#### FREEMAN BOSWELL, Alias FREEMAN PAGE, by A. R. BOSWELL, Next of Friend, v. WHITEHEAD HOSIERY MILLS.

(Filed 7 April, 1926.)

1. Evidence — N,onsuit.

Upon a motion as of nonsuit, tiie evidence is to be taken in the light most favorable to the plaintiff, giving him the benefit of every reasonable intendment and inference to be drawn therefrom.

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

While the master is not an insurer of the safety of an employee engaged in the course of his employment to work in a place where power driven machinery is located, he is required to exercise for the safety of such employee the care of an ordinarily prudent man to provide him a reasonably safe place to perform the duties required of him, and the failure of the employer in this respect constitutes actionable negligence.

3. Same — Proximate Canse — Damages.

The actionable negligence in the failure of the master to exercise ordinary care in furnishing his employee a safe place to perform his duties within the scope of his employment, makes the master liable in damages arising as the proximate cause of such failure.

4. Same — Evidence—Nonsuit.

Evidence that the master had removed for a week or more two power driven knitting machines from each side of power-driven shafting, and thus had left the shafting exposed about one foot from the floor, and that threads had been permitted to accumulate thereon which caught in *550the overalls of an inexperienced lad of sixteen years of age, who was not instructed as to the danger, causing the injury in suit, is sufficient to take the case to the jury upon the issue of the defendant’s actionable negligence, and to deny his motion as of nonsuit.

5. Same — Contributory Negligence.

Where there is evidence that the master has negligently permitted power-driven shafting operating its knitting machines to be exposed in a room where employees were at work, and that an inexperienced employee in the room was injured thereby while going to get a drink of water by a route usual among employees in the room and known to the vice-principal of the master: Held,. sufficient for the determination of the jury upon the issue of the plaintiff's contributory negligence, though the employer had provided a less convenient way that would have been safer in its use under the circumstances.

6. Same — Safe and Unsafe Places — Contributory Negligence — Questions for Jury-

Where the master has furnished an employee a safe place in which to go for drinking water in its knitting mills, and the evidence is conflicting as to whether the vice-principal permitted employees to pass and repass at the end of a rapidly revolving power-driven shaft, where it was dangerous, and in so doing a sixteen-year-old inexperienced and uninformed employee was injured while going for a drink of water, and the danger was not clearly obvious to him, the question of contributory negligence is one for the jury.

7. Same — Ignorance of Danger — Evidence—Nonsuit.

A master in its servant’s action for damages for its negligence in failing to use due care to furnish him a safe place to work, may not escape liability on the issue of contributory negligence solely because the servant was aware of the facts making the place a menace, when under the circumstances the servant was unaware that the observable facts were such as to cause the injury in suit, and he did not appreciate the risks, a motion as of nonsuit should be overruled.

Appeal by plaintiff from Grady, J., at September Term, 1925, of AlamaNCE.

Reversed.

The complaint succinctly alleges: (a) that A. R. Boswell is next of friend to Freeman Boswell, who is a minor, and authorized to bring the suit; (h) defendant White Hosiery Mills is a corporation engaged in business of manufacturing and dealing in hosiery, and Freeman Boswell was employed by it; (c) that Freeman Boswell was employed by defendant in the hosiery mill engaged in what is known as “topping” or preparing the tops of stockings for the machines, and while passing about his work the bottom of the left leg of his overalls was caught by a rapidly revolving shaft and he was suddenly drawn down, under and around the shafting and was permanently injured. That the injury was caused by defendant’s failure to use due or ordinary care to provide Freeman Boswell with a safe place to work; failure to warn him of the *551dangers of exposed shafting, be being a youth of tender years and inexperienced in such work. That it operated its mill with the drive-shafting about one foot above the surface of the floor, in the room Boswell worked, exposed and unprotected. It permitted waste material to accumulate around the shafting and likely to catch the clothing of employees, which defendant knew about and permitted to exist. That Boswell was 16 years old when injured. The extent of his injuries are set forth in the demand for damages.

The defendant answering admits that Boswell sustained minor injuries, but denies (a) the injuries were sustained in the course of employment, but were sustained outside the scope of his employment; (b) that Freeman Boswell was engaged in preparing the tops of stockings for the machines in one of the knitting rooms, said machinery being lined one beside the other. The shafting was guarded and protected. That prior to the injury the defendant removed certain of the machines at one end of the line of the machinery away from where Boswell worked for the purpose of replacing same. The place made by the removal caused only a few feet of the shafting to be left exposed. To protect the exposed shafting, defendant’s overseer had placed on either side of the shafting two heavy waste cans which completely filled the space, (e) That Boswell, attracted to the window, left his work and instead of proceeding around the end of said line of machinery, deliberately removed the waste cans and stepped over the shafting in motion and went to the window of the mill and returned the same way, and while stepping over the shafting his overalls were caught and in this way he received his injuries, (d) That he was not at his place of work when injured, which was safe and free from danger, but he went for his amusement to another part of the building outside the scope of his employment. That the deliberate act upon the part of said Freeman Boswell in removing said waste cans from the space where part of the machines in said line of machinery had been removed, which theretofore had fully and completely protected any and all employees from any danger by reason of the removel of said machines, as aforesaid, thereby exposing said revolving line of shafting, and there attempting to cross through said opening and over the exposed line of shafting and pulley attached thereto, when at such time the said Freeman Boswell could have proceeded around the east end of said line of machinery about nine feet away and which course any prudent person using due care and reasonable thought and diligence would have taken, constituted negligence on the part of said Freeman Boswell which contributed to and was the sole proximate cause of any and all injuries sustained by the said Freeman Boswell upon said occasion, and defendant does hereby plead said negligence in bar of any claim for damages on account of said *552injury, (e) Tbat Freeman Boswell assumed all tbe ordinary risk incident to tbe employment and pleads assumption of risk.

Upon tbe conclusion of tbe evidence tbe court below rendered tbe following judgment: “At tbe close of plaintiff’s evidence having moved for judgment as of nonsuit, and tbe court being of tbe opinion tbat tbe facts disclosed by tbe plaintiff’s own evidence, and wbicb are not controverted, show sucb contributory negligence as bars recovery, and tbe motion for nonsuit should be sustained.”

Brooks, Parker & Smith and J. Dolph Long for plaintiff.

Coulter, Cooper &.Carr for defendant.

Clarkson, J.

Tbe following map was in evidence. Tbe plaintiff’s evidence substantiated tbe allegations of tbe complaint. Tbe evidence of Freeman Boswell, in part, was tbat be bad been working at tbe hosiery mill three or four months. “At tbe place I got caught two machines bad been taken out, one on each side of tbe shafting. They bad been out for sometime. This left a pretty good space. Since I bad been working there bad been some cans there, but these bad been moved. Tbe space between tbe machines across tbe shafting, was just room enough for a pretty good size can to sit, about two feet wide. Tin cans in wbicb waste was kept bad been placed where tbe machines bad been taken out. These bad been moved for several days when I was hurt. I was hurt about 5 o’clock in tbe afternoon. There were other persons working in tbe room with me. Mr. Oleve Garrison was superintendent, be was in tbe room. No one bad ever cautioned me with regard to any danger of tbat shafting. I bad seen other employees of tbe mill, in tbat room, crossing over tbat shafting. They went across there every little bit to get water. Tbe water was at tbe lower end of tbe shafting and was brought into tbe mill through a spigot, for drinking water for tbe employees. . . . Tbe afternoon I was hurt I bad gone from my work to get water and bad crossed over tbe shafting where I was hurt, and came back by tbe window and looked out at tbe men working outside. After I came back tbe same way I bad gone and was going back to my work, and when I stepped across tbe shafting it caught my overalls, it was revolving close to where I got caught, and there were threads wrapped around it, not much of tbe thread. I guess tbe.shafting was smooth. When I stepped over tbe shafting it caught my overall leg and I commenced falling. ... I have explained on this map where I was working and tbe location of tbe break on tbe shafting where I crossed. There was a sewing machine there at tbe end of tbe shafting and a table went across tbe shafting, tbat is where they sewed up dropped stitches in tbe socks. Tbe table projected across and came about here,

*553

on this side. There was room to pass if yon went around the table, but in going this way (across the shafting) you did not have to go around the table. I had seen other persons working there cross this shafting, had been seeing this for a right smart while. . . . I do not know who moved those' cans. I did not move them. The other lines of *554shafting in this mill bad machines on them. They were completely protected by the machines. This line where I was hurt was protected by the machines at every point, except where those cans .were moved. No one had given me any instructions with regard to observing that shafting as bein^ dangerous.” . . . On cross-examination, he testified, in part: “I had not seen the cans there in two or three days. Had been a right smart while since I had seen them. When they were there they completely filled the space and I did not have room to go through there, or anyone else. On the day I was hurt I had left my work and come down the line of machinery towards the school house, and came to where those two machines had been removed, I could have gone just a few steps further and gone around the east end of the line, but I went through that place where the two machines had been removed. When I went through there the line of shafting that was operating the machines was moving and the shafting was revolving pretty fast. ... I went to get a drink of water and then came back to the window. The water spigot was at the other end of the mill, I was not quite at the end of the mill. It was the only way to get across there. The water spigot was at the end of the line of machinery. When I had come to the end of the line of machinery I would have been at the water spigot. It would have been out of my way to go around' to the other end of the mill and get water. There was considerable space between the two lines of machines right in the middle of the mill. I could have gone around that end and come down, but I would have had to go up to the other end of the mill and I was pretty close to the water then. . . . It would have been safer to have gone around this end and stepped over there to the water-cooler than to have gone across the shafting. I was not caught by the line of shafting as I went through the first time, but I was caught as I came back across it. I got my water and went to the window and looked out and turned around and came right back and was caught by my overalls.”

G-arrison, the superintendent, stopped the revolving shafting when plaintiff was caught and was being revolved over and under the shafting.

Joe Lee Boswell, testified, in part: “The machinery is arranged in two rows with the shafting in the middle, this is the usual way that hosiery mill machinery is installed. Two rows of machines run by one shafting. The shafting that ran these machines is fastened to the floor and has a row of machines on each side of it. These machines guard the shafting and the ends of the shafting are boxed up. A machine had been removed from the row on each side of this particular line of shafting on that side of the building that has been discussed. This left an open passage. ... I cannot say how long it had been vacant like that, a week or two as well as I remember. During the time that I had *555observed these machines away from there I had not seen anything else there to protect the shafting. I guess it was about a week I had observed it like this. I had been going up there once or twice a day and had noticed it open for that period-of time. ... As well as I could tell that space left open was about four feet; I know it was over two feet. I have seen these waste cans that were spoken of; I don’t guess they would have completely filled that space.”

Clyde Cole, testified, in part: “I was working in the room where he was hurt. I know this opening where the machines were out at this shaft. I don’t know how long they had been away, but as near as I can say two or three weeks. I had seen these cans there. They had just been pulled back, it had been a right smart while ago. I had seen people in the mill passing backwards and forwards through that opening over the shafting, I do not know how long they had been doing that, it had been going on for some days, a week or two. I don’t know what they had been passing there for, but they had been passing both ways. . . . I worked in the room with Freeman. Mr. Garrison (defendant’s superintendent) was in and about the room. I don’t know whether or not he saw people when they would pass backward .and forward across this shafting. He was in the room when they were doing that.”

The only assignment of error is in the court below, under C. S., 56Y, granting the motion of judgment as in case of nonsuit.

“On a motion to nonsuit, evidence is to be taken in the light most favorable to plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.” Southwell v. R. R., ante, 153, and cases cited.

Is there sufficient evidence, as to actionable negligence, to be submitted to the jury? The master is not an insurer. The duty of the master is set forth in Riggs v. Mfg. Co., 190 N. C., p. 258, as follows: “That an employer of labor, in the exercise of reasonable care, must provide for his employees a safe place to do their work and supply them with machinery, implements and appliances safe and suitable for the work in which they are engaged, and to keep such implements, etc., in safe condition as far as this can be done by the exercise of proper care and supervision.” The employer failing in this duty renders himself liable to an employee who may sustain injuries as the proximate result of his negligence.

Taking the testimony as true, on the question of nonsuit. Provision was made for the employee to get water from a spigot or water cooler in the corner of the room near the elevator. The machinery was arranged in two rows, the shafting in the middle runs the machines. The machines guard the shafting and the end is boxed up. Two machines had been removed, which left about four feet of the revolving shafting exposed, *556cans bad been put in tbe space where tbe machines bad been taken out to protect tbe revolving shafting exposed, these were removed. Waste thread was on tbe revolving shafting. Tbe plaintiff was about 16 years of age and was given no instructions that tbe revolving shafting was dangerous or as to tbe risk. Eor a week or two before tbe injury, tbe employees in tbe mill passed forwards and backwards through tbe opening over tbe revolving unprotected shafting. Plaintiff knew it would have been safer to have gone around tbe end to get to tbe water cooler than to have taken tbe near cut and stepped over tbe revolving shafting. At tbe end of tbe shafting was a sewing machine and it was some considerable distance around than tbe short cut. Plaintiff bad gone to get water at tbe place fixed for tbe employees and crossed tbe unprotected revolving shafting about a foot or more high from tbe floor, stepping over it and was returning when bis overalls were caught.

In Tisdale v. Tanning Co,, 185 N. C., 500, similar in many respects to tbe present case, it was said: “This Court has repeatedly held that it is negligence for tbe employer using rapidly revolving shafting to leave tbe point of tbe screws, or tbe taps, exposed, which may thus catch in tbe clothing of those nearby, exposing employees like tbe plaintiff’s intestate to such danger. In all such cases ordinary prudence requires, as this Court has often held, that tbe point of tbe screw and tbe taps should either be countersunk or protected by a cup or some other similar device which will not catch in tbe clothing of tbe employee and drag him to bis death. This is such a simple protection that an ordinary regard for tbe safety of the employees imperatively requires these to be done.” Ensley v. Lumber Co., 165 N. C., 696; Holt v. Mfg. Co., 177 N. C., 175-6; Gordon v. Silks Corp., 178 N. C., 470.

In Brooks v. DeSoto Oil Co., 100 Miss., p. 849, 31 Am. & Eng. Anno. Cases, note p. 658, it was said: “A number of recent cases support tbe doctrine that even in tbe absence of a statutory requirement it is tbe master’s duty to guard shafting, set screws, etc., or at least that tbe question of tbe master’s negligence in failing to guard such appliances is one for tbe determination of the jury. Homestake Min. Co. v. Fullerton, 69 Fed., 923, 36 U. S. App., 32, 16 C. C. A., 545; Rabe v. Consolidated Ice Co., 91 Fed., 457; Prattville Cotton Mills Co. v. McKinney (Ala.), 59 So., 498; Paducah Box, etc., Co. v. Parker, 143 Ky., 607, 136 S. W., 1012, 43 L. R. A. (N. S.), 179; Dettering v. Levy, 114 Md., 273, 79 Atl., 476.”

In 18 R. C. L., p. 591-2, tbe principle is well stated: “A question that has often been under judicial consideration is whether an employer owes to bis employees any duty to box, fence, or guard tbe appliances and machinery in' tbe vicinity of which tbe work is done. Tbe rule formerly was generally recognized, and is supported by some recent-*557decisions, that tbe employer is, in tbe absence of statute, under no obligation to bis employees to affix guards to gearing, shafting and other dangerous moving parts of machinery. No doubt tbe guarding of some appliances is unnecessary and impracticable, tbe danger being obvious and avoidable by employees; but public policy in respect of such matters has in recent times undergone a very decided change, and the tendency now is to hold the employer negligent in failing to guard all dangerous appliances; especially is this noticeable in the rulings of the late cases. And, of course, if it can be shown that an injured employee was not informed of or did not appreciate tbe danger of tbe unguarded appliance, it is not to be supposed that a recovery will be denied in any jurisdiction." (Italics ours.)

In tbe Ta/rming Go. case, supra, it was further said: “If it be conceded that there was a rule of tbe company forbidding an employee to go over -or under tbe shafting, still tbe evidence is that such rule bad been habitually violated to tbe knowledge of tbe employer. In Biles v. R. R., 139 N. C., 528, it is held: 'Where a rule is habitually violated to tbe knowledge of tbe employer, or where a rule has been violated so frequently and openly and for a length of time that tbe employer should by tbe exercise of ordinary care have ascertained its nonobservance, tbe rule is considered as waived or abrogated.’ ” Hinnant v. Power Co., 187 N. C., p. 299.

In Roth v. Northern Pacific Lumbering Co., 22 Pac. Rep., 845 (18 Ore., 205), it was said: “But it is to be borne in mind that there is a difference between a knowledge of tbe facts and a knowledge of tbe risks which they involve. One may know the-facts, and yet not understand tbe risk; or, as Mr. Justice Byles observed, ‘A servant knowing tbe facts may be utterly ignorant of tbe risks.’ Clarke v. Holmes, 7 Hurl. & N., 937. For, after all, Mr. Justice Hallet't said, 'It is not so much a question whether tbe party injured has knowledge of all tbe facts in bis situation, but whether be is aware of tbe danger that threatens him. Wh.at avails it to him that all tbe facts are known, if be cannot make tbe deduction that peril arises from tbe relation of tbe facts? Tbe peril may be a fact in itself of which be should be informed.’ McGowan v. Mining Co., 3 McCrary, 393, 9 Fed. Rep., 861. So that in a case like tbe present, where tbe evidence is conflicting as to whether or not tbe defendant bad knowledge of tbe risks to which be was exposed, tbe question is preeminently for tbe jury.”

Defendant cites Dunnevant v. R. R., 167 N. C., 233, where it is said: “If two ways are open to a person to use, one safe and tbe other dangerous, tbe choice of tbe dangerous way, with knowledge of tbe danger, constitutes contributory negligence. Fulghum v. R. R., 158 N. C., 555; 29 Cyc., 520; Whales v. Gas Light Co., 45 N. E., 363; Johnson v. *558 Wilcox, 19 Atl., 939. And where a person sui juris knows of a dangerous condition and voluntarily goes into the place of danger, he is guilty of contributory negligence, which will bar his recovery. Royster v. R. R., supra, (147 N. C., 347); Fulghum v. R. R., supra; Saunders v. Smith Realty Go., 86 Atl., hot. p. 405; Columbus Ry. v. Asbell, 66 S. E., 902; Southern Ry. Co. v. Rowe, 59 S. E., 462; Woodman v. Pitman, 10 Alt., 321.” Plaintiff testified that it would have been safer to have gone around the end, but that others went across the revolving, unprotected shafting to get water; no one had cautioned him of the danger or risk. There is no evidence in the record that plaintiff crossed the short cut over the revolving machinery “with knowledge of the danger,” or that he knew the risks. Plaintiff and others were permitted to make the short cut a walkway without warning of the danger and risks. If the jury should find that the plaintiff knew the danger and risks he would be guilty of contributory negligence and could not recover; but it was a question for the jury to say whether a boy 16 years of age, under the facts and circumstances, acted as a prudent man.

In S. v. Fulcher, 184 N. C., p. 665, it was said: “The motion we are now considering was made under C. S., 4643, a statute which serves, and was intended to serve, the same purpose in criminal prosecutions as is accomplished by C. S., 567, in civil actions. Originally, under this later section, in cases to which it was applicable, there was considerable doubt as to whether a plea of contributory negligence — the burden of such issue being on the defendant- — could be taken advantage of on a motion to nonsuit, but it is now well settled that such may be done when the contributory negligence of the plaintiff is established by his own evidence, as he thus proves himself out of court. Wright v. R. R., 155 N. C., 329; Horne v. R. R., 170 N. C., 660, and cases there cited.”

In Moore v. Iron Works, 183 N. C., 438, Stacy, J., said: “Contributory negligence, such as will defeat a recovery in a case like the one at bar, is the negligent act of the plaintiff, which, concurring and cooperating with the negligent act of the defendant, thereby becomes the real, efficient, and proximate cause of the injury, or the cause without which the injury would not have occurred. Negligence is doing other than, or failing to do, what a reasonably prudent'man would have done under the same or similar circumstances. In short, it is a want of due care; and there is really no distinction or essential difference between negligence in the plaintiff and negligence in the defendant, except the plaintiff’s negligence is called contributory negligence. The same rule of due care, which the defendant is bound to observe, applies equally to the plaintiff; and due care means commensurate care, under the circumstances, when tested by the standard of reasonable prudence and foresight. The law recognizes that contributory negligence may be due either *559to acts of omission or to acts of commission. In other words, the lack of diligence, or want of care, on the part of the plaintiff, may consist in doing the wrong thing at the time and place in question, or it may arise from inaction or from doing nothing when something should have been done. The test is: Did the plaintiff fail to exercise that degree of care which an ordinarily prudent man would have exercised or employed, under the same or similar circumstances, and was his failure to do so the proximate cause of his injury? If this be answered in the affirmative, the plaintiff cannot recover in a case like the one at bar.”

The plaintiff, a minor 16 years old, was not warned as to the risk or danger of the unprotected revolving shafting. The defendant had arranged a water cooler or spigot in the corner of the mill for the employees for drinking purposes. It was the custom of the employees to take a short cut to the water cooler and step over the revolving shafting, waste had accumulated on the shafting. The plaintiff, instead of going around a safer way some distance further, went the near way to the water cooler and stepped over the revolving shafting, .unprotected and about a foot in height from the floor. The superintendent knew, or ought to have known, that this short cut was being used habitually by the employees in the mill. The boy, in returning to his machine from the water cooler, stepped over the uncovered shafting and his overalls caught by the waste on the revolving unprotected shafting, he was carried over and under the revolving shafting until the superintendent stopped the machine. From the testimony of the physician, he was permanently injured. Ordinarily, it is not.necessary for a boy of the age of 16 to be warned of the risk and danger incident in coming in contact with dangerous machinery if he knows the risks and appreciates the danger. It was the duty of defendant to use due care to provide a safe place for plaintiff to work, and this included the place to and from the water cooler. The defendant, through its superintendent, had left exposed the revolving shafting and permitted the workers to take a short cut to get water by stepping over the revolving shafting with waste on it, without stopping them or warning them of the risk or danger. The superintendent was in the room, as he stopped the machine. The custom was carried on for some time and he knew, or ought to have known in the exercise of ordinary care, that the employees used the short cut.

TJnder all the facts and circumstances of this ease, we think it a matter for the jury to determine if the defendant was negligent and its negligence was the proximate cause of the injury and if the plaintiff was guilty of contributory negligence, which was the proximate cause of the injury.

For the reasons given, the judgment below is

Reversed.