Scales v. . Lewellyn

BeowN, J. Tbe plaintiff sues tbe defendant Lewellyn and tbe city of Winston-Salem for damages for injuries sustained by her from tbe falling of a porch and dwelling-house which tbe defendant Lewellyn bad contracted with tbe defendant tbe city of Winston-Salem to raise. Tbe city bad raised tbe grade on Third Street, leaving below tbe level of the street and without convenient means of access to it a bouse occupied by tbe plaintiff as tenant. There were eight other bouses similarly situated. Tbe city, with tbe knowledge and consent of tbe owner of these bouses, at its expense, contracted with tbe defendant Lewellyn to raise them to tbe level of tbe street. It was necessary to raise tbe bouse occupied by the plaintiff some 9% feet. Tbe bouse was not being moved from its position, but simply raised. Prior to tbe night of 1 October, 1915, tbe contractor bad by means of pulleys, blocks, and jack screws raised tbe bouse securely from its foundation, but, as alleged, bad carelessly and negligently failed to properly secure and support tbe front porch, causing it to collapse, throwing her to tbe ground. There is evidence tending to prove that tbe defendant Lewellyn, instead of supporting the porch with temporary pillars or blocks, as is *496 customary in -such work, nailed two braces, one end to the edge of the porch and the other to the roof of the house. THE APPEAL BY THE PLAINTIFF. On the trial before the judge of the county court the plaintiff introduced one Clara Smith, who testified that she saw the porch break loose and fall; that plaintiff fell under the floor; that Clara Smith helped to get her out; and saw that she was badly bruised in places; that she put turpentine on her and asked her if she, Naomi, was not killed. On cross-examination the defendant laid the necessary grounds ,for contradicting and impeaching her by the testimony of one Davis. Defendant offered to prove by Davis a conversation with Clara Smith for the purpose of contradicting and impeaching her. The substance of the proffered testimony is that Clara Smith told the witness Davis that she did not know much about this case; that she was there and helped attend her, saw her a few days afterwards and plaintiff told her that she was not much hurt, but was hurt enough to' have a lawsuit against the city; that plaintiff said she was going to lay in a week or two and appear like she was seriously injured; that she, Clara Smith, did not see that plaintiff was hurt very much. This testimony was excluded by the judge of the county court. We concur with the judge of the Superior Court that this was error. The testimony of Davis tended to impeach and contradict that of Clara Smith and the foundation for the introduction of such testimony had'been laid upon cross-examination. It is well settled that contradictory testimony of this character is competent, not only because it is contradictory, but in this case because it tended to show the temper, disposition, and conduct of the witness Clara Smith in relation to this case. S. v. Patterson, 24 N. C., 353; In re Graven, 169 N. C., 566; S. v. Lewis, 133 N. C., 653; S. v. Crook, 133 N. C., 672. The judgment of the Superior Court upon the plaintiff’s appeal is Affirmed. The costs of that appeal will be paid by the plaintiff. APPEAL BY THE DEFENDANT CITY OF WINSTON-SALEM. This defendant assigns error because the trial judge refused to instruct the jury upon all the evidence, if it was believed, that the jury should answer the third issue “No” and the fourth issue “No.” The judge of the Superior Court sustained the ruling of the trial judge. The said defendant excepted and appealed to this Court. *497 We are of opinion that upon all tbe evidence tbe work upon wbicb tbe contractor was engaged was not “inherently dangerous.” Tbe trial judge seemed to be of opinion tbat if a man of ordinary prudence would bave anticipated tbat injury would bave ensued from tbis work, then it is inherently dangerous. This is not tbe test. Tbe word “dangerous” means attended with risk, perilous, full of risk.' West v. Ward, 77 Iowa, 323. Dangerous as.defined by Webster means attended or beset with danger; full of risk; something wbicb in itself is perilous; hazardous and unsafe. It is a matter of common observation that bouses in tbis day are moved from one part of a town to another with perfect safety, and tbat they are raised and elevated with more eáse and immunity from danger than they can be moved. In tbis case tbe contract was to raise tbe dwelling, and not to move it. Tbe bouse was raised with perfect safety, but tbe alleged negligence of tbe contractor to properly brace tbe porch caused it to fall when tbe plaintiff walked out on it. We bave recently said tbat “Tbe rule in regard to ‘intrinsically dangerous’ work is based upon tbe unusual danger wbicb inheres in tbe performance of tbe contract, and not from tbe collateral negligence of tbe contractor. Mere liability to injury is not tbe test, as injuries may result in any kind of work where it is carelessly done, although with proper care it is not specially hazardous.” Vogh v. Geer, 171 N. C., 672. Tbe work being done in tbat case was tbe erection of a concrete building several stories in height. In referring to it we said: “We find no precedent tbat bolds tbat tbis work is of that character wbicb tbe policy of tbe law requires tbat tbe owner shall not be pennitted to free himself from liability by contracting with another for its execution.” In Laffrey v. Gypsum Co., 83 Kans., 347, tbe Court said: “No effort will be made to precisely define tbe expressions ‘intrinsically dangerous’ or like phraseology, as used in tbe authorities. Regard must be bad to tbe reason of tbe principle and tbe consequence flowing from its application in tbe given situation.' ... It is clear from tbe cases cited and many others in wbicb tbe subject has been considered tbat tbe intrinsic danger of tbe undertaking upon wbicb tbe exception is based is tbe danger wbicb inheres in tbe performance of tbe contract, resulting directly from tbe work to be done, and not from tbe collateral negligence of tbe contractor.” Tbe ease under consideration is evidently ene where tbe injury was caused by tbe negligent failure of tbe contractor to prop up tbe porch, and not from any inherent danger in tbe simple and everyday operation of raising a bouse by means of jack screws. *498 As said by Lord Cochran in Bower v. Peate, 1 Q. B. Div., 321: “There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted.” The case of Davis v. Summerfield, 133 N. C., 325, we do not think sustains the contention that the work contracted for by the city of Winston-Salem was of that character which in itself is inherently dangerous, so that the city could not relieve itself from liability for the manner in which the work was done. The real ground of that decision was that the defendant owed the plaintiff a duty, which it could not delegate or get rid of, to notify him of his intention to do work on his (the defendant’s) premises which might cause harm to the plaintiff’s adjoining property if certain precautions were not taken. Embler v. Lumber Co., 167 N. C., 462. We think the court erred in not giving the prayer for instructions. The judgment of the Superior Court is reversed. The costs of this appeal will be taxed against the plaintiff. New trial.