#### W. L. PEARSON v. STANDARD GARAGE AND SALES COMPANY, Incorporated; EUGENE CARLAND and MRS. LUCY J. CARLAND.

(Filed 23 December, 1931.)

1. Trial D a — On motion of nonsuit ail evidence is to be considered in light most favorable to plaintiff.

Upon a motion as of nonsuit all tbe evidence, whether offered by the plaintiff or elicited from defendant’s witnesses, is to be considered in the light most favorable to the plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom. O. S., 567.

2. Negligence *A*c — Evidence held properly submitted to jury in action against lessee for injury caused by falling through trap door.

A building formerly leased to a laundry had been equipped with a trap door on one of its floors, and the evidence tended to show that the present lessee, the defendant, had contracted with the plaintiff to remove from the building the waste lumber, trash, etc., upon consideration of the plaintiff’s having it for doing the work of its removal, and that the de*15fendant’s *alter ego*showed the plaintiff through the building and failed to warn him of the hole in one of the floors left open by the removal of the trap door, and that the defendant knew or, in the exercise of ordinary care, should have known of the dangerous condition, and that the hole was covered by waste lumber and trash so that the plaintiff could not have discovered it in the exercise of reasonable care, and that the personal injury in suit was caused by his stepping upon the top of the trash which gave way with him and precipitated him to the concrete floor below, *Held:*the evidence was sufficient to take the case to the jury upon the issue of the defendant’s actionable negligence. The question of whether the plaintiff was an independent contractor or an employee is immaterial, the plaintiff being rightfully on the premises as an invitee or licensee.

3. Same — Inability of lessee for injury to licensee or invitee injured by dangerous condition, of premises.

The lessee of a building being repaired for his use is liable in damages for injuries caused to another whom he has employed to remove the debris from one of the floors where the latter is injured by falling through an opening left in the floor which ordinary care on his part would not have discovered and of which the lessee gave no notice or warning and of which the lessee is charged with express or implied notice in the exercise of ordinary care.

4. Negligence B a — Negligence must be proximate cause of injury to entitle injured person to damages.

Where one who is rightfully upon a leased premises and is injured by a concealed menace without contributory negligence on his part, but of which the lessee knew or, in the exercise of ordinary care, should have known, and gave no timely warning, the negligence of the lessee in this respect -will not entitle the licensee or invitee upon the premises to recover damages unless such damages were proximately caused by such negligence. The charge of the court upon the evidence in this case is approved.

Appeal from *Stack, J.,*and a jury, at August Term, 1931, of Buncombe.

No error.

Tbe evidence on the part of plaintiff was to the effect that Lucy J. Garland owned a certain building, 52 and 56 Broadway Street, Ashe-ville, N. C. That Eugene Garland was her husband. That the building-consists of three separate floors, size of each being 75 by 100 feet. That it had been used by a Ford agency and thereafter occupied and used for a laundry business. At the time it was used as a laundry, a hole about four feet square was cut in the second floor as a laundry chute, to send the laundry down stairs from the second to the first floor. The defendant, Standard Garage and Sales Company, Incorporated, was handling Studebaker cars and had rented the building from 1 March, 1930. Preparatory thereto, the building was being renovated and put into shape for occupancy by said defendant, Standard Garage and Sales Company, Incorporated, by 1 March, 1930.

*16In bis complaint the plaintiff alleges that the defendant “Standard Garage and Sales Company, Incorporated, through its duly authorized re23resentative, general manager, and' president, S. A. Isenhour, did on the morning of 27 February, 1930, employ the plaintiff to haul and carry away the remainder of the waste paper, scrap lumber, rubbish and refuse from said building, the consideration for said employment being that the plaintiff could have said materials for the hauling of same. That on the morning of 27 February, 1930, while the plaintiff was carrying out his duties under said employment on said premises, he did go- to the second floor of said building to assist in the loading of one of his trucks; that while so doing he stepped upon a place in said floor filled and covered and concealed with trash, consisting mostly of waste paper which suddenly and without warning gave way with his weight, causing him to fall through said floor on down broad-side upon the concrete surface of the floor fourteen feet below, thereby seriously and in all probability permanently injuring him. . . . That the Standard Garage and Sales Company, Incorporated, had knowledge or with the exercise of reasonable care and diligence would have known of the existence of said defect, dangerous condition and nuisance, but that despite said knowledge did negligently allow same to continue without repairing or abating it and without placing any safeguards or warnings around same, and that while said portion of said premises were in said condition, did employ, invite, license and direct the plaintiff to go in, about and over the very place where said defect, dangerous condition and nuisance existed without warning him of same, with the full realization that he would in all probability he injured, as he was.”

The defendant, Standard Garage and Sales Company, Incorporated, (1) denied negligence; (2) set up plea of contributory negligence; (3) action subject and bound by the provisions of North Carolina Workmen’s Compensation Act; (4) that plaintiff was an independent contractor. “That they selected their own means of doing the work and this answering defendant retained no control over them whatsoever with respect 'to the manner in which the work was to be done and performed, and was interested only in the final result to be accomplished, to wit: the.removal of the lumber, trash, debris and other waste material from the floors of said building.” (5) Assumption of risk.

The evidence of plaintiff fully sustained the allegations of the plaintiff. The plaintiff testified, in part: “On my arrival at the building, I drove up the ramp from the first floor to the second floor and parked my truck up there about the trash pile. I went from there to where my trucks were on the third floor. One of my trucks was on the third floor, and one on the second floor. I went up the ramp and backed *17my truck back to tbe trasb pile. I walked down to tbe first floor and met Mr. Isenbour, and asked bim if tbe yerbal contract be made with my brotber-in-law (Frank J. Gasperson) tbe day before was okeb. He said it was, and I went back to tbe second floor then and started to load my truck. I went back by myself and when I got back George Conley (an employee of' plaintiff) was standing' at tbe back of tbe truck that I drove up there. I told George that we will just go ahead and load tbe truck — fill it up — and so then we went ahead. There was trasb on tbe floor, paper and laths, and rubbish, etc. About two truck loads. From tbe bead of tbe ramp, I imagine, and piled up there. Piled there in a pile about two feet high. It was a round pile, two big truck-loads of it, it covered a space on tbe floor of twenty feet square, I imagine. I went to tbe pile, I took up an armful from tbe pile and carried it over to tbe truck. I went back to tbe pile tp get another armful, taking it off tbe top in order to get it loaded and when I went to get it and got on tbe top of tbe pile of rubbish on tbe floor or whatever it was, trasb, etc., it suddenly gave away with me and I went to tbe concrete floor below — about fourteen feet approximately. I landed' on tbe concrete floor on my wrist, on my right ■ side and shoulder and hip. I couldn’t get up. I just laid there and about that time one of my employees got to me. I asked bim to please do something for me. „. . . Prior to tbe time that place gave away with me and I fell through tbe floor I could not look at tbe place and tell whether there was anything wrong with it. Court: Had you any knowledge or information that there was a place there? A. I hadn’t been advised, your Honor. Mr. Brown: Anything to put you'on notice in any way? A. No, sir. Q. How long after you went back upstairs from tbe time you came down to see Mr. Isenbour to confirm tbe agreement was it before you fell? A. Well, I bad time to walk back to tbe second floor, and put one armful into tbe truck, and go back on top of tbe pile. Walked up to tbe second floor, and carried one armful of rubbish to tbe truck, I imagine about a period of four or five minutes.” A trap-door of about four or five feet square of plank was made to cover the- bole.

After plaintiff bad fallen through tbe opening in tbe floor, George Conley, a witness for plaintiff, testified,, in part: “After they bad left, Mr. Isenbour and tbe carpenter went by tbe room over in front of me. Mr. Isenbour was fussing- with bim and said, ‘I told you to fix that floor. Get busy and fix it.’ Q. When did be say be told bim? A. He didn’t say when be bad told bim. . . . Mr. Pearson bad just left when be was telling bim and be went up right away to fix tbe floor and that was when I beard Mr. Isenbour make tbe statement to tbe carpenter. Q. What statement did be make? A. He said, T told you to fix that floor. Get busy and fix it.’ Q. That was after tbe thing bap-*18pened be told bim tbat. Court: Tbat wouldn’t tend to sbow knowledge. He got knowledge of it wben be fell. Mr. Brown: Q. How long bad Mr. Pearson been gone? A. They just pulled out of tbe building with tbe truck. Mr. Isenbour went up tbe ramp in front of me, and be got up there and looked at tbe bole. ... I did not see any door around there; I didn’t notice tbe place prior to tbe time tbat Mr. Pearson fell. I couldn’t tell it was there. I hadn’t done anything before Mr. Pearson came up. Tbe height from tbe concrete floor was about 14 feet. . . . As to tbe condition of tbe floor I couldn’t tell anything wrong where tbe trash was. There was some scattered. Most of it was in this pile and the other part of tbe floor was clean. Tbe bole must have been under tbe trash. He put one armful of papers in tbe truck. I was shoveling mine in there. I didn’t see no bole until Mr. Pearson fell through it. There were laths and papers in tbe pile, not much lumber at all; wooden laths. Where tbe truck was, it was clean. There is a great big floor, you could drive all over tbe floor.”

It was in evidence tbat tbe trash pile consisted of quite a lot of paper and scrap lumber, about 18 or 19 feet square, and covered tbe laundry chute. It was in evidence tbat about 20 or 25 minutes after plaintiff’s injury a witness went to tbe second floor and tbe door to tbe chute was sitting against tbe wall.

Frank J. Gasperson, a witness for plaintiff, testified, in part: “When I was talking to Mr. Isenbour I agreed to clean up tbe place for tbe lumber. That was tbe only contract with bim and be told me to go to it, and be bad nothing to do with tbe manner in which I performed tbe work. He told me be wanted tbe first floor cleaned up first. He bad men doing work on each floor, tbe first, second and third. Outside of cleaning tbe first floor first, we actually started doing tbe work and did it in any way we wanted to, but Mr. Isenbour didn’t tell me bow to do tbe work, except tbat be wanted tbe first floor cleaned first. It bad to be swept with tbe broom and I cleaned up some with tbe broom. Mr. Isenbour took me on tbe first, tbe second and tbe third floor on the afternoon of tbe 26th and showed me tbe stuff tbat bad to be moved and pointed out tbe stuff be didn’t want moved, but be told me no particular manner in which to do tbe work. In tbe afternoon Mr. Isen-hour showed me tbe stuff on tbe second floor a good deal of tbe trash was in this pile, a little bit was scattered, but tbe floor was pretty clean except this one pile. I made tbe contract with Mr. Isenbour for tbe Transfer Company and reported it tbat afternoon to Mr. Pearson and to my father and they approved what I bad done and I didn’t go on tbe second floor that morning until after tbe accident. I was on tbe third floor.”

*19Oscar Fore, a witness for plaintiff, testified, in part: “After we bad taken bim to tbe office (speaking of plaintiff), I came back and went upstairs and looked at tbe bole. It was an old bole and looked like it bad been a laundry cbute. There was a lot of paper and things about it where be fell through. Some paper and stuff bad went down in tbe bole and lodged in there where be bad stepped through on tbe paper and stuff. I didn’t discover tbe bole tbe afternoon before. Mr. Isenhour carried us over tbe building and over tbe three floors. He never said anything about tbe condition of tbe building.”

Tbe evidence on tbe part of defendant, Standard Garage and Sales Company, Incorporated, was a denial of tbe material evidence introduced by plaintiff. Tbe jury rendered a verdict for plaintiff.

Tbe judgment of tbe court below was as follows: “Tbe above entitled cause coming on for bearing and having been beard by bis Honor, A. M. Stack, judge presiding over tbe August, 1931, regular civil term of tbe Superior Court of Buncombe County, North Carolina, and a jury and it appearing that tbe jury for its verdict in said cause answered tbe issues submitted to it in same in favor of tbe plaintiff and against the defendant, Standard Garage and Sales Company, Incorporated. This action as against tbe defendant, Eugene Garland and Lucy J. Garland, having been nonsuited on tbe motion of said defendants, during tbe course of tbe trial. Tbe issues and answers thereto submitted to tbe jury being as'follows: (1) Was tbe plaintiff injured by tbe negligence of tbe defendant as alleged in tbe complaint? Answer: Yes. (2) If so, what damages, if any, is tbe plaintiff entitled to recover by reason thereof? Answer: $946.00. Now, therefore, it is upon motion of Sanford W. Brown, attorney for tbe plaintiff, hereby considered, ordered and adjudged, that tbe plaintiff have and recover of tbe defendants, Standard Garage and Sales Company, Incorporated, judgment in the sum of $946.00 and that said defendant pay tbe costs of this action to be taxed by tbe clerk.”

Tbe defendant, Standard Garage and Sales Company, Incorporated, made numerous exceptions and assignments of error and appealed tó tbe Supreme Court. Tbe material ones will be considered in tbe opinion.

*Sanford W. Brown for plaintiff.*

*Joseph W. Little for defendant, Standard Garage and Sales*Company, *Incorporated.*

ClaexsoN, J.

At tbe close of plaintiff’s evidence tbe defendants made motions for judgment as in case of nonsuit. Tbe motion of tbe Garland defendants was granted. Tbe defendant Standard Garage and Sales Company, Incorporated, introduced evidence and at tbe close of all tbe *20evidence made a motion for judgment as in case of nonsuit. C. _S., 567. This motion was overruled, and in this we can see no error.

It is the well settled rule of practice and accepted position in this jurisdiction, that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will-be taken and considered in its most favorable light for tlio plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.

¥e see no evidence -on the record as to contributory negligence or assumption of risk. There are no facts of record to indicate that the provisions of the North Carolina Workmen’s Compensation Act is applicable (1) to casual employment (2) nor to any private corporation that has regular ly in service less than five employees in the same business within the State. Public Laws 1929, chap. 120, sections 2(b), 14(b).

We do not think the' issues tendered by defendant were the proper ones, and therefore the refusal to submit same by the court below was not error. In regard to the evidence admitted over defendant’s objection, if error, it was not prejudicial. We agree with defendant that “It was a contract for the removal of rubbish”; it is immaterial on the facts in this case what the relationship is termed — independent contractor, master and servant, inviter and invitee, etc. The defendant, Standard Garage and Sale Company, Incorporated, owed a duty to plaintiff, that its *alter ego,*Isenhour, under the contract with plaintiff, should not without warning to him of the hidden danger, allow and permit him to remove the trash. It is in evidence, on the part of plaintiff, that the *alter ego*of defendant knew, or in the exercise of due care ought to have known, of the laundry chute hole, a dangerous pitfall, that it was concealed by the trash being thrown over it, and plaintiff was ignorant of its existence, and in the exercise of due care could not discover it.

■ In Bailey Personal Injuries, 2d ed. Yol. 1, part sec. 121, p. 307, the law is stated as follows: “It is a principle universal ly recognized that the care required of a master is such as is commensurate with the danger. Trap-doors, as the designation implies, are at best dangerous traps. Thus, it was held, where a trap-door is maintained in the hall of a building, it is the duty of the master when it is open to provide barriers, or give warning to employees who have occasion to pass in the hall.”

Under negligence — circumstances, implying liability — English Ruling-Cases, Yol. 19, p. 64, is the case of *Indenmaur v. Dames,*L. R., 2 C. P., 311. In that case it was held: “Upon the premises of the defendant, a sugar-refiner, was a hole or chute on a level with the floor, used for *21raising and lowering sugar to and from the different stories of the building, and usual, necessary, and proper in the way of the defendant’s business. Whilst in use it was necessary and proper that this hole should be unfenced. While not in use, it was sometimes necessary, for the purpose of ventilation, that it should be open. It was not necessary that it should, when not in use, be unfenced; and it might at such time, without injury to the business, have been fenced by a rail. Whether or not it was usual to fence similar places when not in use, did not appear. The plaintiff, a journeyman gas-fitter in the employ of a patentee who had fixed a patent gas-regulator upon the defendant’s premises, for which he was to be paid provided it effected a certain amount of saving in the consumption of gas, went upon the premises with his employer’s agent for the purpose of examining the several burners, so as to test the new apparatus. Whilst thus engaged upon an upper floor of the building, the plaintiff, under circumstances as to which the evidence was conflicting, but accidentally, and, as the jury found, without any fault or negligence on his part, fell through the hole, and was injured: *Held,*that, inasmuch as the plaintiff was upon the premises on lawful business in the course of fulfilling a contract in which he (or his employer) and the defendant both had an interest, and the hole or chute was from its nature unreasonably dangerous to persons not usually employed upon the premises, but having a right to go there, the defendant was guilty of a breach of duty towards him in suffering the hole to be unfenced.”

Shirley’s Leading Cases in the Common Law, 3d ed. p. 275. In Shirley, *supra,*the interesting case of *Bird v. Holbrook,*4 Bing., 628, is digested as follows: “The defendant, having had some valuable flowers and roots stolen from his garden, which was at some distance from his house, had set a spring-gun. The plaintiff, a young fellow of nineteen, climbed a Avail, during the daytime, in pursuit of the stray fowl of a friend, and got shot. In spite of the plaintiff being thus a trespasser, it Avas held that the defendant was liable in damages. ‘There is no act,’ said *Best, O. J.,*‘which Christianity forbids, that the law will not reach; if it were otherAvise, Christianity would not be, as it has always been held to be, part of the law of England. I am, therefore, clearly of the opinion that he who sets spring-guns, Avithout giving notice, is guilty of an unhuman act, and that, if injurious consequences ensue, he is liable to yield redress to the sufferer.’ ”

In the annotation of *Warner v. Synnes*(114 Org., 451), 44 A. L. R., at p. 982-3, we find the following under general discussion: “The ratio *decidendi*in numerous cases is a doctrine which may be formulated thus: Where the premises on which the stipulated work is executed remain under the control of the principal employer while the contract *22is in course of performance, a servant of the contractor is in tbe position of an invitee, and as such entitled to recover for any injury which he may sustain by reason of the abnormally dangerous condition of the premises or plant thereof, if the evidence shows that the principal employer was, and the servant was not, chargeable with knowledge, actual or constructive, of the existence of that condition.”

In setting out the duty of employer to employee, we find the same well stated in 18 R. C. L., p. 591-2: “A question that has often been under judicial consideration is whether an employer owes to his employees any duty to box, fence, or guard the appliances and machinery in the vicinity of which the work is done. The rule formerly was generally recognized, and is supported by some recent decisions, that the employer, is, in the absence of statute, under no obligation to his employees to affix guards to gearing, shafting and other dangerous moving parts of machinery. No doubt the guarding of some appliances is unnecessary and impracticable, the danger being obvious and avoidable by employees; but public policy in respect of such matters has in recent times undergone a very decided change, and the tendency is to hold the employer negligent in failing to guard all dangerous appliances, especially is this noticeable in the rulings of the late cases. And, of course, if it can be shown that an injured employee was not informed of or did not appreciate the danger of the unguarded appliance, it is not to be supposed that a recovery will be denied in any jurisdiction.” *Boswell v. Hosiery Mills,*191 N. C., at p. 556-7.

The duty of the owner of premises to those who come on them is fully and well stated in *Brigman v. Construction Co.,*192 N. C., 791, by *Brogden, J.; Hughes v. Lassiter,*193 N. C., 651.

In *Jones v. R. R.,*199 N. C., at p. 4, is the following: “After setting forth in an excerpt from *Sweeney v. R. R.,*10 Allen, 368, 87 Anno. Dec., 544, the usually applied principle that a licensee who enters on premises by permission only, without enticement, allurement, or inducement held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls, the Court pertinently said: ‘Nor does the application of this principle protect from liability the owner of a lot or a railroad company who^ with knowledge of the user of his property as a pathway across or along it, places without warning to those likely to use the pathway, a new and dangerous pitfall or obstruction.”

We can see no error in the charge of the court below. We think the charge covered the law applicable to the facts. Part of the charge given, which covers the law in the case, is as follows: “Now the .action is based on alleged negligence. Negligence is the failure to do or not to do what an ordinarily prudent person would do or would not do under the circumstances in the case. In other words, negligence is a failure to do *23as a prudent person would do under those particular circumstances or his failure to do what a prudent person would do under those circumstances. Negligence alone, however, would not be sufficient to entitle this plaintiff to recover. If he has only shown negligence on the part of the defendant alone that would not entitle him to recover. Before the plaintiff can recover of the defendant he must prove to your satisfaction, by the greater weight of the evidence, two propositions: First: That he was injured by the negligence of the defendant, as alleged in-the complaint, and secondly, that that particular negligence of the defendant was the proximate cause of his injury or damage. Proximate cause is the real cause of the damage and the cause without which it would not have occurred. . . . Now, the duty of the defendant to the plaintiff was, under the circumstances of the evidence, to furnish him a reasonably safe place in which to do his work. That is, not absolutely to furnish him, but to exercise ordinary care in furnishing him with a reasonably safe place to work. If the defendant owed him that duty, and failed to perform that duty it would be guilty of negligence; but, if it performed its duty, it would not. That is to say, if the defendant knew that the hole was there and saw it covered up by the paper and rubbish and did not inform the plaintiff of the condition, why that would be negligence. Or, if the defendant, by the exercise of ordinary prudence and care would have known of the dangerous condition; that the hole was there, and no door over it, but simply papers and trash and rubbish, in that event it would be guilty of negligence. But if the defendant did not know that the hole was there, or by the exercise of ordinary diligence and care it could not have learned it was there, or if the last time he saw it, just before the plaintiff fell through the hole it was covered with a door, then there would be no negligence on his part and would find in favor of the defendant.” In the judgment of the court below, we find,

No error.