Gadsden v. Craft & Co.

Hoke, J. Plaintiff objects to the validity of the judgment of non-suit for the reasons (1) that under the terms of the written agreement Craft & Co. were not independent contractors; (2) that the work in which they were engaged was inherently dangerous, .and that the position of independent contractor could in no event be maintained for the benefit of the appellees. *420 On the record we see nothing to justify the position that the work was inherently dangerous, and the objection made upon that ground must be disallowed. Scales v. Llewellyn, 172 N. C., 494. ¥e are of opinion, however, that under the written agreement offered in evidence the powers reserved to the railroads during the performance of the work and as to the manner and methods of doing it are so extended and controlling that Craft & Co. could in no proper sense be considered as independent contractors, but are themselves agents and employees of the railroads, for whose negligent default the companies may be held responsible under the principles of respondeat superior. In Beal v. Fiber Co., 154 N. C., pp. 147-150, the Court quotes with approval from Moll on Independent Contractors, sec. 19, as follows: “In his commentaries on negligence Judge Thompson states the rule thus: If the proprietor retains for himself or for his agent (e.g., architect and superintendent) a general control over the work, not only with reference to results, but also with reference to methods of procedure, then the contractor is not deemed an independent contractor within the meaning of the rule under consideration, but he is deemed the mere agent or servant of the proprietor, and the rule of respondeat superior operates to make the proprietor liable for his wrongful acts or those of his servants, whether the proprietor directly interfered with the work and authorized and commanded the doing of such acts or not. It is not necessary in such a case that the employer should actually guide and control the contractor. It is enough that the contract vests him with the right of guidance and control.” And again, from Smith v. Simmons, 103 Pa., 32: “Where one who contracts to perform a lawful, service for another is independent of his employer in all that pertains to the execution of the work, and is subordinate only in a result in accordance with the employees designs, he is an independent contractor, and in such case the contractor alone and not the employer is liable for damages caused by the contractor’s negligence in the execution of the work.” These tests for determining the position of an independent contractor are in accord with the generally prevailing doctrine and have been recently approved and applied in several decisions of this Court. Embler v. Lumber Co., 167 N. C., 457; Harmon v. Contracting Co., 159 N. C., 22; Johnson v. R. R., 157 N. C., 382; Hopper v. Ordway, 157 N. C., 125; Denny v. Burlington, 155 N. C., 33. True, in Denny v. Burlington and in Hopper v. Ordway, supra, it was held that, “When the relation of independent contractor has been created, within the meaning of these definitions, the result is not affected by the fact that an agent of the proprietor is to be present for *421 tbe purpose of seeing that tbe work is done according to specifications.” Johnson v. R. R., 157 N. C., pp. 382-384. No more would conditions be changed by tbe mere fact that tbe contract contains provision that'-in case of failure to perform properly tbe proprietor could take over tbe contract and complete tbe same. But in our opinion tbe powers reserved to tbe companies and tbeir immediate agents by tbe provisions of tbe present contract go much beyond anything; appearing in these decisions or tbe principles they are intended to sustain. In tbe opening clause of tbe contract there is stipulation that “Tbe work is to be done and finished agreeably to tbe directions and orders of tbe chief engineer of one of tbe defendants or bis assistants.” This officer, too, is given large powers with reference to modifications of tbe plans as tbe work progresses. His decision as to amounts due on tbe previous estimates is absolutely conclusive, and, in tbe final estimate, the amount due is to be paid when tbe entire work is completed to the satisfaction of tbe said engineer and on bis certificate that it has been done according to specifications and in accordance with his directions and to bis satisfaction and acceptance. In another clause tbe work is to begin at once and be completed on or before a specified period and prosecuted with such force as tbe engineer may deem adequate, and “If said party shall fail to prosecute tbe work with sufficient force in tbe opinion of said engineer, tbe latter or such agent or agents as be may designate, may proceed to employ such number of workmen, laborers, and overseers as may be necessary to insure completion at such wages as they may find necessary or expedient and charge same over to Craft & Co. on tbe contract,” etc. And again: “Or for failure to prosecute tbe work with an adequate force or for noncompliance with bis directions in regard to tbe manner of constructing it, or for failure to complete tbe work within tbe time limit, or for other delays in the performance of or any omission or neglect of tbe requirements o'f tbe agreement and specification on tbe part of tbe party of the first part, tbe said engineer may, at bis discretion,- declare this contract or any portion or section of it forfeited and tbe railroad companies exonerated from all liability under it.” In section 12 stipulation is made as follows: “It is further understood and agreed that tbe parties of tbe second and third parts, tbe railroad companies, jointly and severally, may at any time, either with or without an estimate furnished, pay any moneys directly to tbe employees and others having claims and demands against tbe party of tbe first part for work done and material furnished to tbe party of tbe *422 first part for tbe purpose of this contract, and may at any time require voucher for the payment to employees and others having claims and demands .against the party of the first part for the purposes aforesaid.” And section 13: “If during the progress of the work contracted for, which shall be under the direction of the engineer not contemplated in the specifications mentioned in section 1 of this agreement and not specifically included herein, which work cannot, in the opinion of the engineer, be accurately measured or estimated under the terms of this contract, then in that case the same shall be paid for at actual cost for labor and materials furnished by the party of the first part, with 10 per cent added for superintendence and use of tools; and it is further agreed and understood that all terms and stipulations of this contract, as far as may be applicable, shall attach to all work so done, which work for all purposes shall be deemed part of the work contracted for by the party of the first part hereunder.” From these stipulations and under the principles approved and sustained by the authorities cited, it will sufficiently appear, as stated, that the powers over this work reserved to the companies and their agents, in the course of its performance and as to the manner and methods of doing it, are of such a character and extent as to constitute the contractor, Crafts & Co., the agents and employees of the railroads in reference to the construction of this bridge, and the rights of the parties, must be adjusted on that basis. There is error, and this will be certified, that the question of the responsibility of the appellees may be properly determined. Eeversed.