after stating the case: Where negligent default has been established against an employer by reason of some breach of an arbitrary and independent duty which he owes to his employee, as in failure to supply “machinery known and approved and in general use,” a disobedience of instructions on the part of the employee and its effect are to be considered and determined, as a rule, on the issue as to contributory negligence, involving also the question of whether such disobedience is the proximate cause of a given injury. Hicks v. Mfg. Co., 138 N. C., 319. But where there is no such arbitrary standard imposed or no breach of independent duty shown, and an employer having an ordinary piece of work done, gives instructions concerning it which provide and afford a simple and safe method of doing the work, he is entitled to have these instructions considered also in reference to his responsibility on the first issue; and if it is shown that conditions have been changed and work of the kind indicated rendered dangerous by reason of willful disobedience on the part of the employee and which the employer has not approved or encouraged, in such case no responsibility should attach; and this position, as a rule, is not affected by the view that the employee may take of his surroundings. On the first issue the question is, Has the employer done his duty? and under the circumstances suggested, he is entitled to have this question determined, having regard to the kind of work, the instructions given and the conditions established and the results that might be reasonably expected to follow if his instructions had been carried out.
In the present cáse all of the evidence tended to show that if the sides of the pit had been flammed or sloped, there was no danger attending the work, and the testimony on the part of the defendant was to the effect that the hands engaged in the work had been instructed to do it in that way. Thus the witness J. G. McDuffy, who was at that time the foreman and yard boss, speaking to the question of the employment of intestate and the instructions given, testified:
“Mr. John Barfield was running the card-room; he asked me if I could give the man some work, and I told him I did not *398bave anything for him to do without he could go in the sand pit, and he said he would bring him out. He brought him out. I told him: 'Mr. Hawkins, I haven’t anything for you to do unless you go in the sand pit.’ He said: 'I will go in anywheres and work. I can ditch; I have done it, and I can dig for sand or anything else.’ I said: 'If you are willing to go in, get a shovel.’ He said: ‘All right.’ He took a shovel and went in the sand pit; that was in the morning somewhere between 6:30 and 1 o’clock; I don’t remember the time — something like that.”
Q.: Will you state if you gave him any instructions how the work was to be done ?
A.: I did; not especially to him, but the whole crowd.
Q.: Was he present?
A.: Yes, sir. I told him to dig it with a flam — flam it down on either side; they hadn’t reached the sand yet; they were about a foot' and a half from the top.
This witness further stated that a short time before the occurrence, he passed the jiit and, having noted that the intestate was digging under the north side of the pit, he said to the intestate: “ 'Mr. Hawkins, don’t dig under there; if you can’t get the sand without digging under there, come out of the hole.’ I said: 'It will not do for you to dig under there.’ He stuck his shovel down in the middle of the hole and looked up at me and said: 'When I get through with this hole there will be enough done.’ I said: 'Don’t dig under there any more; if you can’t dig without digging under there, come out of the hole; you will make it cave in if you dig underneath.’ He commenced digging right at the place where he was standing there by the box. ■ I turned and went away.”
And the witness J. R. Richards, who was working with the intestate in the pit, testified that the pit had been cut from the top in a slope — “flammed in on all sides.” That Hawkins had commenced to cut under the side, and he heard the boss tell the intestate not to cut under the side in that way, and the witness himself told him to stop it.
The work was of a kind and character that any one of ordi*399nary experience and observation would know tbat if tlie sides were undermined to any extent they were not unlikely to cave, and on the facts in evidence we are of opinion that the defendant was entitled to have the instruction given substantially as prayed for, and that the modification of the prayer made by the court constitutes reversible error.
The principle was declared and approved by this Court in Whitson v. Wrenn, 134 N. C., 86, and on authority of that and other cases of similar import we hold that the defendant is entitled to a new trial.
Venire de novo.