Gadsden v. Craft & Co

• Decision Date: 25 April 1917
• Docket Number: (No. 296.)
• Citation: 92 S.E. 174
• Court: North Carolina Supreme Court
• Parties: GADSDEN. v. CRAFT & CO. et al.

(173 N.C. 418)

92 S.E. 174

GADSDEN.

v.CRAFT & CO. et al.

(No. 296.)

Supreme Court of North Carolina.

April 25, 1917.

Appeal from Superior Court, New Hanover County; Connor, Judge.

Action by Robert Gadsden against Craft & Co. and others. Judgment for plaintiff against Craft & Co., with nonsuit as to defendant Railroad Companies. From judgment of nonsuit, plaintiff appeals. Reversed.

See, also, 171 N. C. 288, 88 S. E. 423.

There was evidence tending to show that in the fall of 1914 defendants Craft & Co. were engaged in constructing a re-enforced concrete bridge over Fourth street in the city of Wilmington, under a contract with the two defendant railroads, and that on the 27th of November, 1914, plaintiff, while engaged as an employ in said work, was injured by the fall of a scaffold on which he was placed, in the course of, his employment, the scaffold having been improperly and insecurely constructed.

On the trial it appeared for defendant companies that the work in question was being done by their codefendants, Craft & Co., under a written contract which was put in evidence and under the terms of which defendants contended that Craft & Co. were independent contractors, and that no liability could be properly imputed to the companies by reason of default of such contractor.

The court having intimated an opinion that this was the effect of the contract and the attendant facts in evidence, plaintiff excepted and submitted to a nonsuit as to the railroad companies. There was recovery and judgment for $1,250 damages against Craft & Co. and judgment of nonsuit as to the railroad companies, and from the judgment as to these companies, plaintiff appealed.

A. G. Ricaud, of Wilmington, for appellant. Rountree & Davis, of Wilmington, for appellee Atlantic Coast Line R. R.

John D. Bellamy and Emmett Bellamy, both of Wilmington, for appellee Seaboard Air Line Ry.

HOKE, J. Plaintiff objects to the validity of the judgment of nonsuit for the reasons: (1) That, under the terms of the written agreement, Craft & Co. were not independent contractors; (2) that the work in which they were engaged was inherently dangerous, and that the position of independent contractor could in no event be maintained for the benefit of the appellees.

On the record we see nothing to justify the position that the work was inherently dangerous„and the objection made upon that ground must be disallowed. Scales v. Lewellyn, 172 N. C. 494, 90 S. E. 521.

We are of opinion, however, that under the written agreement offered in evidence the powers reserved to the railroads during the performance of the work and as to the manner and methods of doing it are so extended and controlling that Craft & Co. could in no proper sense be considered as independent contractors, but are themselves agents and employes of the railroads, for whose negligent default the companies may be held responsible under the principles of respondeat superior.

In Beal v. Fiber Co., 154 N. C. 147-150, 69 S. E. 834, 835, the court quotes with approval from Moll on Independent Contractors, who in section 19, quotes as follows from Judge Thompson, who in his Commentaries on Negligence, states the rule thus:

"If the proprietor retains for himself or for his agent (e. g., architect and superintendent) a general control over the work, not only with reference to results, but also with reference to methods of procedure, then the contractor is" not deemed an independent contractor within the meaning of the rule under consideration, but he is "deemed the mere agent or servant of the proprietor, and the rule of respondeat superior operates to make the proprietor liable for his wrongful acts or those of his servants, whether the proprietor directly interfered with the work and authorized and commanded the doing of such acts or not. It is not necessary in such a case that the employer should actually guide and control the contractor. It is enough that the contract vests him with the right of guidance and control."

And again from Smith v. Simmons, 103 Pa.

32, 49 Am. Rep. 113:

"Whore one who contracts to perform a lawful service for another is independent of his employer in all that pertains to the execution of the work, and is subordinate only in effecting a result in accordance with the employer's design, he is an independent contractor, and in such case the contractor alone, and not the employer, is liable for damages caused by the contractor's negligence in the execution of the work."

These tests for determining the position of an independent...