Hunter v. Southern Ry. Co.

• Decision Date: 27 May 1910
• Citation: 68 S.E. 237,152 N.C. 682
• Parties: HUNTER v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

68 S.E. 237

152 N.C. 682

HUNTER v. SOUTHERN RY. CO.

Supreme Court of North Carolina

May 27, 1910

Appeal from Superior Court, Buncombe County; M. H. Justice, Judge.

Action by J. W. Hunter, administrator, against the Southern Railway Company. Judgment for plaintiff. Defendant appeals.

Affirmed.

In an action against defendant for the death of plaintiff's wife, alleged to have been caused by negligently conducting blasting operations near plaintiff's house, the fact that the work was done for defendant by an independent contractor did not alone exempt defendant from liability, but it appearing that defendant by its own servants had first attempted to perform the work, and became aware that its performance in the manner attempted would injure the plaintiff, and that defendant afterwards secured the work to be done through an independent contractor, who conducted it in the same negligent manner in which it was conducted by defendant, it was liable.

The plaintiff, as administrator of his wife, brought this action to recover damages for the death of his wife, and alleged that:

"(4) During the spring and summer of 1906 the defendant railroad company did willfully, wantonly, and in a grossly negligent manner, and in utter disregard of the rights of the plaintiff's intestate, carry on and conduct its blasting operations across the French Broad river from where the plaintiff's intestate lived, and did use excessively large charges of explosives, and did wantonly willfully, negligently, and carelessly fail to take proper precautions to prevent throwing of rocks by the explosions of the blasts around and about the home of the plaintiff's intestate.

"(5) The plaintiff in this case, James W. Hunter, who was at the time of the acts and negligence complained of the husband of the plaintiff's intestate, notified the defendant its agents and servants, of the dangerous and negligent manner in which they and the defendant were conducting the said blasting operations, and the said defendants, its agents and servants, were requested by the said James W. Hunter to use the proper care in such operations, that his intestate was in a delicate state of health, and that such reckless and dangerous blasting so near her home would probably inflict upon her serious injury, and might cause her death; that the defendant railway company, through its agents and servants, replied to the said James W. Hunter, on being notified, that they, the said agents and servants of the defendant, had been instructed to 'tear hell out of the side of that mountain,' and that they intended to do it, regardless of consequences, and thereafter the said blasting was continued in the same negligent manner as before.

"(6) On account of the negligence of the defendant, its agents and servants, as hereinbefore set forth, the health of the plaintiff's intestate was destroyed, and her nervous system was so shocked and wounded that she became seriously ill therefrom and died, all of which was caused by the acts and negligence of the defendant, its agents and servants, as hereinbefore set forth."

The defendant, after denying the imputed acts of negligence, for a further defense pleaded that this defendant, Southern Railway Company, on the -- day of June, 1906, made and entered into a written contract with Timothy Shea to construct a roadbed for extension of certain tracks at Alexander, N. C., and that said contract was in all respects a lawful one, which the parties thereto might lawfully make and perform; that the work of constructing a roadbed of the character and nature the said Timothy Shea was employed by this defendant to make was an independent avocation, calling, or business in which the said Timothy Shea was, and had for many years previously been, engaged, and for the exercise of which he had and owned all of the necessary means and appliances; that this defendant, under said contract, was neither principal nor master, nor did it reserve any general or special control over said Timothy Shea either in respect of the manner of performance of said contract by him or in respect of the agents to be employed by the said Shea in doing said work, nor did this defendant, before the commencement of said contract by the said Shea heretofore mentioned, or at the commencement of the same or at any time during the progress of its performance assume or in any manner attempt to assume control of the said Shea or the said work or any of the workmen engaged upon the said work or in any other respect whatever; that the said Shea was neither the agent nor the servant of this defendant, but was an independent contractor, taking said work as a job and as a whole for a definite, fixed, agreed sum, and this defendant was only interested in the result of the work, and not in any way in the means employed by the said Shea in its performance; that in making said contract with said Shea, by which he agreed and contracted to do the work of constructing a roadbed for the extension of certain tracks at Alexander, N. C., this defendant ascertained that the said Shea was a man of experience in the kind and character of work which by said contract he bound himself to perform, and he was in every way thoroughly competent and skilled, and this defendant knew when it employed the said Shea that he for a long time had been engaged in the performance of such work, and this defendant, before making and signing said contract, made due inquiries as to the capacity and reliability of the said Shea in respect of such work, and ascertained that he was both capable and trustworthy, and this defendant is advised, informed, and believes that the said blasting mentioned in the plaintiff's complaint was the blasting done by the said Shea and his employés and subcontractors while engaged in doing the work set out in the contract made between this defendant and the said Timothy Shea. This defendant never authorized the said Timothy Shea or any one else to resort to blasting in constructing the roadbed for the extension of the tracks at Alexander, or to use powder, dynamite, or any other unlawful agency in the performance of said work.

The following issues were submitted to the jury, who answered them as set out:

"(1) Was the death of plaintiff's intestate caused by the negligence of the defendant Southern Railway Company, as alleged in the complaint? Answer: Yes.

"(2) What damages, if any, is plaintiff entitled to recover of defendant Southern Railway Company? Answer: $2,000."

Judgment was rendered for the plaintiff, and defendant appealed to this court.

Moore & Rollins, for appellant.

Craig, Martin & Thomason, Frank Carter, and H. C. Chedester, for appellee.

MANNING J.

In view of the verdict of the jury rendered under the charge of his honor, the following facts are established by the evidence That in the month of April or May, 1906, the defendant, desiring to widen its roadbed at or near Alexander, in Buncombe county, and lay additional tracks or straighten its existing tracks, then used and having been used for many years, found it necessary to blast out a perpendicular cliff of rock, about 400 feet long and 42 feet high at its greatest height, situate on its right of way, and began the work of blasting down the cliff by its own employés. This continued two or three weeks. The plaintiff lived across the French Broad river with his wife and two small children, in the corporate limits of Alexander, and a quarter of a mile from the blasting. The result of defendant's operations was to throw rocks of large and small size across the river in plaintiff's yard, on his house and buildings, in his garden and field, and the blasting was of such violence that the window glass in plaintiff's house was shaken out, and his wife much frightened and rendered very nervous. The plaintiff made frequent complaints, but to no avail. The defendant suspended operations by its own employés, and in June, 1906, made a contract with one Timothy Shea to continue the work, and complete it according to certain plans and specifications. He soon thereafter began work, and conducted it in the same manner as the defendant had done, and he and his foreman and other witnesses offered by the defendant...