Fearington v. . Tobacco Co.

Per Curiam: In Hicks v. Mfg. Company, 138 N. C., 325, it is said to be accepted law that an employer of labor to assist in the operation of railways, mills and other plants, when the machinery is more or less complicated, and more especially when driven by mechanical power, is required to provide for his employees in the exercise of proper care a reasonably safe place to work and to supply them with machinery, implements and appliances reasonably safe and suitable for the work in which they are engaged, and such as are approved and in general use in plants and places of like kind and character. And an employer is also required to keep such machinery in such condition, as far as this can *83 be done, in the exercise of proper care and diligence, citing Witsell v. Railway, 120 N. C., 557, and Marks v. Cotton Mills, 135 N. C., 287. Applying these principles to the facts testified to by plaintiff, there was sufficient evidence tending to show a negligent breach of duty on the part of the defendant. Under the doctrine of res ipsa loquitur there was evidence to be considered by the jury as to the negligent and defective condition of the elevator. Womble v. Grocery Co., 135 N. C., 474; Ross v. Cotton Mills, 140 N. C., 115. Again, there was evidence to show a negligent placing of the truck on the elevator without any appliance or contrivance to hold it in position; and further, there was testimony to be considered tending to show a negligent order on the part of the foreman in directing an inexperienced hand to go on an elevator, under all the circumstances brought out, leaving him only a space of 12 or 14 inches in which to stand, and without any guards or rails or other means by which the plaintiff could protect or maintain himáelf in a secure position. In case negligence of the defendant is established and the question of contributory negligence arises, this order of the foreman would be pertinent also in repelling an imputation of that kind. But so far as now disclosed there would seem to be very little, if any, evidence of contributory negligence to be considered. There was error in directing a nonsuit, and the plaintiff is entitled to have his cause submitted to a jury. To that end a new trial is awarded. New Trial.