Peters v. Carolina Cotton & Woolen Mills, Inc.

*754 Adams, J. Tbe defendants made a contract in writing by tbe terms of wbicb John Smith was to build a warehouse for bis codefendant at an agreed price. In bis brief tbe plaintiff admits that Smith was an independent contractor for whose negligence tbe Carolina Cotton and Woolen Mills is not liable unless the work to be done by Smith was inherently dangerous or unless the company furnished instrumentalities for doing the work which were inherently and necessarily dangerous. Denny v. Burlington, 155 N. C., 33; Hopper v. Ordway, 157 N. C., 125; Greer v. Construction Co., 190 N. C., 632; Drake v. Asheville, 194 N. C., 6. The plaintiff testified that he had been employed by Grubbs, who was working under Smith; that at the time of the injury Smith was engaged in building a storage warehouse for the Carolina Cotton and Woolen Mills; that Smith’s foreman instructed him to take down a wall which stood between the old building and the new; that while doing this work he found a wire laid on nails along the wall and was instructed by the foreman to remove it; that he had not been warned and did not know that it was charged with electricity, and that in rolling it up he came in contact with án uninsulated section of it and was thereby shocked and seriously injured. There is evidence that the wire in question was a part of the electric system operated by the Carolina Cotton and Woolen Mills, and that it was connected by the company’s electrician with a wire in the old building and extended to the one under construction. The company put it up to enable the contractor to have lights while pouring cement and to use drills in boring holes in the woodwork. Several drills were used for this purpose, one or two of which were furnished by the company. Here, then, was an instrumentality furnished, not bj the contractor, but by the company. Was it inherently dangerous? If it was, the company cannot escape liability merely on the ground that Smith was an independent contractor. The erection of a warehouse is not intrinsically dangerous, but electricity “is the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort.” Mitchell v. Electric Co., 129 N. C., 166. The danger it involves requires frequent if not constant inspection and unremitting diligence on the part of those who furnish it for use. Shaw v. Public Service Corporation, 168 N. C., 611. The law exacted of the company the duty of exercising reasonable care to see that the wire was properly insulated; and it imposed upon the contractor the duty of exercising like care to see that in rolling the wire his employee was not unduly exposed to danger. Cotton v. R. R., 149 N. C., 227; O'Brien v. Parks Cramer Co., 196 N. C., 359; Paderick v. Lumber Co., 190 N. C., 308. *755 Tbe trial judge instructed tbe jury in reference to tbe first issue upon tbe theory tbat Smith was not an independent contractor and that between tbe company and tbe plaintiff there existed tbe usual contractual relation of master and servant. As tbe plaintiff admits, this was erroneous. When it is sought to bring tbe relation existing between a party who furnishes instrumentalities and an employee of an independent contractor within tbe principle stated in Paderick v. Lumber Co., supra, tbe law as therein declared should be applied — not merely tbe law arising out of a contract of employment. Tbe instruction deprived tbe company of tbe defense to which it was entitled and probably misled tbe jury as to tbe law with respect also to Smith. ¥e cannot bold upon tbe record evidence as a matter of law tbat tbe plaintiff was guilty of contributory negligence. New trial.