I can not concur either in the opinion or the judgment of the Court, as I think there was sufficient evidence (that is, more than a scintilla,) tending to prove the negligence of the defendant. This being so, the ease should have been submitted to the jury, who alone can determine the weight of the evidence and the existence of the facts. It may be that the jury would have found for the defendant, and I would probably have done so had I been in their place; but I was not on the jury, and as a judge I have no right to usurp their functions. I would not feel justified in killing a man simply because I might think that he would eventually be hung. In fact, a nonsuit always looked to me to be somewhat in the nature of judicial lynching, resorted to by the Court when the orderly process of law, though amply sufficient, seemed too slow to meet the ends of justice. The Supreme Court of Georgia has characterized a nonsuit as a purely mechanical operation, not rising to the dignity of a mental process. It says in Vickers v. Railroad Co., 64 Ga., 300: “Nonsuit is a process of legal mechanics. The case is chopped off. Only in a clear, gross case is this mechanical treatment proper. When there is any doubt, another method is to be used — a method involving a sort of mental chemistry; and the chemists of the law are the jury. They are supposed to be able to examine every molecule of' the evidence, and to feel every shock and tremor of its probative force.” I believe it is still the law in this State that on a motion for nonsuit the evidence must be taken in the light most favorable for the plaintiff. Spruill v. Insurance Co., 120 N. C., 141; Collins v. Swanson, 121 N. C., 67; Cable v. *36Railway Co., 122 N. C., 892; Cox v. Railroad Co., 123 N. C., 604; Cogdell v. Railroad Co., 124 N. C., 302; Gates v. Max, 125 N. C., 139; Brinkley v. Railroad Co., 126 N. C., 88. This rule is clearly laid down, by Justice Eueohes in delivering tlie opinion of tbe Court in Johnson v. Railway Co., 122 N. C., 955, as follows: “In cases of demurrer and motions to dismiss under tbe Act of 1897, tbe evidence must be taken most strongly against tbe defendant. Every fact that . it reasonably tends to prove must be taken as proved, as tbe jury might so find.” Let us apply this rule to tbe case at bar. Tbe evidence, taken in tbe light most favorable to the plaintiff, might well justify tbe following findings: That tbe plaintiff’s intestate was using a plank furnished by tbe defendant for bis use,- and was hurt while using it for some purpose necessary to tbe proper performance of bis duties, am I, while so using it in a manner not palpably dangerous, was hurt by its sudden slipping; that, while the plank was 'generally’ kept in tbe jambs, it was not always kept there, and was occasionally or frequently taken out, with tbe consent or direction of tbe defendant, to be used in tbe same manner in which tbe plaintiff was hurt. In fact, it may be that the intestate was so using it when be was hurt. There is no evidence whatever of tbe fact, assumed by tbe Court, that tbe intestate himself bad moved tbe plank. It is true, one witness says that “it seemed be put tbe plank out to reach for something;” but this is evidently a mere expression of opinion on tbe part of tbe witness, who does not pretend to have seen tbe intestate move tbe plank. It may well have been that the plank was moved by tbe captain of tbe boat, or some one under bis direct instructions and supervision. If that were so, could not tbe plaintiff recover ? It may be said that I am assuming something not shown in tbe evidence. That is true, but tbe assumption of tbe Court that tbe intestate himself *37moved the plank is equally without evidence. If vve attempt to account'for the moving of the plank by mere assumption, we must, on a motion for nonsuit, assume the theory most fnvoiable to the plaintiff. This is not unjust to the defendant, because by his motion he deprives the plaintiff of his right to a trial by jury.. If the defendant wants his evidence weighed in equal scales, let him leave it o the jury, who alone can do it. The plaintiff’s intestate and the captain were not fellow servants, and, even if they had been, it would have made no difference, under the Act of 1897.. The fact that the plank was not fastened in the jambs was some evidence tending to prove that other methods of use were . contemplated. The master is bound to furnish safe appliances for the use of his servants, and these appliances must be safe under all conditions of probable use. The Court, in its opinion, says that the defendant furnished proper appliances, but that the plaintiff’s intestate misused them. Here are two affirmative findings of fact, both of which are arrived at by construing the evidence in the light most favorable to the defendant. The Court again says that “if any other person, however, than the intestate, had moved the plank from the jambs, the intestate would have used it in its misplaced position at his peril.” This can not be the law. Suppose the captain or some other duly authorized agent of the defendant had used it, and it had become necessary for the intestate to use it in the performance of his regular duties; he could surely have recovered, unless the danger was so obvious .that no prudent man would have run the risk. But this of itself would have involved the question of assumption of risk, which the Court itself says does not arise in the case. In any event, would not that have been a question for the jury? If the Court means to base its opinion on the ground that there was no evidence tending to prove negligence on the part of the *38defendant, I must still respectfully dissent. It seems to me tbat tbe mere fact of tbe accident happening to tbe intestate while using a plank admittedly provided by tbe defendant for bis use is some evidence of negligence. It was so held as far back as tbe leading case of Stokes v. Saltonstall, 13 Pet., 181. Tbe syllabus says: “Tbe facts tbat tbe carriage was upset, and tbe plaintiff’s wife injured, are prima facie evidence tbat there was carelessness or negligence or want of skill on tbe part of tbe driver, and throw upon tbe defendant tbe burden of proving tbat tbe -accident was not occasioned by tb edrivers’ fault.” In tbe recent case of Hogan v. Railway Co., 149 N. Y., tbe Co-urt says: “This being so, it is further assumed tbat buildings, bridges, and other structures properly constructed do not ordinarily fall upon tbe wayfarer. So, also, if anything falls from them upon a person lawfully passing along tbe street or highway, tbe accident is prima facie evidence of negligence, or, in other words, tbe presumption of negligence arises.” In this latter case tbe Court below directed a verdict for tbe plaintiff, and this direction was sustained by tbe Court of Appeals. I must confess tbat I am not partial to nonsuits, and I may be mistaken in my view of tbe law, as may have been tbe great judges whose opinions I follow ; but, such being my sincere convictions, I must give them effect so far as in me lies.
OijARK, J., concurs in dissenting opinion.