ClaexsoN, J.
At tbe close of plaintiff’s evidence tbe defendants made motions for judgment as in case of nonsuit. Tbe motion of tbe Garland defendants was granted. Tbe defendant Standard Garage and Sales Company, Incorporated, introduced evidence and at tbe close of all tbe [20]*20evidence made a motion for judgment as in case of nonsuit. C. _S., 567. This motion was overruled, and in this we can see no error.
It is the well settled rule of practice and accepted position in this jurisdiction, that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will-be taken and considered in its most favorable light for tlio plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.
¥e see no evidence -on the record as to contributory negligence or assumption of risk. There are no facts of record to indicate that the provisions of the North Carolina Workmen’s Compensation Act is applicable (1) to casual employment (2) nor to any private corporation that has regular ly in service less than five employees in the same business within the State. Public Laws 1929, chap. 120, sections 2(b), 14(b).
We do not think the' issues tendered by defendant were the proper ones, and therefore the refusal to submit same by the court below was not error. In regard to the evidence admitted over defendant’s objection, if error, it was not prejudicial. We agree with defendant that “It was a contract for the removal of rubbish”; it is immaterial on the facts in this case what the relationship is termed — independent contractor, master and servant, inviter and invitee, etc. The defendant, Standard Garage and Sale Company, Incorporated, owed a duty to plaintiff, that its alter ego, Isenhour, under the contract with plaintiff, should not without warning to him of the hidden danger, allow and permit him to remove the trash. It is in evidence, on the part of plaintiff, that the alter ego of defendant knew, or in the exercise of due care ought to have known, of the laundry chute hole, a dangerous pitfall, that it was concealed by the trash being thrown over it, and plaintiff was ignorant of its existence, and in the exercise of due care could not discover it.
■ In Bailey Personal Injuries, 2d ed. Yol. 1, part sec. 121, p. 307, the law is stated as follows: “It is a principle universal ly recognized that the care required of a master is such as is commensurate with the danger. Trap-doors, as the designation implies, are at best dangerous traps. Thus, it was held, where a trap-door is maintained in the hall of a building, it is the duty of the master when it is open to provide barriers, or give warning to employees who have occasion to pass in the hall.”
Under negligence — circumstances, implying liability — English Ruling-Cases, Yol. 19, p. 64, is the case of Indenmaur v. Dames, L. R., 2 C. P., 311. In that case it was held: “Upon the premises of the defendant, a sugar-refiner, was a hole or chute on a level with the floor, used for [21]*21raising and lowering sugar to and from the different stories of the building, and usual, necessary, and proper in the way of the defendant’s business. Whilst in use it was necessary and proper that this hole should be unfenced. While not in use, it was sometimes necessary, for the purpose of ventilation, that it should be open. It was not necessary that it should, when not in use, be unfenced; and it might at such time, without injury to the business, have been fenced by a rail. Whether or not it was usual to fence similar places when not in use, did not appear. The plaintiff, a journeyman gas-fitter in the employ of a patentee who had fixed a patent gas-regulator upon the defendant’s premises, for which he was to be paid provided it effected a certain amount of saving in the consumption of gas, went upon the premises with his employer’s agent for the purpose of examining the several burners, so as to test the new apparatus. Whilst thus engaged upon an upper floor of the building, the plaintiff, under circumstances as to which the evidence was conflicting, but accidentally, and, as the jury found, without any fault or negligence on his part, fell through the hole, and was injured: Held, that, inasmuch as the plaintiff was upon the premises on lawful business in the course of fulfilling a contract in which he (or his employer) and the defendant both had an interest, and the hole or chute was from its nature unreasonably dangerous to persons not usually employed upon the premises, but having a right to go there, the defendant was guilty of a breach of duty towards him in suffering the hole to be unfenced.”
Shirley’s Leading Cases in the Common Law, 3d ed. p. 275. In Shirley, supra, the interesting case of Bird v. Holbrook, 4 Bing., 628, is digested as follows: “The defendant, having had some valuable flowers and roots stolen from his garden, which was at some distance from his house, had set a spring-gun. The plaintiff, a young fellow of nineteen, climbed a Avail, during the daytime, in pursuit of the stray fowl of a friend, and got shot. In spite of the plaintiff being thus a trespasser, it Avas held that the defendant was liable in damages. ‘There is no act,’ said Best, O. J., ‘which Christianity forbids, that the law will not reach; if it were otherAvise, Christianity would not be, as it has always been held to be, part of the law of England. I am, therefore, clearly of the opinion that he who sets spring-guns, Avithout giving notice, is guilty of an unhuman act, and that, if injurious consequences ensue, he is liable to yield redress to the sufferer.’ ”
In the annotation of Warner v. Synnes (114 Org., 451), 44 A. L. R., at p. 982-3, we find the following under general discussion: “The ratio decidendi in numerous cases is a doctrine which may be formulated thus: Where the premises on which the stipulated work is executed remain under the control of the principal employer while the contract [22]*22is in course of performance, a servant of the contractor is in tbe position of an invitee, and as such entitled to recover for any injury which he may sustain by reason of the abnormally dangerous condition of the premises or plant thereof, if the evidence shows that the principal employer was, and the servant was not, chargeable with knowledge, actual or constructive, of the existence of that condition.”
In setting out the duty of employer to employee, we find the same well stated in 18 R. C. L., p. 591-2: “A question that has often been under judicial consideration is whether an employer owes to his employees any duty to box, fence, or guard the appliances and machinery in the vicinity of which the work is done. The rule formerly was generally recognized, and is supported by some recent decisions, that the employer, is, in the absence of statute, under no obligation to his employees to affix guards to gearing, shafting and other dangerous moving parts of machinery. No doubt the guarding of some appliances is unnecessary and impracticable, the danger being obvious and avoidable by employees; but public policy in respect of such matters has in recent times undergone a very decided change, and the tendency is to hold the employer negligent in failing to guard all dangerous appliances, especially is this noticeable in the rulings of the late cases.
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ClaexsoN, J.
At tbe close of plaintiff’s evidence tbe defendants made motions for judgment as in case of nonsuit. Tbe motion of tbe Garland defendants was granted. Tbe defendant Standard Garage and Sales Company, Incorporated, introduced evidence and at tbe close of all tbe [20]*20evidence made a motion for judgment as in case of nonsuit. C. _S., 567. This motion was overruled, and in this we can see no error.
It is the well settled rule of practice and accepted position in this jurisdiction, that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will-be taken and considered in its most favorable light for tlio plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.
¥e see no evidence -on the record as to contributory negligence or assumption of risk. There are no facts of record to indicate that the provisions of the North Carolina Workmen’s Compensation Act is applicable (1) to casual employment (2) nor to any private corporation that has regular ly in service less than five employees in the same business within the State. Public Laws 1929, chap. 120, sections 2(b), 14(b).
We do not think the' issues tendered by defendant were the proper ones, and therefore the refusal to submit same by the court below was not error. In regard to the evidence admitted over defendant’s objection, if error, it was not prejudicial. We agree with defendant that “It was a contract for the removal of rubbish”; it is immaterial on the facts in this case what the relationship is termed — independent contractor, master and servant, inviter and invitee, etc. The defendant, Standard Garage and Sale Company, Incorporated, owed a duty to plaintiff, that its alter ego, Isenhour, under the contract with plaintiff, should not without warning to him of the hidden danger, allow and permit him to remove the trash. It is in evidence, on the part of plaintiff, that the alter ego of defendant knew, or in the exercise of due care ought to have known, of the laundry chute hole, a dangerous pitfall, that it was concealed by the trash being thrown over it, and plaintiff was ignorant of its existence, and in the exercise of due care could not discover it.
■ In Bailey Personal Injuries, 2d ed. Yol. 1, part sec. 121, p. 307, the law is stated as follows: “It is a principle universal ly recognized that the care required of a master is such as is commensurate with the danger. Trap-doors, as the designation implies, are at best dangerous traps. Thus, it was held, where a trap-door is maintained in the hall of a building, it is the duty of the master when it is open to provide barriers, or give warning to employees who have occasion to pass in the hall.”
Under negligence — circumstances, implying liability — English Ruling-Cases, Yol. 19, p. 64, is the case of Indenmaur v. Dames, L. R., 2 C. P., 311. In that case it was held: “Upon the premises of the defendant, a sugar-refiner, was a hole or chute on a level with the floor, used for [21]*21raising and lowering sugar to and from the different stories of the building, and usual, necessary, and proper in the way of the defendant’s business. Whilst in use it was necessary and proper that this hole should be unfenced. While not in use, it was sometimes necessary, for the purpose of ventilation, that it should be open. It was not necessary that it should, when not in use, be unfenced; and it might at such time, without injury to the business, have been fenced by a rail. Whether or not it was usual to fence similar places when not in use, did not appear. The plaintiff, a journeyman gas-fitter in the employ of a patentee who had fixed a patent gas-regulator upon the defendant’s premises, for which he was to be paid provided it effected a certain amount of saving in the consumption of gas, went upon the premises with his employer’s agent for the purpose of examining the several burners, so as to test the new apparatus. Whilst thus engaged upon an upper floor of the building, the plaintiff, under circumstances as to which the evidence was conflicting, but accidentally, and, as the jury found, without any fault or negligence on his part, fell through the hole, and was injured: Held, that, inasmuch as the plaintiff was upon the premises on lawful business in the course of fulfilling a contract in which he (or his employer) and the defendant both had an interest, and the hole or chute was from its nature unreasonably dangerous to persons not usually employed upon the premises, but having a right to go there, the defendant was guilty of a breach of duty towards him in suffering the hole to be unfenced.”
Shirley’s Leading Cases in the Common Law, 3d ed. p. 275. In Shirley, supra, the interesting case of Bird v. Holbrook, 4 Bing., 628, is digested as follows: “The defendant, having had some valuable flowers and roots stolen from his garden, which was at some distance from his house, had set a spring-gun. The plaintiff, a young fellow of nineteen, climbed a Avail, during the daytime, in pursuit of the stray fowl of a friend, and got shot. In spite of the plaintiff being thus a trespasser, it Avas held that the defendant was liable in damages. ‘There is no act,’ said Best, O. J., ‘which Christianity forbids, that the law will not reach; if it were otherAvise, Christianity would not be, as it has always been held to be, part of the law of England. I am, therefore, clearly of the opinion that he who sets spring-guns, Avithout giving notice, is guilty of an unhuman act, and that, if injurious consequences ensue, he is liable to yield redress to the sufferer.’ ”
In the annotation of Warner v. Synnes (114 Org., 451), 44 A. L. R., at p. 982-3, we find the following under general discussion: “The ratio decidendi in numerous cases is a doctrine which may be formulated thus: Where the premises on which the stipulated work is executed remain under the control of the principal employer while the contract [22]*22is in course of performance, a servant of the contractor is in tbe position of an invitee, and as such entitled to recover for any injury which he may sustain by reason of the abnormally dangerous condition of the premises or plant thereof, if the evidence shows that the principal employer was, and the servant was not, chargeable with knowledge, actual or constructive, of the existence of that condition.”
In setting out the duty of employer to employee, we find the same well stated in 18 R. C. L., p. 591-2: “A question that has often been under judicial consideration is whether an employer owes to his employees any duty to box, fence, or guard the appliances and machinery in the vicinity of which the work is done. The rule formerly was generally recognized, and is supported by some recent decisions, that the employer, is, in the absence of statute, under no obligation to his employees to affix guards to gearing, shafting and other dangerous moving parts of machinery. No doubt the guarding of some appliances is unnecessary and impracticable, the danger being obvious and avoidable by employees; but public policy in respect of such matters has in recent times undergone a very decided change, and the tendency is to hold the employer negligent in failing to guard all dangerous appliances, especially is this noticeable in the rulings of the late cases. And, of course, if it can be shown that an injured employee was not informed of or did not appreciate the danger of the unguarded appliance, it is not to be supposed that a recovery will be denied in any jurisdiction.” Boswell v. Hosiery Mills, 191 N. C., at p. 556-7.
The duty of the owner of premises to those who come on them is fully and well stated in Brigman v. Construction Co., 192 N. C., 791, by Brogden, J.; Hughes v. Lassiter, 193 N. C., 651.
In Jones v. R. R., 199 N. C., at p. 4, is the following: “After setting forth in an excerpt from Sweeney v. R. R., 10 Allen, 368, 87 Anno. Dec., 544, the usually applied principle that a licensee who enters on premises by permission only, without enticement, allurement, or inducement held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls, the Court pertinently said: ‘Nor does the application of this principle protect from liability the owner of a lot or a railroad company who^ with knowledge of the user of his property as a pathway across or along it, places without warning to those likely to use the pathway, a new and dangerous pitfall or obstruction.”
We can see no error in the charge of the court below. We think the charge covered the law applicable to the facts. Part of the charge given, which covers the law in the case, is as follows: “Now the .action is based on alleged negligence. Negligence is the failure to do or not to do what an ordinarily prudent person would do or would not do under the circumstances in the case. In other words, negligence is a failure to do [23]*23as a prudent person would do under those particular circumstances or his failure to do what a prudent person would do under those circumstances. Negligence alone, however, would not be sufficient to entitle this plaintiff to recover. If he has only shown negligence on the part of the defendant alone that would not entitle him to recover. Before the plaintiff can recover of the defendant he must prove to your satisfaction, by the greater weight of the evidence, two propositions: First: That he was injured by the negligence of the defendant, as alleged in-the complaint, and secondly, that that particular negligence of the defendant was the proximate cause of his injury or damage. Proximate cause is the real cause of the damage and the cause without which it would not have occurred. . . . Now, the duty of the defendant to the plaintiff was, under the circumstances of the evidence, to furnish him a reasonably safe place in which to do his work. That is, not absolutely to furnish him, but to exercise ordinary care in furnishing him with a reasonably safe place to work. If the defendant owed him that duty, and failed to perform that duty it would be guilty of negligence; but, if it performed its duty, it would not. That is to say, if the defendant knew that the hole was there and saw it covered up by the paper and rubbish and did not inform the plaintiff of the condition, why that would be negligence. Or, if the defendant, by the exercise of ordinary prudence and care would have known of the dangerous condition; that the hole was there, and no door over it, but simply papers and trash and rubbish, in that event it would be guilty of negligence. But if the defendant did not know that the hole was there, or by the exercise of ordinary diligence and care it could not have learned it was there, or if the last time he saw it, just before the plaintiff fell through the hole it was covered with a door, then there would be no negligence on his part and would find in favor of the defendant.” In the judgment of the court below, we find,
No error.