#### DAVIS OGLE v. BLACK MOUNTAIN RAILWAY COMPANY.

(Filed 23 June, 1928.)

1. Master and Servant — Liability of Master for Injuries to Servant- — Assumption of Risk.

Where an employee acts, under fear of discharge, upon the negligent order of the employer’s vice-principal, which results in the personal injury in suit, under circumstances showing that a man of ordinary prudence would have so acted, the doctrine of assumption of risk has no application.

*7962. Appeal and Error — Record — Review of Question Not Presented on Record.

The charge of the court to the jury will be presumed as correct on appeal when it is not set out in the record. •

Appeal by defendant from Moore, J., at October Term, 1927, of YaNcey.

No error.

Tbe evidence tended to show that plaintiff was a section band on defendant’s railroad and was under tbe direction of tbe foreman, or vice-principal, of said defendant, Mr. Jarrett, whom be was bound to obey. That defendant’s track bad sagged or sunk down, and it became necessary to level it. A jack, weighing about 40 or 45 pounds, was used to elevate tbe track. Tbe usual and ordinary way to get tbe jack out from under tbe ties was to “trip it.” “I mean by tripping it, I would bave to walk it off by latches. It would go down wben you tripped it about an inch each time, and wben you walked it off it would go down tbe same way.” There was no danger in doing it this way. Wben tbe jack was placed under tbe tie and it was jacked up, tbe foreman walked down tbe track a rail or more and got down to sight tbe rail and bad plaintiff to run tbe jack up and down until tbe foreman obtained tbe level be wanted. He then ordered plaintiff to prize tbe jack off and let it fall or settle.

Plaintiff testified: “I prized it off. But it was bard to prize with so much weight on tbe jack, tbe jack being ten inches off of tbe ties, so I made four or five tries before I got it off, and I got myself in tbe clear as near as I could with me between tbe rail and tbe jack. I gave five or six bard pulls and tbe jack bounced back and struck me on tbe leg. . . . If I hadn’t done what be told me be would bave told me I needn’t come out next morning. That was tbe reason I did it. Wben tbe jack bit me it pulled down tbe skin of my leg and bruised me and my flesh was in a tremble, something like that, and I was hurting very bad. Wben tbe jack jumped out against my leg, I done tbe best I could to protect myself; I jumped out as far in tbe clear as I could, and wben Mr. Jarrett said to prize it off I wanted to do according to bis order.”

Tbe issues submitted to tbe jury and their answers thereto were as follows :

“1. Was tbe plaintiff injured by tbe negligence of tbe defendant as alleged in tbe complaint? Answer: Yes.

“2. Did tbe plaintiff by bis own negligence contribute to bis injuries, as alleged in tbe answer ? Answer : No.

“3. What damage, if any, is tbe plaintiff entitled to recover of tbe defendant, Black Mountain Railway Company? Answer: $2,500.”

*797 G. D. Bailey and A. Hall Johnston for plaintiff.

J. J. McLaughlin, Charles Hutchins and Pless & Pless for defendant.

ClaRKSoN, J.

The defendant introduced no evidence, and at the close of plaintiff’s evidence moved for judgment as in case of nonsuit. O. S., 567. The court below overruled the motion, and in this we think there is no error.

In Hamilton v. Lumber Co., 156 N. C., at p. 523-4, Hoke, J., clearly states the law as follows: “It is well understood,'however, that an employer of labor may be held responsible for directions given or methods established, of the kind indicated, by reason of which an employee is injured, as in Noble v. Lumber Co., 151 N. C., 76; Shaw v. Mfg. Co., 146 N. C., 235; Jones v. Warehouse Co., 138 N. C., 546, and, where such negligence is established, it is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation,. is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475; Tanner v. Lumber Co., 140 N. C., 475), but the effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether the attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence should quit the employment rather than incur them. Bissell v. Lumber Co., 152 N. C., 123; and, on the issues, as to plaintiff’s conduct, the fact that the particular service was rendered with the knowledge and approval of the employer or his vice-principal or under his express directions, if given; also, the employee’s reasonable apprehensions of discharge in case of disobedience, etc., may be circumstances relevant to the inquiry. Hicks v. Mfg. Co., 138 N. C., 322.”

Walker, J., in Tate v. Mirror Co., 165 N. C., at p. 279, lays down the rule in human terms, as follows: “The law applies the golden rule, that the master must do for the servant what, if placed in the same situation and under the same circumstances, he would do for himself. There, is no reason of logic or justice which requires that he should do less. This rule has been applied by us to causes here with great frequency and uniformity. We have not departed in the least from its essential principle in a single case that we are aware of. It is perfectly just to the employer and is required by a proper sense of fairness to the employee. It is the abstract maxim which we are constantly told should govern our conduct towards our fellow-man in everyday affairs of life, and it is so commendable in itself as to call for a strict observance of it when we come to the practical discharge of our duties to others, especially those in subordinate positions, and who must depend for their safety upon the care of their superiors. We said in Pigford v. R. R., 160 N. C., at pp. 100 and 101: “It is well understo-od, however, that an em *798 ployer of labor may be held responsible for directions given or methods established of the hind indicated, by reason of which an employee is injured.” (Italics ours.)

Tbe charge of the court below is not in the record; it is presumed that the law applicable to the facts were properly presented to the jury. We can find

No error.