Brown v. Texas Co. , 237 N.C. 738 ( 1953 )

76 S.E.2d 45 (1953) 237 N.C. 738

BROWN
v.
TEXAS CO. et al.

No. 524.

Supreme Court of North Carolina.

May 20, 1953.

E. A. Hilker and Robinson & Jones, Charlotte, for plaintiff-appellant.

Tillett, Campbell, Craighill & Rendleman, Charlotte, for defendant Texas Co., appellee.

BARNHILL, Justice.

We are inclined to the view that the evidence, considered in the light most favorable to the plaintiff, fails to disclose any negligent breach of duty on the part of defendant which could have in any wise contributed to his injury.

The plaintiff admits he was not an employee of defendant, and on this record it appears that the contracting firm of which he was a member was an independent contractor. It agreed to perform a specified contract on a lump-sum basis. It was to furnish the material and labor and had the exclusive right to direct the manner and method of doing the work. And it was its duty, and not the duty of the defendant, to furnish its emloyees a safe place in which to work and proper safeguards against such dangers as might be incident to the work to be done. Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137; Bass v. Fremont Wholesale Corp., 212 N.C. 252, 193 S.E. 1; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515; McCraw v. Mills, Inc., 233 N.C. 524, 64 S.E.2d 658; Wood v. Miller, 226 N.C. 567, 39 S.E.2d 608.

None of those conditions which impose liability upon the owner-contractee for injuries sustained by employees of an independent contractor are made to appear. While the manner and method of doing the work adopted by plaintiff may have been attended with great risk, there was nothing inherently dangerous in the work to be done when and if performed in a careful and prudent manner and with due regard to the safety of those who were employed to do it. Deaton v. Board of Trustees of Elon College, 226 N.C. 433, 38 S.E.2d 561.

But we may concede, arguendo, that there is evidence of negligence on the part of the defendant. Even so, it clearly appears that plaintiff failed to exercise ordinary care for his own safety, and that such want of due care on his part was at least one of the proximate causes of his fall and resulting injuries.

While there are many detailed facts appearing in the testimony, as is evidenced by the accompanying summary of the testimony, the determinative facts on this question are few and to the point. Plaintiff was a member of the contracting partnership, and it was his duty to furnish adequate facilities for himself and all other employees of his company. Yet he undertook to stand on a three-inch pipe sixteen or seventeen feet above the pavement, with nothing to which he could hold or balance himself except a two-inch upright pipe weighed down at the top by a horizontal pipe seven feet long. While undertaking to balance himself by holding to this slim pipe with his left hand, he reached up and attempted to apply considerable pressure to the horizontal pipe with a heavy wrench. Whether he fell because the welded joint broke loose or whether his fall caused the welding to give way is not made to appear. In either event the danger attendant upon the manner and method he voluntarily adopted in doing the work should have been apparent to any man of ordinary prudence. The conclusion that the hazard he thus created was at least one of the proximate causes of his fall and resulting injuries is inescapable. Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337; Caulder v. Gresham, 224 N.C. 402, 30 S.E.2d 312; Samuels v. Bowers, 232 N.C. 149, 59 S.E.2d 787; Levy v. Carolina Aluminum Co., 232 N.C. 158, 59 S.E.2d 632.

We can appreciate the desire of plaintiff to "turn a dollar" on a small contract and the attendant temptation to "cut corners" and assume risks that otherwise would have been avoided, but this forms no basis for holding defendant liable for the unfortunate occurrence which followed.

The judgment entered in the court below is

Affirmed.