#### JOHN L. MORRISON v. CANNON MILLS COMPANY.

(Filed 22 September, 1943.)

Negligence §§ 5, 19a—

In an action to recover damages against defendant by plaintiff, wbo was an employee of a transportation company engaged in delivering caustic soda, a dangerous substance, by truck to defendant’s mills, where plaintiff alleged negligence by defendant for failure to furnish him (a) a proper place to work, (b) suitable appliances, (c) and sufficient help, and plaintiff’s evidence tended to show that he was unloading caustic soda from the tank on the truck to defendant’s tank and the help furnished by defendant quit at his quitting time and defendant, knowing the absence of help and of proper appliances for safety, was injured while attempting alone to disconnect the hose from the truck to the tank. *Helé:*(1) Defendant owed no duty to plaintiff to furnish a safe place, suitable appliances, and sufficient help; and (2) plaintiff on his own evidence, was guilty of contributory negligence; and (3) judgment of nonsuit was proper. C. S., 567.

Appeal by plaintiff from *Nettles, J.,*at June Term, 1943, of BuNcombe.

This is an action to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, wherein the contributory negligence of the plaintiff is pleaded in bar of his recovery.

The allegations of the complaint are to the effect that the plaintiff was an employee of and the driver of a truck of the Southern Oil Transportation Company, which is not a party to this action, and on *38811 October, 1942, drove a truck of bis employer loaded witb caustic soda, a dangerous substance, from tbe plant of tbe Champion Fibre Company, at Canton, North Carolina, to tbe plant of tbe defendant, tbe Cannon Mills Company, near Concord, North Carolina, and that after unloading tbe said caustic soda into tbe receiving tank of tbe defendant company from tbe tank of tbe truck of tbe transportation company tbe plaintiff undertook to disconnect tbe hose of tbe truck from tbe pipe of tbe receiving tank and was injured by caustic soda being blown back upon bis body, more especially in bis eves.

In tbe plaintiff’s brief be states that “Tbe plaintiff contended that tbe proximate cause of bis injuries was tbe negligent failure of tbe defendant to furnish him (a) a suitable and proper place in which to work, (b) suitable and proper appliances and equipment witb which to work, and (c) sufficient help and assistance to assure tbe proper and safe performance of tbe work required to be done by him.”

Tbe answer of tbe defendant, contains, *inter alia,*tbe allegation that tbe plaintiff was contributorily negligent in that ■ be “negligently and carelessly undertook to perform said disconnecting operation by himself” and that all of tbe injury which tbe plaintiff suffered “was proximately caused or contributed to by tbe negligent way and manner in which tbe plaintiff, of bis own motion and by himself, undertook to make tbe disconnecting operation, witb full knowledge of tbe way and manner in which it could be safely done, obtained from past experience in performing tbe identical operation.”

"When tbe plaintiff bad introduced bis evidence and rested bis case tbe defendant moved to dismiss tbe action and for a judgment as in case of nonsuit (C. S., 567), which motion was allowed, and from judgment predicated upon this ruling tbe plaintiff appealed, assigning error.

*Guy Weaver for plaintiff, appellant.*

*Smothers & Meelcins for defendant, appellee.*

ScheNOic, J.

It should be noted in tbe outset that there was no relationship of master and servant or of employer and employee existing between tbe defendant, tbe Cannon Mills Company, and tbe plaintiff, John L. Morrison, and that there was no contractual relation existing between tbe plaintiff, or bis employer, and tbe defendant. Tbe plaintiff was an employee of tbe Southern Oil Transportation Company and was engaged in driving a truck of bis employer in hauling caustic soda from Canton, North Carolina, to Concord, North Carolina. In fact, it appears from plaintiff’s testimony that be has received an award from tbe transportation company under tbe Workmen’s Compensation Act *389based upon the injury alleged in this action. Therefore, it would appear that the defendant, the Cannon Mills Company, .owed no duty to the plaintiff to furnish him either a safe place in which to work, proper appliances and equipment with which to work, or sufficient help and assistance to assure safe performance of the work.

However, entertaining the view, as we do, that the plaintiffs own evidence establishes his contributory negligence, it may be conceded, though it is not decided, that the defendant was negligent in that its employee furnished to assist in unloading the caustic soda from the tank on the truck to the receiving tank at the plant of the defendant quit the work before the unloading was completed, thereby leaving the plaintiff alone to disconnect the connecting hose and pipe of the truck and receiving tank, and in failing to provide water near-by to be used to wash off the caustic soda in the event it came in contact with the body of those engaged in the unloading, which two acts of negligence are most strongly urged in plaintiff’s brief.

The plaintiff’s own testimony was to the effect that the employee of the defendant informed him (the plaintiff) that he was quitting the work as quitting time had arrived and he would receive-no pay for overtime, and further that the plaintiff knew that there was no water immediately available at the place where the caustic soda was being unloaded, and notwithstanding this information and knowledge of the assistant quitting the work and of the absence of water near-by, the plaintiff alone attempted to disconnect the hose of the tank of the truck from the pipe of the receiving tank and in so doing caustic soda was blown out of the hose and pipe oh to him, which could not be immediately washed off, and he was thereby injured. If it was negligence on the part of the Cannon Mills Company to fail to furnish an assistant to help in the unloading of the caustic soda, a dangerous undertaking, or if it was negligence on the part of the Cannon Mills Company to fail to have water near-by the place of unloading, and these two derelictions were both known to the plaintiff, and, notwithstanding this knowledge, he undertook alone the task of unloading, his action in so doing manifested a failure to use due care for his own protection in the performance of hazardous work, the danger of which was known to him, and constituted negligence that contributed to the.plaintiff’s injury, and such being the case, under the decisions of this Court, the action was properly dismissed and the judgment as in case of nonsuit was properly entered.

The judgment of the Superior Court is

Affirmed.