#### A. C. HASSELL v. E. R. DANIELS et al.

(Filed 15 September, 1920.)

1. New Trials — Appeal and Error — Nonsuit—Opinion of Supreme Court— Verdict Directing — Evidence—Trials.

Where, on a former appeal from a judgment of nonsuit on the question of whether an employer had negligently failed to furnish his employee a safe place to work, the Supreme Court following its uniform ruling in considering only the evidence in plaintiff’s' favor, interpreted in the light most favorable to him, said the place in question could not, as a matter of law, be held a safe place, this expression does not justify a directed verdict on the appropriated issue on the new trial granted, where the further evidence is conflicting as to whether the place was in fact a safe one under the principles of law applicable.

2. Employer and Employee — Master and Servant — Evidence—Safe Place to Work — Opinion.

Where the negligence of the defendant depends upon whether he failed in his duty to furnish his employer, the plaintiff in the action, a safe place to oil his machinery, it is competent for a witness to testify in the defendant’s behalf that a person of the plaintiff’s height could have safely stood on a box provided for the purpose and have thus oiled the machinery, the witness being an experienced and trained machinist, familiar with this type of machine, both as to its operation and upkeep, and had made personal observation of the condition at this plant, and the very machine in question, whether the evidence be considered as a statement of a fact, or of the opinion of the witness thus qualified to speak.

Civil actioN, tried before Lyon, J., and a jury, at October Term, 1919, of Daee.

Tbe action is by an employee to recover damages of defendants, Ms employers, for alleged negligence on tbeir part in not providing Mm with, a safe place to do Ms work. There was denial of liability, pleas of contributory negligence, and assumption of risk. On issues submitted, the jury rendered verdict for defendant to the effect that plaintiff was not injured by defendant’s negligence, as alleged in the complaint, and making no response to the other issues.

Judgment on the verdict for defendants, and plaintiff excepted and appealed.

Ehringhaus & Small for plaintiff..

Aydlett & Simpson and Meehins & McMulldn for defendants.

HoKE, J.

This cause was before us on a former appeal by plaintiff from a judgment sustaining defendant’s motion for nonsuit, and it was held that such judgment was erroneous, and “that the same be set aside in order that the matters in Controversy be submitted to the jury.” See *38 Hassell v. Daniels, 176 N. C., 99. Accordingly, on tbe present bearing tbe issues arising on tbe pleadings were submitted, tbe jury bave rendered a verdict against tbe plaintiff on tbe principal issue as to defendant’s negligence, and we find nothing in tbe record that justifies tbe Court in disturbing the results of tbe trial.

It is urged for error, chiefly, that on tbe evidence, if believed, tbe jury should bave been directed to find this first issue against tbe defendant, and that tbe court, in effect, so held on tbe former appeal. It is true that in delivering ■ that opinion tbe Court said: “Tbe plaintiff was injured while performing a duty for tbe defendants under orders from bis superior,’ and be was required to stand above tbe floor, on a ledge about 3 inches wide, made slippery by tbe dripping oil, and to lean forward, with an oil can in one band and a funnel in tbe other, both necessary implements in tbe performance of bis duty, and pour oil in cups between a piston-arm and drive-wheel, each making 70 revolutions a minute, and when be necessarily came within 3 or 4 inches of tbe moving machinery, and this cannot be held to be a safe place to work, as a matter of law.”

In that utterance, however, tbe Court was only following our uniform rulings that “on a judgment sustaining defendant’s motion for nonsuit, it is proper and permissible to consider only tbe evidence which makes in favor of plaintiff’s recovery, interpreted in tbe light most favorable to him.”

While there is evidence of plaintiff, in tbe present trial, tending to establish tbe facts suggested in this excerpt from tbe Court’s opinion, there is also testimony coming from defendant, and tending to show that “it was not necessary for plaintiff to have taken a position on this ledge, 3 to 4 inches wide, but that be could bave well performed tbe instant duty of pouring tbe oil in tbe cups when standing on tbe floor of tbe room, and so escaped tbe dangers that threatened, and of which be complains, and, furthermore, that there was a box there and available, 8 inches high,' affording a method of oiling machine in comparative safety.”

These opposing aspects of tbe testimony relevant to tbe issue, and pertinent to tbe only source of negligence charged against defendant, were submitted to tbe jury under proper instructions, and, as stated, they bave by their verdict exonerated tbe defendant from liability.

It was further insisted that bis Honor made an erroneous ruling in permitting tbe witness, William Harnley, to testify, over plaintiff’s objection, that a man five feet eight inches high could very handily stand on a box eight inches high and oil tbe cups of tbe machine. (Five feet eight being tbe assumed height of plaintiff, and eight inches being *39tbe beigbt of tbe box there, and available for tbe purpose.) He further said that be bad oiled the machine standing on tbe floor, and be was six feet tall.

This witness was shown to be an experienced and trained machinist, familiar with this type and kind of machine, both as to its operation and upkeep, and bad made personal observation of tbe conditions at this plant and tbe very machine in question.

"While to some extent in tbe form of an opinion, this testimony is really tbe statement of a fact, but whether tbe one or tbe other, tbe witness having personal observation of conditions, and being qualified by opportunity, training, and experience to give an opinion that would aid the jury to a correct conclusion on tbe subject, tbe testimony was in our opinion properly received. Caton v. Toler, 160 N. C., 104; Murdock v. R. R., 159 N. C., 131; Tire Setter Co. v. Whitehurst, 148 N. C., 446; Britt v. R. R., 148 N. C., 37; 1 Elliott on Ev., sec. 675; McKelvey on Ev., pp. 230-231.

On careful examination, we find no- error which gives tbe plaintiff just ground for exception, and tbe judgment for defendant is affirmed.

No error.