The opinion of the Court was delivered by
Mr. Justice Pope.The presiding Judge, at the close of the testimony of the plaintiff, granted a nonsuit. The appellant now seeks to reverse the judgment entered upon that nonsuit. If there was any competent testimony material to the plaintiff’s cause of action against the defendant, it was error to' grant the nonsuit.
*180First. What was plaintiff’s cause of action ?
Second. Was there any testimony in support thereof?
Plaintiff sued defendant to recover $12,000 as damages arising from the neglect of the defendant in its duty to the plaintiff as its servant in providing itself, or suffering some one else, with its approval, to provide a plank to ascend to a gangway leading into-its buildings, which said plank, so ascending and so leading, was suffered by the defendant to become loose and to remain so loose for a long time, whereby any one who used such plank as aforesaid was subjected to great danger, and whereby 'the plaintiff, on the 2d September, 1896, as said servant, by reason of the fall of said plank, while he was upon the same in his discharge of duty as watchman, in ascending, fell to the earth (so was violently thrown to the ground). It is apparent that the cause of action of the plaintiff is the alleged breach of duty owed by the defendant to the plaintiff as its employee; in other words, that the defendant, having failed to discharge its duty to the plaintiff, as its servant, was guilty of negligence, which negligence was the proximate cause of plaintiff’s injury. It was the duty of the plaintiff to establish by the testimony offered by him, by its preponderance, this alleged negligence of the defendant. As is well said in 16 A. & E. Enc. of Law, at pp. 465-466, in discussing the subject of negligence: “The general rule is well known that questions of fact are to be submitted to the jury; and this includes not only cases when the facts are in dispute, but also when the question is as to inference to be drawn from such facts after they have been determined. It will be readily observed that few cases will arise in which there is no question as to the facts involved; the element of 'ordinary care must from its very character always require the decision of a jury, except where there is a violation of statutory duty, or when the facts are undisputed, and but one inference can reasonably be drawn from them. And the same is equally true as to the determination of the question of proximate cause, so that the following rules may be stated as applicable to every case. The *181issue of negligence should go to the jury: I. When the facts which, if true, would constitute evidence of negligence are controverted. 2. When such facts are not disputed, but there may be a fair difference of opinion as to whether -the inference of negligence should be drawn. 3. When the facts are in dispute, and the inferences to be drawn therefrom are doubtful.” When Judge Klugh, at the close of plaintiff’s testimony, on motion of defendant’s counsel, granted a nonsuit, and the plaintiff presents an appeal from such order, it becomes necessary for this Court to determine from the “Case for appeal,” if there was any material testimony offered by the plaintiff on the issue of defendant’s negligence, as the proximate cause of defendant’s injury; if there was no such testimony, there was no error by the Circuit Judge; but if, on the contrary, there was such testimony, the Circuit Judge was in error, and the plaintiff is entitled to a new trial. The defendant admits in its answer that the plaintiff was in its employment, and in the discharge of his duties at the time of his injury, as night watchman, of its property, consisting of a manufacturing plant. There is no dispute that, the discharge of the duties of such night watchman required that he should go every twenty-five minutes over and through the buildings of such cotton factory and its yard. There is no question but that in the nighttime of the second of September, 1896, the plaintiff fell from a wing to the gangway leading from the ground to the second story of the mill building, and was thereby considerably injured. The defendant in its answer alleges that the injury of the plaintiff was not caused by the appliance which it furnished for its servants to enter and depart from its mill, but was caused by a plank placed against it's gangway, which said, plank was not a part of said gangway, nor was it constructed or furnished by this corporation as a way of approach to said building, nor was the use thereof in any way authorized or approved by it. But that Robert McCarrell, an independent contractor, placed said planks or wings to the gangway of defendant, and that the defendant had no control or author*182ity over said McCarrell, or over any of his employees or any of the appliances used by them. Again, the defendant alleges that said plank or wing to the gangway was not so placed by the defendant or by its order, or for the use of any of its employees. Thus it is made manifest that the question of 'the relation of the defendant to said plank against the gangway, so far as its construction, or its adoption by the defendant, after its construction, for the use of defendant’s employees or servants, becomes a very important issue between the plaintiff and the defendant. We have examined the testimony, and find that there is material testimony offered by the plaintiff not only to the use of this plank or wing to the gangway by the employees of the defendant, to the knowledge of the president or superintendent, but also that the president or superintendent of the defendant mill— one Mr. Burgess — admitted before and after the accident to plaintiff, that the defendant ought not to have suffered such plank or wing to have remained unattended to. The plaintiff in his testimony stated in answer to this question: “You stated to counsel that Mr. Burgess knew it was dangerous. Who is Mr. Burgess, who was president of the mill at the time? Ans. Mr. Burgess. Where is he now? Ans. He is right there (in the room). Q. How do you know that he knew it was dangerous? A. I don’t know. He told it before the hands (workmen) when he put me in the wagon. Hé said he ought to have that plank fixed. It was a dangerous place; it pretty near broke down with him himself.”
F. L. Tillatson, a witness for plaintiff, testified: “He (Mr. Burgess) only said that morning (morning after plaintiff was injured) that he was down there, that he was very sorry that Mr. Rinalce got hurt. It ought to have been fixed, or he ought to have had it fixed, I can’t be sure which.” Charles Jackson, a witness for plaintiff, in his testimony, stated that on the afternoon of the day in the night of which plaintiff was injured, “Mr. Burgess came.down in front of me, and as I went on down there were two little gangways, *183one on each side, and Mr. Burgess sorter slipped up, he says, ‘Such work as this won’t do ; this must be fixed.’ ”
But let us examine the testimony, and learn whether the independent contractor, McCarrell, and his hands alone used these planks at the side of the main gangway. The plaintiff testified: “Q. How would you go up into the building, when you went up into the building to see that everything was safe? A. I took the main gangway. But sometimes the main gangway was blockaded with lumber, so the only chance I had was to take the side gangway. Q. What do you mean by side gangway ? A. Planks that go up on the sides. Q. How often had ^'■ou used that main gangway and those side gangways? A. Just as it was convenient. If the main gangway wasn’t blockaded, I would go up the main gangway. Q. Who else used that main gangway and those side gangways? A. Most everybody that was working there. Q. Whom do you mean by ‘everybody?’ A. I mean all the hands who were working there.” The witness, Ben H. Walker, testified: “Q. For whom were you working? A. For the company. Q. By contract or day laborer? A. Day laborer. Q.'Who built the wings? A. Mr. McCarrell had them done, I think. Q. Who used those wings? A. The company and Mr. McCarrell, too-. Q. What did the company use those wings for? A. Sometimes there when we were taking out anything we would walk up these, but if we were carrying anything heavy, we would go up the main gangway. I have walked up these a heap of times with a stick of timber with two men to it. Q. Where was Mr. Burgess when this work was going on about the mill? A. He was around there nearly every day. Sometimes he was gone a week or ten days. Q. What objection did he make to the hands of the mill using those wings? A. None at all in my hearing. Q. The timber and material that were carried up the wings and main gangway were carried up for whom? A. The wood that was carried up there was for the company. Q. How long had the company been allowing the wood to be carried up there? *184A. Ever since it had been there we went up that way when it was easier to do it; in carrying window sash or anything like that, it was easier to do it, was in the shelter, and we would generally come up the left gangway. They were nearer the wing than the main gangway. Q. Nobody ever told you to quit ? A. No, sir, not to me they didn’t.” The witness, F. L. Tillatson, examined for the plaintiff, testifies : “Q. You know who built the main gangway and who- built the wings? A. No, sir, I do not; they were built before I went there. Q. Do yo.u know who used them?' A. They were used, I think, by all parties. Q. When you say by ‘all parties,’ what do you mean ? A. I mean they were used by the brick mason men to get to their work, and the carpenters.” John Dempsey, a witness for plaintiff, testified: “Q. From what you saw going on, do you know who had used the wing as well as the gangway previous to that time? A. It was used both by the company hands and Mr. McCarrell’s hands while he was there at work. Q. When was Mr. McCarrell there? A. I rather think he was gone; I won’t be positive.”
In considering this testimony and in reproducing parts of it, we must be understood as expressing nothing whatever as to its credibility. All we mean is to thus call attention to its materiality as to the issue of negligence. We think the Circuit Judge was in error in granting the motion for a non-suit. t>
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the action be remitted to that Court for a new trial.