#### VERA GIBSON, Administratrix of ELDRIDGE GIBSON, v. STEELE’S MILLS, INCORPORATED.

(Filed 16 December, 1925.)

1. Negligence — Evidence — Proximate Cause — Burden of Proof — Electricity.

In an action to recover damages for the deatli of an emploj^ee caused by tbe negligence of defendant, evidence wliicb tends to show that tbe deceased was employed in defendant’s store operated in connection with defendant’s cotton mill, and also to a refrigerating plant operated by electricity in a room opening into tbe store; that tbe deceased was found dead in tbe refrigerating room and that tbe metal parts witbin tbe room were charged with a deadly voltage of electricity caused by tbe live wires carrying tbe electricity not being properly grounded: *Held,*sufficient upon tbe issue of defendant’s actionable negligence as tbe proximate cause of tbe death to take tbe case to tbe jury, with tbe burden of proof on plaintiff.

3. Negligence — Contributory Negligence — Evidence — Instructions—Directing Verdict.

Where an employee is killed by tbe negligence of bis employer for failing to properly ground electric wires in a refrigerating plant where the employee was required to go in tbe discharge of bis duties, and tbe answer alleges that tbe deceased would have been safe bad be confined himself to a part of tbe room where bis duties required him, upon tbe plea of contributory negligence it was necessary for tbe defendant to offer evidence upon tbe ground of bis defense, and on bis failure to have done so it was not error for tbe trial judge to direct a verdict in plaintiff’s favor upon tbe issue.

*761Appeal by defendant from judgment of Superior Court of Eichmond County, July Term, 1925, *McElroy, J.*No error.

Action to recover damages for wrongful death of plaintiff’s intestate. Defendant, a corporation engaged in the business of manufacturing cotton goods, conducts a mercantile business in a store building located near its cotton mill, in Eichmond County. In connection with said mercantile business, it owns and operates an ice and refrigerator plant located in a room adjacent to its said store building. The motive power for the operation of the machinery composing said plant is electricity, which is brought into the room over wires connected with the motors. The floor of the room is made of concrete, its walls of brick. Much of the machinery and apparatus used in the manufacture of ice, and in the operation of the plant, is composed of iron and other metals.

On 9 December, 1924, plaintiff’s intestate, Eldridge Gibson, was employed by defendant as a clerk in its. store. It was his duty also to look after and attend to the refrigerator plant in the room adjacent to the store building. During the morning of said day, in the course of his employment, and in the performance of his duties, Eldridge Gibson entered said room; the ice plant'was not running at the time, but the air pump was being operated to keep the cold storage room, just over the plant, cool. It was his duty to go into the room about once every hour to see about the plant; soon after he entered said room, his dead body was discovered therein by other employees of defendant.

Plaintiff alleges that the death of her intestate was caused by electrocution after he went into the said room; that the machinery in said room had become charged with electricity as the result of careless and negligent construction of said plant and of the careless and negligent manner in which the electric wires had been installed therein; that the electric feed wires had been run intq said refrigerating room in such manner that they touched the iron and metal of the machinery and that they were not grounded; that the result of this careless and negligent manner of installing the feed wires was that the whole current operating the plant passed through the ice carrier and other metal connections to the motors; that plaintiff’s intestate, while in the room engaged in the performance of his duties, without warning of the dangerous conditions existing therein, came in contact with the said machinery so charged with electricity and was thereby instantly killed; defendant denies these allegations. By way of further answer and defense, defendant alleges that at the time of the death of plaintiff’s intestate, he was at a place in defendant’s refrigerating plant where he .had no duty to perform for defendant and where defendant had no reason to apprehend or believe that he would be. Defendant further pleads contributory negligence and assumption of risk as defenses to plaintiff’s action.

*762The issues answered by the jury are as follows:

1. Was the death of plaintiff’s intestate caused by the negligence of the defendant as alleged in the complaint ? Answer: Yes.

2. Did the plaintiff’s intestate, by his own negligence, contribute to his injury and death, as alleged in the answer? Answer: No.

3. Did plaintiff’s intestate assume the risk of his injury and death as alleged in the answer? Answer: No.

4. What damage, if any, is plaintiff entitled to recover? Answer: $7,500.00.

From the verdict upon this judgment, the defendant appealed to the Supreme Court.

*W. B. J ones and Douglass <& Douglass for plaintiff.*

*James A. Lockhart and Bynum <& Henry for defendant.*

CONNOR, J.

Defendant, in its answer, admitted that plaintiff’s intestate, on 9 December, 1924, in the course of his employment by defendant, entered defendant’s refrigerating plant and was thereafter found dead in the northwest corner of said plant. The evidence, offered by plaintiff, is sufficient, if believed by the jury, to sustain the allegations of the complaint, that his death was caused by electrocution, resulting from his coming in contact, while in said plant, with machinery therein, which was charged with electricity of sufficient voltage to cause his death, and that said machinery was so charged as the result of negligence of defendant. C. E. D. Edgerton, found by the court to be an expert electrician, testified that the day after Eldridge Gibson’s death, at the request of the president of the defendant corporation, he made an investigation of its refrigerating plant. He testified that the feed wire was not grounded; that the purpose of a grounded wire is to direct any stray current that might get on the pipe in which the wires were placed for safety, to the ground; that in his opinion, if the feed wire in the pipe had been grounded,'the machinery would not have been charged with electricity; that if there had been a proper ground wire oñ the feed pipe, at the time of the breaking down of the wires, there would have been an explosion, which would have been a warning to a person in the room where the plant was located. This evidence was sufficient to establish the truth of the allegation that defendant was negligent in failing to have its wires properly installed in its plant.

The court, after correctly instructing the jury, in general terms as to the meaning in law of the terms “negligence,” and “proximate cause,” further gave the following specific instructions: “So applying this principle, gentlemen of the jury, to the first issue, the court charges you that if the plaintiff has satisfied you by the greater weight of the *763evidence tbat the defendant, in the exercise of ordinary care failed to ground the wires where they entered the building at the southwest corner, and if the plaintiff has further satisfied you by the greater weight of the evidence that by reason of its failure to so ground its wires the defendant failed to provide the plaintiff’s intestate with a reasonably safe place in which to perforin his work, if the plaintiff has satisfied you by the greater weight of the evidence of these facts, then the court charges you that the defendant was guilty of negligence.”

“And if the plaintiff has further satisfied you by the greater weight of the evidence that such negligence on the part of the defendant company was the proximate cause of the injury and death of plaintiff’s intestate, then, gentlemen of the jury, the court charges you that it would be your duty to answer the first issue, ‘Yes.’ On the other hand, gentlemen of the jury, if the plaintiff has failed to satisfy you by the greater weight of the evidence of either of these facts, it would be your duty to answer the first issue, ‘No.’ ” There was no exception to either of these instructions. They are clear, full and correct. There was evidence from which the jury could find facts upon which, under these instructions, it was their duty to answer the issue in the af&rmative.

The court instructed the jury that the burden was upon defendant upoii both the second and third issues, and that there being no evidence tending to sustain the affirmative of either issue, the jury should answer each issue “No.” To these instructions defendant excepted, and assign same as error.

The defendant offered no evidence; we have examined the evidence offered by plaintiff, as set out in the case on appeal and concur with his Honor that there is no evidence from which the jury could find that plaintiff’s intestate, by his own negligence, contributed to his injury, resulting in his death, or that plaintiff’s intestate assumed the risk of his injury and death as alleged in the answer. No evidence was offered by defendant. The assignments of error cannot be sustained.

In its answer defendant alleges that, “at the time of the death of plaintiff’s intestate, he was in a portion of the defendant’s refrigerating plant where he had no duty to perform for the defendant and where the defendant had no reason to apprehend or believe that he would be, and that the place where his duties required him to be was a safe place, free from electric current, and had he remained in the place required in the performance of his duties, he would have received no injuries which could have caused his death, and if the death of plaintiff’s intestate was caused by electric current, the sole and proximate cause of such death was, that though directed to go to the southeast portion of said plant, turn the switch, adjust the valves, and start the rotary pump, and then *764return to Ms duties in tbe store, in all of wbicb be would bave been safe and uninjured, be negligently, carelessly and wrongfully went into a portion of tbe refrigerating plant where be had no duty to perforin, and there, if be came into contact with an electric current and received injuries wbicb caused bis death, such fatal injury was due to tbe negligence and carelessness of tbe plaintiff’s intestate himself.”

Tbe only evidence submitted to tbe jury as to tbe duties of deceased, as an employee of defendant, is the testimony of tbe witness Claud Miles. He testified that “Eldridge Gibson was a clerk in tbe store and watched after tbe ice plant. He was supposed to go about once an hour and see about tbe plant and work in- tbe store, too. Tbe ice plant was not running at this time, but they were running tbe air pumps and running enough to keep tbe cold storage room cold. They were not freezing any ice, but they bad to beep tbe market cold.” There was no evidence that deceased’s duties were restricted as alleged by defendant, and no evidence that be was directed to go only to tbe southeast part of tbe room in wbicb tbe plant was located. Nor is there evidence that be bad no duty to perform at tbe place in tbe plant where be met bis death. Tbe evidence is that it was bis duty to “watch after tbe plant”; defendant admitted that be entered tbe refrigerating plant in tbe course of bis employment ; it offered no evidence from wbicb tbe jury could bave found that it was not bis duty to go to tbe northwest corner of tbe plant. Tbe authorities cited in defendant’s brief therefore bave no application to tbe instant case. Defendant’s assignments of error, based upon tbe exception to tbe refusal to allow tbe motion of nonsuit, at tbe close of plaintiff’s evidence, and upon exceptions to tbe refusal to instruct tbe jury as requested, are predicated upon facts alleged in tbe answer; there was no evidence to sustain these allegations. Tbe assignment of error cannot be sustained. We find no error; tbe judgment must be affirmed.

No error.