#### CHARLES W. FALLS v. MONARCH COTTON MILLS COMPANY.

(Filed 22 January, 1930.)

Master and Servant O e — Evidence that injury was caused by act of fellow-servant held sufficient to he submitted to jury and sustain their verdict in defendant’s favor.

Where in an action by an employee to recover damages for a negligent injury the evidence is conflicting as to whether the explosion of the barrel resulting in the injury in suit was caused by the negligent act of a foreman or a fellow-servant, the submission of the question to the jury is proper, and judgment upon their answer to the issue of the defendant’s negligence in the negative will be sustained.

Civil actioN, before Ccnuper, Special Judge, at May Special Term, 1929, of Gaston.

Plaintiff offered evidence tending to show that the defendant in the course of its business used a large iron pot for heating water to be used in scrubbing floors in its mill. This pot had a screen about it to prevent the escape of fire. The plaintiff was an ordinary laborer and a part of his duties consisted in scrubbing floors. The screen about the pot was made from “old steel drums” or barrels. These barrels were cut open and placed around-the pot. There was a barrel in front to protect the legs of the workmen from being burned while dipping water from the pot. On the evening before plaintiff was injured the old screen had been taken away, and the plaintiff was directed to fix a, new screen. He testified: “I split the drums open, hammered them out, and stood them around the fire.” After doing this the plaintiff left and his brother Tom Falls placed another barrel or drum at the front opening in the background or screen. Tom Falls testified that Caldwell told him to place the barrel at that point. Caldwell, who was a witness for plaintiff, *228denied tbat be was a boss or a foreman, or tbat be told Tom Falls to place tbe barrel in front of tbe screen. Early next morning about 4:30 a.m., plaintiff made a fire wbicb bad burned down, and be was building another around tbe pot when tbe barrel exploded, and as a result thereof, plaintiff suffered serious and permanent injury.

Issues of negligence, contributory negligence, and damages were submitted to tbe jury, and tbe jury answered tbe issue of negligence in tbe negative.

From judgment upon tbe verdict tbe plaintiff appealed.

8. D. Dolley and A. O. J ones for plaintiff.

George B. Mason for defendant.

BROGDEN, J.

The plaintiff offered evidence tending to show that tbe barrel wbicb caused tbe injury, was negligently placed near tbe fire by order of a foreman or boss of defendant, and tbat this barrel was unsafe — thus rendering tbe place of work unsafe and dangerous. There was evidence tbat tbe barrel was voluntarily selected and set in position by fellow-servants of plaintiff.

Tbe defendant offered no evidence.

Both views were submitted to tbe jury, and tbe issue of negligence was answered in tbe negative. There is no new or novel proposition of law presented, and a careful examination of tbe record and briefs discloses no reversible error.

No error.