155 S.E. 871 | N.C. | 1930
Civil action to recover damages for personal injury in which the issues of negligence, contributory negligence, and damages were answered against the defendants and in which judgment was given in favor of the plaintiff.
The defendants made a contract in writing by the terms of which John Smith was to build a warehouse for his codefendant at an agreed price. In his brief the plaintiff admits that Smith was an independent contractor for whose negligence the Carolina Cotton and Woolen Mills is not liable unless the work to be done by Smith was inherently dangerous or unless the company furnished instrumentalities for doing the work which were inherently and necessarily dangerous. Denny v. Burlington,
The plaintiff testified that he had been employed by Grubbs, who was working under Smith; that at the time of the injury Smith was engaged in building a storage warehouse for the Carolina Cotton and Woolen Mills; that Smith's foreman instructed him to take down a wall which stood between the old building and the new; that while doing this work he found a wire laid on nails along the wall and was instructed by the foreman to remove it; that he had not been warned and did not know that it was charged with electricity, and that in rolling it up the came in contact with an uninsulated section of it and was thereby shocked and seriously injured.
There is evidence that the wire in question was a part of the electric system operated by the Carolina Cotton and Woolen Mills, and that it was connected by the company's electrician with a wire in the old building and extended to the one under construction. The company put it up to enable the contractor to have lights while pouring cement and to use drills in boring holes in the woodwork. Several drills were used for this purpose, one or two of which were furnished by the company. Here, then, was an instrumentality furnished, not by the contractor, but by the company. Was it inherently dangerous? If it was, the company cannot escape liability merely on the ground that Smith was an independent contractor.
The erection of a warehouse is not intrinsically dangerous, but electricity "is the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort."Mitchell v. Electric Co.,
The trial judge instructed the jury in reference to the first issue upon the theory that Smith was not an independent contractor and that between the company and the plaintiff there existed the usual contractual relation of master and servant. As the plaintiff admits, this was erroneous. When it is sought to bring the relation existing between a party who furnishes instrumentalities and an employee of an independent contractor within the principle stated in Paderick v. Lumber Co., supra, the law as therein declared should be applied — not merely the law arising out of a contract of employment. The instruction deprived the company of the defense to which it was entitled and probably misled the jury as to the law with respect also to Smith.
We cannot hold upon the record evidence as a matter of law that the plaintiff was guilty of contributory negligence.
New trial.
