145 N.C. 42 | N.C. | 1907
after stating the case: We think the defendant was clearly entitled to the instruction which was refused. Where the employee steps outside the line of his duty or goes beyond the scope of his employment and does something, he is not required to do, he cannot recover from his master for any consequent injury, for in that particular he is not his servant, and his contract; does not provide for the new risk which he thus assumes and to which he exposes himself. The result is the same where-the servant, without the order or request of his employer or his representative, or contrary to his orders, or at the request of another employee who has no authority from the master to make it, undertakes to do something not assigned to him. In such a case he assumes all the risk of injury. The master contracts to'exercise ordinary care for the purpose of keeping his premises, his machinery, his tools and his appliances in a reasonable condition of safety for the protection of his servant employed to perform a stated service, and who is entitled to that protection while engaged in his work and so long as he continues therein and
Applying the principle we have stated to the facts of this case, we conclude that there was proof to sustain a finding for the defendant under the instruction, which was refused, namely, that the plaintiff had left the place of his work and, as a favor to McWynn, had undertaken to perform his duty in feeding the machine, when he was hurt, and the fact that there was evidence to the contrary cannot deprive the defendant of the right to have the disputed question submitted to the jury. It only made it the more necessary that such a course should have been taken. We have just held that if a special instruction is asked .as to a particular phase of the case presented by the evidence, it should be given by the Court in substantial conformity to the prayer. Baker v. Railroad, 144 N. C., 36 (56 S. E., 553). We so hold in this case, as the rule is manifestly a just and most reasonable one. Horne v. Power Co., 141 N. C., 50, and cases cited. We have ex
New Trial.