Lead Opinion
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
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give rise to conditions of danger when such precautions are omitted, the defendant was not entitled to have the case withdrawn from the jury on either aspect.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,
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
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.,
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,
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.,
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—
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,
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,
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.
Concurrence in Part
concurring in part and dissenting in part: Two propositions are announced by the majority, (1) that Elliott was an independent contractor, and (2) that the work done was “too obviously dangerous to be debatable.” With the first I agree. With the second I disagree, if by “obviously dangerous” is meant inherently dangerous.
It is to be remembered that Elliott, the independent contractor, Oliver, the owner of the house, and the Edna Mills Corporation are no longer in the ease. They were let out by judgments of nonsuit.
Now, in respect of tbe character of tbe work to be done, it appears that tbe Oliver bouse is situate in tbe Edna Mills district, a thickly populated area of tbe city of Eeidsville; that a number of children reside in tbe neighborhood; that there are three children in tbe Oliver home and four in tbe Evans home, who live just across tbe street; that these children visit and play together; that other children in tbe neighborhood visit the Oliver children; that in all there are 25 or 30 children in tbe vicinity, and that these facts were known to tbe defendant.
It further appears that Elliott entered upon bis work in January, 1939, two or three weeks prior to plaintiff’s injury; that be dug a ditch, 2%, 3 or 3% feet deep and 2 feet wide from Way Street to the Oliver bouse and extending under tbe bouse to the bathroom for tbe purpose of laying a pipe and connecting with tbe city sewer line; that tbe ditch ran along tbe south end of tbe porch, which was about 2% feet from tbe ground; that there was no railing or banister at this end of the porch; that a section of pipe was lying in or protruding from under tbe bouse and into tbe ditch with a rim or “bell” at tbe end of it; that tbe work was stopped temporarily because of excessive rains, and water in tbe ditch, which prohibited proper leading of tbe joints; that during this time tbe ditch was covered from tbe street to a point “a little by tbe porch, a little by tbe corner” some 12 or 14 inches; that this left an uncovered space beside tbe porch “between two and three feet long and about two feet wide”; and that it is not customary, in work of this kind, to “cover a ditch inside the property.”
It further appears, by admission in defendant’s answer, “that the minor plaintiff either fell or was pushed into the ditch” — that is, into the open space at the south end of the porch, and was injured. There is no other evidence as to how the injury occurred. The record is silent on whether she fell from the porch or reached the opening over the embankment from the south.
The installation of plumbing in a private dwelling is not regarded as especially hazardous. Certainly, the plumbing provided for in the contract with Elliott did not require the performance of work “intrinsically or inherently dangerous, however skillfully and carefully performed.” Davis v. Summerfield,
The rule of responsibility in respect of “intrinsically dangerous” work is based on the unusual hazard which inheres in the performance of the contract, and not from any collateral negligence of the contractor. Bibb v. R. R.,
The act of negligence here relied upon was the failure of the workmen properly to cover the ditch in question during the delay occasioned by the rains. This was Elliott’s negligence, if negligence at all, and not that of the defendant. The delay was not within the contemplation of the parties. Elliott’s negligence in this respect, if such it were, was collateral to the contract. It certainly was not inherent in the work in the sense this term is used to import original liability or a duty in connection with the work which may not be delegated to an independent contractor. Cole v. Durham,
The case of Fink v. Missouri Furnace Co.,
Likewise, in Frassi v. McDonald,
1. “The owner of a building in process of construction by an independent contractor is not liable for injury to a pedestrian on the adjoining street by a hot rivet which falls when thrown from one workman to another as a method of doing the work, where a protective cover had been placed over the sidewalk, since the workman’s act was not a necessary detail of the work so as to render it inherently dangerous and charge the owner with liability.” Smith v. Bank,
2. “The removal of a sign from a building standing flush with the sidewalk is not so inherently dangerous that the property owner cannot relieve himself from liability for injury negligently inflicted by workmen upon persons passing along the street, by letting the work to an independent contractor.” Press v. Penny,
Simply stated, the rule is this: If the thing contracted to be done involves, as a direct consequence, a danger which the owner of the premises is bound by law to avoid, or to provide against, then the delegation of the work to an independent contractor will not relieve from liability for consequences proximately resulting from negligence in its performance. But where the work is not inherently dangerous, and the matter complained of is purely collateral to the work contracted to be done, and is entirely the result of the negligence or wrongful acts of the contractor or his workmen, the rule is that the employer is not liable. Robbins v. Chicago,
Perhaps it should be observed that we are not now concerned with the liability of a 'municipal corporation, where the independent contractor acts only under authority of the city council, King v. R. R.,
The building of a house, which includes the installation of plumbing, is not regarded as a dangerous undertaking, Drake v. Asheville, supra, yet in the instant case it is ■ said the work done under the Elliott contract,
Concurrence Opinion
concurring in the main opinion: I agree that a ditch two feet wide and three and a half feet deep, with a large sewer pipe at the bottom, and at the very edge of a porch on which children are accustomed to play is both “obviously” and “inherently” dangerous; and both because of its character and its location comes within the sound policy of the law which requires even the employer of an independent contractor to see to it that due care is observed and proper precautions taken to prevent injury — as a nondelegable duty. The contract between defendant and Oliver expressly called for the making of this excavation, and the contract in pursuance of it between the defendant and Elliott requires it. Elliott certainly was not expected to burrow underground to lay the sewer pipe. Rockingham Homes, Inc., knew in advance what had to be done, inspected it at different times during construction. The work was done within a few yards of the defendant’s main office, and its manager walked by it every day. Whatever danger existed was in the work itself and not in any unusual way it was performed. The contractor could only have avoided the injury by taking certain precautions which it was not only his duty to take, but the duty of the defendant Rocking-ham Homes, Inc., to see taken.
The propriety of basing the rule on a definite working principle rather than leaving it to the court on an arbitrary appraisal of the degree of danger involved became apparent long ago, and that principle is exemplified in the texts and authorities cited in the opinion. It takes no extra or unusual risk, peril, or hazard to constitute danger. Danger is defined in Century, Webster, as “exposure to harm or injury.” This is sufficient to raise the duty. And was there danger? I am not swerved in my thinking by any sympathy for this child, the unfortunate victim of this harmless excavation. But the occurrence itself, and its manner — plunging head-first into an open ditch and fracturing her skull upon its cast-iron bottom — is the most eloquent testimony of intrinsic danger. And it is legitimate evidence. Surely it should not require a similar sacrifice of a dozen children to prove it so.
I think the law applicable to this case is aptly expressed in the authorities cited in the main opinion, in which I concur.