Pleasants v. . Barnes
19 S.E.2d 627
N.C.
1942
Check Treatment
WinboRNE, J.

When applicable principles of law are applied to tbe evidence in this case, taken in tbe light most favorable to plaintiff, we are of opinion and bold tbat judgment as of nonsuit was properly entered in court below.

*177 Though the relation of landlord and tenant existed between defendants and plaintiff with respect to the cultivation of the farm, plaintiff brings this action upon the theory that, in the work of pulling stumps, in a field on the rented farm, in which he was engaged at the time of his injury, he was the servant of defendants, that is, that the relation between them, with respect thereto, was that of master and servant. "While in the contract of renting no stipulation was made with regard to tenant helping in pulling stumps or doing extra work on the farm, the pulling of stumps, which would make a “better field to plant, cultivate and tend,” may appropriately'be considered a mere incident to the contract of renting, and, may not, in any view, alter the existent relation of landlord and tenant. Compare S. v. Hoover, 107 N. C., 795, 12 S. E., 451, and S. v. Etheridge, 169 N. C., 263, 84 S. E., 264, where it is held that a tenant or cropper is not the servant of the landlord, even though one of the terms or stipulation of the renting be that in addition to rent to be paid, the servant, whenever at leisure, and called upon by landlord, should work for landlord at certain wage per day.

But, be that as it may, if the correctness of plaintiff’s theory be conceded, we are of opinion that, upon the record on this appeal, the evidence shows that his injury was proximately caused by the negligence of a fellow servant, Lorenzo Bandy, in the operation of the tractor, as described by plaintiff, for which the master is not liable. It is not controverted that Bandy, the driver of the tractor, was, at the time, a servant of defendants.

The generally accepted principle, unless otherwise provided by statute, as it is in this State in case of railroads, is that the master is not responsible for injury to a servant attributable solely to the negligence of a fellow servant, provided the master has exercised reasonable care in selecting servants who are competent and fitted for the work in which they are engaged. Walters v. Lumber Co., 163 N. C., 536, 80 S. E., 49; Page v. Sprunt, 164 N. C., 364, 79 S. E., 619; Shorter v. Cotton Mills, 198 N. C., 27, 150 S. E., 499. However, the presumption is that the master has properly performed his duty in selecting his servants, and before responsibility for negligence of a servant, proximately causing injury to plaintiff, another servant, can be fixed on the master, it must be established by the greater weight of the evidence, the burden being on the plaintiff, that he has been injured by reason of carelessness or negligence due to the ineompetency of the fellow servant, and that the master has been negligent in employing or retaining such incompetent servant, after knowledge of the fact, either actual or constructive. Walters v. Lumber Co., supra; Shorter v. Cotton Mills, supra.

In the present ease evidence, tending to establish these factual requirements, is absent.

*178 On the other hand, if it be conceded that there is evidence of insufficiency of help, there is no evidence from which it may be reasonably inferred that that contributed in any manner in proximately causing the injury to plaintiff. Moreover, if it he conceded that there is evidence that the absence of hook impaired the usefulness of the chain for pulling stumps, the purpose for which it was being used, there is no evidence that chains with such hooks are in general and approved use. All that plaintiff testifies is that he told defendants that he didn’t' like to use it without a hook.

Furthermore, it is apparent that plaintiff with full knowledge of available help, and of the character of chain, continued to work, without any promise of more help, or of repair to chain. Ordinarily, under such circumstances, he would assume the incident risk. The obligation arising under existent relation of landlord and tenant was not sufficient to cause him to continue work in face of a known danger. It is said in S. v. Etheridge, supra, that “a tenant and cropper are more independent of the landlord than is a servant, and neither owes him the duty of allegiance or of rendering service, as growing out of their relation to him.”

The judgment below is

Affirmed.