#### JOHN T. HALL v. RHINEHART & DENNIS.

(Filed 5 May, 1926.)

1. Master and Servant — Employer and Employee — Due Process — Instru-mentalities — Duty of Master — Safe Place to Work — Instructions— Appeal and Error.

Upon evidence tending to show that during the course of his employment in running a “dinky” engine where the defendant was engaged in blasting, the plaintiff was eating his dinner in a mess hall constructed of plank, covered by a roof of tar paper, when a rock from the blasting penetrated the roof and seriously injured him, in his action for damages a charge by the court was reversible error that required the defendant to furnish his employee such place as would be reasonably safe from the blasting operations of the company, the rule being that he should do so in the exercise of ordinary care under the circumstances.

S. Instructions — Negligence—Appeal and Error — Reversible Error — Requests for Instructions — Objections and Exceptions — Statutes.

It is reversible error under our statute for the court to fail to charge the jury upon the essential elements of the law of negligence material to the determination of the issue arising from the evidence in the case, without special request so to do, when it appears that the appellant was prejudiced thereby, construing the charge contextually as a whole.

Civil actioN tried before Frances D. Winston, Emergency Judge, and a jury, at September Term, 1925, of GastoN.

On 13 October, 1922, and prior thereto, plaintiff was employed by tbe defendant as a dinky engineer. Tbe defendant was engaged in tbe construction of a bydro-electric power plant in tbe Catawba River at Mountain Island. Tbe work necessitated heavy blasting in tbe bed of tbe river. Tbe defendant, for tbe convenience of its employees, operated a dining-room or mess ball. Employees were not required to board in this place, but those who did board there were charged one dollar a day for meals, wbicb amount was deducted from their pay. Tbe mess ball *686was a long, narrow one-story building, built of pine timber and covered witb tar paper. This mess hall was situated about four or five hundred feet from the point in the bed of the river where the blasting took place. The plaintiff had left his engine and gone to the mess hall to get supper at about 6 o’clock in the evening. Just as plaintiff was seated at the table in the mess hall a heavy blast was set off in the river, and a rock weighing five or six pounds was hurled through the air by the force of the explosion, striking and penetrating the roof of the mess hall, and falling upon plaintiff’s head, causing serious and permanent injuries.

At the time of his injury the plaintiff was about thirty-two years old and was earning five dollars per day.

The defendant offered no evidence, but denied the negligence and pleaded contributory negligence, assumption of risk and release by the plaintiff.

There was a verdict in favor of the plaintiff for $35,000 and judgment thereon, from which judgment defendant appealed.

A. E. Woltz, Geo. W. Wilson, Bramham & McCabe, Claude A. Thompson, John M. Robinson for plaintiff.

Mason & Mason, Clyde R. Eoey, Thomas C. Guthrie for defendant.

Brogden, J.

The trial judge charged the jury as follows: (a) “The law of North Carolina requires the defendant, if they set up a mess hall of their own, to put it where those who work for them and eat at the mess hall would be reasonably safe from the operations of the company.

(b)“If you find that the company failed to provide him with a reasonably safe place in which to do its work or to eat his meals and the evidence in this case satisfies you of that fact by its greater weight, you will answer that issue yes.”

(c) “You will take into consideration, the law says, his age, his habits, his intellect, his general demeanor, his capacity for work and labor, what he might be expected to accumulate or save by reason thereof, and take out of that the cost of living, charges he would be put to, and in giving him a sum reaching through years, find out what it is all worth right here in Gastonia at about half past four o’clock on 24 September. That is what you are expected to do.”

(d) “You will give him the present value of his expectancy. The law says he may live from thirty to thirty-two years — something like that.”

The wisdom of the law has evolved certain standards of obligation and measures of liability to govern and control the conduct of men in their duties and obligations to each other. The foregoing instructions of the trial court fail to correctly apply the law, both as to negligence and as to damages.

*687Tbe last utterance of tbis Court on tbe subject is found in Lindsey v. Lumber Co., 190 N. C., 844, in an opinion by tbe Chief Justice. In tbe Lindsay case tbe instruction complained of was as follows: “In tbis connection tbe court charges you it is tbe duty of tbe defendant in a case of tbis kind to furnish a reasonably safe place for its employees to work and to furnish reasonably safe tools and equipment with which to work, and tbe failure to do that is negligence, and if you find tbis was so, and it was tbe proximate cause of plaintiff’s injury, it would be your duty to answer tbe first issue, yes.” Tbis instruction imposed upon tbe defendant a larger measure of duty than tbe law required, and tbis Court ordered a new trial.

Tbe true rule is stated by Clarkson, J., in. Riggs v. Mfg. Co., 190 N. C., 258: “It is tbe duty of tbe master to use or exercise reasonable care, or use or exercise ordinary care to provide tbe servant a reasonably safe and suitable place in which to do bis work. Tbe master is not an insurer. Tbe failure to submit in a charge tbe qualification of tbis duty is error, and new trials have been frequently granted on account of tbe omission. It is a substantial right.” Cable v. Lumber Co., 189 N. C., 840; Murphy v. Lumber Co., 186 N. C., 746; Owen v. Lumber Co., 185 N. C., 612; Gaither v. Clement, 183 N. C., 450; Tritt v. Lumber Co., 183 N. C., 830.

Tbe correct rule governing tbe measure of damages for personal injuries of tbe sort complained of, is discussed and determined in Ledford v. Lumber Co., 183 N. C., 616-17. Tbis rule is firmly imbedded in tbe law. Hill v. R. R., 180 N. C., 490; Johnson v. R. R., 163 N. C., 431; Fry v. R. R., 159 N. C., 362; Pickett v. R. R., 117 N. C., 616; Murphy v. Lumber Co., 186 N. C., 746.

Tbe plaintiff, however, contends that tbe error specified is harmless for tbe reason that other portions of tbe charge of tbe trial judge tend to modify and explain tbe erroneous instructions given tbe jury. It is true that tbe charge should be considered contextually and not disjointedly and as a whole, and we have so considered and examined tbe charge in this case.

Tbe inherent vice of tbe instruction given tbe jury, flows from tbe fact that tbe trial court was stating positive rules of law. Therefore, tbe following principle announced in Construction Co. v. Wright, 189 N. C., 456, applies: “Whenever tbe trial court attempts to state tbe rule of law applicable to tbe case, be should state it fully and not omit any essential part of it. Tbe omission of any material part is, necessarily, error of an affirmative or positive kind. Therefore, it may be taken advantage of on appeal, by an exception to tbe charge, without a special request for tbe omitted instruction.”

For tbe reasons given, there must be a

New trial.