*1 IN THE SUPREME COURT. v. R. R. Bunn consideration of the pleadings and we are unable to discover affidavits, that the drainage such commissioners made substantial departure have from the' plans and specifications the board of viewers as to render their void. Apart assessment that the assess- this, appears ments which the commissioners seeking collect, are now to purporting to pursuance be in law terms of authority vested them by the decrees in the cause have been with made filed the clerk Superior Court legal since no objection that has been made thereto by plaintiffs or one until the' commencement else present suit in 1914, and it would plaintiffs thereby seem that right waived the to assessments in so far as the creditor is object to the concerned. findWe no court, error in the and the same is in all judgment

respects

Affirmed.

W. A. LINE RAILROAD COMPANY. BUNN v. ATLANTIC COAST

(Filed October, 1915.) Duty Negligence—Safety Employee— Master and Servant — Master — Injury. Anticipation Ordinary Tools Methods — ordinary care, master, requirements in the exercise of reasonably provide his servant a safe and fur- should appliances safe and suitable for the work in nish him with tools which he is complicated, engaged, chiefly apply machinery in case of more less by especially power, and more when driven mechanical always everyday ordinary everyday to the use of tools conditions care, special preparation prevision, requiring no where the defects are readily injury observable, suppose and there no reason to complained of would result. Railroads—Repairing Inspection. 2. Same — Cars — by Where, action an of a railroad in an to recover show damages personal injury, only a evidence tended by piece repair and another contracted work to cars marked by supervision the defendant’s without the de- fendant; coemployee experi- and his were skilled and work; replace parts enced in kind rotten of or weather-boarding timbers of the car and had loosened the certain upon injured thereof, and this side fell side him when taking coemployee gone last and when he was get out nails had up- hands to lift down side reason of some rotten holding sides, rights Held, which had not the car been discovered: proper, negligence no evidence of of nonsuit actionable complained readily having shown, defects dis- anticipation not within reasonable coverable the defendant. 8. Same—Nonsuit. appearing case, has In this shown no evidence of defendant railroad for an actionable received he, experienced workman, of the car which an the side TEEM, . O.] v.

Bunn *2 plaintiff’s conten- him, working on, falling upon tion that the held it is further nonsuit, unavailing, upon would that he the injury except about left there for débris the in a to have avoided usually high appearing the débris it inches from the 18 removed repaired, employees by cars after the the defendant’s only the yard, requested for cleaning up instance in this or in the purpose putting car, matter of as a and not a new sill in the thereby prevented safety; under have been and that the would pres- removed, it's surrounding conditions, or débris been the had the injury, danger naturally avoid the ence if the work had been done increase the or absence would proper care. reasonable in a or with Contributory Negligence Damages. 4. Kailroads —Master Servant — — contributory 1913, chapter 6, statute, question of our Laws of Under company against negligence, by action an of a railroad an injury, only damages significant personal on the issue a to recover of for complete damages, a defense. and does not afford the defendant both, Garter, J., Appeal Term, 1915, at the June parties Edgecombe. caused al- damages personal injuries recover

Civil action company. of defendant leged negligence plain- show while June, tended to facts in evidence associated with him in the one V. C.

tiff and another mechanic on track in South a box car engaged repairing were Daniel, work fell where was then at plaintiff the side the car Mount, Eocky injuries; serious and permanent on him, over an who had experienced men, quite were both done and McDaniel this doing employees and where kind, amount of work of this methods of contract; pro- piece (x. cedure in work that an this case one J. wa.s con- parts and marked he looked over the car Armstrong, similarly engaged or other workmen were demned, plaintiffs to do it in their own with- way, the work to do and left then were so far as the methods supervision inspection out further were concerned. condemned different car, inspector parts

In case present to re- told and his associate and, among things,, other chalk side sills at one with a place move the and marked one top, other side, same was to be mark, indicating spliced, door and also near the and discovered having bared the sill at the end marked at each end to indicate that it was condemned rotten, and was to removed. The directions that inspector saved, car were because were they good, plaintiff both sides of the to be if said to save this side testifying inspector they at one said that McDaniel, testifying C. witness V. could. The of the work he discovered that the ends of the car during this, for the inspector sent about and was told to 6S0 T.N THE SUPREME COURT.

Burra also; tbe ends out tbat tbe and bis associate entered on take splice tbe ear, prepared removed tbe ends tbe top tbe McDaniel, in tbis and McDaniel side, plaintiff helping tbe sill work,. tbe second of tbeir day m. on p. Tuesday, about o’clock started car let down tbe side tbe get help mill bands sufficient to tbe where being tbat tbe side tbe en- working, wbicb bad been and con- plaintiff resumed and, meantime, tire sill was to be removed back-setting work of nails base tbe tinued tbe at tbe being driving wbicb held tbe to tbe tbis done weatherboarding sill, through loosening tbe nail with a into tbe sill and thus tbe punch with weatherboarding, tbis done so tbat when McDaniel returned bands, could over on lay car; tbe tbe side tbe of tbe tbat body plaintiff bad about tbis work or completed particular done tbe better *3 of portion and, coming up, it to a nail tbat bad not been driven in weatherboarding way, plain- but bad been bent around the some and and, tiff tbe loose tbe bent nail was as be prized weatherboarding where and of gave way did tbe car fell over so, side tbe tbe tbat was down at tbe tbe injuries stated; plaintiff sitting time, along in work being rubbish or debris thrown out tbe tbe and in making around tbe car and tbis tbe more convenient wbicb do tbis of tbe work.

It further tbat tbis appeared rubbish, away, lying as it torn 18 car, being around tbe at tbe where point plaintiff working, inches ánd testified but for tbis be depth, tbat, rubbish, would have been while standing and, though some, be worked bent over was satisfied tbat could escaped rubbish; have but for tbis tbat tbe base car, line tbe where tbe nails were driven three in, was feet tbe could slightly and be have done tbe work very bent.

McDaniel testified knees, tbat tbe base line was below tbe bow he didn’t could have escaped see event. It was also shown tbat there was a gang bands around there whose duty it was to clear off usually, tbe after tbe work yards, done; tbat at dinner time on Tuesday, tbe second day tbe McDaniel told tbe foreman of this rubbish gang removed, giving have tbe as a reason tbat they would have to sill alongside tbe of tbe and tbe replied foreman tbat get be would to it as soon as be could, but just then be bad no racks or for it. proper place ready and McDaniel falling

Both testified tbat tbe cause of tbe car did was tbat tbe standards of upright when it tbe tbe posts mor- sill, into tbis were also rotten at ends, tised tbe tbat, notwithstand- weatherboarding bad been loosened at tbe bottom ing tbe sill tbe tbat tbe tbe car would have held if side these standards also rotten. had not been TERM,

N. 0.]

Bunn v. motion over- by defendant; was motion to nonsuit In time there apt excepted. ruled and defendant entire jury that, upon court was also asked to instruct

The this issue as to defend- accepted jury, if believed and “No.” should and defendant ex- negligence Refused, be answered ant’s cepted. shown negligence was no reason court, ruling submitted the case to the inspector, Armstrong, jury conduct away reason failure to clear for defendant excepted

rubbish. Yerdict and and appealed. ) plaintiff. ,, .

E. A. E. Pou Gilliam. J. 7i s appeal F. S. Spruill } for defendant. ) Gilliam, Pou, Norfleet, H. A. H. J. J. M. Keel > J. W. plaintiff. appeal. PloÁntiff’s )

F. S. Spruill for defendant. case: considered J., stating carefully after Hoke, We actionable opinion and are that no presented record, case the. In several against company. been established defendant wrong has employer held while an recent decisions the Court has been for his care, in the exercise of required, provide ap furnish him with tools and safe reasonably is engaged, work in safe and suitable pliances compli more or less principle “machinery insistent case chiefly does when driven mechanical cated, especially power,” *4 nor ordi everyday tools, to use of to always apply ordinary “the or no requiring special care, preparation pre conditions nary everyday and where there was no readily observable, where the defects are vision, the of would result.” good suppose injury complained reason to that R., R., House v. R. Mercer v. R. 154 397; C., 399; 152 N. C., p. p. N. R., R., Simpson v. R. 154 v. R. 153 N. 51; Rumbley C., p. N. C., p. Co., R., Brookshire v. Electric 152 N. Dunn v. R. 151 C., p. 669; 457; Co., Martin v. Manufacturing C.,N. p. 313; p. N. C., was or threat- nothing specially complicated In the case there present taking work were to do: the employees that these ening the indicated to an box making repairs ordinary out the sides and the track. position repair True, and in the ear stationary proper another Gr. inspected by company, one J. had ascertaining was with a view of extent of but this the the re- Armstrong, work company, amount of to done the pairs required or attendant circumstances which nothing testimony is the there had any show that the examination reference or natu- shows or tends to (cid:127)652 IN THE SUPREME COURT.

Both work. in the engaged with the to be safety employees ral connection given directions contrary, appears inspector, having On the the and a sill spliced the of the car should be removed one side top another, was rotten, plaintiff removed on the other because it entirely work were character, who had done much of this two men experienced own left to their entirely make the needed repairs. They sent condi much to ascertain true methods and were in better the R., v. R. one connected with it. See Lane any tion of the car than Co., v. Power White In confirma N. p. 91; C., p. C., find from the view, McDaniel, tion we evidence in the the -ends having ascertained, associate, fact, the and was inspector (cid:127)of the car were also notified which was done. And in reference to. ends, so, directed to remove the debris or rubbish near and around the and on the lying the sitting nothing when there is evidence injured, he the danger show would naturally its absence increase presence in case the work was done in a proper to cause an likely and with reasonable care. of hands with the True, gang there, charged duty there removing general but this was with the rubbish, purpose keeping when clear, job completed, and was yard usually done nothing any is to show that rubbish had duty removing there to increase or diminish hazard of work when tendency properly Accordingly, done. we find that when McDaniel told the rubbish, gang, midday, foreman the said at to remove Tuesday as his reason that needed a sill. prepare the new It was not If making at all with view more safe. removed, this rubbish had been would have been then nec- doing bent over is evidence to show that essarily all he would whether the rubbish probability injured have been condemning are not the conduct of plaintiff But we not. removed contributory fact of on his part. tending to establish the statute, 6, our Laws ch. present under casé, In that but, under damages, authorities on the issue only significant propo- made rest properly hold that the case we must (cid:127)cited, with two car, stationary yard, of a box in the ease sition in the sent as indicated it, workmen capable (cid:127)experienced to their own methods left employees being these might any help to call power work and with present *5 men to these injury to show that nothing any be required, legal duty no breach occur, and, therefore, likely either them the proxi- could be considered as fairly of the part company on the hurt. mate cause of TEEM,

N. O.] Bunn con are one we resembling the nearly in our reports ease case the R., Bumbley’s supra. In v. R. Rumbley is that sidering of the in the opinion are stated decision thereon apposite facts which this ground upon to perceive as follows: “We fail Court 23 June, to show that The evidence tended sustained. can be recovery down an old were directed tear carpenter and another 1908, plaintiff work several engaged on the depot, near the and shed, Salisbury rafters loose knocking days, day hori placed which were shed, standing joists While feet. at intervals two three zontally beneath, above, the rafters knocking loose standing joists, on one these of. The complained fell to way but it described, definitely is not giving very cause the joist fastened the ends. The been at very insecurely seems to have well within simple operation, to do own select his methods was left to experience training, legal no breach of it. On the facts in there has been evidence, under several company, of defendant duty established for nonsuit should recent decisions this Court the motion Co., R., House v. R. Brookshire v. Electric C., p. 398; allowed. R., Dunn v. R. 151 N. 313.” 669; 152 N. C., p. C., p. which this it rests as decisive regard upon We and the principle case motion nonsuit opinion and are of present appeal, should have been allowed.

Eeversed.

PLAINTIFF’S APPEAL. In J. court that there case, below, being opinion Hoke, was no negligence imputable to the reference the conduct rulings several furtherance of that Armstrong, made from the position, plaintiff excepted appealed Having held, appeal, as rendered. defendant’s was not entitled to recover in aspect specified rulings- of his Honor adverse to have become immaterial, and the judg- ment affirmed. is, therefore,

No error.