West v. . Mining Corporation
150 S.E. 884
N.C.
1929
Check Treatment
ClarKSON, J.

Tbe charge of tbe court below is not- set forth in tbe record; tbe presumption is that tbe court below charged fully under tbe facts tbe law applicable to negligence, contributory negligence and damage. Crisp v. Thread Mills, 189 N. C., 89.

*154 In Street v. Coal Co., 196 N. C., at p. 181-2, the law is thus stated: “It is the duty of the employer, in the exercise of ordinary care, to furnish an employee with a reasonably safe place to work. This is especially so where the place is more or less dangerous. The employer is not an insurer of the employee’s safety. Before directing an employee to work in a place of more or less danger, it is the duty of the employer to use due care to see that the place is reasonably safe for the employee to perform his work. To do this, it is the duty of the employer to use such means and methods that are approved and in general use at a place of like kind and character.” Deligny v. Furniture Co., 170 N. C., 189; Jefferson v. Raleigh, 194 N. C., 479; Mauldin v. Chair Co., 196 N. C., 122; Ellis v. Herald Co., 196 N. C., 262; Shorter v. Cotton Mills, ante, 27.

In the present case the plaintiff’s intestate, who carried steel to the workmen and took the dull steel up, in the underground operation of defendant’s copper mine, was required to ride in a car or skip when it went up and down in the narrow gauge railroad in the mine, in the performance of his duty. The underground narrow-gauge railroad extended from the surface about 700 feet down into the earth, the incline being about 45 degrees. In the mine there were about eight levels, about 100 feet apart, that intersected with the main shaft. Plaintiff’s intestate was killed at the fourth level. A witness for plaintiff testified “I saw the piece of timber catch him; he was between it and the (car or) skip when I saw him.” The evidence of plaintiff was to the effect: (1) That the car or skip passed under the piece of timber across the fourth level just giving clearance, something like three inches. (2) That the piece of timber that caught plaintiff’s intestate at the fourth level was the only piece of timber that “was down right near to the (car or) skip.” (3) There was no signal device on the ear or skip to the engineer running the hoisting engine on the surface by which he could be signalled to stop or start the car or skip being operated underground at the different levels. (4) The incline track had waves or rolls up and down and at the fourth level where plaintiff’s intestate was killed “it comes out on a flat space, comes up a hump' and out on a, flat space.” (5) The alter ego of defendant when constructing the fourth level was asked to put the timber higher and was told it would be dangerous, and he said “If it killed a man he would hire another one.” (6) There was no light at the fourth level. (7) A former mining inspector and miner of years of experience in other mines, testified that the method used in other mines of like kind and character “in carrying men in and out they used man cages, cage just like a big box; it is enclosed ... is a cage that covers a man entirely; you can’t stick your head out.”

*155 On the question of negligence of defendant, there was ample evidence to be submitted to the jury as to whether the defendant, in the exercise of due or ordinary care, provided plaintiff’s intestate a reasonably safe place in which to do his work.

As to whether plaintiff’s intestate was guilty of contributory negligence or assumed the risk, Labatt, Master and Servant, 3d Vol., 2d ed., part sec. 1178, p. 3143, speaking to the subject, says: “A principle which has been formulated and applied so frequently as to have become axiomatic is that a servant is prima facie not chargeable with an assumption of extraordinary risks — risks, that is to say, which may be obviated by the exercise of reasonable care on the master’s part.” Hough v. Texas & P. R. Co., 100 U. S., 213, 25 L. Ed., 612, 615; Lloyd v. Hanes, 126 N. C., 359; Wilson v. Lumber Co., 185 N. C., 571. The principle laid down by Mr. Labatt as axiomatic, has long been the law in this jurisdiction.

In Hicks v. Mfg. Co., 138 N. C., 319, Justice Hoke, writing for the Court, lucidly and humanely goes into the entire subject. According to Shepard’s N. C. Citations, June, 1929, that case has been cited forty-one times.

In Hines v. R. R., 185 N. C., at p. 75, it is said: “Assumption of risk is also a matter of defense analogous to contributory negligence to be passed upon by the jury who are to say whether the employee voluntarily assumed the risk; it is not enough to show merely that he worked on, knowing the danger. Lloyd v. Hanes, 126 N. C., 359; the numerous cases cited thereto in the Anno. Ed.; C. S., 3468.”

In Hamilton v. Lumber Co., 156 N. C., at p. 523-4, speaking to the subject: “It is further held, in this jurisdiction, that the doctrine of assumption of risk, in its technical acceptation, is no longer applicable (Norris v. Cotton Mills, 154 N. C., 475; Tanner v. Lumber Co., 140 N. C., 475), but the effect of working on in the presence of conditions which are known and observed must be considered and determined on the question whether the attendant dangers were so obvious that a man of ordinary prudence and acting with such prudence should quit the employment rather than incur them.’ Bissell v. Lumber Co., 152 N. C., 123.” Ogle v. R. R., 195 N. C., at p. 797.

In the judgment of the court below we find

No error.