Dеfendant, by its assignments of error, based upon exceptions duly taken, presents to this Court, upon appeal from tbe judgment rendered upon tbe verdict, its contention that although plaintiff at tbe time of bis injury was engaged in work upon tbe highway wbicb it bad contracted to do, and that although such injury was caused by tbe failure to instruct plaintiff as to tbe danger of tbe work wbicb be was directed to do or by tbe failure to exercise reasonable care to provide for him a reasonably safe place in wbicb to work, or by tbe failure to exercise reasonable care to provide reasonably safe methods for tbe performance of bis work as a laborer in tbe construction of said highway, defendant is not liable to plaintiff for damages resulting from bis injury because plaintiff was not an employee оf defendant but was an employee of E. T. Williams, and that therefore defendant owed plaintiff no duty, tbe breach of wbicb is alleged in tbe complaint as tbe proximate cause of tbe injury.
After all tbe evidence bad been introduced, defendant admitted that E. T. Williams, by whom plаintiff was employed and under whose direction be was at work when be was injured, was an independent contractor of defendant. Defendant in its answer admitted that it was necessary to use dynamite for blasting in tbe construction of said highway under its contract with tbe highway commission of Ashе County.
The law relative to the duties which a master or employer owes to his servant or employee while engaged in the performance of duties incident to his employment, is well settled in this and other states whose jurisprudence has a common origin and where the growth of the law has been guided by legislation founded' upon just principles and has been responsive to judicial decisions influenced by an enlightened social conscience; for “the law is not fossilized; it is a growth. It grows more just with the growing humanity of the age and broadens with the processes of the suns.” Clark, C. J., Pressly v. Yarn Mills,
The owner, for wbom work is done under a contract, does not owe to employees of bis independent contractor, as thus defined, tbe same duties which a master or employer owes to bis servant or employee; nor does a contractor owe such duties to employees of bis subcontractor wben by tbe terms of tbe subcontract tbe latter is an independent сontractor. Tbe relationship between tbe Owner and such employees or between tbe contractor and such employees is not that of master and servant. It is well settled, therefore, as a general rule, that neither tbe owner nor tbe original contractor is liable for tbe negligence of an independent contractor which results in injury to an employee or servant of tbe latter. 14 R. Q. L., pp. 79, 80, and cases cited. “Where tbe contract is for something that may be lawfully done and is proper in its terms and there bas been no negligence in selecting a suitable person to contract with in respect to it, and no general control is reserved either in respect to tbe manner of doing tbe work or tbe agents to be employed in it and tbe person for wbom tbe work is to be done is interested only in tbе ultimate result of tbe -work, and not in tbe several steps as it progresses, tbe latter is not liable to third persons for tbe negligence of tbe contractor as bis master.” Cooley on Torts, 2 ed., sec. 548, p. 646. “An independent contractor is one wbo undertakes to producе a given result but so that in tbe actual execution of tbe work be is not under tbe order or control of tbe person for wbom be does it and may use bis-own discretion in things not specified beforehand. For tbe acts or
Tbe rule exempting an owner or contractor from liability for tbe negligence of an independent contractor to a stranger or third person does not necessarily exempt sucb owner or contractor from liability to tbe servant or employee of tbe independent contractor wbo is injured while engaged in work for tbe ultimate benefit of sucb owner or contractor. There is a relationship between tbe owner or contractor and tbe servant or employee of tbe independent contractor which may impose upon tbe former duties which tbe law does not impose upon him with respect to strangers or third persons. Tbe law would not be just to itself or to those wbo have a right to rely upon it for proteсtion, if an owner or contractor could, in all cases, by committing tbe work in which be is interested to an independent contractor, secure absolute exemption from all liability to those wbo by their labor and by methods and under circumstances contemplated when tbe original contract was made, contribute to its full performance.
It is therefore conceded that upon grounds of public policy as well as of justice to individuals, certain exceptions must be made to tbe general rule exempting owners or contractors from liability for.tbe negligence of an independent contractor. It is by exceptions to general rules that tbe law adapts itself to tbe facts of particular cases in order that tbe enforcement of general rules, just as they may be when applied to general conditions, may not by disregarding tbe facts of particular cases, cause injustice to be done. “Where tbe thing contracted to be done is necessarily attended with danger, however skillfully and carefully performed, or is intrinsically dangerous, it is held that tbe party wbo lets tbe contract to do tbe act cannot thereby escape responsibility for any injury resulting from its execution, although tbe act to be performed may be lawful. But if tbe act to be done may be safely done in tbe exercise of due care, although in tbe absence of such care, injurious consequences to third persons would be likely to result, then tbe contractor alone is liable, provided it was bis duty under tbe contract to exercise sucb care.” Engle v. Eureka Club,
In Paderick v. Lumber Co., ante, 308, it was held by this Court that an owner wbo furnished defective machinery to its independent сontractor, whose employee was killed by tbe operation of sucb defective machinery, was liable to tbe administratrix of sucb employee for damages. Clarkson, J., in tbe opinion for tbe Court, says: “Under all tbe facts and circumstances of this case, defendant having agreed with L. L. Paderick (wbo was found by tbe jury to be an independent contractor) to furnish tbe loader, in so far as L. L. Paderick and those in bis employ
In Williams v. Lumber Co.,
In Cole v. Durham,
The principle as stated in Davis v. Summerfield,
Defendant, having undertaken the construction of the highway, with knоwledge that it would be necessary to use dynamite for blasting, in performing the work, is not relieved of liability for damages to plaintiff, who was wrongfully injured, while blasting with dynamite, because plaintiff was an employee of an independent contractor, who by his contract undertook to do the work, by blasting with dynamite. Under all the facts and circumstances of this case, as said in Paderick v. Lumber Co., supra, defendant having procured E. T. Williams to do the work, which required the use of dynamite — a dangerous instrumentality —stood in the relation of master and servant to plaintiff, an employee of Williams, while engaged in such work, with the instrumentality contemplated when defendant entered into the contract with the highway
We have examined each of the assignments of error based upon exceptions taken by defendant during the progress of the trial. These assignments of error cannot be sustained. The judgment must be affirmed. There is
No error.