Darden v. Robert G. Lassiter & Co.

Stacy, C. J., after stating tbe case: Tbe case, witb evidence sufficient to carry it to tbe jury, was tried upon tbe theory that in law tbe defendant was in duty bound, in tbe exercise of ordinary care, to provide, a reasonably safe place for plaintiff’s intestate to work, and to furnish him reasonably safe means and suitable appliances witb wbicb to execute tbe work assigned, subject to tbe limitation that tbe deceased took upon himself, as an employee or servant of tbe defendant, tbe ordinary risks of danger incident to tbe employment, wbicb were obvious or could have been perceived by him in tbe exercise of bis senses and by tbe use of ordinary care and circumspection. In this, there was no error. Lindsey v. Lumber Co., 190 N. C., 844, 130 S. E., 713; Van Steenburgh v. Thornton, 58 N. J. L., 160. Such was tbe bolding in McDougald v. Lumberton, 129 N. C., 200, 39 S. E., 826, a case somewhat similar to tbe one at bar and involving tbe same principles. See, also, City of Fort Wayne v. Christie, 156 Ind., 172; Notes 21 A. & E. Ann. Cas., 708, and 7 A. & E. Ann. Cas., 301. Tbe case of Mace v. Mineral Co., 169 N. C., 143, 85 S. E., 152, strongly relied upon by appellant, is not in point (except upon tbe defendant’s evidence wbicb was rejected by tbe jury), for in that ease tbe plaintiff’s intestate was foreman or overseer in charge of tbe work. Whether “fine grading” in tbe bottom of a trench, such as plaintiff’s intestate was doing in tbe instant case, is dangerous, or otherwise, would seem to depend upon a variety of circumstances. In some cases, it might be entirely safe; in others, not. The size and dimensions of tbe trench might affect it. Tbe character of tbe soil would certainly have some influence. The presence of limestone, or quicksand, or of earth newly filled in, tbe moisture in tbe ground and numerous other conditions might render such work more or less safe, or more or less hazardous. Tbe state of tbe weather or tbe season of tbe year might have something to do witb it. But all of these are matters of fact, about wbicb there may be conflicting evidence, as in tbe instant case, calling for determination by a jury. Indeed, in tbe instant case, tbe fact that plaintiff’s intestate’s work was done under tbe immediate supervision and direction of tbe defendant’s foreman would seem to be equivalent to an assurance that be *430 might safely proceed with it. Smith v. Kansas City, 125 Mo. App., 150. When the foreman went to get his lunch, he left plaintiff’s intestate at work in the trench, leveling the bottom or doing fine grading. He was, therefore, at the time of leaving, in a better position than plaintiff’s intestate to observe and appreciate the danger. City of Fort Wayne v. Christie, supra. The case was properly submitted to the jury. No error.