(Filed 12 June, 1929.)
Master and Servant C b — In this case held evidence of master's negligence sufficient to be submitted to jury.
.In this case held, evidence of the master’s negligence in failing, in the exercise of reasonable care, to provide the servant a reasonably safe place to work and reasonably safe and suitable tools and appliances was properly submitted to the jury, and defendant’s motion for judgment as in case of nonsuit was properly overruled.
Appeal by defendant from Harwood, J., at January Term, 1929, of Graham.
No error.
*397This is an action for actionable negligence brought by plaintiff against defendant.
Tbe evidence on tbe part of plaintiff tended to show that under tbe direction of defendant’s foreman be and tbe other employees of defendant were ordered to load rails by band on an incline car. Tbe steel rails were piled up on tbe ground about 4 feet high and were 25 to 30 feet in length and weighed 60 pounds to tbe foot. Tbe rails were “crooked and wrapped up.” Tbe foreman, whom plaintiff was bound to obey or be discharged, ordered him and tbe other employees to load tbe rails by band. Plaintiff bad loaded about 5 or 6 rails before be got hurt. “Someone in tbe crowd spoke of rail-dogs and McCrary, tbe foreman, said that be did not have any and we would have to load them with our hands. . . . This rail that bit my foot bad been used on tbe curve end that left tbe rails in a curve when they were racked up, and they were just piled up there, and this rail — I did not know it was crooked as it was until after I threw it out and it bit me — it bounced back on my foot.. . . . By dealing you take bold of this end and swing this end out and tbe other will come off and then you can walk in there and pick up tbe rail and carry it and load it. We could not but one handle tbe rails because we bad nothing to handle them with but our bands and just one was all that would work throwing them out.”
It was in evidence that at tbe time plaintiff was injured, tbe method known, approved and in general use in tbe territory where plaintiff was engaged in handling steel rails and doing tbe work be was ordered by tbe foreman to do, was to use a tool called a rail-dog, or railroad tong. There was evidence that plaintiff’s foot was permanently injured.
It was in evidence on tbe part of tbe defendant that tbe usual method was to load tbe rails by band. Tbe defendant denied negligence and set up tbe plea of contributory negligence.
Tbe issues submitted to tbe jury and their answers thereto, were as follows:
“I. Was tbe plaintiff injured by tbe negligence of tbe defendant as alleged in tbe complaint ? Answer: Yes.
“2. Did tbe plaintiff by bis own negligence contribute to bis injury? Answer: No.
“3. What damage, if any, is tbe plaintiff entitled to recover? Answer: $1,500.”
Tbe defendant made several exceptions and assignments of error and appealed to tbe Supreme Court.
T. M. Jenhins for plaintiff.
B. L. Phillips for defendant.
*398Pee Curiam.
The major and only material assignment o£ error on
the part of defendant, was the refusal of the court below, on motion by defendant, to dismiss the action or judgment as in- case of nonsuit. C. S., 567. We think the court below gave the contentions of both parties fairly and clearly, and accurately charged the-law applicable to the facts. This case is governed by a case on “all fours” — Murdock v. R. R., 159 N. C., 131. There is
No error.