Smith v. South & W. R. Co

• Decision Date: 15 December 1909
• Citation: 151 N.C. 479,66 S.E. 435
• Court: North Carolina Supreme Court
• Parties: SMITH. v. SOUTH & W. R. CO.

(151 N.C. 479)

66 S.E. 435

SMITH.

v.SOUTH & W. R. CO.

Supreme Court of North Carolina.

Dec. 15, 1909.

1. Master* and Servant (§ 318^*)—Independent Contractors—Injuries to Servant.

If a railroad company hired an independent contractor to construct a part of its line, and had no active part, by encouragement, direction, or control, in the doing of the work, and a servant of the contractor was injured in the course of the work by an act of the contractor, the railroad company would not be liable.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. § 318.*]

2. Master and Servant (§ 315*)—Independent Contractors—Joint Tort-Feasors.

A railroad company and an independent contractor, over whom the railroad company exercised no control, were not joint tort-feasors and liable as such for injuries to a servant of the contractor, since, to make persons such, they must actively participate in the act causing the injury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1241; Dec. Dig. § 315.*]

3. Master and Servant (§ 300*)—Liability of Master for Act op Servant.

The principle upon which a master is generally liable for accidents caused by negligence or unskillfulness of his servant is that the act of the servant is the master's act.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 1209; Dec. Dig. § 300.*]

4. Indemnity (§ 3*)—Liability for Acts of Servant — Assumption of Liability by Servant.

A servant may release the master for injuries that may accrue to others from acts of the servant for which the servant is primarily liable, where as to such acts they are not joint tort-feasors.

[Ed. Note.—For other cases, see Indemnity, Dec. Dig. § 3.*]

5. Railroads (§ 257*)—Liability for Injuries—Stipulations in Construction Contract.

A contract between a railroad company and a construction company that the construction company should save the railroad company harmless from liability for injuries to servants of the construction company would relieve the railroad company from liability for acts of the construction company for which the railroad company was not liable and concerning which the companies were not joint tort-feasors.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 793; Dec. Dig. § 257.*] Appeal from Superior Court, Rutherford County; Justice, Judge.

Action by Waits Smith against the South & Western Railroad Company. Judgment of nonsuit, and plaintiff appeals. Affirmed.

Civil action tried before Justice, J., and a jury at August term, 1909, of the superior court of Rutherford county. The plaintiff sued to recover damages for an injury received by him through the negligence of the defendants while he was working for the Millard-Quigg Construction Company, a corporation under the laws of Virginia, engaged in constructing a part of the railroad of the South & Western Railroad Company. The injury was received in October, 1907. The plaintiff was employed to do the work of an ordinary laborer and belonged to the night force. The Millard-Quigg Construction Company filed its petition to remove the cause to the federal court, and, from the order disallowing Its motion and retaining the action in the state court, this company gave notice of appeal to the Supreme Court, whereupon the plaintiff executed on August 30, 1909, for the consideration mentioned therein, which was paid, the following paper writing: "North Carolina, Rutherford County. Superior Court, August Term, 1909. Waits Smith v. South & Western Railroad Company and Millard-Quigg Construction Oo. In the above-entitled cause in order to secure a trial at this term of court, the plaintiff covenants and agrees with-the Millard-Quigg Construction Company, upon the call of the case for trial and upon entering upon a trial of the same at this term of court, to enter a nonsuit as to the defendant Millard-Quigg Construction Company, and In consideration of the sum of five hundred and fifty dollars paid to Waits Smith by the Millard-Quigg Construction Company, the receipt whereof is hereby acknowledged, the said Waits Smith covenants and agrees with the Millard-Quigg Construction Company not to prosecute any new or further action against the Millard-Quigg Construction Company for any personal injuries sustained by the said Waits Smith whatsoever prior to this date, by any negligence of the Millard-Quigg Construction Company." The defendant railroad company had, in its answer filed, denied all negligence, denied it had employed, or had any control over the work of, plaintiff, alleged that the construction company was an independent contractor, that the construction company had employed plaintiff, designated his work, and that, if he was negligently injured, it was the negligence of the construction company. His honor permitted amendments to the pleadings on the part of the defendant, setting up the paper writing above quoted and its effect, and the plaintiff to reply thereto. The trial proceeded against the railroad company, and evidence was offered detailing the injury received by plaintiff, the time, place, and circumstances, and also that plain tiff was employed, paid, and directed in his work by the construction company. The paper writing was also offered in evidence and admitted. The plaintiff also offered the written contract under which the construction company was doing the work, which contract contained the stipulation that the construction company would indemnify the railroad company, among other things, "from damages arising from Injuries sustained by mechanics, laborers or other persons, by reason of accident or otherwise, including cost and expense of defense, provided that he be duly notified of the bringing of suits in such cases, and he be permitted to defend the same by his own counsel, if he should so select." In the progress of the trial the plaintiff admitted that he sought to hold the defendants only as joint tort-feasors, and at the close of his evidence the defendants' motion to nonsuit was sustained. The plaintiff excepted and appealed to this court.

R. E. Morris, J. M. Mull, and J. T. Perkins; for appellant.

Hudgins, Watson & Johnston, for appellee.

MANNING, J. (after stating the facts as above). The only question presented for our...