#### Clarence Madden v. J. F. Mulligan Company, a Corporation.

(Filed 23 March, 1927.)

Negligence — Master and Servant — Evidence—Safe Place to Work.

Evidence tending to show that plaintiff was employed to carry sacks of cement from one to the other side'of a part of a highway left open for passing vehicles, and was struck in so doing by an automobile, is insufficient upon the issue of defendant’s actionable negligence in failing to furnish him a safe place to work. .

Appeal by plaintiff from Sinclair, J., at October Term, 1926, of Carteret.

Affirmed.

Action to recover damages for personal injuries alleged to have been caused by the negligence of defendant.

From judgment dismissing the action, upon motion of defendant for nonsuit at the close of the evidence offered by plaintiff, plaintiff appealed to the Supreme Court.

W. G. Gorham, Luther Hamilton, and Abernethy & Abernethy for plaintiff.

Moore <& Dunn for defendant.

Per Curiam.

Plaintiff, in the performance of his duties as an employee of defendant, picked up a bag of cement, lying on the side of the road, which was under construction by defendant, and started across the road to the concrete-mixing machine, which was located on the opposite side of the road. He was struck by a passing automobile, knocked down, and severely injured. Defendant had located its concrete-mixing machine on one side of the road, and had piled sand and cement on the opposite side, to be used in making concrete for use in constructing the road. The space between the mixing machine and the sand and cement was about twelve feet; this space was kept open for travel.

Plaintiff alleges that defendant, his employer, was negligent in that it failed to exercise due care to furnish him a reasonably safe place to work, or to warn him of the approach of the automobile which struck and injured him, and that this negligence was the proximate cause of his injuries. The court was of opiniomthat upon all the evidence plaintiff could not recover of defendant, and, therefore, upon defendant’s motion, rendered judgment dismissing the action as upon nonsuit. In this we find no error. The judgment is

Affirmed.