#### THOMAS BRADFORD v. I. Mac. ENGLISH.

(Filed 16 December, 1925.)

1. Employer and Employee — Master and Servant — Dangerous Employment — Sufficient Help — Tools and Appliances — Safe Place to Work.

Where, under the direction of the defendant’s vice-principal, an employee is injured in the course of his employment in “ball-hooting” logs, i. e.: causing them to slide down a declivity on the ground, one side being peeled or skinned, to be further transported, and there is evidence tending to show that he was inexperienced therein and was injured in consequence of the *743failure of his employer to furnish sufficient help ordinarily required, and certain implements used in such work of a simple nature: Beld,, sufficient evidence of the defendant’s actionable negligence to take the issue to the jury.

2. Same — Nondelegable Duty.

It is a nondelegable duty of the employer to exercise ordinary care to furnish his employee suitable help and tools and appliances with which to do dangerous work within the scope of his employment.

3. Same — Implied Notice.

An employer of labor is held with notice of the customary and reasonable requirements necessary for his employee to perform, with reasonable safety, a duty within the scope of his dangerous employment, such as are ordinarily observed by other employers in like circumstances.

4. Same — Nondelegability of Employer’s Duty.

The duty of an employer to furnish his employee a reasonably safe place to work, sufficient help and proper appliances, may not be shifted by intrusting this duty to the control of another employee.

5. Evidence — Nonsuit.

Upon a motion for judgment as of nonsuit upon the evidence, the evidence is to be taken in the view most favorable to the plaintiff.

6. Employer and Employee — Master and Servant — Negligence—Contributory Npgligence — Evidence—Nonsuit.

Held,, upon a motion to nonsuit under the facts of this case, an employee, in the discharge of a dangerous duty he owed to an employer was not’ barred of his recovery for the defendant’s negligence by his alleged negligent failure to guard against a personal injury, under the circumstances of this case.

Appeal by defendant from, YaNCBY Superior Court. Oglesby, J.

Action for damages on account of negligence. From a judgment for plaintiff tbe defendant appeals. No error.

Watson, Hudgins, Watson & Fonts for plaintiff.

'A. Hall Johnston for defendant.

YabseR, J.

Plaintiff was “ball-booting” a “Waboo” log down tbe mountain-side. “Ball-booting” is tbe process of removing logs down a precipitous side of tbe mountain, where teams and other customary means cannot be used. Tbe “run” side of tbe log is “skinned” and tbe log goes endwise by gravity until it reaches a place where other means can be used to move it. Tbe log, a Vaboo or Indian Bitter, was about 14 inches in diameter and 12 feet long, and very heavy. Grover Anglin, foreman for defendant, was in charge of tbe laborers, one of whom was plaintiff. Anglin and a laborer were also getting out logs below tbe plaintiff and Grover Lewis. These two bad cut a log from a tree on tbe *744bill. Tbey bad an axe and a saw. Wben tbe log bad been cut off Anglin came up and ordered plaintiff and Lewis to “peel tbe run of tbe log and slide it down.” Peeling one side of tbe log makes it slide easily. “Tbis was on tbe hillside, and tbe little end of tbe log was running first.” Wben it was peeled plaintiff and Barnett started to “run” tbe log down and it “ran” until it “butted” against a fallen tree. Tbis tree was larger than tbe Waboo log and stopped its going wben it struck it. Ang-lin, foreman, told Barnett to get tbe Waboo log over tbe fallen log and “slide it on down tbe bill.” Plaintiff and Barnett went, pursuant to orders, and tried to get tbe log over tbe obstruction. Eacb bad a peavey. There were two peaveys in tbe crowd. Barnett went to tbe upper side and plaintiff to the lower side of tbe Waboo log and both were on tbe upper side of tbe fallen hemlock log. By tbe continuous use of tbe peaveys, these two laborers got tbe Waboo on top of tbe hemlock, and got it “balanced.” Tbe Waboo then slued around scissors-like and caught tbe plaintiff and “rolled” him' over tbe hemlock log, and then rolled over him and knocked him unconscious and seriously injured him.

Wben tbis was happening, Anglin, superintendent or foreman, and Lewis, were about 20 feet away. Tbey only bad a saw and an axe — -no peaveys. Plaintiff was inexperienced in ball-booting, but bad seen men at different places ball-booting. Plaintiff worked for defendant two days loading timber, and was injured on tbe third day about two o’clock in tbe afternoon. Tbis was bis first day’s experience in getting logs down steep places in tbis manner.

In ball-booting, five men are required — four men carry books — cant books with spikes in tbe ends — peaveys. Two men, eacb with a peavey, work at eacb end of tbe log. In tbis method tbey push tbe log down tbe steep incline and to keep it from a sudden turning, tbis injury go the laborers is usually prevented. One man cuts tbe brush and tbe four with tbe peaveys ball-boot tbe log. Wben tbis method is pursued, tbe process is practically safe. Plaintiff says be did not ask for any more help because be thought it was tbe foreman’s business to send men down and that be thought that tbe foreman knew bis business.

Wben viewed, as in motions to nonsuit, evidence is ample to sustain these facts and to show that tbe injury resulted from tbe failure of tbe defendant to furnish a sufficient number of helpers equipped with proper and suitable tools, such as are in general and approved use in tbis business, and that it was impossible for tbe plaintiff and bis colaborer, who bad to be at tbe lower end of tbe log in oi'der to get it up above tbe obstruction, to prevent tbe upper and heavier end from turning and catching tbe plaintiff between tbe green, heavy Waboo log and the fallen hemlock log and seriously injuring him. There is no evidence that plaintiff was instructed in tbe method used or in its dangers, or knew of them.

*745Upon tbe evidence submitted, under appropriate allegations, we cannot sustain tbe defendant’s exception to tbe refusal of tbe court below to grant bis motion to dismiss as upon nonsuit. Tbe defendant relies upon Angel v. Spruce Co., 178 N. C., 621. Tbis case is different from tbe instant case, for that its facts are as follows: Tbe plaintiff, Angel, and one, Willard Gregory, an employee of Spruce Oo., were engaged in getting out timber from defendant’s land, and in tbe course of tbeir employment bad cut down a tree that fell so as to make it inconvenient to saw it into logs. With tbe view of giving tbis tree a better placing they proceeded to cut off tbe branches and top of tbe tree and as tbey cut tbe latter the body of tbe tree rolled down on Spruce’s foot injuring it. Spruce bad long been engaged in work of tbis kind and tbis particular job was well witbin bis experience and training and be was left largely to bis own methods of doing it. A similar case is Rumbley v. R. R., 153 N. C., 457; Also, Simpson v. R. R., 154 N. C., 51; Bunn v. R. R., 169 N. C., 648. In Winborne v. Cooperage Co., 178 N. C., 88, tbe Court, speaking through Solee, J., says: “In order for liability to attach in case of simple everyday tools, it must appear, among other things, that tbe injury bad resulted from a lack of such tools or defects therein which tbe employer is required to remedy, in tbe proper and reasonable discharge of bis duties and that tbe lack or defect complained of and made tbe basis of tbe charge is of a bind from which some appreciable and substantial injury may be reasonably expected to occur.” In Rogerson v. Hontz, 174 N. C., 27, tbe Court set aside an order of nonsuit, for that it appeared that tbe plaintiff was seriously injured by reason of a defective cant book, and tbe evidence tended to show that tbis cant book was an “implement suitable to tbe work and which tbe employer should supply.”

If it was necessary to furnish, in these cited cases, such a suitable tool as a cant book, it must needs be necessary in tbe instant case, to furnish helpers in sufficient number with peaveys, which are practically tbe same as cant books with tbe iron spike in tbe end of tbe staff, so that tbe injuries likely to flow therefrom will be guarded against in a reasonable manner. Tbe instant case comes witbin Tate v. Mirror Co., 165 N. C., 279; Pigford v. R. R., 160 N. C., 101. An employer of labor may be held responsible for directions given, or methods used by reason of which an employee is injured. It is as much tbe duty of tbe master to exercise due care to provide tbe servant with reasonably safe means and method of work, such as proper , assistance in tbe performance of bis task, as it is to exercise due care to furnish him a safe place and proper tools and appliances. Smith v. R. R., 182 N. C., 296; Tritt v. Lumber Co., 183 N. C., 830; Gaither v. Clement, 183 N. C., 450 (this *746case contains a clear and satisfactory discussion of tbe master’s duty to exercise ordinary care to perform the duties required of him by law in relation to his employees); Owen v. Lumber Co., 185 N. C., 612 Murphy v. Lumber Co., 186 N. C., 746. This is a primary, absolute and nondelegable duty. When he entrusts the control of his employees to another, the duty is not shifted and the master is responsible for the proper exercise of the authority with which he vests his representative, and he is liable for any abuse of it, (Southwell v. R. R., 189 N. C., 417, 420; Hollifield v. Tel. Co., 172 N. C., 714, 725; Ainsley v. Lumber Co., 165 N. C., 122; West v. Tanning Co., 154 N. C., 44; Hamilton v. Lumber Co., 156 N. C., 523; Norris v. Mills, 154 N. C., 474; Skives v. Cotton Mills, 151 N. C., 290; Holton v. Lumber Co., 152 N. C., 68; Shaw v. Mfg. Co., 146 N. C., 235, 239; Tanner v. Lumber Co., 140 N. C., 475; Allison v. R. R., 129 N. C., 336; Means v. R. R., 126 N. C., 424; Mason v. Machine Works, 28 Fed., 228; R. R. v. Thompson, 200 U. S., 206; R. R. v. Herbert, 116 U. S., 642), to the same extent as if he had been personally present and acting in that behalf himself. The evidence tends to establish that defendant’s foreman was observant of what plaintiff was doing and his efforts to comply with his directions; and the jury has found that in the exercise of that degree of care that a prudent man would have exercised under similar circumstances, he knew or ought to have known that injury was likely to result, because there were an insufficient number of helpers equipped with proper tools with which to guide the log and prevent its sudden turning. It is the duty of the master to exercise due care to have a sufficient force to do the work at hand and to furnish to plaintiff while he was in the discharge of his duties a reasonably safe place in which to work. Pigford v. R. R., supra; Hollifield v. Tel. Co., 172 N. C., 715, 725; Shaw v. Mfg. Co., 146 N. C., 235. The employer’s duty to exercise ordinary care to furnish reasonably safe and suitable tools and appliances is clearly set forth in Orr v. Tel. Co., 130 N. C., 627; Cotton v. R. R., 149 N. C., 227.

The defendant has abandoned all exceptions, s'ave that made to the court’s refusal to grant his motion -of nonsuit. As often said by this Court in considering such motions, the evidence must be construed most favorably for the plaintiff, and upon the evidence disclosed in the case at bar, whether plaintiff acted as a prudent man would have done under similar circumstances, is a question peculiarly within the province of the jury. Reid v. Bees, 155 N. C., 233.

The defendant further contends that the danger was obvious and that the plaintiff’s own evidence is sufficient to establish this fact. We do not so conclude. Plaintiff’s evidence fully justified the jury in finding that he was without actual experience in ball-hooting prior to the day of the *747injury. He bad seen tbis done on different occasions, but bad never engaged in it before. His other work in lumbering was different from tbis, and, therefore, the plaintiff does not come within the rules set forth in the cases noted herein as cited by the defendant. The evidence further tends to justify the finding that the defendant well knew the dangers incident to this process and that it is the approved method to furnish a sufficient number of laborers with suitable appliances so that each one may be prevented from injury, such as was received by plaintiff-. Plaintiff says that if he had been on the other side of the log, he would not have been injured; this does not change the degree of care required of the defendant, of necessity, either the plaintiff or Barrett had to be where the plaintiff was. Therefore, the jury had sufficient evidence to find that a reasonably prudent master in the exercise of due care would have known that in getting the "Wahoo log over the obstruction, one laborer must be on either side of the log, and that it was reasonable to apprehend that injury might result if the upper and heavier end of the log was not handled with suitable appliances and sufficient help, and that, in the exercise of due care, such a master would have so provided.

Let it be certified that, in the trial, there was

No error.