O'Briant v. Lee's Welding & Steel Service, Inc.

HEDRICK, Judge. Defendants assign as error the failure of the trial court to submit an issue of contributory negligence to the jury based on “(1) • . . Plaintiff’s failure to inspect and clean the equipment in question prior to the beginning of the welding operation and (2) . . . failure of Plaintiff’s employee to stand as a fire-watch while the welding was being conducted.” A specialist employed to overhaul and repair machinery on the owner’s premises in the owner’s absence and free of any supervision by the owner is an independent contractor. Henry v. White, 259 N.C. 283, 130 S.E. 2d 412 (1963). The owner employing a specialist to repair machinery on the owner’s premises, free from control of the owner in the performance of the work, owes such specialist the duty to warn him of hidden dangers known to the owner and not known to the specialist, but the owner is not under duty to exercise care to provide a reasonably safe place for the specialist to work, the specialist being more cognizant of the dangers incident to the machinery than the owner himself. Henry v. White, supra; Deaton v. Elon College, 226 N.C. 433, 38 S.E. 2d 561 (1946). Clearly the defendant in the instant case was an independent contractor hired by the plaintiff as a specialist to repair the loader by welding it in the field. While the evidence tends to show that employees of the plaintiff were present and at the request of Poole one of the employees raised the arms of the loader, there is no evidence in the record tending to show, that the plaintiff exercised any supervision whatsoever over the work the defendant was hired to do. Although there is testimony that “as a general rule” hydraulic lines on front end loaders leak and that the “belly pan” on front end loaders can become clogged with debris, there is no evidence in this record from which the jury could find that either of these conditions existed when defendant undertook to repair the loader nor is there any evidence that plaintiff had knowledge of any hidden or dangerous conditions of which he failed to warn defendant. The record is replete with evidence tending to show that the defendant Poole’s opportunity to inspect the loader and correct any potentially dangerous conditions prior to the commencement of welding was equal to, if not greater than, that of plaintiff. Plaintiff testified: “[I]f there was a hydraulic leak [17] on the surface he could certainly see it. If it was down in the belly pan you could see it.” Plaintiff stated that when the arms of the loader are in a raised position, it is possible to see a portion of the belly pan, but by removing two “side panels,” the entire belly pan can be seen. Defendant Poole testified: “So far as I was concerned, he had hired me to weld and anything to do with welding was my responsibility so far as the welding of the arm.” Thus, it cannot be said that evidence tending to show only that plaintiff failed to clean and inspect the loader prior to the commencement of welding and to maintain a fire watch during the repair operation was sufficient to require the submission of an issue of contributory negligence. This assignment of error is overruled. . Defendants assign as error the denial of their motions for directed verdict and for judgment notwithstanding the verdict. These assignments of error are premised solely on the contention that the evidence disclosed contributory negligence as a matter of law, and for the reasons stated above,, have no merit. No error. Judges Britt and Vaughn concur;