
    
      G. W. THOMAS by His Next Friend, W. H. THOMAS, v. W. H. and T. H. LAWRENCE.
    (Filed 22 April, 1925.)
    1. Employer and Employee — Master and Servant — Negligence — Evidence — N onsnit.
    Evidence that plaintiff: was defendant’s employee and was injured in the course of his duties by the falling of a brick upon his head by reason of employees of defendant tossing bricks to others on an overhead scaffold near which jilaintiff was ordered to work to be laid by brickmasons in the wall of the building being erected, is sufficient upon the issues of defendant’s actionable negligence to take the case to the jury, and deny defendant’s motion as of nonsuit thereon, or a peremptory instruction in his favor.
    2. Same — Accident.
    Where the employer is sued for damages for negligent injury to his employee, the former may not successfully defend the action upon the contention that it was an accident not reasonably to have been anticipated, especially when the defendant’s negligence concurs'and proximately causes the injury in suit.
    3. Same. — Assumption of Risks.
    In order for the application of the doctrine of assumption of risks, it is necessary for the employee to have known of the danger he is alleged to have assumed, and where there is evidence tending to show that the injury in suit resulted from his obedience to an order from the defendant’s vice-principal, who was aware of the dangerous conditions existing at the place the employee was instructed by him to work, and which caused the injury, and the employee was unaware thereof, a motion as of nonsuit on this ground will be denied.
    4. Same — Fellow-Servants.
    Where an employee was injured by a brick falling upon his head while engaged in the 'scope of his duties, which was one of those being tossed by other employees or his fellow-servants to a scaffold to be placed in the wall by defendant’s brickmasons, and the place wherein the employee was thus engaged did not meet the requirements that the employer, in such instances, furnish his employee a safe place to work, which resulted in the injury, this duty is one the employer may not delegate, and the defense that the injury in suit was caused by the negligent acts of the employee’s fellow-servant for which the employer was not answerable, is untenable.
    Appeal by defendants from Grammer, J., at September Term, 1924, of DURHAM.
    Tbis action was brought by plaintiff, an employee, to recover of defendants, bis employers, damages for a personal injury alleged to bave been caused by tbe negligence of defendants (1) in failing to provide for plaintiff a safe and suitable place in wbicb to work and (2) in failing to provide a safe and proper method for hoisting bricks to tbe walls of tbe building, in tbe construction of wbicb plaintiff was at work as an employee of defendant.
    It is alleged that plaintiff was at work on tbe floor of a building, in process of construction by defendants, as contractors and builders, near tbe stage or rostrum in tbe auditorium of said building, under tbe direction of a foreman of defendants; that plaintiff, with other employees, was at work upon steel beams or girders wbicb were to be used in tbe construction of tbe building; that while plaintiff was thus engaged in tbe performance of bis duties as an employee of defendants, brick-masons, also employees of defendants, were at work on a scaffold 12 to 14 feet above tbe floor on wbicb plaintiff was at work; that laborers, or helpers of said brickmasons, also employees of defendants, were engaged in carrying bricks and mortar to a balcony or scaffold some 5 or 6 feet beneath tbe scaffold on wbicb tbe brickmasons were at work and above tbe floor on wbicb plaintiff was at work; that tbe laborers were required to pitch the bricks, wbicb were hoisted from the floor to the balcony, to other laborers standing on the scaffold on which the brickmasons were at work where they were to be used by the brickmasons in the erection of a wall of the building; that a laborer on the upper scaffold failed to catch a brick pitched to him by a laborer on the lower scaffold or balcony, and that this brick fell a distance of 12 to 14 feet, striking plaintiff on the head while he was at work at the place to which he had been assigned by a foreman of defendants. As a result of the injury thus inflicted, plaintiff was rendered unconscious and has become a total mental and physical wreck.
    As a defense to plaintiff’s cause of action, defendants deny that plaintiff was injured by their negligence, alleging that such injury as plaintiff sustained was caused by the negligence of a fellow-servant of plaintiff and that said injury was the result of a risk ordinarily incident to work of the kind and character as that in which plaintiff was engaged and that plaintiff having assumed the risk of such injury as he received when he entered the employment of defendants, cannot recover damages of the defendants.
    The issues arising upon the pleadings and submitted by the court to the jury, with the answers thereto, are as follows:
    “1. Was the plaintiff injured by the negligence of the defendants as alleged in the complaint ? Answer:‘Yes.’
    “2. Was the plaintiff injured by the negligence of a fellow-servant, as alleged in the answer? Answer: ‘No.’
    “3. Did plaintiff voluntarily assume the risk of his injury as alleged in the answer? Answer: ‘No.’
    “4. What damages, if any, is the plaintiff entitled to recover ? Answer: ‘$5,000.’ ”
    From the judgment in accordance with the verdict, defendants appealed to the Supreme Court, assigning errors based upon exceptions duly noted.
    
      Brogden, Beade & Bryant for plaintiff.
    
    
      Fuller & Fuller for defendants.
    
   Connor, J.

The evidence offered by plaintiff was sufficient to sustain the allegations of the complaint, as to the existence of the relationship of employer and employee, between defendants and plaintiff at the time of the injury, and as to the cause and extent of the injury sustained by plaintiff. Plaintiff was struck on the head by a brick, which fell from above him, while he was at work at the place to which he had been assigned, under the direction of the foreman of defendants in charge of the construction of the building. The falling of the brick was the result of the failure of a laborer on a scaffold II feet above the floor on which plaintiff was at work, to catch the brick which had been pitched to him by a laborer, from the balcony about 7 feet beneath the upper scaffold and about 10 feet above the floor. The bricks thus pitched from one laborer to another laborer, were to be Used by brickmasons working on the upper scaffold in the erection of a wall of the building. Bricks were being passed up to these brickmasons in the usual way and by the method provided by defendants for accomplishing that purpose. They wqre hoisted from the floor of the building to the balcony, about 10 feet above the floor, by means of an elevator; they were then taken from the elevator by laborers who placed them on wheelbarrows which were rolled along the balcony tó a place beneath the scaffold on which the brick-masons were at work. They were then pitched, one at a time from the balcony to the scaffold, a distance of 7 feet, and placed by the laborer who caught them on the scaffold so that the brickmasons could pick them up as they were needed. The distance through which they were thus pitched was 18 inches or two feet. The foreman, under whose direction plaintiff was at work, knew that the laborers were engaged, by this method, in getting the brick from the floor or ground, to the scaffold and that they were so engaged at the time plaintiff was directed to work at the place where he was injured.

The injury occurred about 4 o’clock p. m. Prior to this time plaintiff had been at work riveting steel beams near the center of the building. Immediately before the plaintiff was injured, he had been requested, by a fellow-employee, who was authorized to make the request by the foreman, to leave the place at which he was. at work, to assist other employees in raising a steel beam or girder from the floor in order that a bench might be put under it. The place to which plaintiff was thus called was about 10 feet from the wall on which- the brickmasons were at work and where the bricks were being pitched. The employee to whose assistance plaintiff had gone, just prior to his injury, testified that he did not know that the brickmasons were then at work on the wall or that the laborers were at work getting the bricks to the upper scaffold. Plaintiff has never recovered from the effects of the blow on his head sufficiently to make an intelligent statement about the occurrence and did not testify at the trial for this reason.

1. Defendants first contend that plaintiff’s injury was due to an accident and that therefore they are not liable for damages resulting from the injury. An accident is defined as “an unforeseen event occurring without the will or design of the person whose mere act causes it; an unexpected, unusual or undesigned occurrence; the effect of an unknown cause, or the cause being known, • an unprecedented consequence of it; a casualty.” Black’s Law Dictionary. Crutchfield v. R. R., 76 N. C., 320. “An employer is not responsible for an accident simply because it happened but only when be has contributed to it by some act or omission of duty”; Martin v. Mfg. Co., 128 N. C., 264; Simpson v. R. R., 154 N. C., 51; Lloyd v. R. R., 168 N. C., 646; Bradley v. Coal Co., 169 N. C., 255.

The injury sustained by plaintiff was caused by a blow upon his head; this blow was caused by a falling brick; the cause of the injury is therefore known; as to this, upon the evidence, there can be no controversy. There is sufficient evidence from which the jury could find 'the failure of the laborer on the scaffold to catch the brick pitched to him by another laborer on the balcony 7 feet below, the distance from the hands of the one laborer to the hands of the other laborer being from 18 inches to 2 feet, was the cause of the falling of the brick. That a person may fail to catch a brick pitched to him by another person, especially when he is 7 feet above the person who pitches it and that upon such failure the brick will fall and strike an object beneath it, can hardly be said to be an unprecedented consequence; indeed the result may be expected, it is not unusual nor can it be said that it could not have been foreseen. Under the facts and circumstances as established by the evidence in this case, plaintiff’s injury cannot be held as due to an accident; the injury was clearly due to negligence or the failure of someone to exercise due and reasonable care for the safety of the plaintiff in the situation in which he was placed at the time the brick was pitched.

There is no evidence from which the jury could find that plaintiff knew, when he went to the place- at which he was injured that the laborers were pitching bricks from the balcony, ten feet above the floor on which he was to work, to the scaffold, seven feet above the balcony and thus 17 feet above plaintiff. Nor is there evidence that the laborers knew at the time they were engaged in pitching the bricks that plaintiff had been assigned to work at a place not more than ten feet from the wall on which the brickmasons were at work. There is evidence that the foreman, under whose direction both the plaintiff and the laborers were at work, had full knowledge of the work in which these employees were respectively engaged. With this knowledge, the foreman required, or at least permitted the respective work" to continue.

It is conceded, of course, that upon the facts established by the evidence, defendants owed plaintiff the duty “to exercise reasonable care to provide the plaintiff a reasonably safe and suitable place in which to work,” and that a failure to perform this duty, resulting directly and proximately in injury to plaintiff, would be actionable neligenee. Ramsbottom v. R. R., 138 N. C., 39, and cases cited in 2d Anno. Ed. It cannot be held, where defendants assigned plaintiff to work at a place not more than 10 feet from a brick wall of a building in process of construction, while laborers were pitching bricks from a balcony against said wall, 10 feet above the floor of the building, to a scaffold 7 feet above the balcony, to other laborers — the distance from the hands of the laborers who were pitching the bricks to the hands of laborers whose duty it was to catch them being from 18 inches to 2 feet — that there was a compliance by defendants with the law as repeatedly declared by this Court, and by courts of other jurisdictions, which administer law founded upon sound principles and constantly developing to meet the growing complexities of human relationships. There was a breach of the duty, which the law imposed upon defendants, and evidence from which the jury could find that this breach of duty was the proximate cause of plaintiff’s injury. Assignments of error, based upon exceptions to the refusal of the court to allow the motion of nonsuit, and to give the peremptory instructions as requested by defendants, cannot be sustained.

2. Defendants assign as error the refusal of his Honor to instruct the jury as requested by defendants, in writing and in apt time, to answer the second issue, “Yes.” By the exception, upon which this assignment of erorr is based, defendants present their contention that the injury sustained by plaintiff was caused by the negligence of a fellow-servant, and that, therefore, they are not liable. The duty which defendants owed to plaintiff, with respect to the place provided for him to work, is primary and nondelegable. The employee has a right to assume that this duty had been performed; Klunk v. Granite Co., 170 N. C., 70. Upon the evidence, there was a breach of this duty. The place provided for plaintiff to perform his duties as an employee of defendants was unsafe because of the method adopted by defendants for hoisting bricks to the upper scaffold. The defendants not only adopted this method for doing this work, but their foreman knew that the method was being pursued after plaintiff had left the safe place at which he was at work— at the upper end of the auditorium- — and gone to the lower end, within 10 feet of the wall when the bricks were being passed up to the scaffold by this unsafe method. The laborers continued to pursue this method after plaintiff had changed places for work. There is no evidence that they knew of the change. Even if it was negligence for the laborers to adopt and pursue the unsafe method of doing the work which they were required to do, such negligence only concurred with the primary negligence of defendants in causing injury to plaintiff and does not relieve defendants of liability for their negligence. Beck v. Chair Co., 188 N. C., 743, and cases there cited. His Honor instructed the jury that where the master has negligently failed to perform one of the primary duties wbicb be owed to tbe servant, and tbis negligence concurs witb tbat of a coemployee in proximately producing tbe injury, tbe master’s responsibility tberefor is tbe same as if bis negligence were tbe sole and only cause. Upon competent evidence, and under correct instructions as to tbe law, tbe jury bas answered tbe second issue “No.” Tbe assignment of error is not sustained.

3. Defendants further assign as error tbe refusal of bis Honor to instruct tbe jury, as requested by defendants, in writing and in apt time, to answer tbe third issue “Yes.” By tbe exception upon wbicb tbis assignment of error is based, defendants present their contention tbat plaintiff is barred of recovery in tbis action, because be assumed tbe risk of tbe danger wbicb resulted in bis injury. Plaintiff was at work at a safe place, when in response to a request of a fellow-employee, made pursuant to tbe direction of tbe foreman of defendants, be left said place, and went to tbe place at wbicb be was injured. In so doing, be was performing tbe duties of bis employment. There is no evidence tbat be knew tbat laborers, fellow-servants, were then at work on tbe wall of tbe building, or tbat be knew of tbe unsafe method wbicb they were pursuing in their work, with tbe knowledge of tbe foreman. But for tbis work and tbe method by wbicb it was pursued, tbe last place was as safe as tbat from wbicb be bad gone. Tbe fellow-employee, to whose assistance be bad gone, did not know tbat brickmasons or laborers were at work on tbe wall. He thought they bad finished their work. Tbe jury might well find tbat plaintiff also did not know of tbe facts wbicb made tbe place to wbicb be went unsafe. There can be no assumption of a risk, of wbicb tbe employee is ignorant. Tbe assignment of error is not sustained.

4. Other assignments of error are based upon tbe refusal of bis Honor to give instructions to tbe jury as requested by defendants. We have examined these assignments of error, witb care; and do not find tbat there was reversible error in refusing to give them.

Brown v. Scofields Co., 174 N. C., 4, is not an authority sustaining tbe contention of defendants in tbis case. In tbat case plaintiff knew tbat bis fellow-servant was working above him, and witb tbis knowledge be continued to work in tbe place assigned him. Tbe place where plaintiff was at work was not unsafe because of any act, of omission or commission, of defendant. Tbe injury was caused by an act of bis fellow-servant, wbicb bad no relation to any act of bis employer. In tbis case, tbe injury was tbe result of an act of a fellow-servant, it is true; but tbe act was done in pursuance of a method of doing bis work, known to and permitted, if not expressly authorized by tbe defendants. Defendants were negligent in adopting or permitting tbe method of work, by wbicb tbe bricks were pitched from tbe balcony to tbe scaffold, thus passing through tbe air a distance of 18 inches or 2 feet.

Defenses based upon tbe doctrines of “Negligence of Fellow-servants,” and “Assumption of Risk” do not seem to be in harmony with tbe spirit of tbe law as applicable to present-day conditions. Tbe courts recognize them as valid defenses, in actions brought by employees to recover damages for personal injuries sustained while at work within tbe scope of their employment. However, in deference to tbe tendencies of modern legislation, and in resjionse to a more humane conception of tbe relations of master and servant, tbe courts cannot extend them; tbe tendency of both legislation and judicial decision is rather to confine and restrict them to cases in wbicb they are clearly and unmistakably applicable. Cook v. Mfg. Co., 183 N. C., 48.

Tbe judgment is affirmed. We find

No error.  