The principles of law discussed before us are simple, and the only difficulty is in their application to the evidence.
*652Tbs courts of Virginia and of tbis State are in perfect harmony as to tbe duty of tbe employer to provide a reasonably safe place for tbe employee to work, as is shown by tbe opinion of tbe Virginia Court in Trotter v. R. R., 98 S. E., 623, in wbicb it is said: “It is one of tbe nonassignable duties of tbe master to use due care to furnish tbe servant a reasonably safe place in wbicb to work, and reasonably safe tools and utensils with wbicb to work, and if be fails to do so be is liable to tbe servant for injuries proximately resulting to such servant from such failure,” and by tbe opinion in Clements v. Power Co., 178 N. C., 55, as follows: “Tbe rule is well established that tbe duty imposed upon tbe employer to provide a reasonably safe place to work, and reasonably safe tools and appliances, is nondelegable.”
Tbe authorities are also ample to sustain tbe position of tbe defendant that evidence wbicb merely makes it possible or does no more than raise a conjecture or suspicion of tbe fact alleged ought not to be left to a jury (see S. v. Vinson, 63 N. C., 335; Brown v. Kinsey, 81 N. C., 245; Byrd v. Express Co., 139 N. C., 273; Lewis v. Steamship Co., 132 N. C., 904, and other eases), and it is equally well settled that negligence may be proven by circumstantial evidence, and that “if tbe facts proved render it probable that tbe defendant violated its duty, it is for tbe jury to decide whether it did so or not.” Shear. & Red. on Neg., sec. 58, approved in Fitzgerald v. R. R., 141 N. C., 535; Henderson v. R. R., 159 N. C., 583.
Tbe question therefore raised by the- motion for judgment of nonsuit is whether there is evidence wbicb renders it probable that tbe entry or tunnel where tbe intestate was required to work was unsafe, and that tbis caused bis death.
Tbe tunnel or entry was twelve feet wide. A railroad track ran near tbe middle of tbe tunnel, tbe rails being 44 inches apart. Tbe cars projected beyond tbe rail 12 or 14 inches on each side. Tbis condition left a space of about three feet on each side between tbe cars and the sides or walls of tbe entry for tbe use of tbe employees of tbe defendant, but tbis space was not left open.
One witness testified: “Tbe slate that we call ‘gob’ was piled up like a wall, along under tbe roof outside tbe railroad between tbe rail and tbe rib. There was a space of 12 or 14 inches on either side of tbe rail that was free of gob.”
Another witness: “Tbe condition of that entry at that time at tbe place we found him under tbe car was very bad, in very bad shape. There was not sufdcient room on either side of tbe cars between tbe outside of tbe rail and tbe rib of tbe entry at tbe point of accident for a person to walk or pass in-safety while tbe cars were in motion. In order for a driver to perform bis duties with a reasonable degree of *653safety I tbink the entry should be kept clear of all rubbish and sufficient distance from the ear for a man to pass through at any place along the entry.”
Another: “Slate and gob stuff was on the outside of the rail stocked up like a wall; ties, props and things like that were lying across the road; slate piled up along the road; could not pass a car in some places, had to climb over.”
Another: “The entry at the place where we found him in the ear was pretty well gobbed up, slate and gob on each side of the car; there was no room for a person to have walked between the outside rail and the rib; there was slate and dirt and a few rotten timbers. I have worked off and on in the mines for the last 12 years. In order that the driver may perform his duties with ordinary safety I should think the entry should be clear, should be clean between the rib and rails along so that if an accident should happen you could have room to get in the clear.”
There is evidence favorable to the defendant, but on a motion for nonsuit we must not only accept the evidence of the plaintiff as true, but he is also entitled to have every reasonable inference considered in his favor, and, so dealing with the evidence, it is shown that the space of three feet between the cars and the ribs or sides of the entry, provided for the use and safety of the employees, was closed except as to 12 or 14 inches, and this small space was covered with debris; that the conditions were bad and dangerous, and it is a reasonable inference that the deceased tried to walk on the outside of the rails and stumbled and fell, or that he was forced between the rails by the conditions on the outside, and was there struck by the cars and run over and killed, ■ and in either event the defendant would be liable, without regard to the particular way in which he met his death, in the absence of contributory negligence, which is not relied on.
¥e are'therefore of opinion the motion for judgment of nonsuit was properly overruled.
The defendant also relies on the plea of the statute of limitations of one year, based on the following facts:
The deceased was killed 8 September, 1917, and this action was commenced on 3 June, 1918. The plaintiff did not allege in the original complaint the statute of Yirginia giving a right of action for wrongful death, but was allowed to amend and so allege, more than one year after, and within two years of the death.
The defendant contends that this amendment does not relate back to the commencement of the action, and is the equivalent of a new action, but it was held otherwise in Renn v. R. R., 170 N. C., 128, and if this was not true, the Yirginia statute puts the matter at rest. It provides *654that actions for wrongful death “shall be brought by and in the name of the personal representative of such deceased person, and within twelve months after his or her death, but if any such action is brought within said period of twelve months after said party’s death, and for any cause abates or is dismissed without determining the merits of said action, the time said action is pending shall not be counted as any part of said period of twelve months, and another suit may be brought within the remaining period of said twelve months, as if such former suit had not been instituted,” so that if the amendment be treated as a dismissal of the first action and the institution of a new one, the latter was commenced within twelve months of the first, and it within twelve months from the death, which brings it clearly within the statute, and the action is not barred.
No error.