Midgette v. Branning Manufacturing Co.

Connor, J., after stating the case: No issue being tendered in regard to the alleged assumption of risk by plaintiff’s intestate, that defense is eliminated from the cáse. We presume that the learned counsel treated that phase of the case as involved in the issue directed to the alleged contributory negligence of plaintiff’s intestate. We have set out the testimony at some length, because the requests for special instructions and the exceptions to the instructions given present every possible question which could arise upon the record. We will first dispose of the exceptions to his Honor’s admission of testimony. The first is directed to the answer given by the witness as to the “space condition,” etc. It will be observed that the answer is not responsive to the ques — 340 — tion. He was not asked for an oiDinion or conclusion, but for a fact. If his Honor had been so requested, he would doubtless have stricken out the answer and directed the witness to give one responsive to the question. This the witness did later on by saying that “there was only twelve-inch space to go around the shaft.” While the first answer may have been, and probably was, subject to the criticism made by defendant, it was, in the light of the subsequent answer, giving the fact upon which the jury were enabled to draw their own conclusion, not prejudicial to defendant — certainly not sufficiently so to call for a new trial. It is frequently difficult to draw the line between testimony which is a statement of fact and that which is a conclusion of the witness. The testimony upon which the next two exceptions are based is, at the most, irrelevant and harmless. The exception to the testimony of "Waters, in regard to the conditipn of the mill three months before the death of plaintiff’s intestate, is not referred to in the brief and is to be treated as abandoned. The motion for judgment of nonsuit was properly denied. The contention of the defendant in regard to the question of Campen’s being an independent contractor, which, as said by his Honor to the jury, lay at the threshold of the case, is presented by the prayer for an instruction that, “Upon all of the evidence in this case, the jury shall find that Campen was an independent contractor; that defendant owed no duty to the intestate, and they shall answer the first issue ‘No.’ ” This his Honor declined, but said to the jury “that this would be the first inquiry, and if they found that Campen was an independent contractor, that ends the case.” He further instructed the jury: “It is contended by the defendant that it had contracted its mill to Campen. It is accepted law that where a contract is for something that may be lawfully done and is proper in its terms, and there has been no negligence in selecting a suitable person to contract with, in respect to it, and no general control is reserved, either in respect to the manner of doing the work or the agents to be employed in doing it, and the person for whom the work is done is interested only in the .ultimate result of the work and not in several steps as to progress, the latter is not liable to a third person for the negligence of the contractor, but liability of the'superior master depends upon his right to control the — 341 — conduct -of tbe person witb wbom be contracts in tbe prosecution of tbe work. .If you find from tbe evidence tbat Campen leased, tbe mill of tbe Branning Manufacturing Company under contract, tbat be was to employ tbe labor and bear all tbe expense of running tbe mill, was to receive tbe logs of tbe company from tbe trucks, manufacture tbe same into timber and deliver it aboard cars for shipment, at $1.75 per thousand feet, witb guarantee tbat be should make as much as $150 per month, and tbat it did not retain tbe right to control tbe conduct of Cam*pen and was interested only in tbe ultimate result of tbe work, then tbe defendant is not liable, and you will answer tbe first issue No.’ But if you find from tbe evidence tbat there was a general control of tbe operation of tbe mill reserved by tbe defendant company in respect to tbe general operation of tbe mill, then go further and consider tbe question of negligence raised.” To these instructions defendant excepted. We think tbat tbe charge is in accordance witb tbe decisions of this Court. Tbe language used by bfs Honor in defining an independent contractor is identical witb tbat of Mr. Justice Walker, in Craft v. Lumber Co., 132 N. C., 151, quoted witb approval in Young v. Lumber Co., 147 N. C., 26. If bis Honor correctly declined tbe instruction, which practically took tbe question from tbe jury, there can be no valid criticism of tbe charge given. Plaintiff suggests tbat tbe burden of showing tbat Campen was an independent contractor was on tbe defendant. Tbe burden was upon the plaintiff to show tbat bis intestate. was in tbe employment of defendant. It would seem tbat when be showed ¿bat tbe mill was tbe property of tbe defendant corporation, tbat at tbe time of bis employment it was being operated in sawing the logs of tbe defendant, and tbat tbe sawed lumber was shipped to defendant at Edenton, near by, where it was operating a plant, plaintiff was entitled to go to tbe jury on tbe issue. “Where tbe plaintiff has suffered an injury from tbe negligent management of a vehicle, such as a boat, car or carriage, it is sufficient prima facie evidence tbat tbe negligence was imputable to tbe defendant to show tbat be was tbe owner of tbe thing, without proving affirmatively tbat tbe person in charge was tbe defendant’s servant. It lies witb tbe defendant to show tbat tbe person in charge — 342 — was not bis servant, leaving bim to show, if be can, that tbe property was not under bis control at tbe'time, and that tbe accident was occasioned by tbe fault®of a stranger, an independent contractor or other person, for whose negligence tbe owner would not be answerable.” 1 Sberm.' and Redf. Neg., 71. Any other rule, especially where persons are dealing with corporations, which cab act only through agents.and servants, would render it almost impossible for a plaintiff to recover for injuries sustained by defective machinery or negligent use of machinery. The plaintiff’s intestate may be taken to have known that the mill was the property of defendant — that it was being used for the purpose of sawing defendant’s logs. One witness said that “defendant owned much timber on this side of the sound and a railroad.” Campen said: “There was some trading done by my laborers at the store of the Branning Manufacturing Company.” All of this was well calculated to cause intestate to suppose that Cam-pen was operating the mill for defendant company, and, in the absence of any testimony to the contrary,' would be sufficient to carry the case to the jury and sustain a verdict. Without entering into the debatable domain of the burden of proof, it is sufficient to say that, at least in this case, the plaintiff had put ujion defendant the duty of “going forward” or “persuading” the jury that Campen was not operating the mill for the owner, but as an independent contractor. The instruction asked by defendant involves the proposition that, taking'all of the evidence as true, it has shown, as a matter of law that Campen was an indeiDendent contractor. An examination of the authorities and decided cases disclose^much confusion and uncertainty in respect t.o what constitutes an independent contractor. The question underwent an exhaustive discussion in Wiswall v. Brinson, 32 N. C., 554, in which Pearson, J., and Ruffin, G. J., differed in opinion. The opinions are “mines of learning” and “arsenals of argument.” Pearson, J., begins the discussion by saying that “the question is one of serious difficulty,” and that the cases “are' numerous,” that “many of them turn upon nice distinctions.” He states the fundamental principles, that “One should so use his own as not to injure another,” and “That which you do by another, you do by yourself.” And from these two maxims he says: “The general' rule results where one procures work to be done, if a third — 343 — person is injured by tbe negligence or want of skill of the person employed, the person for whose benefit and at whose instance the work is done must make compensation. * * * The rule is founded upon justice, and exceptions to it should be allowed with caution, and only to the 'extent called for by public convenience.” He then proceeds to discuss the recognized exceptions, as established by decided cases. We would not undertake to add anything to the discussion in the opinion, concurred in by Nash, J., and the dissenting opinion of Ruffin, G. J. It is conceded that where the person employed to do work carries on an independent employment and does the work in his own way, by his own means, and free from the. right of control by the person for whom the work is done, he is an independent contractor. This exception is based upon public convenience and sound policy. It is said: “The true test, as it seems to us, by which to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.” Such was the leading case of Milligan v. Wedge, 12 Adol and E., 737, cited by Sharpenstein,H., in Bennett v. Truebody, 66 Cal., 509. There the injury was caused by the negligence of a plumber, who “exercised an independent and distinct employment.” It was held that the owner of the premises was-not liable. In Hexamer v. Webb, 101 N. Y., 377, the party employed was engaged in the “roofing and cornice business.” Coal Co. v. McEnery, 27 Conn., 274., It would seem that where the person employed to do the work in his. own way, and free from the control of the employer, is engaged in an independent calling, it is but just that persons who contract with him, either as employees or otherwise, should look to him for compensation. We do not mean to say that the exception is confined to work done by one engaged in an independent, calling. It is certainly much more difficult to fix the limits of the exception when this element is absent. In Waters v. Fuel Co., 52 Minn., 474, the employee of defendant was engaged in delivering coal at a stipulated price per load: Held, that he was the servant of the company. The Court said: “It is not easy to frame a definition, of the term ‘independent — 344 — contractor’ that will satisfactorily meet the conditions of different cases as they arise, as each case must depend so largely upon its own facts.” Speed v. Railroad, 71 Mo., 303, was an action for personal injuries sustained by plaintiff while engaged in unloading a car belonging to defendant. It appeared that the defendant had entered into an agreement with one Merry, by which he was to take entire charge and control of the business of loading and unloading freight to and from its cars at St. Louis station. By the terms of the agreement'Merry was to have authority and control over the grounds, yards and building at the station, including engines and cars to enable him to properly discharge his duties under the agreement. Merry was to be paid fifteen cents per ton for each ton shipped to or from the yard. All the business was to be transacted by Merry in a manner satisfactory to the superintendent of defendant and subject to his control. Plaintiff was employed by Merry and was injured while in such employment. Defendant ’set up the defense that Merry was an independent contractor. Henry, J., said: “There is an irreconcilable conflict in the adjudications upon this subject. The general principle is recognized everywhere that one is only liable for damages occasioned by the act of another when he stands in the relation of master to that other. It is an e'asy matter to state the general principle, but it is often extremely difficult to determine, from the facts in a given case, whether the relation of master and servant exists.” It was held in that case that the relation existed and defendant company was liable. The value of the decision is weakened by the fact that the court attached importance to the character of the business in which defendant was engaged — a common carrier. Probably all that can be done, after an examination of the decided cases, is to adopt the conclusion of Judge Bailey, that “There is much confusion in the authorities, and much depends on the exact‘conditions of the employment and particular circumstances attending each case. The mere fact that one works by the piece or job, and not by the day or week, is not a conclusive test of the character of the employee, whether a servant oí-an independent contractor.” Personal Injuries, 410. The plaintiff having shown conditions entitling him to go to the jury, it became the duty of defendant to show or at least to — 345 — introduce evidence to repel the plaintiff’s proof. Tbe truth of tbe testimony, together with the reasonable inferences to be drawn therefrom, was for the jury. There was much in the testimony to justify them in rejecting the defendant’s contention. As we have pointed out, the mill belonged to defendant; the logs being cut were its property; the hands were paid by orders on the defendant; some of them traded at defendant’s store; the defendant kept an inspector at the mill to take an account of the lumber; the defendant guaranteed that Campen should make at least $150 per month; the contract was for no definite time. There is no suggestion that Campen carried on any independent employment. Mr. Branning came to the mill often. It is true that defendant’s testimony was to the effect that the company, had nothing to do with the work, except to give special sizes it wanted cut, and tended to explain many of the circumstances and conditions relied upon by plaintiff. It is significant that Campen uses the expression that he was employed by the Bran-ning Manufacturing Company to take the mill and run it. In Young v. Lumber Co., supra, the contract under which the logs were cut in the woods was in writing. We held that his Honor erroneously submitted the question as to its legal signification to the jury, but held that he should have submitted the question whether the contractor was cutting the logs in good faith under the contract. Merely calling a man an independent contractor cannot make him so. We should hesitate to hold that a person or corporation could, under the form and semblance of an independent contract, operate a secondhand mill, in bad repair, dangerous to employees, for the purpose of having its logs cut into lumber, and escape liability for injuries sustained by the employees, who, in good faith and upon reasonable grounds, supposed that they were employed by and were working for the' owner of the mill. Such an exception to the general rule stated by Pearson, J., in Wiswall v. Brinson, supra, would not be founded upon public convenience or sound policy. In Davis v. Summerfield, 133 N. C., 325, we held that where the character of the work to be done was essentially dangerous, the duty to use due care could not be delegated to an independent contractor by the owner of the property. We also discussed the question in Young’s case, supra. This is a recognized exception — 346 — to tbe rule. How far this exception to tbe nonliability of tbe owner of tbe property is applicable to a case like tbis we do not undertake to say. It is well worthy of consideration whether tbe owner of machinery, unsafe for use and dangerous to employees, can, by contracting with an insolvent person to operate it to do tbe owner’s work, and by simply surrendering control of tbe manner of doing tbe work, avoid liability for injuries sustained by employees. It may be that liability would be based upon a different legal foundation' — falling within tbe domain of tort, rather than breach of contract. Railroad v. Madden, 77 Kan., 80. Upon tbe question of negligence tbe court instructed tbe jury: “In order to establish actionable negligence it is necessary for tbe plaintiff to show to tbe jury, by tbe greater weight of evidence, that there has been a failure by tbe defendant in tbe exercise of reasonable care to discharge some duty which it owed tbe plaintiff, under tbe circumstances in which they were placed, reasonable care being that care which a prudent man would exercise under similar circumstances, when surrounded by like conditions; and not only tbis, but be must also show that- such failure of duty was tbe proximate cause of tbe result, proximate cause being that which produces tbe result in a continuous se-quenceand one without which would not have happened, and one which a man of ordinary jn’udence could foresee that such result would likely happen. It is tbe law in North .Carolina that , an employer of labor to assist in tbe operation of mills — • plants- — where tbe machinery is more or less complicated is required to provide bis employees, in tbe exercise of reasonable care, a reasonably safe place to work, and to supply them with machinery reasonably safe and suitable, and be is also required to keep such machinery in such condition, as far as can be done in tbe exercise of reasonable care and diligence.” ~We perceive no error in tbis instruction.- It is in accordance with tbe -decisions of tbis Court and tbe well-settled principles of the law prescribing tbe duty of employers to t-heir employees. Tbe record states that bis Honor charged tbe jury in respect to fellow-servants, to which there was no exception, other than bis refusal to instruct tbe jury, as requested, that intestate and bis brother, Howard Leary, were fellow-servants. Tbis, in tbe light — 347 — of the testimony of Howard, “I directed him and had a right to direct him; he was under my direction; I sent him up to the 'hog’ to put the piece back,” he could not have given. Defendant asked a number of instructions upon the second issue, some of which embodied correct propositions of law. Some of them could not have been given as asked, because they practically took the question from the’jury. His Honor instructed ■ the jury upon this issue: “While the law imposes a duty upon the master, it also imposes a correlative duty upon the serrant. It requires him to exercise ordinary care for his own safety, to use his intelligence and .his senses, and it holds him responsible if he is injured by his failure to exercise such care. It requires him to observe the machinery at which he is working and the appliances used to discover those dangers which a man of ordinary prudence would discover; and if he fails to perform his duty and is injured thereby, he Cannot recover damages, for while the plaintiff assumes the risk incident to the working in the mill, he did not assume the risk resulting from defective machinery or from defective place or appliances to do his work; and if the plaintiff knew of the danger of the machinery when he went up to fix the ‘hog,’ and if in consequence thereof the danger to himself was so obvious that any man of ordinary prudence would not have gone up the way plaintiff went, then the plaintiff would be guilty of contributory negligence, and you should answer the second issue ‘Yes.’ If, however, the plaintiff was not guilty of contributory negligence, you will answer this issue ‘No.’ If there was a safe way to go to the ‘hog’ provided by the company, which intestate knew or ought to have known, and he chose another way, which was unsafe, and this was the proximate cause of the hurt, the jury shall answer the second issue ‘Yes.’ That if the jury shall find that it was clear in'the mind of one of ordinary intelligence that it was dangerous to go into the machinery as deceased did, and that the danger was obvious and imminent, and, notwithstanding, undertook to do so, and his doing so was the proximate, cause of his hurt, the jury will answer the second issue ‘Yes.’ ” These instructions are correct in themselves and, we think, present every phase of the controversy. The exception to the — 348 — refusal to dismiss the ease because not brought in one year was not pressed in this Court. It is settled by Meekins v. Railroad, 131 N. C., 1. "We have examined the entire record, in the light of the exceptions made to his Honor’s rulings and the briefs of counsel. The case was carefully tried and fairly submitted to the jury. The evidence, while in some respects conflicting, sustains the plaintiff’s contention that the machinery was in bad condition, unsafe, and certainly dangerous when being operated at night. There is No Error.