Wilson v. Blackwood Lumber Co., 185 N.C. 571

Wilson v. Blackwood Lumber Co.

185 N.C. 571 | N.C. | 1923

Adams, J.

Tbe exception is addressed to bis Honor’s refusal to dismiss tbe action as in case of nonsuit. Admitting tbe duty of exercising *572ordinary care to provide proper assistance and a reasonably safe and suitable place for work, the defendant contends that according to the plaintiff’s own testimony be assumed the risk of injury, and is not entitled to damages. In tbis jurisdiction it is beld that while an employee assumes all the ordinary risks incident to bis employment, be does not assume those which are due to bis employer’s negligence, unless they are so obvious that a man of ordinary prudence would not continue to work on and incur the attendant risks; and further, that tbis is equivalent to referring the question of the assumption of risk to the principles of contributory negligence. Sims v. Lindsay, 122 N. C., 678; Lloyd v. Hanes, 126 N. C., 359; Coley v. R. R., 129 N. C., 407; Marks v. Cotton Mills, 135 N. C., 287; Pigford v. R. R., 160 N. C., 95; Brown v. Foundry Co., 170 N. C., 39.

In Pigford's case, supra, the plaintiff requested additional help, and bis superior officer said, “Go and try; do the best you can; it is the engineer’s orders”; and it was beld, “When a servant is injured within the scope of a dangerous employment by the negligent act of the master in not furnishing him sufficient and- competent assistance, and the master’s negligence is the proximate cause of the injury, the servant is not beld to have assumed the risk of the master’s negligent act, and can recover unless his own negligence contributed to the injury as the proximate cause.”

While the plaintiff’s evidence may not be entirely consistent, we are not prepared to bold as a matter of law that the second issue should have been answered for the defendant, or that the action should have been dismissed. We think bis Honor properly left the controversy to the determination of the jury.

We find no error which entitles tbe defendant to a new trial.

No error.