This was a civil action, tried upon the following issues:
1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: No.
2. Did the plaintiff assume the risk of being injured while in the employ of the defendant? Answer: ..........
3. Did the plaintiff, by his own negligence, contribute to his injury? Answer: ............
4. What damage did the plaintiff sustain by reason of the injury? Answer: ..........
The plaintiff moved for a new trial. The motion was refused. The plaintiff excepted and appealed from the judgment rendered. The plaintiff sues to recover damages for an injury sustained by him while in the employ of the defendant, alleged to have been caused by its negligence. There are no exceptions to the evidence taken and none to the charge of the judge upon the several issues. The plaintiff rests his whole case upon the refusal of his Honor to give this special instruction, towit: "If you believe the evidence, you will answer the first issue `Yes.'" Evidently all of the other special instructions prayed for by the plaintiff were given, or were fully covered by the charge of the court. As the plaintiff noted no exception to the charge, we assume that his Honor charged the jury with his usual fullness and care on all the issues and upon every phase of the case presented by the evidence.
The learned counsel for the plaintiff frankly admits that the form of the prayer is faulty, and in his brief says: "We trust this will be waived by the Court in the interest of justice." As we are of opinion that his Honor properly refused to give the instruction, without regard to its form, we are not disposed to criticise its verbiage. It is well settled that the court cannot direct a nonsuit and give judgment in favor of a (181) defendant on whom no burden rests, when there is more than a scintilla of evidence tending to prove plaintiff's contention, or when there is evidence from which a reasonable person might draw a deduction sustaining the plaintiff's contention.
The converse of this rule is true, and for a stronger reason a verdict can never be directed in favor of a plaintiff when there is any evidence from which the jury may find contrary to the plaintiff's contention, or where there is evidence which will justify an inference contrary to such contention. Cotton v. R. R., 149 N.C. 229; Deppe v. R. R., 152 N.C. 79. *Page 219
The evidence tends to prove that the plaintiff was employed in the cotton-seed room of the defendant to put cotton seed in the seed conveyor, in which position the plaintiff had been working for several weeks. The room in which the conveyor was operated was a large room with a revolving shaft above, which operated the machinery. The room was usually filled with cotton seed, piled up high. The evidence shows that this was necessary in the operation of the defendant's business, for the purpose not only of storing the cotton seed, but of feeding the conveyor.
At the time of the injury the cotton seed was piled up in the room so that the plaintiff, after work hours, crawled on his all-fours between the end of the shafting and the side of the house, and, coming in contact with the shafting, was injured. The alleged negligence consisted in the failure of the defendant to provide a reasonably safe way for the plaintiff to get out of the building without climbing over the cotton seed near the revolving shaft in the manner in which he did.
There is evidence tending to prove that there was a way provided for the plaintiff and other employees to get out, and that it was possible for them to go from the place where plaintiff was working and cross over to the other side of the building, across the cotton seed, and in that way avoid the shafting and get to the door.
There is other evidence tending to prove that the plaintiff, with a few minutes work with a shovel, could very easily have shoveled aside the cotton seed and thus made his way to the door.
We are not prepared to say that the defendant was not guilty of negligence; nor are we prepared to say that, in any view of the evidence in this case, the defendant was guilty of negligence, and that his Honor should have given the instruction asked. It is very difficult, in the character of business that this defendant was conducting, to keep a way open through such a commodity as cotton seed; but there is some evidence in this case that there was a way out, by which the plaintiff could reach the door with very little trouble by going around the pile of cotton seed, and we think it was fairly a question for the jury to determine from all this evidence whether the defendant had failed to observe that (182) reasonable care and precaution which the circumstances demanded in providing an exit from the cotton-seed room.
Negligence is necessarily a relative term, and depends upon the circumstances of each particular case. What might be negligence under some circumstances at some time or in some place may not be negligence under other circumstances or at any other time and place. All the surroundings or attendant circumstances must be taken into account if the question involved is one of negligence.
It is difficult to say as a matter of law, from all the evidence in this case, that the defendant failed to perform its duty to exercise reasonable *Page 220 care to protect the plaintiff from injury. From the very nature of the business, it must be impracticable at all times to provide the nearest, easiest, and most convenient method of exit from the cotton-seed room of an oil mill.
Taking all the circumstances into consideration, we think his Honor very properly left the question to be determined by the jury as to whether the defendant had provided, under all the circumstances, a reasonably safe and convenient exit for its employees. As his charge is not excepted to, we assume that in putting this matter before the jury the plaintiff had no grounds of complaint.
We have discussed this matter exclusively upon the question of negligence of the defendant, without regard to the contributory negligence of the plaintiff.
For the reasons given, we think his Honor very properly refused the instruction asked.
No error.
Cited: Lloyd v. R. R., 168 N.C. 649 (1j); Lamb v. Perry, 169 N.C. 442 (1c); Phillips v. Giles, 175 N.C. 414 (1c); Dudley v. R. R., 180 N.C. 36 (2c); Malcolm v. Cotton Mills, 191 N.C. 729 (2c); Fertilizer Co. v.Hardee, 211 N.C. 657 (1c); Light Co. v. Bowman, 229 N.C. 694 (1j).