Jones v. D. L. Taylor & Co.

Walker, J., after stating the case as above: The court properly denied the motion for nonsuit. There was, at least, conflicting evidence upon the issues as to negligence, and this carried the case to the jury. *297 If the plaintiff had been doing his work in a safe way, and defendant ordered him to do it in an unsafe way, with a threat to discharge him if he refused, and by reason of this negligent order he entered upon the work, which was dangerous, and was injured without his fault, he can recover his damages. It is the duty of the master not to' expose his servant to unnecessary dangers while in the performance of the duty assigned to him, but, on the contrary, he is held to the exercise of ordinary care, and should use such care to furnish him with a reasonably safe pláce in which to perform his work, and with reasonably safe tools and implements with which to. do it, and his failure, in this respect, if it proximately results in injury to the servant, constitutes an actionable wrong, for which he may recover his damages. Marks v. Cotton Mills, 135 N. C., 287; Holt v. Mfg. Co., 177 N. C., 170; Pressly v. Yarn Mills, 138 N. C., 410. It is our duty, in passing upon a motion to nonsuit, to examine all of the evidence and to place the most favorable construction upon that which tends to establish the plaintiff’s cause of action. The act of negligence here was in requiring the plaintiff to do his work in a dangerous manner, and forcing him to obey the negligent order of his superior by a threat to discharge him if he disobeyed it. The instruction as to assumption of risk, which was requested by defendant, was substantially given, so far as was proper to give it, in the general charge of the court, which followed the approved precedents in such cases, and those in regard to contributory negligence. The instruction of the court was more complete and accurate than the prayers of the defendant, in the statement of the facts, and of the correct principle of law applicable to the facts, the prayers being somewhat deficient as to one or two of the material elements of assumption of risk and contributory negligence. They omitted all reference to proximate cause, McNeill v. R. R., 167 N. C., 390; Brewster v. Elizabeth City, 137 N. C., 392. But, however this may be, the court charged properly and adequately upon this subject, although its language was different from that of the prayer. It was not required to adopt the words of the defendant’s request, but could use its own form of expression, provided its instruction to the jury was substantially responsive to the prayer, even assuming that the latter was correct in itself. Rencher v. Wynne, 86 N. C., 268; Graves v. Jackson, 150 N. C., 383. It was held in Pressly v. Yarn Mills, supra, at p. 414: “While" the employee assumes all the ordinary risks incident to his employment, he does not assume the risk of defective machinery and appliances due to the eniployer’s negligence. These are usually considered as extraordinary risks, which the employees do not assume, unless the defect attributable to the employer’s negligence is obvious and so immediately dangerous that no prudent man would continue to work on and incur the attendant risks.” The court stated and *298 explained tbis rule and left it witb tbe jury to find tbe facts and apply tbe rule to tbem. See, also, Hicks v. Mfg. Co., 138 N. C., 319. On tbe remaining question, tbe judge promptly interposed and sufficiently cautioned tbe jury as to tbe improper remarks of counsel, and thus rendered tbem harmless. Greenlee v. Greenlee, 93 N. C., 278; McLamb v. R. R., 122 N. C., 862; S. v. Hill, 114 N. C., 780. Tbe request for an instruction to tbe effect tbat if tbe jury believed tbe evidence tbe verdict should be for tbe defendant was substantially tbe equivalent of tbe motion to nonsuit, and is covered by what we have said upon tbat part of tbe case. No error.