Harris Ex Rel. Jones v. White Construction Co. , 240 N.C. 556 ( 1954 )

82 S.E.2d 689 (1954) 240 N.C. 556

HARRIS
v.
WHITE CONST. CO. et al.

No. 309.

Supreme Court of North Carolina.

July 9, 1954.

James & Speight, Greenville, for plaintiff, appellee.

Albion Dunn, Greenville, and White & Aycock, Kinston, for defendants, appellants.

JOHNSON, Justice.

The evidence adduced below is insufficient to support the inference of negligence on the part of the corporate defendant as a proximate cause of the plaintiff's injuries based on its failure to post a watchman or its failure to provide adequate signs, signals, or warnings for the protection of the traveling public in the vicinity of the excavation. Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789; Wrenn v. Graham, 239 N.C. 462, 80 S.E.2d 378; 25 Am.Jur., Highways, Sec. 410 et seq. Numerous times during the week previous to the collision the plaintiff had passed by the construction project. On the morning of the collision he had driven past the excavation several times going to and from Greenville looking for "tobacco hands." He knew the nature of the work being done on the highway. The excavation was in plain view. As he approached it, he said he saw the barricade for a distance of 300 feet, and according to his evidence he had passed 179 feet beyond the barricade when the collision occurred. It was not a one-way drive alongside the excavation. There was adequate space for two vehicles to meet and pass. Therefore, conceding, without deciding, that the corporate defendant may have been negligent in failing to provide adequate signals, signs, or warnings in the vicinity of the excavation, even so, it is manifest that such negligence in nowise contributed to the plaintiff's injuries as a proximate cause thereof. On the record as presented there is a total lack of causal connection between the collision and the alleged independent negligence of the corporate defendant.

Nevertheless, our examination of the record leaves the impression the evidence is sufficient to carry the case to the jury on the issue of actionable negligence as to the defendant Nelson and also as against the corporate defendant on the theory of respondeat superior.

The plaintiff's testimony to the effect that Nelson, while driving 60 to 65 miles per hour, lost control of the truck and struck the plaintiff's car over on plaintiff's right side of the center of the main traveled portion of the highway suffices to make out a prima facie case of actionable negligence against Nelson. Whereas, the evidence bearing on supervision and direction of Nelson's work is sufficient to justify the inference that the corporate defendant retained control, or right of control, over the details of the work performed by him. This suffices to make out a prima facie case for the plaintiff on the issue of respondeat superior under application of the principles explained and applied in these decisions: Lassiter v. Cline, 222 N.C. 271, 22 S.E.2d 558; Aderholt v. Condon, 189 N.C. 748, 128 S.E. 337. See also Hinkle v. City of Lexington, 239 N.C. 105, 79 S.E.2d 220; Hodge v. McGuire, 235 N.C. 132, 69 S.E.2d 227; Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137.

In Hinkle v. City of Lexington, supra, Devin, C. J., speaking for the Court, said, 239 N.C. at page 107, 79 S.E.2d at page 222: "The usual test for determining whether the relationship between the parties is that of employer and employee or independent contractor is whether the employer has the right to control the workman with respect to the manner and method of doing the work as distinguished from the mere right to require certain results, and it is not material as determinative of the relationship whether the employer actually exercises the right of control."

We conclude, therefore, that the defendants' motions for judgment as of nonsuit were properly denied by Judge Frizzelle.

However, we are constrained to the view that the defendants are entitled to a new trial for errors appearing in the charge.

The court in charging the jury said: "The plaintiff contends that the defendant Nelson was also negligent in those identical particulars, for that it is alleged that he carelessly and negligently failed to post a watchman in the immediate vicinity where the wreck occurred, or to station a watchman there, or to erect a light there to warn people who had a right to travel over and upon the highway."

In no aspect of the case was the defendant Nelson under legal duty to post a watchman or provide for the giving of signals or warnings in the vicinity of the construction project which was being carried on by the corporate defendant, and this is so irrespective of whether the relationship between Nelson and the corporate defendant was that of employer and employee or independent contractor.

"It is the duty of the trial court to explain and apply the law to the substantive phases of the evidence adduced, G.S. § 1-180, and an instruction which presents an erroneous view of the law or an incorrect application thereof, even though given in stating the contentions of the parties, is error, the rule being that while ordinarily the misstatement of a contention must be brought to the trial court's attention in apt time, this is not necessary when the statement of the contention presents an erroneous view of the law or an incorrect application of it." Blanton v. Carolina Dairy, Inc., 238 N.C. 382, 385, 77 S.E.2d 922, 925. See also McKinney v. City of High Point, 239 N.C. 232, 79 S.E.2d 730; Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767.

Since the case goes back for a retrial, we refrain from discussing the rest of the defendants' exceptions.

New trial.