonably safe place to work, wbicb the latter may assume be bas done, and where the omission of this duty by the former causes an injury to the latter, without negligence on bis part, be may recover in bis action such damages as he may thereby have sustained, which under conflicting evidence is a question *637for tlie jury, upon both the issues as to negligence and contributory negligence, and a motion for judgment as of nonsuit upon the evidence will be denied.

2. Same — Simple Tools.

Evidence that a minor employee, without instructions from his employer, in the course of his employment, was required to help put a hand-car upon the' rails of defendant laid upon a platform or dock, which had been derailed by the rotten condition of the planks upon which the rails were laid, causing them to spread; that insufficient help was furnished to do this, in the usual manner, by lifting the car upon the rails, and required the plaintiff to go around a pile of lumber to get planks with which to again place the car upon the rails in furtherance of his work, and that the injury complained of was caused, while he was in the exercise of due care, by his stepping upon planks piled by the defendant improperly and out of their place, on the platform or dock, the principle as to “ordinary tools” has no application, and such evidence is sufficient to take the case to the jury upon the issue of the defendant’s actionable negligence.

3. Employer and Employee — Master and Servant — Physicians and Surgeons — Negligence.

Evidence that the employer selected a physician to attend employees injured while- engaged in the course of their duties, and paid for such services by assessment among the 'employees, is sufficient to sustain a verdict for damages caused by the malpractice of the physician, so selected and paid, to an employee so injured, when the employer has been negligent in not properly selecting the attending physician.

4. Same — Notice—Evidence.

Evidence that a physician, selected by the employer to attend an employee injured in the course of his employment, failed to place the broken bones of the arm of the employee in proper alignment, but left them overlapping each other, without a union between them, thus shortening the arm, leaving it two inches shorter than it should have-been, and very crooked and ugly in appearance, and practically useless, is sufficient, upon the question as to the malpractice of the attending physician, to take the case to the jury, with other evidence that the employer had previous notice of his incompetency as a physician or surgeon.

5. Same — Substantive Evidence.

Evidence that at the trial of another action, to which he was a party, the employer acquired knowledge of the incompetency of a physician or surgeon whom he thereafter retained to attend an employee who received an injury in the course of his employment, is sufficient as to the defendant’s notice of such incompetency, upon the question of his negligent selection of him, though not substantive evidence as to whether he was, in the present case, chargeable with malpractice.

C. Appeal and Error — Findings—Depositions—Evidence.

The findings of the trial judge that a witness, testifying by deposition, was sick and unable to attend court, and had been duly served with subpoena, are conclusive on appeal, where there is evidence to support them and the deposition was properly admitted in evidence.

*6387. Contracts — Negligence—Release—Infants—Evidence.

Where a release has been obtained from an employee, discharging his employer from liability for a personal injury, alleged to have been caused by negligence, a family record containing the ages of employees, including that of the plaintiff, showing that he was a minor at the time of signing the release, is competent in corroboration of other evidence to the same effect, upon the question of the validity of the release.

8. Employer and Employee — Master and Servant — Physicians and Surgeons — Malpractice—Evidence—Res Gestae.

It was competent for the plaintiff to testify in his own behalf as to what the physician said at the time he treated his arm, as to its condition and appearance, and as to what a knot near the elbow signified, which turned out afterwards to be a wrong diagnosis, this being in the nature of declarations accompanying the acts of the physician in treating the arm, and therefore a part of the thing done (pars rei gestae).

9. Contracts— Negligence— Release— Fraud— Evidence— Employer and Employee — ¿Master and Servant.

Upon allegations of fraud in the procurement of a release from damages for a personal injury resulting from malpractice of a physician in setting a broken arm of defendant’s employee, and for which the defendant is responsible, evidence that the defendant, and the physician employed by him, misrepresented the condition and effect of the injury and its probable consequences, which was calculated to and did mislead the plaintiff in taking a small sum of money in giving a release, altogether dispropor-tioned to any reasonably adequate sum, is sufficient to be considered upon the issue as to the validity of the release.

10. Same — Physicians and Surgeons — Malpractice.

Where the employer is responsible in damages for malpractice of his physician in charge of an injured employee, and there is evidence that he afterwards had called in another physician, who properly treated the case, recovery can only be had for the injury and damage occasioned by the malpractice of the first physician; and where the judge clearly and properly so charged the jury, and the jury has so confined the damages, his reference to .the second physician called in is not prejudicial, but harmless.

11. Appeal and Error — Instructions—Contentions—Objections and Exceptions.

Objection to an alleged misstatement by the judge of the contention of a party should be made promptly in order to be available by exception on appeal.

Appeal by defendant from Harding, /./at August Term, 1920, of YaNCEV.

Plaintiff states two causes of action, in tbe first of wbicb be alleges negligence of tbe defendant in failing to furnish a safe place to work. Tbe defendant required tbe plaintiff to work on a.lumber dock, which was about twelve feet above tbe ground on a frame of studding, which bad been floored and a steel rail track, laid on top of this flooring, upon *639which track a lumber car or truck was operating. Defendant had been shipping lumber from packs alongside of this dock, and had carelessly piled up a lot of lumber and packing strips in a loose way on top of this lumber dock and by the side of the track. The timber in this dock had been permitted to rot, which caused the track upon the same to spread, and the lumber truck to drop down between the rails. In order to get the truck back on the track, it was necessary to prize the same up with timbers, requiring the plaintiff to go around the car on the dock, and to do so he was required to pass over this lumber or packing strips, which slid off to the ground, taking the plaintiff with it, a distance, of about twelve feet, when both the bones in his left arm were broken. Plaintiff also alleges an insufficiency of hands to do the work which required him and his coworker to use the scantling for prizing the car back on the rails.

In the second cause of action the plaintiff alleged that he was injured by the malpractice of defendant’s doctor, who failed to treat his arm properly and with ordinary skill, and failed 'to use the right kind of splint, and thus permitted the bones of his arm to become lapped and out of alignment, and thereby his arm was left badly misshaped and was rendered practically useless.

Defendant pleaded a release by the plaintiff, which the latter alleged was fraudulently procured.' The other questions in the case will fully appear from the verdict, which, with the answers thereto, is as follows:

“1. Was the plaintiff injured by the negligence of the defendant, as alleged in the first cause of action, as set out in the complaint ? Answer: Wes.’

“2. Did the plaintiff by his own negligence contribute to his own injury? Answer: No.’

“3. What damage, if any, is plaintiff entitled to recover for and on account of his injury, as alleged in the first cause of action? Answer: ‘$2,500, less $165.’

“4. Was the signature of the plaintiff and the execution of the contract of release set up in defendant’s answer obtained from the plaintiff, McKinley McMahan, through fraud, undue influence, or misrepresentation of the defendant? Answer: ‘Yes.’

“5. Was the plaintiff at the time of signing the said release a minor, under the age of 21 years? Answer: ‘Yes.’

“6. Did the defendant engage and employ Dr. D. J. Smith as its physician to treat the plaintiff, as alleged in the complaint ? Answer : ‘Yes.’

“7. Did the defendant negligently furnish an unskilled and incompetent physician and surgeon to give such treatment? Answer-: ‘Yes.’

*640“8. "Was tbe plaintiff injured, by tbe negligence of tbe defendant in failing to properly treat plaintiff’s injury, as alleged in tbe complaint? Answer: ‘Yes.’

“9. What damages, if any, is tbe plaintiff entitled to recover as tbe result of negligence, as alleged in tbe second cause of action ? Answer: ‘$4,000.’ ”

Judgment was entered on tbe verdict, and tbe defendant appealed.

Watson, Hudgins, Watson & Fonts for plaintiff.

W. C. Howland, S. J. Ervin, Merrimon, Adams & Johnston, and Charles Hutchins for defendant.

Walicbr, J.,

after stating tbe case: It will be convenient to consider tbe exceptions in tbe order of tbeir statement in tbe record, tbougb tbey are not so stated in tbe defendant’s brief.

As to tbe first cause of action, we think there was sufficient evidence of tbe defendant’s negligence for tbe jury. Tbe defendant was required to exercise due care in furnishing a reasonably safe place for plaintiff to do bis work, and tbis, it is alleged, was not done, as its platform or dock was decayed so that tbe rails spread and tbe band-car fell between tbe rails. On tbe day of tbe injury tbe car, because of the rotten condition of tbe dock, fell between tbe rails, and it was necessary for plaintiff to secure a scantling from tbe other side of tbe track in order to prize it back to its place. To do tbis be was required to go around tbe car, and while be was walking toward tbe place where be saw tbe scantling, be stepped on a pile of lumber which bad been taken from tbe stack' and was crossed. It should not have been there, and, besides, it was improperly piled, being crossed instead of straight. He was short of help and bad to burry with bis work in order to keep tbe mill clear of lumber where it would be in tbe way if allowed to accumulate. He stepped on tbe lumber and it slipped and slid off and threw him violently to tbe ground, because it was piled improperly. It should have been piled straight instead of crossed, and should have been in tbe stack and not on tbe platform. Tbe question of negligence was properly submitted to tbe jury by tbe court, under tbe rule of tbe ju’udent man, and also tbe question of plaintiff’s contributory negligence, and tbey found against tbe defendant. •

Tbis case does not fall within that class where tbe employer is allowed to do simple work in bis own way, without tbe necessity of any instructions from bis employer, because it is presumed in such a case that tbe work is safe if properly done by tbe employee, by tbe exercise of bis own common sense and judgment, there being no complication in tbe work requiring special instructions from tbe employer as to bow be should *641do it. But this rule does not apply if the employer has not furnished a reasonably safe place to do the work, and the employee has been injured by his defaiilt in this respect, while in the exercise of due care himself. Whether the master has performed his duty and the servant has performed his, are questions manifestly for the jury to decide. If in this case the defendant furnished a rotten platform or dock for its servant to work on, and insufficient help for him to do the work properly and safely; if in consequence of defendant’s failure in this respect, plain-, tiff was compelled to go around the car on a walk, where lumber was wrongly and carelessly piled, and while in the exercise of care himself, the plaintiff stepped on the pile of lumber which slipped from under him and caused him to be thrown from the platform, and the jury found these to be the facts, and that the injury was proximately caused in this way, and by defendant’s failure of duty, the verdict was correct in fact and in law. We must hold that there was some evidence from which the jury could infer the necessary facts showing defendant’s negligence, and the same may be substantially said of the defendant’s contributory negligence. His Honor put both questions to the jury according to our approved precedents. It was more a question of fact than one of law. The master’s duty to furnish a reasonably safe place for the servant to work and proper machinery and other appliances with which he may perform it, is unquestionable. “Where there is evidence tending to show that an injured employee did not have a reasonably safe place to work, . . . the question whether it was such a place, or whether the failure to warn him of the danger was the proximate cause of the injury should be submitted to the jury. Where more than one inference can be drawn, as to the negligence, or the proximate cause, it is for the jury to determine” which inference is the correct one. Holton v. Lumber Co., 152 N. C., at p. 69. Cases bearing on this question are Steeley v. Lumber Co., 165 N. C., 27; Nelson v. Tobacco Co., 144 N. C., 420; Dunn v. Lumber Co., 172 N. C., 129; Marks v. Cotton Mills, 135 N. C., 290; West v. Tanning Co., 154 N. C., 44, and other cases which are cited in Steeley v. Lumber Co., supra. There was no error in submitting the first cause of action to the jury, especially when the principles of law applicable to the case were so lucidly stated in the charge.

As to the second cause, for malpractice in treating the plaintiff, there can be no question that there was some evidence which tended to establish the charge of unskillfulness in the method of treatment, and a failure to exercise proper care and to make a proper diagnosis. There was undoubtedly sufficient evidence that defendant knew of the incompetency of the physician. The particular allegation is that Dr. Smith, assisted by Dr. Aldredge, failed to place the broken bones in proper alignment, but left them overlapping each other, and without a union between them, *642thus shortening the arm about two inches, and leaving it “very crooked and ugly in appearance, and practically useless.” As said in Woody v. Spruce Co., 178 N. C., 592 (S. C., 176 N. C., 643), “The defendant owed the duty to the plaintiff, after it had undertaken to secure a doctor for him, to see that he ’was one of reasonable skill and ability.” There was evidence that Dr. Smith was employed and paid from the wages of the employees, upon the assessment plan, to treat them, and the rule just stated, as to defendant’s duty in the premises, is the Correct one. The evidence of a prior suit to which defendant was a party, and in which he was informed of the physician’s lack of skill, was sufficient to charge it with notice of the same on the question of negligence. It was not competent as substantive evidence of the physician’s incompetency, nor of negligence itself, but only of notice to the defendant that he was considered as unskillful. Fowle v. R. R., 147 N. C., 491; 4 Chamberlayne on Mod. Law of Ev., sec. 3230. The information came to the defendant under oath, and therefore was most solemnly imparted to him; and the jury found that he was incompetent before this transaction. With these facts within its knowledge, the defendant should have proceeded more cautiously. Some latitude is necessarily allowed in j>roof as to notice or knowledge. It was held in Woody v. Spruce Co., supra, that while the company was under no obligation to furnish a physician to its employees, when it assumed to do so, the duty arose to exercise due care in selecting him and in continuing him in its service. Several of the exceptions to testimony are so plainly untenable that we forbear any discussion of them.

The deposition of Mrs. McMahan was competent. The judge found as facts that she was sick and unable to attend court, and had been duly served with a subpoena. These findings are binding upon us. Williford v. Bailey, 132 N. C., 403; Brandon v. O’Briant, 93 N. C., 103; Pell’s Revisal, sec. 1645, subsee. 4. There were no written exceptions to the deposition filed. Davenport v. McKee, 98 N. C., 500, at p. 507, and cases cited.

As to the paper containing the ages, including that of the plaintiff, it was, at least, corroborative and was properly admitted on that ground, if for no other reason. It was offered to prove the age of plaintiff, and the want of capacity to execute the release. On the question of fraud in procuring the release, the court’s instructions to the jury were fully sufficient, and conformed to our precedents, and the same may be said of the general charge on the second cause of action.

The testimony of plaintiff as to what he told Dr. Smith as to the condition of his arm, when the doctor examined it and changed the splints put there by Dr. West, was clearly admissible-as part of the res gestae, and also as explanatory of his physical condition, the statement having *643been made to bis physician at tbe time tbe latter was trying to discover wbat was tbat condition. He called tbe doctor’s attention to tbe knot on bis arm bone, and was told tbat it was not serious, but merely a callous formation on tbe bone, and tbat it would be all right, which proved to be untrue; tbe doctor advised him tbat be could go back to bis work, whereas tbe arm became so bad, and was so crooked and disfigured, tbat be was ashamed to exhibit it, even to tbe doctor who treated it. There was evidence tbat tbe arm was not treated according to tbe approved methods of surgical science, and did not receive tbe proper attention, and for these reasons it was left in its present condition, and will never improve or return to its normal shape. Tbe court, in tbe charge, expressly confined tbe testimony in regard to tbe Woody suit against tbe defendant to the question of notice, or knowledge of Dr. Smith’s incompetency, and positively instructed tbe jury not to consider it as substantive evidence of tbe fact.

Tbe motion to nonsuit was properly overruled. Upon such a motion tbe testimony must be taken as true (Reid v. Reese, 155 N. C., 230; Woody v. Spruce Co., 176 N. C., at p. 643), and when so regarded, there was ample evidence to support tbe verdict. In this connection we may well repeat tbat plaintiff’s testimony of bow be was hurt, if believed, shows tbat tbe lumber on tbe dock was so carelessly piled as to cause it to give way when be stepped on it, and besides, tbat kind of lumber did not belong there, but should have been in tbe stack, and tbat be did tbe best be could under tbe circumstances, not being aware of tbe trap tbat was there, though not intentionally set for him. These and other facts of like import, taken in connection with tbe rotten platform, and tbe shortage of helpers, made a ease of negligence for tbe jury to find. Plaintiff properly contended tbat be bad tbe right to assume tbat bis employer bad so piled tbe lumber as not to be unsafe to him while in tbe performance of bis duties, and tbat be bad not needlessly exposed him to danger. Cochran v. Young-Hartsell Mills Co., 169 N. C., 57. Tbe master produced tbe situation which required tbe plaintiff to walk over tbe pile of lumber and was negligent in doing so, but having done it,, tbe servant bad tbe right to assume tbat be could safely walk to tbe place where be was required to go for tbe scantling, or whatever be needed, to prize tbe car back, especially as there was a lack of necessary help to do tbe work, according to plaintiff’s testimony, which we must believe to be true on tbe motion of nonsuit. Pigford v. R. R., 160 N. C., 93.

There was evidence of fraud in procuring tbe release and of a want of consideration. There was actual misrepresentation here, notably as to plaintiff’s condition, which was calculated to mislead him and cause him to surrender bis right of recovery for a mere song, almost nothing as compared with tbe extent- of bis injuries and bis real damage. Causey *644 v. R. R., 166 N. C., 5, at p. 10, where it is said (quoting from Hume v. U. S., 132 U. S., 611) : “It (fraud) may be apparent from tbe intrinsic nature and subject of tbe bargain itself, sucb as no man in bis senses, and not under delusion, would mate, on tbe one band, and as no bonest and fair man would accept, on tbe other.” Tbe charge was plainly correct as to tbe burden of proof. Woody v. Spruce Co., 178 N. C., 592, 593 (S. c., 176 N. C., 644). No damages were claimed after 1 December, 1917, and tbe judge instructed tbe jury not to award any, which resulted from any treatment of Dr. Smith after that date, as tbe defendant was protected against any sucb award of damages by its contract with tbe plaintiff. Tbe charge was correct as to tbe other damages, when tbe entire charge is considered.

We are of tbe opinion that tbe jury did not give any damages because of anything Dr. West did, as it appears that bis treatment was satisfactory according to plaintiff’s own testimony, and from all that appears, be was competent and capable. Tbe injury done was attributable to Dr. Smith’s advice and treatment of tbe arm. Tbe plaintiff testified that its appearance was good when be returned from tbe hospital, and tbe arm was straight. Tbe splints were removed by Dr. Smith and twice replaced with others by him, and it was then and thereafter tbe damage was caused. We can see nothing to lead us to believe that any part of tbe recovery was due to Dr. West’s conduct, or treatment, and therefore tbe reference to him, even if improper, was not prejudicial, and was practically harmless. It is not ground for a reversal. S. v. Bailey, 179 N. C., 724. Besides, tbe issues themselves restricted tbe inquiry to damage caused by Dr. Smith’s incompetency. Tbe jury surely understood its scope.

We have examined this case with great care, and close attention, and can find no reversible error. Tbe objections to tbe judge’s statement of tbe contentions fall within tbe usual rule that any error therein, if any, was not called to tbe judge’s attention, as it should have been, in proper time so that be could correct it. Sears v. R. R., 178 N. C., 285; Hall v. Giessell, 179 N. C., 657. Tbe numerous exceptions have extended this opinion beyond our expectation.

As we find no error, it will be so certified.

No error.