#### JOE EAKER v. THE INTERNATIONAL SHOE COMPANY and ROBEY SMALL.

(Filed 10 September, 1930.)

1. Master and Servant C b — Evidence of employer’s negligent failure • to provide reasonably safe place to work lield sufficient.

Where in an action against an employer there is evidence tending to show that the plaintiff employee, after disengaging the clutch and stopping the drum in which hides were processed, was removing hides from the drum in the course of his duties, and that while so employed the clutch suddenly became engaged and the drum started revolving without any act on Ms part or those working with him, resulting in the injury in suit, and further that the clutch had not been inspected in two years, and that it became engaged because of defective- oiling or because of clogged grease channels: *Held,*the doctrine of *res ipsa loquitur*applies, and the evidence is sufficient to be submitted to the jury and overrule defendant’s motion as of nonsuit.

2. Negligence A e — Doctrine of res ipsa loquitur warrants submission of case to the jury, the burden of proof remaining on plaintiff.

Where the doctrine of *res ipsa loquitur*applies in an action to recover for a negligent injury it is sufficient to take the issue of negligence to the jury and sustain an affirmative answer, but the burden of proof on the issue remains on the plaintiff.

3. Trial B e — The trial court has the power to withdraw incompetent evidence from the jury and instruct it not to consider it.

The trial court has the power to withdraw incompetent evidence from the jury and instruct it not to consider it, and where an incompetent question is asked a witness over objection, and the witness’ answer is promptly stricken from the record by the court and the jury instructed not to consider it, an exception thereto will not be sustained on appeal. *In re Will of Yelmerton,*198 N. 0., 746, cited and distinguished.

*3804. Evidence K lb — Expert may testify as to i*esults of injury disclosed by X-ray picture properly in evidence.

Where a physician has qualified as an expert witness, his testimony as to the results of an injury, based upon the disclosure of an X-ray picture properly taken by a competent person and admitted in evidence, is com-Xietent and not objectionable upon the ground that his opinion was based upon assumed facts arising from matters neither proven nor admitted.

5. Same — Testimony of expert as to verity of X-ray picture held competent.

Where a witness has qualified as an expert with experience in reading and interpreting X-ray pictures, and has testified as to the extent of an injury based upon an X-ray picture properly introduced in evidence, his answer to a question as to the reliability of an X-ray picture that there was no way an X-ray picture could “fool” a physician merely amounts to a statement that an X-ray picture, properly taken, accurately produces a picture of human bones, and an exception • to the answer will not be sustained on appeal.

6. Trial E g — Instruction correct when taken as a whole will not he held for reversible error.

A charge of the court to- the jury which is correct as to the duty of an employer to furnish an employee a reasonably safe place to work in the exercise of ordinary care, will not be held for reversible error, if the error, if any, is in the appellant’s favor, or for the omission of the word “approved” in regard to appliances “approved and in general use,” when from the entire charge and the circumstances of the case it appears that the appellant has not been, prejudiced thereby, the case having been fully and correctly determined upon the principle of *res ipsa loquitur.*

7. Master and Servant C b — Where injury would not have occurred if machinery had been in proper condition doctrine of res ipsa loquitur applies.

An employer is required in the exercise of ordinary care to furnish his employee a reasonably safe place to work and tools and appliances reasonably safe and suitable for the work and such as are approved and in general use, and to keep such tools and appliances in such condition in the exercise of due diligence, and where a disengaged clutch becomes engaged without the intervention of human agency, which would not happen if the machinery had been in proper condition, the doctrine of *res ipsa loquitur*applies.

Appeal by defendant from *Har&vng, J-,*and a jury, at September Term, 1929, of Bueice.

No error.

This is an action for actionable negligence brought by plaintiff against the defendants.

The issues submitted to the j'ury and their answers thereto, were as follows:

“1. Was the plaintiff inj’ured by the negligence of the defendant, the International Shoe Company, as alleged? Answer: Yes.

*3812. Was tbe plaintiff injured by tbe negligence of tbe defendant, Robey Small, as alleged? Answer: Tes.

3. Did tbe plaintiff, by bis own negligence, contribute to bis injury, as alleged in tbe answer? Answer: No.

4. Wbat damage, if any, is tbe plaintiff entitled to recover ? Answer: $18,000.”

Tbe necessary facts will be stated in tbe opinion.

*B. T. Falls, S. j. Ervin and S. J. Ervin, Jr., for plaintiff.*

*A. Hall Johnston and Self, Bagby & Patrick for defendants.*

ClaRKSON, J.

At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence, tbe defendants made motions for judgment as in ease of nonsuit. C. S., 567. Tbe court below overruled tbe motions, and in tbis we see no error.

Tbe plaintiff wben injured was an employee and working in tbe bleacb-room of tbe tannery plant of tbe defendant, International Sboe Company. It was admitted tbat tbe defendant, Robey Small, was foreman and superintendent of said department and tbe immediate superior of plaintiff, and it was tbe -duty of plaintiff to perform bis work under tbe direction and in accordance witb tbe proper orders of said foreman and superintendent. Tbe evidence on tbe part of plaintiff tended to sbow tbat plaintiff wben injured was taking out bides, crops or bellies as they were termed, from tbe drum or wheel. Tbe machinery that turns tbe drum or wheel gets its source of power from tbe motor, which is transmitted by a belt from tbe motor to tbe power shaft; from tbe counter shaft it is again transmitted by a belt to tbe clutch, and wben you engage tbe clutch, that starts the drum or wheel off, but'wben tbe clutch is disengaged the drum or wheel is idle. Tbe power tbat turns tbis drum or wheel is brought to it by means of a shaft 2 7/16 inches; this shaft is fitted in a sleeve tbat is around tbe shaft and is fastened to tbe pulley witb which tbe belt runs from tbe counter shaft and also on tbis sleeve is fastened one-balf of tbe clutch tbat is driven by tbe pulley. When tbe clutch is disengaged half of tbe clutch is rotating; tbe shaft is not rotating, but tbe sleeve is rotating on tbe shaft, being-pulled by tbe belt; tbe drum or wheel is idle and tbe shaft is idle, but half of tbe clutch which fastened around tbe sleeve is rotating. Wben *the*other half of tbe clutch which is fastened on tbe 2 7/16 inch shaft is engaged witb tbe half which is running on tbis sleeve, it causes these two, tbe half tbat is fastened to tbe shaft, wben tbat becomes engaged witb tbe other half, causes tbe 2 7/16 inch shaft to rotate, which in turn having a pin on tbe end of it, causes tbe drum or wheel to turn. *The*sleeve is running around *the*shaft all the time, while tbe motor is *382running, and the drum or wheel is standing idle. The function of the drums or wheels in the bleach-room were to- oil the hides or leather; they are round like a drum, with flat ends; they are about ten feet in diameter and about six feet wide. They are used to put oil, salt, sugar and other ingredients in to treat the hides. After the hides are put in the clutch is shoved in and starts the wheel or drum revolving. The wheel or drum runs for about twenty minutes and then the hides are taken out. About 75 hides are placed in one of these wheels or drums at a time for treatment. When taken out they are handed to a helper and hung up. There is a door on the side of the wheel dr drum, about 36 inches high and 42 inches wide, to put the hides in and take them out, and this is shut when the wheel or drum is revolving. The wheels or drums make about 21 revolutions a minute.

The plaintiff was unloading the hides from the wheel or drum about four o’clock in the evening, on 26 May, 1928, when he was injured. At the time this wheel or drum was stopped and the clutch pulled out, a stick was placed on the floor under the wheel or drum to hold it stationary. Plaintiff had taken all the hides out of the wheel or drum except about fifteen. To get these out it was necessary to put his body from his hips up inside the wheel or drum to reach them, and the wheel or drum started to revolve and the door hit him and he was thrown in the wheel or drum, and while it was revolving was thrown out, and rendered unconscious and permanently injured.

The evidence was to the effect that the clutch became engaged without any act on his part, or those working with him. That there was some defect that started the drum revolving. That the clutch became engaged and started up the machinery, by reason of the fact that the sleeve within which the shaft operating the machinery worked, became hot, and tight, and by reason of not being properly oiled, and that this was due to the closing up of the grease channels, which conveyed the oil or grease to the shaft within the sleeve, causing the sleeve to turn with the shaft, and engage the clutch. There was evidence that this sleeve within which the shaft turned, became so tight that it had to be cut in order to remove it from the shaft, and there was also' evidence that this sleeve had not been removed and inspected for a period of two years, and that the inside of the sleeve and the shaft was gummed up with dried oil or other material, and that the oil in the cup could not properly reach the inside of the sleeve, as the channels which should have conveyed it, were to some extent closed up. On the other hand, the defendants offered evidence tending to show that the reason for the accident, was that some hard substance had gotten into the oil cup, and from thence through the grease channels into the sleeve, and this without fault on its part, and that this caused friction which rendered the sleeve tight, causing *383it to turn witb tbe-shaft, and that this caused the clutch to become engaged, and start the machinery, the wheel or drum to revolve, and the plaintiff to be injured.

Among the duties of defendant Small was to oil the machinery by means of the oil or grease cup. When the clutch is disengaged there is a space of about an inch between the two portions thereof, and when these two portions of the clutch are brought together, or engaged, the communicated power turns the shaft and the wheel or drum.

Defendants contended that plaintiff set forth in the complaint that the clutch was defective, which, if established as a fact, would warrant the contention that there was failure to make proper inspection, or failure to make repairs after knowledge or implied notice of such defective condition; whereas, if the actual cause of the “running away” of the wheel or drum was not a defective clutch, but the presence of some hard foreign substance in the grease for which defendants were not accountable, such contention on the part of plaintiff was ill-founded. Further that there was no evidence that the clutch was defective.

Plaintiff specifically alleges in his complaint that the injuries of the plaintiff herein complained of were directly and proximately caused by and due to the negligence and carelessness of the defendants in failing to inspect said oil wheel or drum and clutch and the machinery and appliances connected therewith and *in failure to keep said oil wheel or drum and clutch and machinery and appliances in reasonably safe condition and repair*and in ordering the plaintiff, who was ignorant of such defects, to unload said oil wheel or drum when the defendants well knew that such defects existed and that said oil wheel or drum in all probability would suddenly begin to revolve about said penetrating shaft and “run away” and injure the plaintiff, and in failing to furnish and provide for the plaintiff a reasonably safe place in which to work and reasonably safe tools and machinery and appliances with which to work.

*We*think that, from the admitted facts, the principle of *res ipsa loiquitur*applies.

The case of *Ross v. Cotton Mills,*140 N. C., 115 is similar to the case at bar. In the *Boss case*the plaintiff had stopped the machine. He testified that when it was stationary, “I put my hand over feed roll into heater bars to get cotton out. Machine started by some means and tore off my arm to my elbow, knocked me numb or paralyzed.” The Court in that case, at p. 119, said: “To prevent any misconstruction of the circumstances under which or the manner in which this principle applies in the trial of such cause we wish to restate what was said in *Womble v. Grocery Co.,*135 N. C., 474: ‘The principle of *res ipsa loquitur*in such eases carries the question of negligence to the jury, not relieving the plaintiff of the burden of proof, and not raising any pre*384sumption in bis favor, but simply entitling tbe jury, in view of all tbe circumstances and conditions as shown by tbe plaintiff's evidence, to infer negligence and say whether upon all of tbe evidence tbe plaintiff has sustained bis allegation.’ It does not in any degree affect or modify tbe elementary principle that tbe burden of tbe *issue*is on tbe plaintiff. *Walker, J.,*in *Stewart v. Carpet Co.,*138 N. C., 60, clearly states tbe law in this respect: ‘The doctrine does not dispense with tbe requirement that tbe party who alleges negligence must prove tbe fact, but relates only to tbe mode of proving it. Tbe fact of tbe accident furnishes merely some evidence to go to tbe jury which requires tbe defendant ‘to go forward with his proof.’ Tbe rule of *res ipsa loquitur*does not relieve tbe plaintiff of tbe burden of showing negligence, nor does it raise any presumption in bis favor.’ ” *Stewart v. Carpet Co., supra; Cook v. Mfg. Co.,*183 N. C., 55; *McAllister v. Pryor,*187 N. C., 837; *Murphy v. Power Co.,*196 N. C., 484; *Bryant v. Construction Co.,*197 N. C., 639.

In tbe *Bryant case, supra,*at p. 643, we find: “In some of our decisions and expressions *res ipsa loquitur,*prima facie evidence, prima facie case, and presumption of negligence have been used as practically synonymous. As thus used, each expression signifies nothing more than evidence to be considered by tbe jury.” See *Springs v. Doll,*197 N. C., 240; *Bowden v. Kress,*198 N. C., 559.

'We do not think tbe learned counsel for defendants seriously disputed the above settled law, from tbe prayers for instructions which they made and which were given by tbe court below. Among them were tbe following: “Although tbe facts and circumstances which plaintiff contends that be has established are, in the absence of explanation, sufficient and proper to be considered by you as some evidence of negligence on tbe part of tbe defendants, yet, even in tbe absence of any explanation of such facts and circumstances, it would not necessarily be your duty to find that tbe defendants were guilty of negligence; but defendants have offered evidence tending to explain tbe facts and circumstances relied on by tbe plaintiff, and tending to show that tbe plaintiff’s injuries were not proximately caused by any negligence of defendants; and tbe court instructs you, in this connection, that tbe law does not cast upon defendants tbe burden of disproving negligence by a preponderance of evidence, but tbe burden of proof on that issue still rests upon and remains with tbe plaintiff^ and unless be has satisfied you from all the evidence, and by its greater weight, that tbe injuries of which be complains were proximately caused by tbe negligence of tbe defendants, as alleged in tbe complaint, it will be your duty to answer tbe first and second issues No.”

*385Tbe defendants state tbat several questions are involved:

(1) Does tbe withdrawal of incompetent or prejudicial testimony received in answer to an incompetent question duly objected to, and an instruction to tbe jury not to consider it, cure tbe wrong to tbe objecting party?”

Tbe accident happened on Saturday.

Tbe question objected to and motion to strike out answer is as follows : “Q. Do you know whether anything bad been done to tbe wheel between Saturday and Monday, of your own knowledge? A. On Monday, it ran away at 12 o’clock.” Tbe record discloses tbat tbe question was withdrawn and answer ordered stricken from tbe record, and tbe jury instructed not to consider it.

It has long been tbe settled law in this judisdiction tbat tbe court below has tbe power to withdraw incompetent evidence and instruct tbe jury not to consider it. *Cooper v. R. R.,*163 N. C., 150; *S. v. Stewart,*189 N. C., at p. 345*; S. v. Love,*189 N. C., at p. 173; *S. v. Griffin,*190 N. C., at p. 135.

Tbe evidence was promptly stricken from tbe record, and tbe jury instructed not to consider it. The record in tbe present case discloses a very different state of facts from tbe *Yelverton case.*See *In re Will of Yelverton,*198 N. C., at p. 749. This exception and assignment of error cannot be sustained.

(2) May counsel, in tbe examination of an expert witness offered by him, assume as facts, matters neither proved nor admitted?

Tbe question and answer, in part, are as follows: “Q. What effect would tbe fracture of one of tbe vertebrae there have upon bis capacity to lift? A. Tbat bone is part of tbe vertebrae. It is just a general fracture. I said, in my opinion tbat there was a fracture of tbe fifth vertebrae besides tbe displacement to it. I think this injury would almost completely incapacitate him to work.”

Dr. Kirksey testified, without objection: “This is tbe picture I bad Miss Powell to make (examining). Tbe picture showed a fracture of tbe tip of tbe transverse process of tbe third lumbar vertebrae on tbe left side, or in words tbe jury may understand, it shows a fracture of tbe little bone extending out from tbe bottom of tbe back bone. (Exhibiting and explaining picture to jury.) Here is tbe bone tbat extends out from tbe spinal column, extends out about an inch or an inch and a half, and tbe fracture is about a half inch from tbe end. Then there is tbe fifth, or last, vertebrae, tbat is a displacement of tbat vertebrae forward in a slight rotation towards tbe right.” ¥e think tbe exception and assignment of error were not well taken.

(3) Does tbe X-ray photograph or film import verity, or is its competency as well as its probative value dependent upon tbe manner of its making and interpretation?

*386Tbe question and answer are as follows: “Q. Speaking of a patient fooling you, Doctor, do you know of any way by which an X-ray picture can fool a doctor? A. I do not, if you see it, there is no way to fool you-”

The plaintiff had theretofore shown by the testimony of his witness, Miss Clarissa Powell, that the X-ray pictures of the spinal column were properly made on a standard machine at the instance of Dr. Kirk-sey, the plaintiff’s witness, and at the instance of Dr. Phifer, the defendants’ witness. Miss Powell had been engaged for nine years in making X-ray pictures for various hospitals and physicians, and in such work had used all kinds of X-ray machines. Dr. Kirksey had had experience in reading and interpreting X-ray pictures. The testimony was competent and merely amounted to the statement of the medical witness that an X-ray picture, properly taken, accurately produces a .picture of human bones.

A witness who is an expert need not necessarily be a technical specialist. *Pridgen v. Gibson,*194 N. C., 289.

In *Liles v. Pickett Mills,*197 N. C., p. 772, we find the following: “The judge expressed his willingness to admit the photograph (X-ray) in evidence provided expert testimony was introduced satisfactorily explaining the photograph to the jury, but held upon the evidence offered that the witness had not qualified himself as sufficiently expert in questions of anatomy to testify in reference to the proposed explanation.”

From the facts appearing in this case, we think the evidence competent. The X-ray pictures are not like the man that looks in a glass.

“For if any be a hearer of the word, and not a doer, he is like unto a man beholding his natural face in a glass:

For he beholdeth himself, and goeth his way, and straightway for-getteth what manner of man he was.” James 1: 23, 24.

In *Welch v. Coach Line,*198 N. C., p. 131, is the following: “It is the common practice to receive maps, diagrams, photographs, and pictures for the purpose of giving a representation of objects and places which generally cannot be conveniently described by witnesses. Especially is this true of X-ray pictures which usually require an explanation by parol.” *Lupton v. Express Co.,*169 N. C., 671.

We do not think this exception and assignment of error can be sustained.

(4) Should a verdict be allowed to stand, rendered upon a charge containing statements as to contentions with respect to facts and instructions as to matters of law — favorable to the prevailing party — not based on evidence?

The exception was to the following part of the charge: “Now, the court charges you, that if you shall find, by the greater weight of the *387evidence, that the defendants in this ease failed to exercise that care which an ordinarily prudent person, surrounded and situated as the defendants were on that occasion, would have exercised, in furnishing plaintiff a reasonably safe place in which to do his work, or failed to exercise reasonable care — the same sort which an ordinarily prudent person surrounded and situated as the defendants were would have exercised — in furnishing a machine in general use by those engaged in that sort of business, or failed to exercise due care to keep it in a reasonably safe condition, and then if you should further find by the greater weight of the evidence that such failure was the proximate cause of the plaintiff’s injury, then you should answer the first and second issues, Yes. The court had just prior charged: “The defendants are not insurers. The law does not require that the defendants should guarantee that the plaintiff would not get hurt; the law did not require the defendants to guarantee the plaintiff that that machine would not turn, nor to guarantee that the clutch would not become engaged. It was not an insurer that the thing would not happen.”

We see nothing prejudicial in the use of the word “general” instead of “such as are approved and in general use,” in the charge. *Lacey v. Hosiery Co.,*184 N. C., 19.

As heretofore stated, we think the principle of *res ipsa loquitur*applies and from all the facts and circumstances in this case we see no error in the charge, especially when taken as a whole and in connection with defendants’ prayers for instructions given by the court below, which cover the law applicable to the case as contended for by defendants. We must not forget that circumstantial as well as direct evidence applies to a civil as well as a criminal action. The charge can be based on both in the present case. This exception and assignment of error cannot be sustained.

Nor can we see any error, considering the charge as a whole. The plaintiff was entitled to more than was given, as the principle of *res ipsa loquitur*applied, as before explained, on the facts in this case.

It is well settled law that the employer 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 character, and an employer is also required to keep such machinery in such condition as far as this can be done in the exercise of proper care and diligence. *Street 4. Coal Co.,*196 N. C., 178; West *v. Mining Co.,*198 N. C., 150. When machinery suddenly starts up, as in this case, by reason of the clutch which turns on the power becoming engaged and this, without the intervention of human agency, and such result does not *388occur when the clutch and machinery is in proper condition, the rule *res ipsa loquitur*applies.

The numerous exceptions and assignments of error not here considered, made during the trial to the admission and exclusion of evidence, we have examined carefully and see no new or novel proposition of law presented. The evidence as to the extent of the injury was conflicting.

Defendants, on cross-examination of Dr. J. J". Kirksey, elicited the following: “Q. And you know, as a fact, has it not been your observation, that men, much more seriously handicapped than this plaintiff appears to be, have been able to work and earn a living by manual exertion, not depending upon their wits or brains ? A. I don’t know of anybody with a broken back that is working. I don’t happen to know of a case with this type of injury. I will say, that he can walk while he cannot do manual labor. There is a great deal of difference in being able to walk and in doing manual labor. There might possibly, by some improvement in the future, but I don’t see how there can be a complete recovery. He will never be as good as he was before the injury, although there might be a slight improvement.”

There was other evidence bearing on the permanency of plaintiff’s injury and his incapacity for work. Plaintiff earned $3.67 a day. He testified in part: “Before my injury, I was always stout and healthy and able to do anything that came my way. I hardly ever lost a day from work. . . . Since my injury, I have not earned anything, only what they gave me at the tannery. I have not been able to work to earn anything. My general health and strength before the injury was good, but I have not had any since. When I go to bed at night, my back hurts so that I cannot sleep, rest or anything else. The pain is mostly in the small of my back, in what the doctor calls the lumbar region. I cannot earn a living except through the mercy of the people. I have always earned a living by working before the injury. I have not been educated to do any kind of work except manual work.”

The briefs of the learned counsel for the parties go into every phase of the controversy. We cannot see any reversible or prejudicial error ,on the record. The court below not only fully charged the law as favorable as defendants could expect, but gave all the prayers for instructions asked for by defendants and drawn by them to present the most favorable view for defendants.

The issues of fact were found by the jury in favor of plaintiff, and we can see no error in law.

No error.