Evans v. Dare Lumber Co.

• Decision Date: 12 September 1917
• Docket Number: 19.
• Citation: 93 S.E. 430,174 N.C. 31
• Parties: EVANS v. DARE LUMBER CO.
• Court: North Carolina Supreme Court

93 S.E. 430

174 N.C. 31

EVANS v. DARE LUMBER CO.

No. 19.

Supreme Court of North Carolina

September 12, 1917

Appeal from Superior Court, Pasquotank County; Justice, Judge.

Action by Willie Evans, by Gideon Pendleton, guardian, against the Dare Lumber Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

This is an action for personal injuries. The plaintiff, who is suing by his guardian, was 10 years old at the time his arm was caught and torn off, when attempting to straighten a board on the "live rollers," while working in the defendant's mill, as ordered to do. These live rollers were used for conveying lumber from place to place in the mill, and were fitted with rapidly revolving rollers and dangerous cogwheels, which were not boxed and totally unprotected. There was evidence "that most live rollers are boxed in, and that the live rollers in the defendant's mill were boxed in clean down to the lower end of the slasher, but that part which came down where the defendant was working was not boxed in; that they box them in because they are dangerous." This child had been hired to work by one Tony Spruill, who had charge of the defendant's lath room. The defendant was operating a large saw and planing mill, one of the departments of which was known as the lath room. The floor of this room was about 4 feet lower than the floor of the big mill, but it was under the same roof, with no partition, and there were several dangerous machines; i. e., the button saw, the lath saw, and the cut-off saw. The live rollers at which the plaintiff was hurt were located in the big mill near the lath room. Tony Spruill, who hired the plaintiff, was operating this lath room, making laths for the defendant at so much per thousand under a contract with the general manager of the mill. The lath room and all the machinery in it belonged to the defendant. Spruill made laths out of slab wood sent down by the defendant from the big mill under directions of the defendant's foreman. The laths, after being sawed and bundled, were delivered to other employés of the defendant and sold for defendant's profit. Under his contract with defendant's manager, Spruill was to pay his helpers out of the 60 cents per thousand which he received. He used as helpers two men and five boys; three of the latter, one of them the plaintiff, being about 10 years old. At the time of his injury, October 19, 1911, the plaintiff was throwing wood from the big mill into the lath room under orders from Spruill. He took the wood in the big mill to the live rollers, and when standing about 12 or 14 feet from them the plaintiff was told to straighten out a board on the live rollers, in order to throw the wood over. The plaintiff had to go close up to the live rollers, as the wood was piled against them. He was caught in them, lifted clear of the floor, and hung there until his arm was pulled off. He could not have been caught by the live rollers, if they had been boxed in, as is usually done. The wood had thus been piled in the big mill under permission from one of defendant's foremen. The man who ordered the plaintiff to straighten the board was in the big mill, as was the plaintiff at the time he lost his arm. The defendant's manager had seen the plaintiff there at work, and nothing was said to him or to Spruill by any superintendent of defendant's company, nor was there any objection to his working there. After he was injured, one of the defendant's superintendents said to Spruill, speaking of another of these boys about plaintiff's age, that he was too small to be working there. At the close of the evidence for the plaintiff, the judge allowed the defendant's motion for a nonsuit.

E. L Sawyer, and Meekins & McMullan, all of Elizabeth City, for appellant.

Aydlett & Simpson and Ehringhaus & Small, all of Elizabeth City, for appellee.

CLARK C.J.

It is six years since this boy's arm was torn off, and we have just reached the nonsuit stage in this action. There was negligence on the part of the defendant in allowing this boy 10 years of age, to work in the factory, in allowing him to work in a dangerous place, and in allowing the live rollers to be operated without being boxed. The defendant's superintendents saw the boy there and made no objection to his working.

The only defense the defendant attempted to set up was that Tony Spruill, who hired the boy and paid him, was an independent contractor. In Wiswall v. Brinson, 32 N.C. 554 Pearson, C.J., in holding that the owner of a house, who contracted with another to remove it (the contractor employing his own hands and being paid by the job), is liable for the negligence of the contractor, whereby a third person was injured, said that the rule excepting an employer from liability for the acts of those who work under his employment is restricted to those who exercise an independent calling. In this case the employer had power to terminate Spruill's employment at any time. This gave the defendant potential control over him, and is conclusive that Spruill was not an independent contractor, for whose negligence the defendant was not responsible. It is said in 14 R. C. L. 72, that it is idle and vain to assert that an employé is an independent contractor because he has the sole right to hire and discharge his help when his own employer has the unquestioned right to terminate the contractor's employment at will.

Neither does the doctrine of the master's nonliability for the acts of an independent contractor apply to protect the master when the injury is caused by such inherent danger in the work, as in this case, which called upon the master to observe the duty of absolute control, and most especially when the machinery which Spruill was operating was...