#### FRED KILLIAN v. ANDREWS MANUFACTURING COMPANY.

(Filed 31 May, 1924.)

Evidence — Negligence — Employer and Employee — Master and Servant.

In the employee’s action to recover damages of Ms employer, alleged to have been caused by the negligence of the latter’s vice-principal by using an' insecure appliance in connection with a power-driven cable, which approximately caused the injury in suit, it is competent to show, by a conversation between plaintiff’s fellow-servant and the vice-principal, in plaintiff’s presence and hearing, that previous to the occurrence the vice-principal had been put upon notice that the implement he was using was dangerous to the plaintiff in the performance of his duties.

Appeal by defendant from McMroy, J., at January Term, 1924, of Cherokee.

Civil action to recover damages for an alleged negligent injury.

*811Tbe usual issues of negligence, contributory negligence, assumption of risk and damages were submitted to tbe jury and answered by tbem in favor of tbe plaintiff. From a judgment' on tbe verdict, defendant appeals, assigning errors..

Moody & Moody for plaintiff.

Martin, Rollins & Wright for defendant.

Stacy, J.

Plaintiff, an employee of tbe defendant, at tbe time be received bis injury, was a member of a skidder crew, engaged in taking tbe slack out of an overhead cable used by tbe defendant in transporting logs across a mountain ravine or along tbe mountain side. Tbe main cable was being tightened by means of a smaller cable drawn around tbe drum of tbe skidder engine, and this smaller cable was fastened to tbe larger cable by a logging chain. A link in this chain broke or gave way, causing tbe main cable to fall against tbe plaintiff’s leg, inflicting serious injury and rendering its amputation necessary.

Plaintiff testified that a few minutes before tbe injury Tom Payne, who was engaged in fastening tbe two cables together, said to John Gibbs, tbe foreman in charge of tbe work: “John, that chain won’t bold.” Gibbs replied: “Ob, yes, 'it will bold.” Payne said: “You are the doctor,” and proceeded to tie tbe two cables with tbe chain which broke and caused plaintiff’s injury. Defendant contends that this evidence was incompetent and that its admission, over objection, should be held for reversible error. But it will be observed that this conversation was bad in tbe presence of and with John Gibbs, defendant’s representative in charge of tbe work. Such evidence was held to be competent in Jenkins v. Long, 170 N. C., 269, as tending to fix tbe defendant with previous knowledge of tbe existing danger. It was not denied by Gibbs. In fact, tbe defendant offered no evidence, but rested its ease at tbe close of plaintiff’s evidence. Tbe exception must be 'overruled.

Tbe remaining exceptions and assignments of error present no new or novel point of law not heretofore settled by our decisions. A careful perusal of tbe record leaves us with tbe impression that tbe case has been tried substantially in agreement with tbe law bearing on tbe subject, and that tbe validity of tbe trial should be upheld.

No error.