#### G. W. LEE v. D. M. ROBERSON.

(Filed 24 September, 1941.)

3. Master and Servant §§ 19, 37—

Where it is admitted that defendant employer bad a sufficient number of employees to bring him under the Workmen’s Compensation Act, but that he had elected not to do so, the defense of contributory negligence is properly excluded. Michie’s Code, 8081 (v).

2. Master and Servant § 14b—

Plaintiff was injured when his hand came into contact with blades of an electric sausage grinder he was operating in the course of his employment. Plaintiff’s evidence was to the effect that he had had no previous experience with an electric machine and that he was not furnished a mallet with which to push the meat through if the meat did not feed through by itself. Held,: The evidence, though contradicted by defendant’s evidence, precludes a nonsuit upon the simple tool doctrine relied on by defendant.

Babuhih, J., dissents.

*62Appeal by defendant from Johnsion, Special Judge, at April Special Term, 1941, of MartiN.

Civil action to recover damages for an alleged negligent injury.

Plaintiff was employed by tbe defendant as a bandy man around bis slaughter bouse. On tbe fourth day of bis employment be was grinding-sausage when bis left band came in contact with tbe blades of tbe electric sausage grinder and cut off four fingers. Plaintiff bad bad no previous experience with an electric machine, though be bad used one on tbe farm operated by band. “You could stop tbe one on tbe farm if you bad your band in it.” If tbe meat did not feed through by itself a mallet was used to push it down. Plaintiff testifies that be was furnished no mallet and given no instructions as to bow to operate tbe machine; that be was not familiar with a machine driven by electricity.

Tbe defendant’s evidence tends to show that plaintiff was warned not to use bis band in pushing tbe meat into tbe grinder; that it was dangerous to do so, and that a mallet bad been furnished for that purpose.

There was a verdict and judgment for plaintiff, from which tbe defendant appeals, assigning errors.

Hugh G. Horton for plaintiff, appellee.

Peel <& Manning, Clarence W. Griffin, and Wheeler Martin for defendant, appellant.

Stacy, C. J.

Tbe case was properly submitted to tbe jury. It is admitted that tbe defendant .bad a sufficient number of employees to bring him under tbe Workmen’s Compensation Act “and that be bad not done so.” Accordingly, without objection or exception, bis plea of contributory negligence was stricken out. Micbie’s N. C. Code of 1939, sec. 8081 (v).

Tbe defendant relies upon tbe simple tool doctrine. Newbern v. Great Atlantic, Etc., Tea Co., 68 F. (2d), 523, 91 A. L. R.,781. This cannot avail him on tbe present record, at least, not to tbe extent of shielding him from liability. King v. R. R., 174 N. C., 39, 93 S. E., 378; Wright v. Thompson, 171 N. C., 88, 87 S. E., 963; Ensley v. Lumber Co., 165 N. C., 687, 81 S. E., 1010; Reid v. Rees, 155 N. C., 231, 71 S. E., 315; Mercer v. R. R., 154 N. C., 399, 70 S. E., 742. It is true, tbe jury might have returned a verdict for tbe defendant, especially in view of tbe cross-examination of tbe plaintiff, but tbe evidence taken as a whole is such as to preclude a nonsuit.

No other question is debated on brief. Tbe verdict and judgment will be upheld.

No error.

BarNhill, J., dissents.