been known by defendant company. So where an electric light company permitted a live wire to remain on the surface of a street for three weeks, and a traveler was injured by contact with such live wire, it was held that 173 the court would presume, after such a period, that the company had notice of the fact, and was liable for the injury: Joyce on Electric Law, sec. 450.

The fourth instruction asked was: "There is no evidence of any other cause of death of plaintiff's intestate, except from the electricity coming from the wire of the defendant; therefore, if the jury find from the evidence that the death of the intestate of plaintiff was caused by the current of electricity passing into his body from the charged wire of the defendant, the jury will find the third issue 'Yes' "-the third issue was, "Was the negligence of the defendant the proximate cause of the death of intestate of plaintiff ?"

The negligence of defendant appearing, and no evidence of contributory negligence by intestate, his honor erred in refusing this instruction. There was evidence tending to show that intestate was killed by the electrical current, which clearly appears; and the jury should have been charged as requested.

As there will have to be a new trial, and the questions raised by the other exceptions may not again arise, we think it unnecessary to discuss them.

New trial.

Montgomery, J., dissents.

If Electric Companies Fail to Insulate Their Wires Properly, as required by municipal ordinance, and one on a roof engaged in work requiring him to risk coming in contact with the wires is injured, he is entitled to damages, and no presumption of contributory negligence will be indulged: Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 32 Am. St. Rep. 348, 11 South. 51; Griffin v. United Electric Light Co., 164 Mass. 492, 49 Am. St. Rep. 477, 41 N. E. 675. It is the duty of such companies to exercise the utmost care to prevent injury to persons coming in contact with their wires, and whether this duty has been performed in a given case is ordinarily for the jury: Perham v. Portland etc. Electric Co., 33 Or. 451, 72 Am. St. Rep. 730, 53 Pac. 14, 24. See, further, Brown v. Edison etc. Co., 90 Md. 400, 78 Am. St. Rep. 442, 45 Atl. 182; Brush Elec. Light etc. Co. v. Lefevre, 93 Tex. 604, 77 Am. St. Rep. 898, 57 S. W. 640.

SMITH V. WILMINGTON AND WELDON R. R. CO.

[129 N. C. 173, 39 S. E. 805.]

MASTER AND SERVANT.-THE MODE OR SYSTEM IN THE EXECUTION OF WORK lies exclusively within the discretion and will of the master, over which the servant has no control, and the master is not liable to him for personal injuries received, although the master might have adopted a safer method. (p. 742.) MASTER AND SERVANT.-THE TEST OF A MASTER'S LIABILITY is not the danger of the employment, but the neglect of the master in the duty which he owes the servant. (p. 742.)

MASTER AND SERVANT-WARNING AGAINST OBVIOUS RISKS.-When the service to be performed is attended with obvious dangers, there is no duty upon the master to warn the servant against it. (p. 742.)

MASTER AND SERVANT-ASSUMPTION OF RISKS.WHEN A SERVANT IS ORDERED TO CHANGE THE METHOD of doing dangerous work to one more dangerous, the danger of both modes being apparent and known to the servant, he assumes all the ordinary hazards naturally incident to the work. (p. 742.)

F. R. Cooper, J. D. and E. W. Kerr, and George E. Butler, for the plaintiff.

Junius Davis and H. L. Stevens, for the defendant.

175 COOK, J. The motion to dismiss made by defendant company in conformity to the rules of the statute ought to have been allowed. The evidence does not show any breach of duty by the employer. There is no suggestion of defects in the tools employed, place of work, or danger in the performance of the work known, or ought to have been known, to the employer and not imparted to the employé-the only contention being that the method was changed.

Plaintiff and Hardison, another employé, were engaged in "blocking" a steel brake-beam-that is, "it was necessary to cut it down from a width of three-quarters inch to a depth of one-sixteenth inch, to let a hanger come down and fit and join on to a cylinder," from which we understand that an incision was necessary to be made in the beam three-quarters inch long and one-sixteenth inch deep to let in the hanger, for it to fit in and join to the cylinder. Plaintiff and his coworker were doing this work in the usual way, by "blocking"—that is, one would hold the chisel upon the beam and the other would strike it straight down with a maul, thus driving it into the beam. After cutting down to the right depth-making an incision at

each end-the beam was turned over and the piece was blocked out, and went down. While so working, defendant's representative, Nelms, ordered that the beam be "chipped" instead of "blocked," saying that the company had ordered these beams chipped out, and he wanted them chipped. It was claimed that blocking weakened the beam. In chipping, one held the chisel upon the place to be cut, and the other struck upon the chisel with the maul, forcing off gradually small pieces at a time, until the desired width and depth were reached. Under the mode of "blocking," the chips or small pieces went directly downward; while under that of chipping, they would "fly off with tremendous force, and you can't tell where they will strike or which way they will go."

176 Plaintiff had been using the maul, but when they changed from blocking to chipping, Hardison relieved plaintiff by taking the maul, and let him hold the chisel. Plaintiff was holding the chisel at an angle, and at the third strike a chip flew off, struck the cuff (which projected from the beam close to the chipping) and bounded back and upward, striking plaintiff in the eye, doing the injury complained of.

When Nelms ordered that the beams be chipped, Hardison replied: "I don't like to chip them out." He replied, "Well, you must chip them," and moved right off. Plaintiff said: "Hardison, what are you going to do?" He replied: "I don't like to chip them out; might be danger getting hurt." Plaintiff said: "Well, we must obey orders or leave." He said: "That's all facts." Plaintiff said: "Let's go to work and chip them out."

It does not appear clearly from plaintiff's evidence, as stated in the record, whether he had ever before done any chipping. In his direct examination he says: "This was the first one he had ever done so; prior to that had always blocked them." In his cross-examination he said: "Had to handle castings, and sometimes, when rough, chipped some smooth. Chips fly in chipping castings; some danger in it. Chipped castings, off and on, all the time. The steel beams came into use after that." However, it is clear that he had not theretofore chipped any steel beams. Plaintiff also testified that he had no time to reflect or think about it when the order to chip was given. He was told to do it, and he did it; and if he had, it would have done no good. It was obey your orders or be discharged.

There was evidence showing that the chipping of castings was of frequent occurrence, and that chipping them was more dangerous than chipping steel; that castings were more brittle and would break up into more pieces; while steel was tougher and more likely to be in one piece at a time.

177 Defendant company claimed that "blocking" weakened the beam, and therefore wanted the incision made by chipping which, as it claimed, did not. In other words, it was how the work should be done, and not what should be done in doing it. The mode or system in the execution of work lies exclusively within the discretion and will of the master over which the servant has no control; and the master is not liable to him for personal injuries received, although the master might have adopted a safer method: 3 Elliott on Railroads, sec. 1289.

Plaintiff, as it appears, was a man of intelligence and an experienced workman. For some considerable time he had been employed in the shops of defendant company, where the beams had been chipped as well as blocked; whether upon castings or steel it was not material, as the process was the Bame. The danger and hazard of both modes or systems were apparent to plaintiff, and when he changed the work from one to the other, he assumed all the ordinary hazards naturally incident to the work. In Myers v. W. C. De Pauw Co., 138 Ind. 590, 38 N. E. 377, it is held that the fact that the service is a dangerous one adds nothing to the liability of the master for injuries resulting from the natural and ordinary incidents of the undertaking. The test is not the danger of the employment, but the neglect of the master in the duty which he owes the servant. When the service to be performed is attended with obvious dangers, there is no duty upon the master to warn the servant against it. And in Turner v. Goldsboro Lumber Co., 119 N. C. 387, 26 S. E. 23, it is held that if a servant has equal knowledge with the master of the dangers incident to the work, and has sufficient discretion to appreciate the peril, his continuance in the employment is at his own risk.

Plaintiff contends that he did not have time to reflect— "Hadn't given thought to danger of chipping; had no time to reflect or think about it." He does not contend that he did 178 not know that the chipping mode was dangerous, and it does not seem to us that he brings himself within the rule of sudden risk, undertaken in response to an order which must be executed speedily without having time to take in the situation.

An order to do a dangerous act in the performance of a duty (as was the case in Shadd v. Georgia etc. R. R. Co., 116 N. C. 968, 21 S. E. 554, and also in Halton v. Southern R. R. Co., 127 N. C. 255, 37 S. E. 262, is not involved in this case; it was an order to change the system of doing the work. In making this change, no emergency existed. Plaintiff could foresee the possibility of danger as well as the employer. It was obvious to him that the chips would have to escape, and, being an experienced man, must, indeed ought, to have known that violent blows by the maul would hurl them off with great force and in various directions. But the real cause of the injury was not by a chip flying from the chisel held by plaintiff, but by one which rebounded from the cuff, which was very near and projected from the beam. The possibility that a chip would strike the cuff and thence rebound and strike plaintiff's eye depended upon numerous contingencies-the angle at which the chisel was held with reference to the cuff; the distance of plaintiff's eye from the cuff; the position of his head above the cuff with the relation to the position of the chisel upon the beam, whether squarely or diagonally across; the force of the blow by the maul and the shape of the chip which struck the cuff. It is hardly probable that a similar result under like circumstances could be accomplished again, even by design-certainly, it was not done by either of the two licks first given.

From all the evidence in the case, we are unable to see any breach of duty by defendant company to plaintiff. In accepting the employment in the shops, plaintiff assumed the ordinary risks and dangers incident to the work to be done on the beams, and being accidentally injured, the burden must be borne himself.

Error.

An Employe Assumes the Risk of an obvious danger connected with his employment: Lamson v. American Axe etc. Co., 177 Mass. 144, 83 Am. St. Rep. 267, 58 N. E. 585; Brown v. Electric Ry. Co., 101 Tenn. 252, 70 Am. St. Rep. 666, 47 S. W. 415. The measure of a master's duty to his servants is the care required by the ordinary usage of the business. If a servant, aware of the risks and dangers incident to the business thus conducted, sustains an injury, he is not entitled to recover, unless the master is otherwise negligent: Omaha Bottling Co. v. Theiler, 59 Neb. 257, 80 Am. St. Rep. 673, 80 N. W. 821. But see Starr v. Kreuzberger, 129 Cal. 123, 79 Am. St. Rep. 92, 61 Pac. 641.

A Master is not Required to Give Warning of Dangers known to the servant, or which are so obvious that by the exercise of care he could have known: Newbury v. Getchel etc. Co., 100 Iowa, 441, 62 Am. St. Rep. 582, 61 N. W. 743; Moore Lime Co. v. Richardson,