#### CEDRIC RIGGS, by his Next Friend, M. C. RIGGS, v. EMPIRE MANUFACTURING CO.

(Filed 14 October, 1925.)

1. Employer and Employee — Master and Servant — Negligence—Safe Place to Work.

The duty of an employer in the exercise of reasonable care to furnish to his employee a reasonably safe place to work in the course of employment, is nondelegable, and he may not escape liability when a negligent personal injury has been inflicted on an employee by another having charge of the work.

2. Same — Dangerous Employment — Warning of Danger.

Where the duty of an employee is to make a clearing or passway in the woods for others who are felling trees therein, and upon the falling of a nearby tree he seeks to escape injury by fleeing, and falls and injures himself by being cut with an axe or bush-hook he had been using: *Held,*under the circumstances it was evidence of the employer’s negligence, that he had failed to give the injured employee timely warning of his danger is within the rule requiring the employer to furnish his employee a reasonably safe place to work, and sufficient to take the case to the jury upon the issue of negligence.

3. Same — Insurer.

The liability of an insurer does not come within the rule requiring the employer to furnish his employee a safe place to work, for he is only to exercise such reasonable care under existing conditions to provide such place and supply him machinery, implements and appliances suitable for the work in which he was engaged, and to keep them in safe condition by the exercise of proper care and supervision.

4. Same — Contributory Negligence — Burden of Proof.

Where contributory negligence is pleaded with supporting evidence in a negligent personal injury case, and tends to show that plaintiff received the injury complained of while in imminent peril, the burden is on defendant to show that under the existing circumstances the plaintiff *257liad acted in disregard to liis own safety, and it is not required of him that he should have selected the less dangerous way to have escaped the injury.

5. Instructions — Disjunctive Parts — Appeal and Error.

Upon exception to and appeal from the charge of the court, his instructions will not be regarded in disjunctive fragments, but construed with the other relative portions thereof.

Appeal from *Barnhill, J.,*and a jury, Spring Term, 1925, of Pam-lico.

Tbe contentions on tbe part of plaintiff were: Tbat Cedric was an inexperienced boy, 17 years of age, and was employed by tbe defendant’s foreman, E. A. (Gene) Wbitford, to take a busb-book and axe and go in tbe woods and belp one Frank Fulcber clear roads for tbe bauling. Tbe defendant bad several men sawing trees, bauling and snaking.logs in close proximity to where be was clearing tbe road. Tbe foreman was present in charge of and directing tbe work being done. Tops of trees and logs were lying around where Eiggs was put to clear tbe road. While be was at work 'chopping bushes and limbs and throwing them out of tbe way, be beard tbe workmen back of him, who were cutting, “they just hollered.” When they hollered be did not look around, but jumped out of tbe way and ran. He beard tbe tree cracking. He was about 35 or 40 feet from tbe tree and it fell in tbe direction of where be was working. Tbe tree was about 62 or 64 feet high. Tbat be ran to keep from getting killed and tbe tree would have fallen on him if be bad not run. WEile be was getting out of tbe way of tbe falling tree, jumping over tops and debris, be stumbled over a limb and in falling was injured by being cut by tbe axe.

Defendant denies it was guilty of any negligence and pleads contributory negligence on tbe part of plaintiff. It admits tbat Wbitford was foreman but contends: (1) Tbat Cedric Eiggs, tbe plaintiff, was an experienced boy and when be got hurt was not within 150 or 200 feet of tbe nearest tree falling, which was on tbe opposite side of tbe team. No tree was over 75 feet long and where be was working and got hurt was out of tbe range of tbe falling tree. (2) Tbat be was walking on a log and slipped off and was hurt in tbat way.

Tbe issues submitted to tbe jury and their answers thereto, were as follows :

“1. Was tbe plaintiff, Cedric Eiggs, injured by tbe negligence of tbe defendant, as alleged in bis complaint? Answer: Yes.

2. If so, did said plaintiff, by bis own negligence, contribute to bis own injury, as alleged in tbe answer? Answer: No.

3. What damage, if any, is said plaintiff entitled to recover from defendant? Answer: $700.00.”

*258Judgment was rendered on tbe verdict. Many exceptions and assignments of error were made by defendant as to tbe competency of evidence, charge of tbe court, etc., and defendant appealed to tbe Supreme Court. Tbe material ones we will consider in tbe opinion.

*D. L. Ward and F. 0. Brinson for plaintiff.*

*Z. V. Bawls and Ward & Ward for defendant.*

OlaResoN, J.

It is well settled in tbis State “that an employer of labor, in tbe exercise of reasonable care, must provide for bis employees a safe place to do tbeir work and supply them with machinery, implements and appliances safe and suitable for tbe work in which they are engaged, and to keep such implements, etc., in safe condition as far as tbis can be done by tbe exercise of proper care and supervision. *Pigford v. R. R.,*160 N. C., 93; *Young v. Fiber Co.,*159 N. C., 376; *Alley v. Pipe Co.,*159 N. C., 327; *Patterson v. Nichols,*157 N. C., 406; *Mercer v. R. R., 154*N. C., 399”; *McAtee v. Mfg. Co.,*166 N. C., 456; *Holt v. Mfg. Co.,*177 N. C., 178; *Bech v. Tanning Co.,*179 N. C., 125; *Cook Mfg. Co.,*183 N. C., 56; *Gaither v. Clement,*183 N. C., 456.

It will be noted that it is tbe duty of tbe master to “use or exercise reasonable care,” or “use or exercise ordinary care” to provide tbe servant a reasonably safe and suitable place in which to do bis work. The master is not an insurer. Tbe failure to submit in a charge tbe qualification of tbis duty is error, and new trials have been frequently granted on account of tbe omission. It is a substantial right. Tbe most recent case granting a new trial is *Cable v. Lumber Co.,*189 N. C., p. 840. In tbe present case tbe court below did not fall into tbis error. Tbe part of tbe charge complained of by defendant is as follows: “If tbe jury find by tbe greater weight of tbe evidence, with the burden on tbe plaintiff, that tbe plaintiff was employed by tbe defendant to work for wages in its timber woods under tbe direction of one Gene Whit-ford, who was bis foreman or boss, and from whom be was required to take orders, and should find that be was ordered by said Wbitford to take an axe and bush-book and help in cutting out a path or road for tbe defendant’s haulers near the timber trees which were being cut down by defendant’s employees within such proximity as to be in danger from falling trees, and that while be was so engaged one of tbe trees which tbe defendant’s agent bad sawed, fell in bis direction and so close to him that be was compelled to run to keep tbe tree from falling on him and killing or disabling him, and while attempting to get out of tbe way of tbe falling tree, be fell on the axe which be bad in bis band for cutting out *the*road and was injured as alleged by him, and should further find that tbe defendant did not use ordinary care to furnish *259to the plaintiff a reasonably safe place in which to work and such failure was the proximate cause of the plaintiff’s injury, if you find he was injured, you will answer the first issue Yes.”

We think the charge on the facts and circumstances of this case correct.

In *Lucey v. Stack-Gibbs Lumber Co.,*23 Idaho, 628, 46 L. R. A. (1903), p. 92, *Sullivan, J.,*said: “If it requires warning and signals to protect a servant from injury from falling trees cut by other servants, it is the master’s duty to see to it that the proper signals are given, and, if the injury is caused by the failure to give the signals, the master is liable. ELis ability or responsibility extends beyond the selection of a servant or agent to give the signals, and includes the signal itself, and, if the servant neglects to give it, the master must answer for such negligence, as the authority to a servant to give a signal is nondelegable, and the failure to give it is imputed to the master, and the servant employed to give it is not the fellow-servant of the injured employee so far as the giving or failure to give the signal is concerned. The master cannot instruct a servant to do or perform a nondelegable or nonassignable duty, and escape liability if the servant neglects to perform such duty, in case injury results to the employee.”

In *Beck v. Tanning Co., supra, Walker J.,*said: “It is unquestionably the duty of the master to use proper care in providing a reasonably safe place where the servant may do his work, and reasonably safe machinery, implements, and so forth, with which to do the work assigned to him *(West v. Tanning Co.,*154 N. C., 44), and this duty is a primary, and an absolute one, which he cannot delegate to another without, at the same time, incurring the risk of himself becoming liable for the neglect of his agent, so entrusted with the performance of this duty which belongs to the master, for in such a case, the negligence of the agent, or fellow-servant, if he is appointed to act for the master, is the latter’s neglect also,” citing numerous authorities. *Parker v. Mfg. Co.,*189 N. C., 275; *Torrance v. Lawrence,*189 N. C., 521; *Beck v. Chair Co.,*188 N. C., 743.

The warning must not only be given, but it must be a timely warning — proper warning. Such reasonable time so that workmen can avoid injury. We think these matters were fairly presented to the jury.

The following is complained of by defendant in the charge: “It is the duty of the plaintiff in sudden peril, to take active measures to preserve himself from impending harm, but was by no means held to the same judgment and activity under all circumstances.”

But the charge on this aspect must not be taken disjunctively, but as a whole, as follows: “On the second issue the burden is on the defendant to satisfy the jury by the greater weight of the evidence that *260the plaintiff, notwithstanding the negligence of the defendant, if you find the defendant was negligent, did not use ordinary care to prevent his injury. The court charges you it is the duty of the plaintiff in sudden peril to take active measures to preserve himself from impending harm but was by no means held to the same judgment and activity undei' all circumstances. The opportunity to think and act must be taken into consideration. And although he may not have taken the safest course or acted with the best judgment, or greatest prudence, he can recover for injuries sustained upon showing that he was required to act suddenly without opportunity for deliberation. It has been said that when choice of evils only is all that is left to a man he is not to be blamed if he chooses one, nor if he chooses the greater, if he is in circumstances of difficulty or danger at the time and compelled to decide hurriedly.” *We*see no error in this charge.

3 Labatt’s Master and Servant (2 ed.), p. 3555, says: “It is well settled that a servant who is suddenly exposed to great and imminent danger is not expected to act with that degree of prudence which would otherwise be obligatory. Or, as the doctrine is also expressed, a servant is not necessarily chargeable with negligence because he failed to select the best means of escape in an emergency.” The court below charged almost the exact language quoted in *Parker v. R. R.,*181 N. C., p. 103. *We*can find no prejudicial or reversible error in the charge of the court on damages; in the exceptions and assignments of error as to the admission of evidence; refusal to nonsuit or prayers for instructions.

The case was one mainly of disputed facts, and the jury has found with the plaintiff. On the record, we find

No error.