Harper v. Murray Construction Co.

Brogden, J. We perceive no essential difference between the principle of law involved in this case and that announced in the case of Darden v. *49 Lassiter, 198 N. C., 427. It was pointed out in the Darden case that a variety of circumstances and conditions might enter into the question as to whether the work of fine grading in the bottom of a ditch was “dangerous or otherwise.” Upon authority of the Darden case, we are constrained to hold that there was sufficient, evidence of negligence to be submitted to the jury. Manifestly, the plaintiff ran the wrong way when the call of danger sounded, because he actually ran to the cave-in instead of away from it. However, he undertakes to explain his conduct by testifying that certain service pipes prevented his retreat to the rear, and that his sole idea was to get out of the ditch. This testimony, if believed by the jury, tends to show that the plaintiff acted in an emergency, and the general rule of law in such cases is that the conduct of a person must be viewed and weighed with such reasonable liberality as the surrounding circumstances may warrant. Pegram v. R. R., 139 N. C., 303, 51 S. E., 975; McKay v. R. R., 160 N. C., 260, 75 S. E., 1081; Hinton v. R. R., 172 N. C., 587, 90 S. E., 756. Beversed.