ClarKSON, J.
Rules of Practice in the Supreme Court, 192 N. C., p. 853, part Rule 28, is as follows: “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.”
The exceptions to the evidence stated in the statement of case under the foregoing rule will be taken as abandoned. These exceptions are not assigned as error in appellant’s brief, and the rule ignored.
On a motion to nonsuit, the evidence is to be taken in the light most favorable to plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.
The first contention made by defendant Tallassee Power Company: “Was there sufficient evidence to connect Tallassee Power Company with the accident by showing that it owed the plaintiff any duty whatever?” We think there was more than a scintilla of evidence, and sufficient to be submitted to the jury. The evidence is circumstantial in its nature. In reference to such evidence, it is frequently argued that one twig is easily broken, but another is added, then another, and the whole together is hard to break. The twigs standing alone are weak, together strong, so with circumstantial evidence. “An old man on the point of death summoned his sons around him to give them some parting advice. He ordered his servants to bring in a faggot of sticks, and said to his eldest son: ‘Break it.’ The son strained and strained, but with all his efforts was unable to break the bundle. The other sons also tried, but none of them was successful. ‘Untie the faggots,’ said the father, ‘and each of you take a stick.’ When they had done so, he called out to them: ‘Now
break/ and each stick was easily broken. ‘You see my meaning/ said their father. Union gives strength.” iEsop’s Fables.
The Tallassee Power Company, H. F. Stark, and Will Dereberry are all sued as joint
tort feasors.
In doing work, boring a tunnel, or any class of work, as a matter of common knowledge, this can be done by parties working together or as independent contractors.
What are the circumstances in the present action connecting defendant Tallassee Power Company with carrying on the work? As the exceptions are abandoned, the evidence: (1) A tunnel was being bored through the mountain to connect Cheoah and Tennessee Eivers. The tunnel started at defendant Tallassee Power Company’s dam. The Tallassee Power Company was building that dam. What was the dam for? To force the water into the tunnel being built — the water, when forced through the tunnel, flows or empties into the Tennessee Eiver above another dam, the Tapoco Dam. This dam also is owned by defendant Tallassee Power Company. This tunnel being built with a flume is continuous when completed and connects the two dams of defendant. (2) The Tallassee Power Company had trains which had “Tallassee Power Company” on them. These trains ran from Tapoco to the defendant Tallassee Power Company’s dam, and carried employees to this tunnel to their work. “I never saw any employees get passes.” (3) Plaintiff offered in evidence part of the pleading-complaint in suit of E. G. Ledford by his next friend against H. E. Stark, Tallassee Power Company, and others, charging that the defendant Tallassee Power Company was engaged in building a power dam and drilling and constructing a tunnel between the Cheoah and Tennessee rivers — the same tunnel in which plaintiff sustained his alleged injuries. In answer to this charge, defendant Tallassee Power Company admits it is engaged in building a power dam, “but it is denied that it
individually
is constructing a tunnel through the mountain, as alleged.” The implied admission is that it is not
individually
done by it, but in conjunction with others. The pleading was competent, although in another case — a declaration of the party. 22 C. J., sec. 374 (3);
Bloxham v. Timber Corp.,
172 N. C., 37;
Alsworth v. Cedar Works,
172 N. C., p. 17;
Pope v. Allis,
115 U. S., p. 353.
The twigs altogether, the circumstantial evidence taken together, is sufficient to be submitted to the jury.
Hancock v. Southgate,
186 N. C., p. 281.
The second position taken by defendant Tallassee Power Company: “Does the- verdict, absolving the' direct employer from liability, also absolve Tallassee Power Company, even if found to have been connected with the work ?”
In the present action, plaintiff relies not only on the negligent order of Will Dereberry, the superintendent, in ordering plaintiff into the poisonous monoxide gas in the tunnel, but also that the defendant Tallassee Power Company did not use due or reasonable care in regard to the place plaintiff was to work.
As stated in
Riggs v. Mfg. Co.,
190 N. C., at p. 258, citing numerous authorities: “It is well settled in this State ‘That an employer of labor in the exercise of reasonable care must provide for his employees a safe place to do their work, and supply them with machinery, implements and appliances safe and suitable for the work in which they are engaged, and keep such implements, etc., in safe condition as far as this can be done by the exercise of proper care and supervision.’ ”
Robinson v. Ivey,
193 N. C., 805.
The jury could have excused the defendants, other than the Tallassee Power Company, on the negligent order of Will Dereberry, and rendered the verdict on the failure to use due or reasonable care in regard to the place plaintiff was required to do his work.
Connor, J.,
in
Nichols v. Fibre Co.,
190 N. C., at p. 5, well says: “Liability of the master may be either primary, as arising from injuries caused by breach of duty which the master owes, and which he cannot delegate, or secondary, as arising from the maxim
qui facit per alium facit per se.
Where several grounds of liability are alleged, proof of one will be sufficient to authorize a recovery.’ 20 R. C. L., and cases cited in note.”
39 C. J., sec. 1602, at p. 1368, lays down the principle thus: “The foregoing principles have no application except in cases where the liability of the master is based solely on the wrongful acts of the servant who is acquitted. If the liability is not so based, a finding that the act of the particular servant was not wrongful does not prevent the rendition of a verdict against the master on the acts of other servants shown to be wrongful, and for which the master is liable on the doctrine of
respond-eat superior.
So, a verdict against the master and an acquittal of the servant will be sufficient to sustain a judgment against the master where the act resulting in the injury complained of was committed under the express command of the master, or where the master and servant are sued jointly for injuries resulting from the negligence of both, and there is evidence of negligence on the part of the master distinct from the alleged negligent act of the servant. In these circumstances, a verdict of acquittal of the servant is not inconsistent with a verdict holding the master liable, and does not vitiate it.”
The third position taken by Tallassee Power Company, that there was no evidence of negligence on its part.
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ClarKSON, J.
Rules of Practice in the Supreme Court, 192 N. C., p. 853, part Rule 28, is as follows: “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.”
The exceptions to the evidence stated in the statement of case under the foregoing rule will be taken as abandoned. These exceptions are not assigned as error in appellant’s brief, and the rule ignored.
On a motion to nonsuit, the evidence is to be taken in the light most favorable to plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.
The first contention made by defendant Tallassee Power Company: “Was there sufficient evidence to connect Tallassee Power Company with the accident by showing that it owed the plaintiff any duty whatever?” We think there was more than a scintilla of evidence, and sufficient to be submitted to the jury. The evidence is circumstantial in its nature. In reference to such evidence, it is frequently argued that one twig is easily broken, but another is added, then another, and the whole together is hard to break. The twigs standing alone are weak, together strong, so with circumstantial evidence. “An old man on the point of death summoned his sons around him to give them some parting advice. He ordered his servants to bring in a faggot of sticks, and said to his eldest son: ‘Break it.’ The son strained and strained, but with all his efforts was unable to break the bundle. The other sons also tried, but none of them was successful. ‘Untie the faggots,’ said the father, ‘and each of you take a stick.’ When they had done so, he called out to them: ‘Now
break/ and each stick was easily broken. ‘You see my meaning/ said their father. Union gives strength.” iEsop’s Fables.
The Tallassee Power Company, H. F. Stark, and Will Dereberry are all sued as joint
tort feasors.
In doing work, boring a tunnel, or any class of work, as a matter of common knowledge, this can be done by parties working together or as independent contractors.
What are the circumstances in the present action connecting defendant Tallassee Power Company with carrying on the work? As the exceptions are abandoned, the evidence: (1) A tunnel was being bored through the mountain to connect Cheoah and Tennessee Eivers. The tunnel started at defendant Tallassee Power Company’s dam. The Tallassee Power Company was building that dam. What was the dam for? To force the water into the tunnel being built — the water, when forced through the tunnel, flows or empties into the Tennessee Eiver above another dam, the Tapoco Dam. This dam also is owned by defendant Tallassee Power Company. This tunnel being built with a flume is continuous when completed and connects the two dams of defendant. (2) The Tallassee Power Company had trains which had “Tallassee Power Company” on them. These trains ran from Tapoco to the defendant Tallassee Power Company’s dam, and carried employees to this tunnel to their work. “I never saw any employees get passes.” (3) Plaintiff offered in evidence part of the pleading-complaint in suit of E. G. Ledford by his next friend against H. E. Stark, Tallassee Power Company, and others, charging that the defendant Tallassee Power Company was engaged in building a power dam and drilling and constructing a tunnel between the Cheoah and Tennessee rivers — the same tunnel in which plaintiff sustained his alleged injuries. In answer to this charge, defendant Tallassee Power Company admits it is engaged in building a power dam, “but it is denied that it
individually
is constructing a tunnel through the mountain, as alleged.” The implied admission is that it is not
individually
done by it, but in conjunction with others. The pleading was competent, although in another case — a declaration of the party. 22 C. J., sec. 374 (3);
Bloxham v. Timber Corp.,
172 N. C., 37;
Alsworth v. Cedar Works,
172 N. C., p. 17;
Pope v. Allis,
115 U. S., p. 353.
The twigs altogether, the circumstantial evidence taken together, is sufficient to be submitted to the jury.
Hancock v. Southgate,
186 N. C., p. 281.
The second position taken by defendant Tallassee Power Company: “Does the- verdict, absolving the' direct employer from liability, also absolve Tallassee Power Company, even if found to have been connected with the work ?”
In the present action, plaintiff relies not only on the negligent order of Will Dereberry, the superintendent, in ordering plaintiff into the poisonous monoxide gas in the tunnel, but also that the defendant Tallassee Power Company did not use due or reasonable care in regard to the place plaintiff was to work.
As stated in
Riggs v. Mfg. Co.,
190 N. C., at p. 258, citing numerous authorities: “It is well settled in this State ‘That an employer of labor in the exercise of reasonable care must provide for his employees a safe place to do their work, and supply them with machinery, implements and appliances safe and suitable for the work in which they are engaged, and keep such implements, etc., in safe condition as far as this can be done by the exercise of proper care and supervision.’ ”
Robinson v. Ivey,
193 N. C., 805.
The jury could have excused the defendants, other than the Tallassee Power Company, on the negligent order of Will Dereberry, and rendered the verdict on the failure to use due or reasonable care in regard to the place plaintiff was required to do his work.
Connor, J.,
in
Nichols v. Fibre Co.,
190 N. C., at p. 5, well says: “Liability of the master may be either primary, as arising from injuries caused by breach of duty which the master owes, and which he cannot delegate, or secondary, as arising from the maxim
qui facit per alium facit per se.
Where several grounds of liability are alleged, proof of one will be sufficient to authorize a recovery.’ 20 R. C. L., and cases cited in note.”
39 C. J., sec. 1602, at p. 1368, lays down the principle thus: “The foregoing principles have no application except in cases where the liability of the master is based solely on the wrongful acts of the servant who is acquitted. If the liability is not so based, a finding that the act of the particular servant was not wrongful does not prevent the rendition of a verdict against the master on the acts of other servants shown to be wrongful, and for which the master is liable on the doctrine of
respond-eat superior.
So, a verdict against the master and an acquittal of the servant will be sufficient to sustain a judgment against the master where the act resulting in the injury complained of was committed under the express command of the master, or where the master and servant are sued jointly for injuries resulting from the negligence of both, and there is evidence of negligence on the part of the master distinct from the alleged negligent act of the servant. In these circumstances, a verdict of acquittal of the servant is not inconsistent with a verdict holding the master liable, and does not vitiate it.”
The third position taken by Tallassee Power Company, that there was no evidence of negligence on its part. There was a conflict in the evidence as to how many feet had been tunneled into the mountain when the
injury was alleged to have occurred. Tbe injury is alleged to have taken place on 12 August, 1926. The witness J. H. Emery testified that he left the tunnel on 12 July, 1926, about one month before the injury. “When I left, the tunnel must have been something like 800 to 1,000 feet from the mouth to its head. There was no shaft opening to let in air except the main entrance.” Will Dereberry, defendant’s witness, testified : “As a usual rule, w,e drive a tunnel as far back as we can handy without using any ventilation. They don’t usually use any ventilation until they drive the tunnel 1,000 or 1,500 feet back.” This testimony was in corroboration of Emefy’s testimony that ventilation was used after the tunnel was 1,000 feet. There was evidence
pro
that the ventilation at the depth plaintiff was working was foul and bad, and
contra.
In 39 C. J., sec. 488, the rule is laid down as follows: “It is the common-law duty of the operator to use ordinary care to furnish sufficient ventilation in the mine for the safety of his employees.”
Robinson v. Ivey,
193 N. C., at p. 813.
In
Hall v. Chair Co.,
186 N. C., at p. 470, it is said: “Defense is interposed chiefly upon the ground that the machine was very simple; that the danger, such as it was, was open and obvious, and that the plaintiff assumed the risk of his injury. There was also a plea of contributory negligence. In fact, the pleas of assumption of risk and contributory negligence were both submitted under the second issue; and this, under authority of
Hicks v. Mfg. Co.,
138 N. C., p. 333, is a matter which must be left largely to the legal discretion of the presiding judge.”
In
Fleming v. Utilities Co.,
193 N. C., at p. 266, it is said: “Instructions must be considered as a whole, and if, as a whole, they state the law correctly, there is no reversible error, although a part of the instruction considered alone may be erroneous.”
Beal v. Coal Co.,
186 N. C., at p. 754.
The briefs of both parties are well prepared and helpful.
Erom a careful consideration of the record, we can find
No error.