Evans ex rel. Evans v. Elliott , 220 N.C. 253 ( 1941 )

Seawell, J.

Assuming the contract between appellant and its co-defendant to he as it appears in defendant’s evidence, meagre as it is, we think it must he construed as constituting Elliott an independent contractor. The existence of such a contract, however, was a matter to be proved by defendant. The offices of the jury might be called on in this respect, whether by separate issue or on appropriate instruction, but the jury could not he allowed to interpret its legal effect. Drake v. Asheville, 194 N. C., 6, 138 S. E., 343.

But this does not work a complete exoneration of the appealing defendant. Without going into an unnecessary analysis of the terms in which the instructions to the jury were actually couched, it is sufficient to say that the court was justified, under the evidence, in instructing the jury upon the exceptions to the general rule that the employer of an independent contractor is not liable for negligence arising in the progress of the work. Whether we consider the evidence as tending to show that the work, under the circumstances of this case, involved an inherent danger, or whether it tended to show that under the contract it might reasonably have been foreseen that the work, which was ordinarily accomplished without danger, when adequate precautions are taken, might, in its progress, give rise to conditions of danger when such precautions are omitted, the defendant was not entitled to have the case withdrawn from the jury on either aspect.

The conditions under which an employer is held liable for negligence notwithstanding the employment of an independent contractor, are well understood. These exceptions to the general rule are comprehensively expressed in 27 Am. Jur., pp. 515, 516: “It is well settled that one who orders work to be executed, from which in the natural course of things, injurious consequences must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see that necessary steps are taken to prevent the mischief, and such person cannot relieve himself of his responsibility by employing someone else, whether the contractor employed to do the work from which the danger arises or some third person, to do what is necessary to prevent the work from becoming wrongful. This rule is sufficiently comprehensive to embrace, not only work which, from its descriptions, is 'inherently’ or 'intrinsically dangerous,’ but also work which will, in the ordinary course of events, occasion injury to others if certain precautions are omitted, but which may, as a general rule, be executed with safety if those precautions are adopted.”

This is almost the identical language employed in Bower v. Peate, 1 Q. B. Div. (1875-6), 321, and quoted in full with approval in Davis v. Summerfield, 133 N. C., 325, 328, 329, 45 S. E., 654, 655, and again in Cole v. Durham, 176 N. C., 289, 298, 97 S. E., 33, 37.

The courts have found no rule of universal application by which they may abstractly draw a line of classification in every case between work which is inherently dangerous and that which is not. The subject must not be confused with concepts of hazardous employment, usually involving a high degree of danger, since here we are dealing with danger which manifests itself to the general public. It is not essential, to come under tbe rule, that the work should involve a major hazard. It is sufficient if there is a recognizable and substantial danger inherent in the work, as distinguished from a danger collaterally created by the independent negligence of the contractor, which latter might take place on a job itself involving no inherent danger. This concept is aptly expressed in a leading case as follows: “If the work itself creates the danger or injury, then the ultimate superior or proprietor is liable to the person injured by a failure to properly guard or protect the work, even though the work is entrusted to an independent contractor.” Downey v. Lowe, 48 N. Y. S., 207.

Our own Court expresses it: “The liability of the employer rests upon the ground that mischievous consequences will arise from the work to be done unless precautionary measures are adopted, and the duty to see that these precautionary measures are adopted rests upon the employer, and he cannot escape liability by entrusting this duty to another as an Independent contractor’ to perform.” Thomas v. Lumber Co., 153 N. C., 351, 69 S. E., 275; S. Louis & S. F. R. Co. v. Maddern, 77 Kan., 80, 93 Pac., 586; Cameron Mills and Elevator Co. v. Anderson, 98 Tex., 156, 81 S. W., 282.

To come under the second condition of liability it is only necessary that the work which, as a general rule may be carried out with safety if certain precautions are observed, will likely cause injury if these precautions are omitted. Richardson v. Consolidated Light, 90 Vt., 552, 99 Atl., 241; Johnson v. J. I. Case Threshing Machine Co., 193 Mo. App., 198, 182 S. E., 1089.

Such negligence is, of course, affected by the condition of foreseeability, which is necessary to fix the defendant with liability, but the rule of reasonable prudence forbids that one should escape liability for the consequences of his act on the ground that he could not foresee such consequences in photographic detail. The usual rules apply in such cases, and it is only necessary that he might reasonably see that some similar result might follow as a consequence of his act. Lancaster v. Greyhound Corp., 219 N. C., 679, 688, 14 S. E. (2d), 820, 826; Hunter v. R. R., 152 N. C., 682, 68 S. E., 237; Washburn v. Laclede Gas Light Co., 202 Mo. App., 102, 115, 214 S. V., 410, 414.

The contractor may, of course, be liable for the same want of due care in not taking the necessary precautions, for the omission of which the employer becomes liable; but as to the employer, the liability is direct, and not derivative, since public policy fixes him with a nondelegable duty to see that the precautions are taken.

In applying these principles to the case at bar, we cannot divest the work of its surrounding circumstances as disclosed by the evidence— consider that tbe contractor was simply digging a ditch, and leave it at that. The facts as they appear in evidence are that the defendant, in compliance with its contract with Oliver, caused this excavation or ditch to be made. It was something like a yard wide and approximately three and one-half feet deep, with an iron pipe at the bottom. The excavation was made alongside and contiguous to the porch of an inhabited house, and in a thickly populated area, much frequented both by children and adults. Considering the physical conditions, its location and the surrounding circumstances, it was of a character which might well be considered dangerous to those lawfully using the premises or being within the zone affected by the defendant’s nondelegable duty to see that precautions were taken to avoid or eliminate the danger.

To get the whole picture, we must understand that the conditions under which the work is to be done, within the contemplation of the parties, the known circumstances which attend it, enter importantly into the question whether it is hazardous — that is, whether it involves an appreciable and foreseeable danger to the workers employed or to the public generally, against which suitable precautions must be taken. Young v. Lumber Co., 147 N. C., 26, 60 S. E., 654; Hunter v. R. R., supra; Cole v. Durham, 176 N. C., 289, 97 S. E., 33; annotations, 23 A. L. R., 1084; 76 A. L. R., 1258. And it must be observed, too, that the liability of the employer is not affected by the fact that these precautions are usually taken or that the independent contractor explicitly agrees to provide them. Annotations, 65 L. R. A., 37.

Known conditions under which the contract must be carried out, the time, place, and circumstances attending the work, may unquestionably affect its character as hazardous or nonhazardous. Eor instance, the ordinary erection of a building has, under the circumstances of the particular case, been held to be a nonhazardous work, Looker v. Gulf Coast Fair, 203 Ala., 42, 81 So., 832; Boomer v. Wilbur, 176 Mass., 482, 57 N. E., 1004, 53 L. R. A., 172, yet if the contract call for the construction, in a populous city, of a steel skyscraper, flush with the sidewalk, where beams weighing tons are lifted and swung into position by powerful derricks, the construction of such a building would scarcely be considered as involving no danger to the public. Earl v. Reid, 21 Ont. L. Rep., 545 (these citations are from pertinent text, 27 Am. Jur., 522). Cutting and removing a tree in the midst of a forest would probably not rank as a hazardous work. But the cutting and removal of a large tree in close proximity to dwellings and in an area traversed by many people, would probably be sufficiently hazardous as to require precautions with which we are all familiar. Young v. Lumber Co., 147 N. C., 26, 60 S. E., 654. So to dig a drain ditch in a pasture, far from human habitation, certainly would not be considered dangerous; but an excavation of tbat character a yard wide and three and one-half feet deep, in a thickly populated area, where many persons have and exercise the right to be, is, we think, if left without adequate precautions, too obviously dangerous to be debatable.

The duty of appellant to those who might lawfully be within the zone of danger created by the failure to use due precautions is not subject to the limitations applying to the duty of the owner of the premises, for the appellant was not such owner under the stipulation found in the record. We therefore omit any discussion of the status of the injured child as licensee, invitee or trespasser. The duty which the appellant owed was to any member of the general public who might lawfully be at the place of danger and suffer injury therefrom.

The voluntary nonsuit taken as to the codefendant, Elliott, left the cause of action as to the appealing defendant unaffected. That would be so in any case, since the plaintiff was not required to bring action against both tort-feasors, even though their negligence might have been joint or concurrent. In the case at bar, however, the negligence of appellant, if it is found negligent, is not imputed, but is original and independent as a violation of duty which the policy of the law makes nondelegable.

But we think the able trial judge fell into error in his presentation to the jury of the principles governing liability of the employer of an independent contractor, and the application of these principles to the facts. It was error to instruct the jury that in order to have the first issue answered in the affirmative, the burden was upon the defendant to show that the work did not fall within the exceptions above mentioned. Such proof was not relevant to the issue. Furthermore, the confusion thus produced vitiated the instruction on the second issue. Indeed, we think it was error to instruct the jury on the relation of master and servant, and negligence which might be imputed to defendant on that theory, and upon the principle of agency or respondeat superior, a relation which, as the evidence now stands, did not exist.

For this error the appellant is entitled to a new trial, and it is so ordered.

New trial.