Denny v. City of Burlington

• Decision Date: 19 April 1911
• Citation: 70 S.E. 1085,155 N.C. 33
• Parties: DENNY v. CITY OF BURLINGTON et al.
• Court: North Carolina Supreme Court

70 S.E. 1085

155 N.C. 33

DENNY v. CITY OF BURLINGTON et al.

Supreme Court of North Carolina

April 19, 1911

Appeal from Superior Court, Alamance County; Biggs, Judge.

Action by Hattie A. Denny, as administratrix, against the City of Burlington and others, for the death of her intestate. From a judgment for defendants, plaintiff appeals. Affirmed.

In an action by the administrator of an employe of an independent contractor against a city for injuries received while working for the independent contractor, evidence held to show that the city assumed no control over the work of the independent contractor.

A city engineer having no authority to assume control over the work of an independent contractor did not bind the city by making suggestions as to how the contractor should perform his work thus removing the relation of master and independent contractor.

The plaintiff sues to recover of the defendants the sum of $25,000 for the death of her intestate, alleging that his death was caused by the negligence of the city and its agents and servants, the defendants Russell & Harris, and that the negligence consisted in not providing a safe place for intestate to work while in the employ of the defendant, the city of Burlington, and while engaged in the work of building a reservoir for sewage purposes. She alleges that this negligence consisted in not sufficiently curbing the walls of the reservoir while intestate was working therein.

The defendant city of Burlington, answering, denied all allegations of negligence, and averred that the work in which the intestate of plaintiff was engaged at the time of the accident, resulting in his death, was being done and performed by the defendants Russell & Harris, as independent contractors of the defendant city of Burlington, and attached to said answer the written contract between the city and Russell & Harris. The city further sets up the defenses of assumption of risk and contributory negligence on the part of the intestate of plaintiff.

Plaintiff introduced one W. C. Dameron, who testified as follows "I was present when the bank caved in, and the plaintiff's intestate was killed thereby. A. F. Barrett the mayor of Burlington, and J. L. Scott, an officer of said city, had been about the pit one hour before the cave-in occurred. Mr. Kueffner was there inspecting the work. There was a dispute between Mr. Stevens, an engineer, and Mr Rodden, a foreman of defendant Russell, as to the manner of mixing certain concrete. I was there at the request of Russell, and Rodden was directing the work as foreman of the defendants Russell & Harris. Rodden (foreman of Russell & Harris) directed plaintiff's intestate, Denny, to do the exact work he was doing at the time of the cave-in by which Denny sustained the injury that killed him."

W. C Johnson, plaintiff's witness, testified: "I was in the reservoir when the cave-in occurred, and was employed by defendant Russell and paid by Russell. Denny was paid off at the same time and by the same person I was."

L. J. Rodden, for plaintiff, testified: "I was employed to work as foreman on the reservoir at Burlington by Russell & Harris, Mr. Kueffner was there and giving directions as to placing concrete. I was employed by Russell & Harris as foreman of this work, and Mr. Kueffner simply did the locating as to where concrete was to go, and observed the mixing of concrete. Russell paid for the material, and I, as foreman, hired Denny, and Russell paid him. I directed Denny to do the work he was doing at the time of the accident. I had power to discharge Denny."

A. F. Barrett, for plaintiff, testified: "I was mayor of Burlington at the time of the accident. The city of Burlington had an engineer directing the work of putting in its waterworks named Gilbert C. White, and Mr. White had two assistants, one named Stevens and one named Kueffner." He proved the execution of the original contract, it being Exhibit A annexed to the answer, as the contract under which this work was done by Russell & Harris.

Defendant city of Burlington introduced in evidence the contract, Exhibit A annexed to answer, and also introduced evidence showing that White, its general supervising engineer, had only instructed Kueffner to exercise such oversight over the work as to see that it was done according to contract. Defendant city further introduced evidence as to what Kueffner did in inspecting this work. There was further evidence introduced, showing the manner in which the accident occurred.

At the close of all the evidence, his honor intimated that he would instruct the jury, if they found the facts to be as testified by the witnesses, to answer the issues as to the liability of the city in its favor. The plaintiff, in deference to this instruction, submitted to a nonsuit as to the city. Plaintiff entered a nonsuit as to the defendants Russell & Harris, excepted to the judge's charge, and appealed from the judgment rendered upon the verdict, which was in favor of defendants.

Long & Long and R. C. Strudwick, for appellant.

W. H. Carroll and Parker & Parker, for appellees.

WALKER J.

If we concede that the plaintiff has sufficiently alleged and shown that the death of Denny, plaintiff's intestate, was caused by a negligent or wrongful act of Russell & Harris, and that there is no evidence of assumption of risk or contributory negligence on the part of Denny, we are yet of the opinion that the charge of the court was right, in view of the evidence, even when construed and considered in its most favorable aspect for the plaintiff, which is the settled rule by which we must be governed in passing upon the correctness of such a peremptory instruction as that given in this case.

The defendant city of Burlington, wishing to construct a reservoir for municipal purposes, in connection with its system of sewage, employed Russell & Harris to do the work under a written contract, not set out, as we deem it unnecessary to do so, which by its very terms constituted Russell & Harris independent contractors in their relation to the city, as much so as did the contract in Young v. Lumber Co., 147 N.C. 26, 60 S.E. 654, and Gay v. Lumber Co., 148 N.C. 336, 62 S.E. 436. In the former case Justice Connor quoted with approval the following definition of an independent contractor, taken from Craft v. Lumber Co., 132 N.C. 151, 43 S.E. 597: "When the contract is for something that may be lawfully done, and it is proper in its terms, and there has been no negligence in selecting a suitable person in respect to it, and no general control is reserved, either in respect to the manner of doing the work or the agents to be employed in doing it, and the person for whom the work is to be done is interested only in the ultimate result of the work, and not in the several steps as it progresses, the latter is not liable to third persons for the negligence of the contractor as his master." And in Gay v. Lumber Co., supra, it is said that: "An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified," citing Pollock on Torts, 78; Barrows on Negligence, 160. And the court also adopts the definition as given in Craft v. Lumber Co., and afterwards approved in Young v. Lumber Co., supra. The doctrine relating to the nonliability of a person who employs an independent contractor to do work for him, and the limit to the exemption, is fully considered in the following cases, in addition to those already cited: Davis v. Summerfield, 133 N.C. 325, 45 S.E. 654, 63 L. R. A. 492; Midgette v. Manufacturing Co., 150 N.C. 333, 64 S.E. 5; Hunter v. Railroad Co., 152 N.C. 682, 68 S.E. 237, 29 L. R. A. (N. S.) 851, and it is exhaustively and learnedly discussed in two recent cases, Thomas v. Lumber Co., 153 N.C. 351, 69 S.E. 275 (opinion by Justice Manning) and Beal v. Fibre Co., 154 N.C. --, 69 S.E. 834 (opinion by Justice Hoke). Reference to these cases will disclose that the subject has been considered by this court in all of its essential features and varying phases.

But to decide this case, we need only advert to the general principle, with its usual qualifications or exceptions, which are that the work must not be intrinsically dangerous (if this applies to a servant of a contractor, and not merely to third persons, not interested in or connected with the work) and the employer must not retain control or supervision of the work. It would perhaps be more accurate to say that these requirements are rather a part of the definition than...