#### B. F. DELLINGER, Administrator of TILLMAN DELLINGER, v. ELLIOTT BUILDING COMPANY, Inc., and J. R. ABEE.

(Filed 31 May, 1924.)

1. Evidence — Civil Actions — Dying Declarations — Wrongful Death — Negligence — Statutes.

In case of the admission of dying declarations, as in criminal actions for homicide, the dying declarations of one whose wrongful death has been caused to be admissible upon the trial in an action to recover damages for his wrongful death, must have been voluntarily made while the declarant was in extremis or under a sense of impending death, and confined to the act of killing and the attendant circumstances forming a part of the res gestee. O. S., 160.

2. Employer and Employee — Master and Servant — Evidence—Safe Place to Work — Appeal and Error — Objections and Exceptions.

The requirement that an employer furnish his employee a reasonably safe place and reasonably safe appliances to perform dangerous services in the course of his employment, is not confined to the rule that the employer furnish him with appliances that are known, approved and in general use, and when the evidence is competent on the general duty of the employer in this respect, its admission will not he held for error, when exception is broadly made without particularizing or separating the objectionable part.

3. Evidence — Witnesses—Impeachment—Corroboration.

Where a witness has testified in his direct examination to competent substantive evidence, and his statement has been impeached or questioned on his cross-examination, it is competent for him to testify on his redirect examination to matters in corroboration of his former testimony that would not otherwise have been admissible; and where the plaintiff, in his action to recover for the wrongful death of Jiis intestate, has testified to his physical condition competent upon the issue of damages, he may testify, on his redirect examination, after the cross-examination has sought to impeach this statement, that his intestate had been accepted and had served in the United States Army four or five months, when confined to the personal knowledge of the witness of the fact.

4. Pleadings — Evidence—Principal and Agent — Negligence — Vice-Principal.

In an action to recover for the wrongful death of plaintiff’s intestate involving the question of the negligence of the defendant’s vice-principal, it is not required that the complaint allege that the vice-principal was absent at the time of the injury, for the plaintiff to introduce evidence of this fact, and that another was acting in this capacity in his absence.

5. Evidence — Negligence—Res Ipsa Loquitur — Burden of Proof — Contributory Negligence — Instructions—Employer and Employee — Master and Servant — Fellow Servants.

Where there is evidence tending to show that the death of the plaintiff’s intestate was caused in the course of his employment by the falling of a derrick the defendant had furnished him to perform his duties, this *846may be considered by tbe jury as a circumstance from wbicb they may infer defendant’s actionable negligence in furnishing a defective or insufficient or insecure appliance, under tbe doctrine of res ipsa loquitur, tbe burden of proof remaining on tbe plaintiff, and tbe correctness of an instruction to that effect is not necessarily impaired by evidence tending to show negligence on tbe part of tbe intestate or of bis fellow-servants.

Appeal by defendants' from Lona. J., at tbe January Special Term, 1924, of Bubice.

Tbe defendants were engaged in putting up a building for a furniture manufacturing company in Morganton. Tbe plaintiff’s intestate was one of tbe employees. He and seven or eight other men used a derrick in raising and placing heavy pieces of timber in tbe walls of tbe building. They bad raised and put in position between 75 and 100 pieces, and when tbe plaintiff’s intestate was “riding” one of tbe timbers tbe derrick gave way, tbe timber fell and tbe intestate was thrown to the ground and injured. He died within a few hours. Tbe plaintiff alleged that tbe defendants were negligent, in tbe construction and operation of tbe derrick, that they bad failed to secure or anchor it witb cables or braces, and that tbe intestate’s death was tbe proximate result of their negligence.

Tbe defendants filed an answer,-and at tbe trial tbe following verdict was returned:

1. Was plaintiff’s intestate injured and killed by tbe negligence of tbe 'defendants as alleged in tbe complaint? A. Yes.

2. Did plaintiff’s intestate, by bis own negligence, contribute to tbe injury resulting in bis death, as alleged in tbe answer? A. No.

3. Did plaintiff’s intestate voluntarily assume tbe risk of receiving tbe injury resulting in bis death, as alleged in tbe answer? A. No.

4. What damage, if any, has plaintiff sustained? A. $5,000.

Judgment for tbe plaintiff and appeal by tbe defendants.

Spainhour & Mull, S. J. Ervin, and S. J. Ervin, Jr., for plaintiff.

Avery & Ervin and W. A. Self for defendants.

Adams, J.

Tbe plaintiff offered in evidence tbe intestate’s dying declarations as to tbe cause of bis injury. Upon objection by tbe defendants, tbe judge granted their counsel a preliminary examination on this point, and in response tbe witness said: “He (tbe intestate) told me be could not get well; said a block bad done it; said be could not live; told me what to do witb bis wife and things; said it bad killed him; for me to attend to bis wife and look after her, and what be bad. He asked me then about these other boys, and bow many of them were killed. At tbe time be said be could not get well Dr. Phifer was in *847tbe bouse — in and out — wben be was talking. I do not know if be was near enough to bear wbat be said — be was out and in — going around there. I could not tell you who was in. We were in a room this way, in tbe hospital. I don’t know if anybody else beard bis dying declaration; I could not tell you.”

Tbe following evidence was then admitted, and tbe defendants excepted : “He said tbe block and chain had bit him here (indicating) ; said this is wbat killed me — the block and chain bit him. After be told me be could not get well, be told bow tbe accident occurred. I asked him. He told me wben tbe derrick fell — when be realized it was falling — be said bis foreman was jumping — all jumping off; and said, ‘That was tbe last I saw of them.’ I said, ‘Mr. Abee was not there,’ and be said, ‘Mr. Hauser was tbe man looking after it wben Mr. Abee was not there.’ I said, ‘I have not beard of it yet; I don’t know who was hurt.’ He turned bis bead over from me. At tbe time tbe derrick fell, be said they were lifting a piece of timber — him and tbe foreman was together; then spoke that Mr. Hauser was tbe man.”

At tbe session of 1919 tbe Legislature amended section 59 of tbe Revísal (C. S., 160) by adding thereto tbe following paragraph: “In all actions brought under this section, tbe dying declarations of tbe deceased as to tbe cause of bis death shall be admissible in evidence,'in like manner and under tbe same rules as dying declarations of tbe deceased in criminal actions for homicide are now received in evidence.” Public Laws 1919, cb. 29.

In prosecutions for homicide, tbe declarations of tbe deceased, voluntarily made while in extremis, under a sense of impending death, concerning tbe act of killing, and tbe facts and circumstances forming a part of tbe res gestee are admissible, where tbe deceased would be a competent witness if living. As in homicide, tbe declarations must be restricted to tbe act of killing and tbe attendant circumstances; so, in an action to recover damages for Wrongful death, tbe declarations of tbe deceased are restricted by tbe terms of tbe statute to tbe cause of tbe death. S. v. Shelton, 47 N. C., 360; S. v. Mills, 91 N. C., 594; S. v. Jefferson, 125 N. C., 712; S. v. Teachey, 138 N. C., 587; S. v. Bohanon, 142 N. C., 695; S. v. Hall, 183 N. C., 806; Tatham v. Mfg. Co., 180 N. C., 627; Williams v. R. R., 182 N. C., 267, 273.

Tbe defendants excepted on tbe ground that this principle was ignored. They say tbe declarations were not restricted to tbe circumstances attend-ánt upon tbe injury. Tbe reference to Hauser, it will be noted, was a part of tbe intestate’s description of tbe surroundings under which tbe injury occurred — a part of tbe res gestee. Tbe language was this: “At tbe time tbe derrick fell, be said they were lifting a piece of timber'— him and tbe foreman was together; then spoke that Mr. Hauser was tbe *848man.” Moreover, there was no exception to the specific declaration, “Hauser was the man looking after it when Mr. Abee was not there.” Such exception was essential, for a general exception to the admission of evidence will not be considered unless all the evidence objected to is incompetent. Barnhardt v. Smith, 86 N. C., 479; Smiley v. Pearce, 98 N. C., 185; Rollins v. Wicker, 154 N. C., 559, 563; Phillips v. Land Co., 174 N. C., 542.

Exception was taken to the plaintiff’s testimony that he had seen a thousand derricks, and that all, except the one used by the intestate, were equipped with guy wires; and to the testimony of Horace Moses, that the derrick, before the injury, “was shaky — it shook — shook all it could”; that “all other derricks he had seen were different, in that they had guy wires, and that this one did not conform to the rule”; and that “Mr. Dellinger says to me, 'Do you want a job?’ I said, ‘Yes, sir.’ Mr. Hauser says, ‘I suppose you can get a job if you want it.’ I says, ‘I don’t want a job here; this is dangerous; I hain’t ready to die yet.’ ”

The defendants do not intend, by this exception, to assail the doctrine that it was the duty of the defendants to exercise due care to provide for the intestate reasonably safe appliances with which to do his work, but they say the evidence was not competent upon the question whether they had neglected to perform their duty in this respect. They contend that the apparatus used for hoisting the timber was not such a derrick as is usually supported by guy wires, but an appliance of a different character, and that the admission of the evidence implied its unsafe condition because it was not held in position by cables or braces.

As we understand the record, the evidence was admitted on another theory. In the complaint the appliance was described as a derrick, and the plaintiff contended that even if it fell short of the technical definition, it was spoken of and treated as a derrick during the trial, and, as constructed, was .not such as was approved and in general use. In Ainsley v. Lumber Co., 165 N. C., 122, the Court approved the doctrine that the employer’s duty with respect to providing for his employees such machinery, implements and appliances as are known, approved and in general use, while peremptory in its terms and effect, is in addition to the more general one of supplying such as are reasonably safe and suitable, and that both are included in the general obligation resting on the employer to exercise the care of a prudent man in looking after the safety of 'his employees. The use of machinery and appliances which are approved and in general use does not necessarily acquit the master of liability. There are other respects in which he must exercise due care. Hornthal v. R. R., 167 N. C., 627; Dunn v. Lumber Co., 172 N. C., 129; Cook v. Mfg. Co., 182 N. C., 205; Gaither v. Clement, 183 N. C., 451. In this view, the evidence was properly admitted. If the *849derrick was not a complicated piece of machinery, its operation involved elements of danger wbicb placed it outside the category of simple tools.

On his cross-examination the plaintiff testified that the intestate, at the time of his injury, “was a strong, healthy young fellow”; and, on the redirect examination, that after being accepted by the board he .served in the army four or five months. To the latter evidence the defendants excepted.

It is true that the trial judge should exclude evidence which is foreign to the issues, or insufficient for legitimate use, or illegal as tending only to excite the passion, arouse the prejudice, awaken the sympathy, or warp the judgment of the jury (Shepherd v. Lumber Co., 166 N. C., 130); but here the evidence was confined to the personal knowledge of the witness and was ostensibly admitted, after cross-examination, in explanation and corroboration of his former testimony. In this we see no reversible error. The same principle applies, in our opinion, to the admission of the plaintiff’s affidavit and the clerk’s order for the examination before the trial of the defendant Abee. The plaintiff testified, on his cross-examination, that he had tried to ascertain from Abee the men who were at work with the intestate when he was injured, and that Abee at first promised to give him their names, and afterwards refused to do so, and that the examination of the defendant was necessary. The judge admitted the affidavit and order, only so far as they tended to corroborate the previous statements of the witness, and was careful to restrict the evidence to this purpose. The affidavit was not read in the presence of the jury, and it was referred to in the argument only to show that an affidavit and order were necessary to get the desired information. The defendants contend that they did not object to proof that the witness had made the affidavit, or attempt to impeach him in this particular, and that the evidence for this reason was not admissible in corroboration. In several respects, however, the witness was impeached. Indeed, this was no doubt the object of the cross-examination. In S. v. Bethea, 186 N. C., 22, it was said: “This Court has often held that whenever a witness has given evidence in a trial, and his credibility is impugned, whether by proof of bad character or by his contradictory statements, or by testimony contradicting him, or by cross-examination tending to impeach his veracity or memory, or by his relationship to the cause or to the party for whom he testified, it is permissible to corroborate and support his credibility by evidence tending to restore confidence in his veracity and in the truthfulness of his testimony. Such corroborating evidence may include previous statements, whether near or remote, and whether made pending the controversy or ante litem' motam. Johnson v. Patterson, 9 N. C., 183; S. v. George, 30 N. C., 324; Hoke v. Fleming, 32 N. C., 263; March v. Harrell, 46 *850 N. C., 329; Jones v. Jones, 80 N. C., 247; Roberts v. Roberts, 82 N. C., 30; Davis v. Council, 92 N. C., 726; S. v. Brabham, 108 N. C., 793; S. v. Exum, 138 N. C., 600; Cuthbertson v. Austin, 152 N. C., 336; Bowman v. Blankenship, 165 N. C., 519; Belk v. Belk, 175 N. C., 69; S. v. Krout, 183 N. C., 804.”

Exception was noted to the testimony of Horace Moses that Hauser gaye directions or instructions when Abee was absent; that he acted as Abee’s alter ego. True, there is no allegation in the complaint that Hauser was yice-principal of the defendants; but there was other evidence, not excepted to, tending to show that Abee was not present when the injury occurred, and that in his absence Hauser was in control. There was also evidence that Hauser temporarily directed the work. To require the plaintiff to set out in the complaint the name of every one placed in authority during the foreman’s temporary absence would .impose a difficult, if not insuperable, task. Whether Hauser was serving in the capacity of foreman while Abee was absent was a question of fact, and was properly submitted to the jury, under the circumstances disclosed by the record.

His Honor gave this instruction: “The fact that the derrick fell and injured and killed the intestate, if you find that it did fall and injure and kill him, is a circumstance from which you have a right to find or infer that the derrick was in some way defective or insufficient or insecure, and that its fall was due to or caused by some negligence on the part of the defendants.”

The defendants excepted, on the ground that the instruction not only withheld from the jury’s consideration any evidence of negligence on the part of the plaintiff’s intestate or of a fellow-servant, but declared, in effect, that” “the thing speaks for itself.” They now challenge the application of the doctrine of res ipsa loquitur, and contend that it obtains only where injury is sustained under such circumstances as logically tend to establish negligence.

In Saunders v. R. R., 185 N. C., 289, the doctrine is discussed' and the distinction drawn between cases in which the machinery or appliance is under the management of the employer and those in which it is not. Several cases are there cited, among them Womble v. Grocery Co., 135 N. C., 474, in which the falling of an elevator was held to be evidence of negligence, the Court applying the principle stated in Ellis v. R. R., 24 N. C., 138, that, “Although the burden is on the plaintiff to show negligence causing damage, when he shows damage resulting from the act of the defendant, which act, with the exertion of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence.” Undoubtedly, the falling of the elevator was evidence of negligence in its construction, maintenance or operation. The jury *851were permitted to determine wh.etih.er the defendants were negligent and whether their negligence was the proximate cause of the intestate’s injury and death. The correctness of the instruction was in no way impaired by evidence tending to show negligence on the part of the intestate or his fellow-servants.

We have giver^ careful attention to the remaining exceptions, and have been unable to find any error which entitles the defendants to a new trial.

No error.