Civil action. These issues were submitted.
1. Was the plaintiff's intestate killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.
(40) 2. Did the plaintiff's intestate by his own negligence contribute to the injury resulting in his death? Answer: No.
3. What damage, if any, is plaintiff entitled to recover? Answer: Thirty-five hundred dollars ($3,500).
From the judgment rendered, defendant appealed. The counsel for defendant in their brief state that "the only exceptions which will be argued are the third, which is to the refusal of defendant's motion for judgment of nonsuit, and the fourth, fifth, sixth, seventh, and eighth, to the refusal of the defendant's special requests for instructions, and to the action of the trial judge in refusing to give and apply such portions of these requests as were given, to the first issue."
1. In our opinion, the motion to nonsuit was properly denied. The defendant admits in its answer that it owed a duty to the plaintiff's intestate to take reasonable precautions to prevent injury and to inspect the places where blasting was done, and to examine holes which had been charged with dynamite that failed to go off.
The evidence shows that the deceased was killed by an explosion of what is called a "failed hole," which is a hole in which dynamite has been loaded and fails to explode with the general explosion. The evidence of Stokes Freeman proves that it was his duty as drill boss to make an inspection every day of the holes in the mine which had failed to explode. He testifies that he did not make an inspection of the holes in the morning before the deceased was killed.
This witness further testifies that it was his duty to locate three holes for the deceased to drill, but that he failed to do so; that he selected two holes only and left the deceased and Pender Tolley to locate the other hole.
There is no evidence throwing any light upon how the deceased happened to strike the "failed hole," whether accidentally in locating the third hole or not. The deceased had the right to suppose that the inspection had been made and that the drill boss had located all the "failed holes," and that he would be warned of their proximity.
The decisions of this Court have settled the question that the defendant owed a duty to the deceased to make this mine as reasonably safe to *Page 33 work in as is practicable in such a dangerous vocation; that its drill boss failed in his duty in making the proper inspection and search for "failed holes" on the morning of the disaster is an admitted fact. Whether such negligence was the proximate cause of the injury, the court properly left to the jury under the circumstances of this case.
2. The prayers for instruction referred to in our opinion relate exclusively to the question of contributory negligence. For some reason which is not apparent to us, the learned counsel for the defendant insist that they be directed to the first issue, and in refusing to so apply them, we think his Honor was correct.
Contributory negligence under our statute is a matter of defense, and the burden of proof is placed upon the defendant to establish it unless it is proven by the testimony offered in behalf of the plaintiff. The allegation of contributory negligence in this case consists in an averment that the deceased disobeyed the orders of his superior and that such disobedience was the proximate cause of his death.
In Hicks v. Manufacturing Co., 138 N.C. 326, we said: "This entire matter as to disobedience of orders and its effect should more properly be submitted under the issue of contributory negligence where the burden of proof can be placed on the defendant as required by the statute."
We think, however, upon the second issue his Honor gave the defendant in the matter of instructions all that it was entitled to when he instructed the jury in these words:
"As to these matters, the court charges that if you find by the greater weight of the evidence that the plaintiff's intestate was doing his work subject to the orders of the drill foreman, and that the drill foreman gave him instructions not to use the failed hole in the mine, and that the intestate, in violation of the orders of the drill foreman, drilled into a failed hole which was charged with dynamite or giant powder, and thereby caused the dynamite or powder to explode and kill (42) him, and that he would not have been killed except for such disobedience of orders, you will in that event find that his failure to obey the instructions given was the proximate cause of his death, and your answer to the second issue will be `Yes.'"
Upon a review of the whole record, we find
No error.
Cited: Buchanan v. Lumber Co., 168 N.C. 43; Williams v. R. R., ib., 362. *Page 34