violation of an ordinance is negligence per se, one, at least, of the instructions was right, and the general exception is bad. Singleton v. Roebuck, 178 N. C. 201, 100 S. E. 313; State v. Bryant, 178 N. C. 702, at page 708, 100 S. E. 430; State v. Ledford, 133 N. C. 714, 45 S. E. 944, and Nance v. Telegraph Co., 177 N. C. 313, 98 S. E. 838, where the cases are collected; Harris v. Harris, 178 N. C. 7, 100 S. E. 125. Co., 27 Ill. App. 200, Terminal R. Asso. v. [exception fails. As we have held that the Larkins, 112 Ill. App. 366, and Klein v. Beeten, 169 Wis. 385, 172 N. W. 736, 5 A. L. R. p. 1237, which were cited by the defendant, can be of no avail to it, for here there was evidence as to the cause of the fire, or from which the jury might well infer what was the cause of it; and, as to Kress v. Lane (Iowa) 171 N. W. 571, 5 L. R. A. p. 1376, if it is in line with our decisions, it differs from this case, as the evidence in this record does not show a wanton act, committed by a third person in causing the fire, but a negligent act of the defendant in exposing the volatile vapors of the gasoline to be ignited and exploded at any time, when it was most probable that such a thing would happen, as the stream flowed towards the railroad, and even under the trestle, where it was constantly within reach of falling sparks or live cinders. We have so fully discussed the question of the violation of a statute or ordinance being negligence per se, and cited the recent authorities, in the Stone and Newton Cases, that it would be more than useless to pursue the subject any further. The defendant is relying on cases which have been radically modified or overruled. See Leathers v. Tobacco Co., 144 N. C. 330, 57 S. E. 11, 9 L. R. A. (N. S.) 349; Starnes v. Manufacturing Co., 147 N. C. 556, 61 S. E. 525, 17 L. R. A. (N. S.) 602, 15 Ann. Cas. 470. The sixth assignment is the same, in substance, as the one relating to the nonsuit. The judge charged the jury fully and correctly as to proximate cause, and the jury could not have misunderstood him. He linked the negligence and proximate cause together as being necessary to constitute an actionable wrong, and told the jury that negligence by itself was not sufficient to charge the defendant with liability, but that it and proximate cause must coexist, with a causal | connection between them, before an actionable wrong is committed. This disposes of the seventh assignment. [3] The special requests for instructions, as shown in the eighth and ninth assignments, called upon the court to express an opinion upon the facts, and, if intended to ask for a charge upon the law, they were erroneous and properly refused, but the subject has been so fully and copiously discussed as to the violation of the ordinance and its effect that more need not be said, and this applies to proximate cause as again brought forward in the ninth assignment, and we also include the tenth assignment, which relates to the same matter. [4] The eleventh assignment embraces two propositions, violation of ordinance (section 412), and negligence per se, and the exception is general and contrary to the well-settled rule. They both must be erroneous, or the The other exceptions are formal. We have considered the assignments of error seriatim because of the importance of the case, and our desire to emphasize our decision upon the questions involved and not to overlook any of them. We need not refer to the maxim res ipsa loquitur, and the extent to which it applies to the case, as we have discussed it fully in the other cases. [5, 6] There was sufficient evidence to carry the case to the jury. If previously, by the exercise of ordinary care such an accident as occurred in this instance was prevented, it would seem to follow that the jury might consider the fact, in determining, in connection with the other facts and circumstances, whether the defendant was careful this time. They might well have inferred, from the flow of the gasoline before there was any explosion, that someone of the persons who was at the plant the evening before, by inadvertence, and not of course by design, had left open one of the valves, faucets, or vents, as they may be called, or that a spigot or plug had been removed and not replaced. This may be said without accusing any one of a wrong except that involved in negligence. Such a thing has often been done, and no one found to admit it, because, perhaps, the very act of negligence would show a diversion of his attention at the time from what he was doing, so that he might honestly, and in good faith, believe that it was not his fault. That is the most reasonable theory in regard to this fateful accident, fraught with such a destruction of property and injury to so many persons. It may be the thoughtless act that spread disaster all about in this populous city, hard by a large normal school, where so many were gathered, but the law does not excuse thoughtlessness, and especially where the situation was such as to call for the highest degree of care. The presence of a watchman was clearly demanded under such circumstances, and if he had been faithful to his duty this suit would not be here. [7] The license of a board, even if complied with in its requirements, and there was no ordinance to expressly forbid it, would not excuse the leaving of a requisite duty unperformed. No error. (105 S.E.) 2. Master and servant 150 (2)-Rule as to duty to instruct servant doing simple work inapplicable. The rule that, where an employee is allowed to do simple work in his own way, instructions from his employer are unnecessary, does not apply, if the employer has not furnished a reasonably safe place to do the work, and the employee has been injured by his default in this respect. 3. Master and servant 107 (2) - Injuries from unsafe lumber dock actionable. If a lumber company furnished rotten dock and insufficient help for servant to do the work properly, and if in consequence of such failure such servant was compelled to go around a derailed handcar, and walk where lumber was carelessly piled, and while in the exercise of care himself stepped on a pile of lumber, which slipped, the company was liable for injuries resulting. 9. Master and servant 270(1)—Evidence of prior suit admissible to show notice of physician's incompetency. In an action by a servant for negligence in selecting a physician lacking skill, evidence of a prior suit against the master, showing that such physician was lacking in skill, although not competent as substantive evidence of the physician's incompetency, nor of negligence itself, was admissible to show notice to the master that the physician was considered as unskillful; some latitude being necessarily allowed in proof as to such notice. 10. Depositions tent. 13-Of sick person compe unable to attend court, her deposition was comWhere subpoenaed witness was sick and petent, under Pell's Revisal, § 1645, subsec. 4. 11. Appeal and error 992-Finding, on admitting deposition, that witness was unable to attend court binding. of witness, that witness was sick and unable Findings of judge, on admitting deposition to attend court, and had been duly served with a subpoena, are binding on appeal. 12. Depositions 109-No complaint of admission of deposition, in absence of written exception. It cannot be said that admission in evidence of deposition of witness was error, where there were no written exceptions to the deposition. 13. Evidence 127(1)-Testimony of injured servant as to what he told physician competent. In an action by servant against master to recover damages by reason of unskillfulness of physician employed by master, testimony of plaintiff as to what he told the physician as to the condition of his arm, when the latter examined it and changed splints put there by another physician, was admissible as part of the res gestæ, and also as explanatory of his physical condition; the statement having been made to the physician at the time the latter was trying to discover what was that condition. 6. Master and servant 285(5)—Cause of 14. Trial 165-Testimony taken as true on injury question for jury. Where there is evidence tending to show that an injured employee did not have a reasonably safe place to work, the question whether it was such a place, or whether the failure to warn him of the danger was proximate cause of the injury, should be submitted to the jury. 7. Master and servant 92(I)-Doctor provided should possess reasonable skill. A master, undertaking to secure a doctor for an injured servant, owes the duty to the servant to see that he has reasonable skill and ability. 8. Master and servant 92(1)-Master held to owe duty to secure physician of reasonable skill. Where master employed a physician, who was paid from the wages of the employees upon the assessment plan, it was the duty of the master to see that the physician selected was one of reasonable skill and ability. motion to nonsuit. Appeal from Superior Court, Yancey County; Harding, Judge. Action by McKinley McMahan against the Carolina Spruce Company. Judgment for plaintiff, and defendant appeals. No error. Plaintiff states two causes of action, in the first of which he alleges negligence of the defendant in failing to furnish a safe place to work. The defendant required the plaintiff to work on a lumber dock, which was about 12 feet above the ground on a frame of studding, which had been floored and a steel rail track laid on top of this flooring, upon which track a lumber car or truck was operating. Defendant had been shipping lumber from packs alongside of this dock, and had carelessly piled up a lot of lumber and packing strips in a loose way on top of this lumber dock and by the side of the track. The timber in this dock had been permitted to rot, which caused the track upon the same to spread, and the lumber truck to drop down between the rails. In order to get the truck back on the track, it was necessary to prize the same up with timbers, requiring the plaintiff to go around the car on the dock, and to do so he was required to pass over this lumber or packing strips, which slid off to the ground, taking the plaintiff with it, a distance of about 12 feet, when both the bones in his left arm were broken. Plaintiff also alleges an insufficiency of hands to do the work, which required him and his coworker to use the scantling for prizing the car back on the rails. In the second cause of action, the plaintiff alleged that he was injured by the malpractice of defendant's doctor, who failed to treat his arm properly and with ordinary skill, and failed to use the right kind of splint, and thus permitted the bones of his arm to become lapped and out of alignment, and thereby his arm was left badly misshaped and was rendered practically useless. Defendant pleaded a release by the plaintiff, which the latter alleged was fraudulently procured. The other questions in the case will fully appear from the verdict, which, with the answers thereto, is as follows: 1. Was the plaintiff injured by the negligence of the defendant, as alleged in the first cause of action, as set out in the complaint? AnYes. swer: 5. Was the plaintiff at the time of signing the said release a minor, under the age of 21 years? Answer: Yes. 6. Did the defendant engage and employ Dr. D. J. Smith as its physician to treat the plaintiff, as alleged in the complaint? Answer: Yes. 7. Did the defendant negligently furnish an unskilled and incompetent physician and surgeon to give such treatment? Answer: Yes. 8. Was the plaintiff injured by the negligence of the defendant in failing to properly treat plaintiff's injury, as alleged in the complaint? Answer: Yes. 9. What damages, if any, is the plaintiff entitled to recover as the result of negligence, as alleged in the second cause of action? Answer: $4,000. Judgment was entered on the verdict, and the defendant appealed. W. C. Newland, of Lenoir, S. J. Ervin, of Morganton, Merrimon, Adams & Johnston, of Asheville, and Chas. Hutchins, of Burnsville, for appellant. Watson, Hudgins, Watson & Fouts, of Burnsville, for appellee. WALKER, J. (after stating the facts as above). It will be convenient to consider the exceptions in the order of their statement in the record, though they are not so stated in the defendant's brief. [1] As to the first cause of action, we think there was sufficient evidence of the defendant's negligence for the jury. The defendant was required to exercise due care in furnishing a reasonably safe place for plaintiff to do his work, and this it is alleged was not done, as its platform or dock was decayed, so that the rails spread and the hand car fell between the rails. On the day of the injury, the car, because of the rotten condition of the dock, fell between the rails, and it was necessary for plaintiff to secure a scantling from the other side of the track, in order to prize it back to its place. To do this, he was required to go around the car, and while he was walking toward the place where he saw the scantling, he stepped on a pile of lumber which had been taken from the stack and was crossed. It should not have been there, and, besides, it was improperly piled, being crossed, instead of straight. He was short of help, and had to hurry with his work, in order to keep the mill clear of lumber, where it would be in the way if al (105 S.E.) lowed to accumulate. He stepped on the at page 69, 67 S. E. 54. Cases bearing on lumber, and it slipped and slid off, and threw him violently to the ground, because it was piled improperly. It should have been piled straight, instead of crossed, and should have been in the stack and not on the platform. The question of negligence was properly submitted to the jury by the court, under the rule of the prudent man, and also the question of plaintiff's contributory negligence, and they found against the defendant. this question are Steeley v. Lumber Co., 165 N. C. 27, 80 S. E. 963; Nelson v. Tobacco Co., 144 N. C. 420, 57 S. E. 127; Dunn v. Lumber Co., 172 N. C. 129, 90 S. E. 18; Marks v. Cotton Mills, 135 N. C. 290, 47 S. E. 432; West v. Tanning Co., 154 N. C. 44, 69 S. E. 687, and other cases which are cited in Steeley v. Lumber Co., supra. There was no error in submitting the first cause of action to the jury, especially when the principles of law applicable to the case were so lucidly stated in the charge. between them, thus shortening the arm about two inches, and leaving it "very crooked and ugly in appearance, and practically useless." As said in Woody v. Spruce Co., 178 N. C. 592, 101 S. E. 259 (s. c., 176 N. C. 643, 97 S. E. 610): [2-5] This case does not fall within that class where the employee is allowed to do simple work in his own way, without the [7-9] As to the second cause, for malpracnecessity of any instructions from his em- tice in treating the plaintiff, there can be no ployer, because it is presumed in such a case question that there was some evidence which that the work is safe, if properly, done by the tended to establish the charge of unskillfulemployee, by the exercise of his own common ness in the method of treatment, and a failsense and judgment; there being no compli- ure to exercise proper care and to make a cation in the work requiring special instruc- proper diagnosis. There was undoubtedly tions from the employer as to how he should sufficient evidence that defendant knew of do it. But this rule does not apply if the em- the incompetency of the physician. The parployer has not furnished a reasonably safe ticular allegation is that Dr. Smith assisted place to do the work and the employee has by Dr. Aldredge, failed to place the broken been injured by his default in this respect, bones in proper alignment, but left them while in the exercise of due care himself. overlapping each other, and without a union Whether the master has performed his duty, and the servant has performed his, are questions manifestly for the jury to decide. If, in this case, the defendant furnished a rotten platform, or dock, for its servant to work on, and insufficient help for him to do the work properly and safely; if, in consequence of defendant's failure in this respect, plaintiff was compelled to go around the car on a walk, where lumber was wrongly and carelessly piled, and while in the exercise of care himself the plaintiff stepped on the pile of lumber, which slipped from under him and caused him to be thrown from the platform; and the jury found these to be the facts, and that the injury was proximately caused in this way, and by defendant's failure of dutythe verdict was correct in fact and in law. We must hold that there was some evidence from which the jury could infer the necessary facts showing defendant's negligence, and the same may be substantially said of the defendant's contributory negligence. His honor put both questions to the jury according to our approved precedents. It was more a question of fact than one of law. "The defendant owed the duty to the plaintiff, after it had undertaken to secure a doctor for him, to secure one of reasonable skill and ability." There was evidence that Dr. Smith was employed, and paid, from the wages of the employees, upon the assessment plan, to treat them, and the rule just stated, as to defendant's duty in the premises, is the correct one. The evidence of a prior suit to which defendant was a party, and in which he was informed of the physician's lack of skill, was sufficient to charge it with notice of the same on the question of negligence. It was not competent as substantive evidence of the physician's incompetency, nor of negligence itself, but only of notice to the defendant that he was considered as unskillful. Fowle & Son v. Railroad Co., 147 N. C. 491, 61 S. E. [6] The master's duty to furnish a reason- 262; 4 Chamberlayne on Mod. Law of Ev. § ably safe place for the servant to work, and 3230. The information came to the defendant proper machinery and other appliances with under oath, and therefore was most solemnly which he may perform it, is unquestionable. imparted to him; and the jury found that "Where there is evidence tending to show he was incompetent before this transaction. that an injured employee did not have a rea- With these facts within its knowledge, the sonably safe place to work, the defendant should have proceeded more cauquestion whether it was such a place, or tiously. Some latitude is necessarily allowed whether the failure to warn him of the danger was the proximate cause of the injury, should be submitted to the jury. Where more than one inference can be drawn, as to the negligence, or the proximate cause, it is for the jury to determine" which inference is the * in proof as to notice or knowledge. It was held in Woody v. Spruce Co., supra, that while the company was under no obligation to furnish a physician to its employees, when it assumed to do so, the duty arose to exercise due care in selecting him and in continu tions to testimony are so plainly untenable kind of lumber did not belong there, but that we forbear any discussion of them. should have been in the stack, and that he [10-12] The deposition of Mrs. McMahan did the best he could under the circumstances, was competent. The judge found as facts not being aware of the trap that was there, that she was sick and unable to attend court though not intentionally set for him. These, and had been duly served with a subpoena. and other facts of like import, taken in conThese findings are binding upon us. Wille- nection with the rotten platform, and the ford v. Bailey, 132 N. C. 403, 43 S. E. 928; shortage of helpers, made a case of negligence Branton v. O'Briant, 93 N. C. 103; Pell's Re- for the jury to find. Plaintiff properly convisal, § 1645, subsec. 4. There were no writ- tended that he had the right to assume that ten exceptions to the deposition filed. Daven- his employer had so piled the lumber as not port v. McKee, 98 N. C. 500, at page 507, 4 S. to be unsafe for him while in the performE. 545, and cases cited. ance of his duties, and that he had not needlessly exposed him to danger. Cochran v. Young-Hartsell Mills Co., 169 N. C. 57, 85 S. E. 149. The master produced the situation which required the plaintiff to walk over the so; but, having done it, the servant had the right to assume that he could safely walk to the place where he was required to go for the scantling, or whatever he needed, to prize the car back, especially as there was a lack of necessary help to do the work, according to plaintiff's testimony, which we must believe to be true on the motion of nonsuit. Pigford v. Railroad, 160 N. C. 93, 75 S. E. 860, 44 L. R. A. (N. S.) 865. As to the paper containing the ages, including that of the plaintiff, it was at least corroborative, and was properly admitted on that ground, if for no other reason. It was offered to prove the age of plaintiff and the pile of lumber, and was negligent in doing want of capacity to execute the release. On the question of fraud in procuring the release, the court's instructions to the jury were fully sufficient, and conformed to our precedents, and the same may be said of the general charge on the second cause of action. [13] The testimony of plaintiff as to what he told Dr. Smith as to the condition of his arm, when the doctor examined it and changed the splints put there by Dr. West, was clearly admissible as part of the res gestæ, [15] There was evidence of fraud in proand also as explanatory of his physical con- curing the release and of a want of consideradition; the statement having been made to tion. There was actual misrepresentation his physician at the time the latter was try- here, notably as to plaintiff's condition, which ing to discover what was that condition. He was calculated to mislead him and cause him called the doctor's attention to the knot on to surrender his right of recovery for a mere his arm bone, and was told that it was not serious, but merely a callous formation on the bone, and that it would be all right, which proved to be untrue. The doctor advised him that he could go back to his work, whereas the arm became so bad, and was so crooked and disfigured, that he was ashamed to exhibit it, even to the doctor who treated it. There was evidence that the arm was not treated according to the approved methods of surgical science, and did not receive the proper attention, and for these reasons it was left in its present condition, and will never improve or return to its normal shape. The The charge was plainly correct as to the court, in the charge, expressly confined the burden of proof. Woody v. Spruce Co., 178 testimony in regard to the Woody suit against N. C. 592, 593, 101 S. E. 258 (s. c., 176 N. C. the defendant to the question of notice or 644, 97 S. E. 610). No damages were claimed knowledge of Dr. Smith's incompetency, and after December 1, 1917, and the judge inpositively instructed the jury not to consider structed the jury not to award any, which it as substantive evidence of the fact. resulted from any treatment of Dr. Smith after that date, as the defendant was protected against any such award of damages by its contract with the plaintiff. The charge was correct as to the other damages, when the entire charge is considered. song, almost nothing as compared with the extent of his injuries and his real damage. Causey v. Railroad, 166 N. C. 5, at page 10, 81 S. E. 917, at page 919 (L. R. A. 1915E, 1185. Ann. Cas. 1916C, 707), where it is said (quoting from Hume v. U. S., 132 U. S. 411, 10 Sup. Ct. 136, 33 L. Ed. 393): "It [fraud] may be apparent from the intrinsic nature and subject of the bargain itself, such as no man in his senses, and not under delusion, would make, on the one hand, and as no honest and fair man would accept, on the other." [14] The motion to nonsuit was properly overruled. Upon such a motion the testimony must be taken as true (Reid v. Hans Rees' Sons Co., 155 N. C. 230, 71 S. E. 315; Woody v. Spruce Co., 176 N. C. at page 643, 97 S. E. 610), and when so regarded there was [16] We are of the opinion that the jury ample evidence to support the verdict. In did not give any damages because of anything this connection we may well repeat, that Dr. West did, as it appears that his treatplaintiff's testimony of how he was hurt, if ment was satisfactory, according to plaintiff's believed, shows that the lumber on the dock own testimony, and from all that appears he was so carelessly piled as to cause it to give was competent and capable. The injury done |