
90 S.E.2d 727 (1956)
243 N.C. 337
Esther WILLIAMSON, Administratrix of the Estate of Zollie Williamson, Deceased,
v.
Robert L. CLAY.
No. 676.
Supreme Court of North Carolina.
January 13, 1956.
*731 Hofler & Mount and Claude Bittle, Durham, for plaintiff, appellee.
M. Hugh Thompson and Bryant, Lipton, Strayhorn & Bryant, Durham, for defendant, appellant.
BOBBITT, Justice.
While plaintiff alleged that "the defendant was negligent in directing plaintiff's intestate to weld upon an automobile in a small enclosed shed which had inadequate room or ventilation," and further alleged that defendant was negligent "in his failure to assist the plaintiff's intestate in extinguishing his flaming clothing which resulted from the explosion," the evidence is insufficient to support either of these allegations.
Decision, in relation to judgment of nonsuit, turns upon the sufficiency of the evidence to support these allegations: "That the paint can which the defendant filled with water and threw upon the small blaze on the upholstery of the door post on which the deceased was working contained about two inches of gasoline which the defendant did not remove; * * * that the defendant knew or had reason to know that the paint can which he filled with water and threw the contents upon the blaze as aforesaid was used for the purpose of washing automobile parts in gasoline and that any liquid which it contained would in all probability be gasoline; * * * that the defendant was * * * negligent in his failure to remove the gasoline from the paint can before filling it with water and throwing it upon the small blaze near the plaintiff's intestate."
Actionable negligence embraces negligence and proximate cause. The elements of each have been clearly defined. Ramsbottom v. Atlantic Coast Line R. R. Co., 138 N.C. 38, 41, 50 S.E. 448; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A.L.R.2d 682. There is no controversy as to these well established rules. The controversy concerns their application to the facts of this case.
In determining its sufficiency for submission to the jury, the evidence, whether offered by plaintiff or by defendant, must be considered in the light most favorable to plaintiff. Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676. If any part of defendant's evidence is more favorable to plaintiff than that offered by him, plaintiff is entitled to the benefit thereof. Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683.
"The law imposes upon every person who enters upon an active course of conduct the positive duty to exercise ordinary care to protect others from harm, and calls a violation of that duty negligence." Ervin, J., in Council v. Dickerson's, Inc., 233 N.C. 472, 64 S.E.2d 551, 553; Prosser on Torts, sec. 32(a).
If defendant knew that the can contained any quantity of gasoline, his act in filling the can and throwing the mixture upon the fire would constitute negligence. It is plain from all the evidence that he acted upon the assumption and in the mistaken belief that the liquid in the can when he picked it up was water. The crux of the matter is whether defendant, the proprietor of the garage and body shop premises, should reasonably have anticipated that the liquid he saw in the can was or might have been gasoline or other explosive or inflammable liquid and whether his failure to pour out the liquid that he saw in the can or his failure to inspect it to find out what it was constituted a failure on his part to use due care under all the circumstances.
According to the testimony of plaintiff's witnesses, defendant, in his statements to them shortly after the fire, did not identify any particular can as the one he had grabbed. Esther Williamson's testimony tends to show that up until 5 May, 1952, *732 a square 5-gallon can with the top cut out had been used for water in which to soak sandpaper. She testified also, as set forth above, that there were some 50 empty cans of various sizes around the garage premises.
Defendant's evidence tends to show that the particular can he grabbed was one that he had used in the body shop for ten years for water in which to soak sandpaper. But, while the several defense witnesses were in accord in their testimony that the can grabbed by defendant was one used for water-sandpaper, testimony of these witnesses differs materially, as set forth above, as to the kind, size and location of the can grabbed or picked up by defendant. Defendant alone refers to seeing sandpaper in the bottom of the can picked up by him.
The testimony of Lane tends to show that gasoline was used for washing automobile parts in the garage. Indeed, it is a matter of common knowledge that in and around a garage and body shop, the use of gasoline and paint thinner is necessary and customary.
The inference is permissible that there were different cans in and about defendant's premises; and that the contents of each can, in the absence of inspection, were known only by the person last using it or by one who observed such use. Of course, the jury could have accepted the defendant's testimony as to the identity of the particular can and its use exclusively as a container in which to soak sandpaper in water; but we do not think the evidence was such that no other reasonable inference or conclusion could be drawn therefrom.
Defendant relies upon Mills v. Waters, 235 N.C. 424, 70 S.E.2d 11, where a judgment of involuntary nonsuit was affirmed. The principles of law declared therein are sound and well established. But the decision is based on facts essentially different and so does not control decision here. It is not contended here that defendant was negligent in attempting to put out the fire, but that he used for this purpose a can containing a liquid without exercising due care to ascertain the contents thereof. To paraphrase: "What it was * * * was gasoline." The evidence tends to show that plaintiff's injuries did not result from the original fire on the upholstery, but were caused by the explosion which resulted from defendant's conduct.
We are constrained to hold that, when considered in the light most favorable to plaintiff, the evidence was sufficient to take the case to the jury as to defendant's alleged actionable negligence.
If it is true, as defendant insists, that the particular can used had been used exclusively for water-sandpaper over a long period of time, and that defendant had no knowledge or reason to believe that gasoline had been placed therein, and that he acted when confronted by a sudden emergency caused by no fault on his part, it may be that defendant was entitled to a peremptory instruction predicated upon such facts. But it is for the jury to pass upon the credibility of the witnesses and the weight to be given the evidence tending to establish such facts. We cannot treat them as established simply because defendant offered evidence to that effect.
As to the extent of the original fire, we know that it involved a portion of the upholstery. It appears that, even after the explosion, defendant was able to beat it out. Even so, the fire in the customer's car in the body shop, caused by the conduct of defendant's employee, and defendant's responsibility for injury and damage that might result from such fire, are circumstances such that defendant was entitled to have explained to the jury that negligence on his part was to be determined in relation to an emergency situation of such extent as the jury found to exist, under the principles declared in Mills v. Waters, supra.
Bearing upon the first and third (negligence) issues, the court instructed the jury correctly but generally as to the definitions of negligence and proximate cause. He did not relate the law to variant factual situations having support in the evidence. *733 Thereafter, he instructed the jury as to the second (contributory negligence) issue and as to the fourth and fifth (damages) issues.
After concluding the instructions relating to all the issues, and near the end of the charge, the court instructed the jury as follows: "I further instruct you, gentlemen of the jury, that where a person is confronted with and required to act in sudden emergency, which was not created by his own negligence, that such person is not held to the most wise and highest choice of care, but only to that choice of care which a person of ordinary prudence would have made under similar circumstances."
There are few occasions, if any, when a person is held to the most wise and highest choice of care. Negligence is the failure to exercise that degree of care that an ordinarily prudent person would exercise under the same or similar circumstances and when charged with like duty. But apart from the instruction itself, no application of the principles of law declared in Mills v. Waters, supra, was related to any particular issue; and the court failed to instruct the jury, in substance, that if they found that the defendant on this occasion acted under emergency circumstances, as defendant's evidence tended to show, then what constituted due care was to be determined in the light of what an ordinarily prudent person would have done under such emergency circumstances.
Even in the absence of request for special instructions, a failure to charge the law on the substantive features of the case arising on the evidence is prejudicial error. G.S. § 1-180; Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898, and cases cited. In this case, since defendant relied in large measure upon what he contended were circumstances of acute emergency, the failure to comply with G.S. § 1-180 by applying the applicable legal principles to defendant's evidence in regard thereto must be regarded as prejudicial. Hence, defendant's assignment of error relating to this feature of the charge is sustained and a new trial awarded.
This sequence of events is noteworthy: Zollie Williamson was burned on June 4th and died on June 17th; on July 3rd his widow, Esther Williamson, married one Thomas Farrington; on July 9th she qualified as administratrix under the name of Esther Williamson and under that name brought this action as administratrix. When asked why she qualified as administratrix under the name of Esther Williamson rather than Esther Farrington, she replied: "I signed it that way for the sake of Zollie." Although disinclined to weaken this thread of loyalty to the memory of her late husband, the use of the Williamson rather than the Farrington surname in qualifying as administratrix and in bringing this action, thus obscuring to some extent her then status, is not commended as an example worthy of emulation.
Questions posed by other assignments of error may not arise when the case is tried again.
New trial.
