The first assignment of error of defendants: “The plaintiff asked the witness, Oscar Ferguson, the following question: T)o you know whether these boys were instructed to have a bucket of water *46 ready cooled and all by tbe time tbe whistle blew so tbey could have it ready to deliver ?’ Tbe witness tben stated tbat ‘tbey were instructed by George Yaincourt to bave fresb water there on tbe job wben tbe wbistle blew; tbat tbey were instructed to bave tbeir water ready wben tbe wbistle blew.’ Tbe defendants contended tbat tbis evidence was hearsay and was incompetent against Champion Fibre Company and C. A. Hildebrand, as George Yaincourt was not in tbeir employ. It was not only incompetent, but was extremely prejudicial to tbe defendants.” Tbe balance of tbe testimony of tbis witness was: “Tbat just before tbe wbistle blew on tbis occasion, witness saw tbe boys start; tbat be did not see them after tbey got on tbe plank; tbat tbey were right, close to tbe end of tbe plank, to tbe best of bis knowledge tbey were about three or four feet of tbe plank wben witness saw them last; tbat be beard tbe boy boiler; tbat just before be beard him boiler be saw tbe exhaust steam; tbat wben tbe steam gushed out it would blind one and bit one until be couldn’t see or realize where be was going; tbat tbe plank was not fastened down.” It was in evidence tbat tbe Fowler boy, a few minutes before one o’clock, with another boy also a “water boy,”- was going to get tbe buckets to bave tbe water ready for tbe workmen.

The contention of defendants was tbat Ralph Fowler bad a stick and was playing with it in tbe water, tbat be was not in tbe line of duty; tbat tbe plank was not used as a walkway — other ways were provided; tbat tbe pit bad planks around it which prevented anyone from getting in there unless tbey climbed under or over. Walter Price, testified: Tbat no way was left to walk across tbe steam; “tbat there was a bank on one side and building on tbe other; tbat tbe planks prevented anyone from getting in there unless they climbed under or over; tbat Mr. Hildebrand and witness (Price) and George Yaincourt and Owens were present wben tbis was done; tbat witness does not know if tbe planks were put back, and tbat be did not see tbe rails after tbey were torn down.” George Yaincourt was tbe foreman of tbe whole concrete crew. Witness for defendant, Walter Price’s evidence showed Yaincourt was with tbe bead men in putting up railings around tbe pit. Tbis evidence tended to show tbat Yaincourt and Hildebrand were in a common employment, Hildebrand was foreman and superintendent of Champion Fibre Company pipe fitters department. W. E. Miller testified for plaintiff, in part, tbat tbe Fowler boy bad a stick in bis band “He walked up in ten feet of tbe pond and be threw bis stick down and walked out on tbe board; and witness saw a gush of steam come and tbe boy hollered ; tbat be bad gone about four or five feet out on tbe board before tbe steam gushed up; tbat tbe next witness saw was wben tbey got him pulled out on tbe other side; and it was two minutes to one. . . . Tbat witness did not see them any more after tbe steam came up until be *47 was pulled out of tbe pool, that when they pulled his clothes off the hide rolled down with them, just torn all to pieces; that witness knew of the instructions given the boys about having water at one o’clock, that George Yaincourt gave them these instructions, that he told the boys to always have their water cold for one o’clock ready to start out when the whistle blew, and he told the boys to go to the ice plant and get ice through the noon hour if they had time; that the order was given the boys four or five days before Ealph was injured. On cross-examination, brought out by defendants, witness testified: “That he heard Yaincourt tell Fowler and the other boy to always have the water ready by one; that they were water carriers and went on duty at one. . . . That the plank would shake up and down; that the boy was as big as witness; that witness went across in perfect safety; that witness doesn’t know what caused the plank to turn when they went on it, but supposed the steam gushed out and they couldn’t see; that witness saw Fowler with a stick, but threw it down before he went out there; that witness did not see him play in the water with a stick after he got on the plank; that witness saw him with a stick but he threw it down before he went on the plank, and didn’t see him pick it up again.”

The defendants, on cross-examination, elicited the same evidence as plaintiff on direct examination. There were numerous witnesses who testified that the plank was used as a walkway across the pit. We think the evidence competent, and we cannot, under the facts, hold it prejudicial.- The assignment of error cannot be sustained.

The next assignment of error is to the refusal of the court below-to grant motion for judgment as in case of nonsuit at the close of plaintiff’s evidence and at the close of all the evidence. “On a motion to non-suit, 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. Lindsey v. Lumber Co., 189 N. C., 119; and cases cited; Barnes v. Utility Co., ante, 382.” Fleming v. Holleman, 190 N. C., 452.

From a careful review there was abundant evidence to go to the jury to sustain plaintiff’s contentions. This assignment of error cannot be sustained.

The main contention .and assignment of error by defendants is to the failure of the court “to state in a plain and correct manner the evidence given in the case and declare and explain the law arising thereon,” as required by C. S., 564.

In Nichols v. Fibre Co., 190 N. C., 1, this Court in granting a new trial, said: “It is of course, elementary that while the jury must determine the facts from the evidence, it is both the function and duty of the judge to instruct them as to the law applicable to the facts. The *48 answers to the issues submitted in this ease are not to be determined altogether by the facts; each issue involved matters of law, and the jury should have been instructed by the judge as to the law. While counsel may argue the law of the ease to the jury, both plaintiff and defendant are entitled, as a matter of right, to have the judge declare and explain the law arising on the evidence. A failure to comply with the statute must be held as error. The error was not waived in this ease by failure of defendant to request special instructions. An answer to an issue, not supported by evidence or contrary to the evidence is objectionable; an answer determined by the jury, without instructions by the judge as to the law involved, is no less objectionable. Liability for negligence arises from the application of well-settled general principles of law to the facts of specific cases; it is not to be determined solely by the jury; the judge has his function and his duty; actionable negligence is a mixed question of law and fact — no less of law, to be determined by the judge, than of fact, to be determined by the jury.”

We have critically examined the charge of the court below. The court defined burden of proof and was correct as to the burden in reference to the issues submitted. The court defined actionable negligence, proximate cause and contributory negligence. We think the court complied with the statute and stated in a plain and correct manner the evidence in the case and declared and explained the law arising thereon. Davis v. Long, 189 N. C., 129. As to the issues of damages, the court below gave the very prayers asked for by defendants and fully sustained by the decisions of this Court.

It seems in this case, the charge of the court below and the contentions were given very favorably for the defendants. We can see no prejudicial or reversible error from the record.

No error.