Greer v. Callahan Const. Co.

• Decision Date: 09 December 1925
• Docket Number: 363.
• Parties: GREER v. CALLAHAN CONST. CO.
• Court: North Carolina Supreme Court

130 S.E. 739

190 N.C. 632

GREER v. CALLAHAN CONST. CO.

No. 363.

Supreme Court of North Carolina

December 9, 1925

Appeal from Superior Court, Ashe County; Finley, Judge.

Action by Gaither Greer against the Callahan Construction Company. Judgment for plaintiff, and defendant appeals. No error.

Construction company held liable to independent contractor's employee injured through negligence of independent contractor blasting with dynamite.

Action to recover damages for personal injuries sustained by plaintiff while at work as a laborer in the construction of a public highway in Ashe county.

Defendant Callahan Construction Company, in November, 1919, entered into a written contract with the highway commission of Ashe county, by which defendant undertook to construct for said highway commission a public highway from Lansing, N. C., up Little Horse creek, to or near White Oak schoolhouse. Defendant thereafter entered into a contract with E. T Williams, by which the said Williams undertook the construction of a portion of said highway in accordance with the contract between defendant and the highway commission. Plaintiff was employed by the said E. T. Williams during January, 1921, to do whatever he was directed to do as a laborer in the construction of that portion of said highway which said Williams had undertaken to construct. He had no regular job. He sometimes used a pick and shovel, and sometimes worked at the steam drill. He had occasionally aided in blasting with dynamite. He was subject to the orders of Williams or his foreman.

On or about May 27, 1921, plaintiff was directed by his foreman to take caps, fuses, and dynamite, and "shoot off" 13 holes which had been drilled within a space about 10 feet square, for the purpose of blasting. This blasting was necessary for the construction of said highway, under the contract between defendant and the highway commission. An electric battery, by means of which the fuses could be ignited from a distance of a hundred feet or more, had been used on the job for igniting the fuses and exploding the dynamite. On this day, however, the electric battery, under the orders of Williams or his foreman, had been taken to another job. Plaintiff was directed by his foreman to ignite the fuses, and thus explode the dynamite, which he had placed in said holes, by means of a torch, made of pine bark, upon which oil had been poured. Plaintiff was then about 21 years of age, and had had no previous experience in blasting with dynamite. He did as he was directed. As he was raising up to leave the place where the holes had been drilled, after igniting the fuses with the torch, the dynamite in one of the holes exploded and thus injured his eye. He was taken at once to a hospital, where, after a few weeks, his eye was removed by a surgeon because of the injury sustained by him as a result of the explosion of the dynamite.

The issues answered by the jury are as follows:

(1) Was the plaintiff injured by the negligence of defendant as alleged in the complaint? Answer: Yes.

(2) Did the plaintiff by his own negligence contribute to his injury as alleged in the answer? Answer: No.

(3) What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $5,500.

From the judgment upon this verdict, defendant appealed.

W. R. Bauguess and J. B. Councill, both of Jefferson, S. P. Graves, of Mt. Airy, Manly, Hendren & Womble, of Winston-Salem, and R. A. Doughton, of Raleigh, for appellant.

T. C. Bowie, of Jefferson, for appellee.

CONNOR J.

Defendant, by its assignments of errors, based upon exceptions duly taken, presents to this court upon appeal from the judgment rendered upon the verdict its contention that, although plaintiff at the time of his injury was engaged in work upon the highway which it had contracted to do, and that although such injury was caused by the failure to instruct plaintiff as to the danger of the work which he was directed to do, or by the failure to exercise reasonable care to provide for him a reasonably safe place in which to work, or by the failure to exercise reasonable care to provide reasonably safe methods for the performance of his work as a laborer in the construction of said highway, defendant is not liable to plaintiff for damages resulting from his injury because plaintiff was not an employee of defendant but was an employee of E. T. Williams, and that therefore defendant owed plaintiff no duty, the breach of which is alleged in the complaint as the proximate cause of the injury.

After all the evidence had been introduced, defendant admitted that E. T. Williams, by whom plaintiff was employed and under whose direction he was at work when he was injured, was an independent contractor of defendant. Defendant in its answer admitted that it was necessary to use dynamite for blasting in the construction of said highway under its contract with the highway commission of Ashe county. The question presented by this appeal, therefore, is whether one who has undertaken the construction of a public highway, and who has sublet the construction of a portion of said highway to one who by reason of the terms and provisions of the subcontract is an independent contractor, is liable to an employee of such independent contractor who is injured while at work in the construction of said highway, blasting with dynamite, and whose injury is caused by the breach of a duty which, under the law, an employer owes to his employee; it being admitted that in the construction of the highway under the contract it was necessary to use dynamite for blasting.

The law relative to the duties which a master or employer owes to his servant or employee while engaged in the performance of duties incident to his employment is well settled in this and other states whose jurisprudence has a common origin, and where the growth of the law has been guided by legislation founded upon just principles and has been responsive to judicial decisions influenced by an enlightened social conscience; for "the law is not fossilized. It is a growth. It grows more just with the growing humanity of the age and broadens 'with the process of the suns.' " Clark, C.J., Pressly v. Yarn Mills, 138 N.C. 410, 51 S.E. 69. By growth and development the law meets the manifest requirements of ever-changing economic and industrial conditions. In his dissenting opinion in Vogh v. Greer, 171 N.C. 672, 88 S.E. 874, Chief Justice Clark again said:

"The modern and just doctrine that when there are large numbers of employees the 'business shall bear the loss' from injury to an employee, and that the whole burden shall not fall, as heretofore, with crushing effect upon the unfortunate employee and his dependent family, is now the attitude of the law as it has been expressed by legislation, and later by the courts."

The law, however, does not hold a master or employer, even of a large number of servants or employees, liable as an insurer. Liability is predicated only upon negligence or breach of duty. Breach of duties by a master or employer resulting as the proximate cause in injuries to the servant or employee fixes upon the master or employer liability for damages for the injuries sustained by the servant or employee. These duties grow out of and are determined by the relationship; liability for damages caused by a breach of such duties is enforced, not only in accordance with correct legal principles, but also in accordance with a sound public policy and in furtherance of an enlightened conception of social justice. However, when the relationship of master or employer and servant or employee does not exist between the person injured and the person upon whom demand for damages is made, there is no liability which the law recognizes and enforces, because there is no duty the breach of which can be assigned as the proximate cause of the injury.

One for whom work is done is not the master or employer of him who has contracted to do the work when, by virtue of the terms of the contract, the latter is an independent contractor; nor does the relationship exist...