#### JAMES M. SMITH v. M. R. RITCH and H. A. LAWING, Partners in Business Under the Firm Name and Style of Ritch & Lawing.

(Filed 26 September, 1928.)

1. Master and Servant — Liability of Master for Injury to Servant — Safe Place of Wort.

The master is required, within the exercise of ordinary care, to furnish his employee a reasonably safe place to do the work required of him under the terms of his employment, and for such failure, when the proximate cause of an injury, the master is held liable in damages.'

• 2. Same — Ordinary Tools.

While the master is not ordinarily responsible in damages resulting from the use of simple tools in the ordinary way, it is otherwise when he fails to furnish him with a safe place to work, and he is ordered by the employer’s vice-principal to continue to work under unsafe conditions, which proximately causes the injury in the action.

3. Same — Evidence Sufficient to go to Jury.

Where the alter ego of the employer would not permit the employee, a carpenter, to build a scaffold upon which to stand while nailing planks on a building above his head, and to do his nailing by reaching out of a window in the building, preventing the use of his two hands, and the evidence tends to show that the safer way was by building the scaffold; and by leaning out of the window the employee’s eye was brought in close proximity to the nail being driven, and the nail, owing to this cramped position, was likely to glance: Held, evidence sufficient to take the ease to the jury upon the issue of defendant’s actionable negligence, and to deny defendant’s motion as of nonsuit.

4. Same — Assumption of Risk — Instructions—Issues.

Under the facts of this case, where damages are being sought for an alleged negligent injury caused by the use of ordinary tools in an unusual *73way, with evidence that the negligent failure of the employer to furnish his employee a reasonably safe place to work and the negligent order of the employer’s alter ego to do the work, involving the issues of negligence, contributory negligence, and assumption of risk: Held, the submission of the question of assumption of risk in the charge of the court upon the issue of contributory negligence, without submitting the issue of assumption of risk separately is not prejudicial or reversible error.

5. Negligence — Acts 'or Omissions Constituting Negligence — Anticipation of Injury.

Where a personal injury is inflicted on the employee by the negligent failure of his employer to furnish him a safe place to work, it is not required, for recovery of damages, that the particular injury should have been foreseen, if it could have been reasonably anticipated that injury or harm might have followed the wrongful act.

6. Master and Servant — Liability of Master for Injuries to Servant— Methods of Work — Evidence.

Where the question involved in a personal injury action against an employer, involving the question as to the common method of doing the work at which the employee was at work at the time: Held, evidence as to the usual methods of work was not prejudicial or reversible error under the facts of this ease.

Appeal by defendants from Harding, Jat Special Term of Mece:-leNbueg.

No error.

This was an action for actionable negligence brought by plaintiff against defendants. Plaintiff is a carpenter of twelve years experience, and was employed by defendants to help build an apartment house for which defendants had the contract. C. A. Hamilton was foreman in charge of the work. Plaintiff was working under him. Defendant, M. R. Ritch, as to the foreman’s authority, testified, “They could either do what he told them or quit.” He was engaged in applying storm-sheeting, or sheathing.

The material testimony of plaintiff is as follows: “Thompson and I started storm-sheathing and they put us on the lower side of the house. We storm-sheathed up to the foot of the windows, the window openings, and I started to build a scaffold and Mr. Hamilton told me to go ahead and get it out of the windoius. I started to build a bench or scaffold to work on and Mr. Hamilton said to go ahead and get the storm-sheathing out of the windows — the openings to the windows. The building was about four or five feet off the ground. That threw the window about eight feet from the ground. I finished storm-sheathing to the windows and started storm-sheathing from there to the top of the first story, where the second story started. I was standing in the bathroom window when the nail glanced. I set the nail in the board. Mr. Thompson was sawing the boards and pushing them up to me. I started nailing and s¿t it *74in the board and pushed it up to this place and reached out to nail it and the nail glanced and hit me in the eye. I was building a scaffold or bench to stand on for safety. If I had had a bench or scaffold to stand on, I would have been behind the nail. The board I was nailing was a wide piece. If I would stamd on the scaffold, I would drive it in straight and I would hold the nail. When I was standing in the window, I would start the nail in the board, reach out and drive it in with .the other hand. In standing on that window, it was something like two feet from the window to the point at which I was nailing. I had to hold with one hand and hold the board also with it and nail with the other hand. I had only one free hand. In standing on a scaffold, I would have had two free hands. I did not bring a scaffold or bench because Mr. Hamilton told me not to do' it. Not a thing in the world was provided there for me to stand on except the window opening. The windows were not finished. There was just an opening. The framing was put up and the storm-sheathing on the outside was to he brick-veneered. I know the customary way of putting on storm-sheathing. Q. What is that custom? (Defendants object; objection overruled; defendants except.) A. To have a proper place to work, bench or scaffold. (Defendants move to strike out the answer; motion overruled; exception.) When the nail flew out, it struck me in the eye. It just knocked me pretty 'near senseless.” The doctor took his eye out. “I now have a glass eye.”

The issues submitted to the jury and their answers thereto were as follows:

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

“2. Did the plaintiff, by his own negligence, contribute to his injury as alleged in the answer? Answer: No.

“3. Wha.t damages, if any, is the plaintiff entitled to recover of the defendants? Answer: $6,500.”

The other necessary facts and assignments of error will be stated in the opinion.

James A. Loclehart and Walter Ciarle for plaintiff.

Tillett, T'illett & Kennedy for defendants.

Clabkson, J.

The first material assignment of error made by defendants : At the close of plaintiff's evidence, and at the conclusion of all the evidence, defendants made a motion for judgment as in case of non-suit. C. S., 567.

In Nash v. Royster, 189 N. C., at p. 410, Stacy, C. J., said: “It is the settled rule of practice and the accepted position in this jurisdiction that, *75on a motion to nonsuit, tbe evidence which makes for the plaintiff’s claim, and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is ‘entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.’ ”

The court below overruled the motions, and in this we think there was no error.

C. A. Hamilton, the foreman of the defendants, and a witness for them, stated on cross-examination, without objection by defendants, “If a man hanging around holds with one hand and nails with the other, it is a pretty precarious place. As to whether or not it is pretty dangerous depends upon the man, whether he is careless about it or not. It is dangerous anyway to he hanging around'in that way.” Plaintiff’s manner and method of doing the work was in accordance with the command of his superior, whom he was bound to obey or quit. Hamilton was the aíter ego. Patton v. R. R., 96 N. C., 455; Davis, v. Shipbuilding Co., 180 N. C., 74.

Hohe, J., in Thompson v. Oil Co., 177 N. C., at p. 282-3, says: “Not only is an employer supposed, as a rule, to control the conditions under which the work is done and to have a more extended and accurate knowledge of such work and the tools and appliances fitted for same, but the order itself given by the employer or his vice-principal directing the work-and the natural impulse of present obedience on the part of the employee are additional and relevant facts to be considered in passing upon the latter’s conduct in reference to the issue. Accordingly, several of the eases just cited are in illustration and support of the position that there is or may be a distinction in weighing the conduct of the employer and employee even when the principal objective facts are open to the observation of both. Thus, in Patton v. R. R., supra (96 N. C., 455), defendant was held liable for a. negligent order which caused an employee to jump from a moving car, while the employee, obeying the order, was relieved of responsibility. The ruling apposite was stated as follows: ‘One who is injured by jumping from a moving train is generally barred of a. recovery by reason of his contributory negligence, but where a servant was ordered by his superior to do so in order to perform a duty for the company, if not appearing to the servant at the time that obedience would certainly cause injury, it was held that there was no such contributory negligence as would prevent a recovery.’ ” See cases cited in Robinson v. Ivey, 193 N. C., 805.

In Howard v. Oil Co., 174 N. C., at p. 653, it is said: “It is well recognized that, although the machinery and place of work may be all that is required, liability may, and frequently does, attach by reason of *76the negligent orders of a foreman, or boss, who stands towards the aggrieved party in place of vice-principal. Ridge v. R. R., 167 N. C., 510; Myers v. R. R., 166 N. C., 233; Holton v. Lumber Co., 152 N. C., 68; Noble v. Lumber Co., 151 N. C., 76; Wade v. Contracting Co., 149 N. C., 177.” Robinson v. Ivey, supra.

The rule is so well settled that it hardly bears repeating, but it is well stated by Brodgen, J., in Jefferson v. Raleigh, 194 N. C., at p. 481: “The law of this State is that an employer of labor is required to exercise ordinary care in providing employees with reasonably safe methods and means to do the work for which they are employed. Thus, in Noble v. Lumber Co., 151 N. C., 76, it is said: ‘It is elementary learning that it is the duty of the master to furnish his servant a reasonably safe method, as far as practicable, for doing his work.’ Again, in Terrell v. Washington, 158 N. C., 282, it is held: The master fails to supply a safe place for work if he allows work to be conducted there in a manner needlessly dangerous to servants.’ To the same effect is the ruling in Tate v. Mirror Co., 165 N. C., 273, as follows: Whether it was practical for the defendant to use any other device than a metal pipe for the purpose of insuring safety to its employees, and whether ordinary prudence required the use qf it, were questions for the jury, which were properly submitted to them. If the situation called for the use of a different device, and this would have appeared to the ordinarily careful man, under the same circumstances, it was the duty of the defendant to supply it, instead of needlessly subjecting his servant to danger.’ The opinion of the Court, quoting from Smith v. Baker, A. C., 325, proceeds: 'An employer is bound to carry on his operations so as not to subject those employed by him to unnecessary risk, and he is not less responsible to his workmen for personal injury occasioned by a defective system of using machinery than for injury caused by defect in the machinery itself.’ Thomas v. Lawrence, 189 N. C., 521.”

On the question of proximate cause, in Hudson v. R. R., 176 N. C., at p. 492, it is said: “That it is not required that the particular injury should be foreseen and is sufficient if it could be reasonably anticipated that injury or harm might follow the wrongful act.” DeLaney v. Henderson-Gilmer Co., 192 N. C., 647; Clinard v. Electric Co., 192 N. C., 736.

With the principles of law stated, what are the facts succinctly ? The building was about 4 or 5 feet off the ground, the window was about 8 feet from the ground, about in reach of a man standing. The storm-sheathing was put up to the window as far as the average man could reach. Then plaintiff started to build a bench or scaffold to stand on to continue nailing on the storm-sheathing. Defendant’s foreman, or vice-principal, stopped plaintiff. By standing on the scaffold plaintiff could *77drive tbe nail in straight and could bold tbe nail. He would bave, as be expressed it, two freo hands. He was stopped from doing tbe work tbis way and ordered by tbe foreman, or vice-principal, Hamilton, to nail from tbe window. Tbe foreman said “tbe steadier and better place a man bas to stand on to work, tbe safer be is.” As regards tbe nailing from tbe window, the foreman, without objection, stated, “It is a pretty precarious place,” also “it is dangerous anyway to be banging around in tbat way,” meaning from tbe window. Knowing tbe danger, tbe foreman, vice-principal, ordered plaintiff to do tbe work from tbe window— admitted by bim to be a dangerous and precarious place. Tbe obedient employee gets in tbe window. Thompson, bis helper, was sawing tbe boards and pushing them up to bim. He started tbe nail in the board and pushed tbe board in place, and reached out to nail it with bis other band. He bad to bold with one band and bold tbe board also with it and nail with tbe other band. It was something like two feet to" tbe point at which be was nailing. Tbe method of doing tbe work brought bis left eye in close proximity to tbe nail. When be bit tbe nail, it flew out and struck bim in tbe left eye and destroyed it. He now bas a glass eye.

It does not réquire any instruction to use a hammer and drive a nail. If tbat was tbe case here, tbe nonsuit should have been granted. Plaintiff’s contention, as found by tbe jury, was tbat be was building a scaffold to use tbe hammer and drive tbe nails, but defendants’ foreman stopped bim from doing tbis. “I was building a scaffold or bench to stand on for safety .” He could bave stood on tbe scaffold, could bave held tbe nail and been behind it and kept it in place, and driven tbe nail from tbe front. He was stopped from doing it in tbis way and method, and ordered by tbe foreman to do it in such a way and method as tbe foreman says: “If a man hanging around holds with one hand and nails with the other, it is a pretty, precarious place.”

Hoke, J., in Bunm v. R. R., 169 N. C., p. 651, says: “In several recent decisions of tbe Court it bas been held tbat, while an employer is required, in tbe exercise of ordinary care, to provide for bis employee a reasonably safe place to work, and furnish bim with tools and appliances safe and suitable for tbe work in which be is engaged, tbe principle is chiefly insistent in case of ‘machinery more or less complicated, and more especially when driven by mechanical power,’ and does not always apply to ‘the use of ordinary everyday tools, nor to ordinary everyday conditions requiring no special care, preparation or provision, where tbe defects are readily observable, and where there was no good reason to suppose tbat tbe injury complained of would result.’ ”

We adhere to tbe doctrine therein stated, but tbe facts in tbe present case come within tbe principle tbat there was “good reason to suppose *78tbat tbe injury complained of would result.” Taking tbe combination of facts and circumstances — plaintiff’s building tbe scaffold — w.itb tbe logic of “safety first” — tbe orders of tbe foreman to desist and work .■from tbe window — tbe knowledge of tbe foreman tbat tbe method of .using tbe simple tools, and to bold witb one band and nail witb tbe other from tbe window, was precarious and dangerous. Tbe sequence necessarily striking tbe nail, not from tbe front but from tbe side, witb bis left eye in close proximity to tbe nail — tbe foreman could reasonably anticipate tbat injury and barm would follow tbe wrongful act and it did — tbe loss of plaintiff’s eye.

In Hall v. Chair Co., 186 N. C., at p. 470, it is said: “Defense is interposed chiefly upon the ground that tbe machine was very simple; tbat tbe danger, such as it was, was open and obvious, and tbat tbe plaintiff assumed tbe risk of bis injury. There was also a plea of contributory negligence. In fact, tbe pleas of assumption of risk and contributory negligence were both submitted under tbe second issue; and this, under authority of Hicks v. Mfg. Co., 138 N. C., 319, is a matter which .must be left largely to tbe legal discretion of tbe presiding judge.” Parker v. Mfg. Co., 189 N. C., 275; Ledford v. Power Co., 194 N. C., at p. 104.

Tbe assignment of error made by tbe defendants, tbat tbe court refused to submit an issue as to assumption of risk, we do not think can be sustained.

Tbe court below charged fully as to assumption of risk on tbe second issue of contributory negligence.

Tbe next material assignments of error were to tbe questions on tbe part of plaintiff witb respect to custom used in connection witb tbe application of sheathing. Tbe defendants’ evidence went fully into tbe same matter. From an analysis of tbe evidence on both sides, we do not think, on tbe present record, tbat it could be held prejudicial or reversible error. See Shelton v. R. R., 193 N. C., p. 670; Insurance Co. v. R. R., 195 N. C., 693.

Tbe next material assignment of error is evidence in regard to liability insurance, we do not think can be sustained.

In Luttrell v. Hardin, 193 N. C., at p. 269, it is said: “It has been repeatedly held tbat tbe fact tbat a defendant in an actionable negligence action carried indemnity insurance could not be shown on tbe trial. Such evidence is incompetent.”

Tbe plaintiff was put on tbe stand in rebuttal. We think tbe material trouble complained of was brought about by tbe cross-examination of plaintiff. Tbe court below refused in its legal discretion to order a mistrial on defendants’ motion. See Gilland v. Stone Co., 189 N. C., 783.

*79We have read with care the charge ef the court below. The contentions are fully and fairly set forth in behalf of plaintiff and defendants. The law of negligence, proximate cause, contributory negligence and assumption of risk, are all clearly and accurately defined. The law applicable to the facts was thoroughly explained. On the record we can find

No error.