Brown v. Texas Co.

76 S.E.2d 45, 237 N.C. 738, 1953 N.C. LEXIS 722

• Court: Supreme Court of North Carolina
• Decided: May 20, 1953
• Docket: 524
• Status: Published

Opinion

Barnhill, J.

We are inclined to tbe view tbat tbe evidence, considered in tbe light most favorable to tbe plaintiff, fails to disclose any negligent breach of duty on tbe part of defendant which could have in any wise contributed to bis injury.

Tbe plaintiff admits be was not an employee of defendant, and on this record it appears tbat tbe contracting firm of which be was a member was an independent contractor. It agreed to perform a specified contract on a lump-sum basis. It was to furnish tbe material and labor and bad tbe exclusive right to direct tbe manner and method of doing tbe work. And it was its duty, and not the duty of tbe defendant, to furnish its employees a safe place in which to work and proper safeguards against such dangers as might be incident to the work to be done. Hayes v. Elon College, 224 N.C. 11, 29 S.E. 2d 137; Bass v. Wholesale Corp., 212 N.C. 252, 193 S.E. 1; Beach v. McLean, 219 N.C. 521, 14 S.E. 2d 515; McCraw v. Mills, Inc., 233 N.C. 524, 64 S.E. 2d 658; Wood v. Miller, 226 N.C. 567, 39 S.E. 2d 608.

None of those conditions which impose liability upon tbe owner-contractee for injuries sustained by employees of an independent contractor are made to appear. While tbe manner and method of doing tbe work adopted by plaintiff may have been attended with great risk, there was nothing inherently dangerous in tbe work to be done when and if performed in a careful and prudent manner and with due regard to the safety of those who were employed to do it. Deaton v. Elon College, 226 N.C. 433, 38 S.E. 2d 561.

But we may concede, arguendo, tbat there is evidence of negligence on tbe part of tbe defendant. Even so, it clearly appears tbat plaintiff failed to exercise ordinary care for bis own safety, and tbat such want of due care on bis part was at least one of tbe proximate causes of bis fall and resulting injuries.

While there are many detailed facts appearing in tbe testimony, as is evidenced by tbe accompanying summary of tbe testimony, tbe determinative facts on this question are few and to the point. Plaintiff was a member of the contracting partnership, and it was bis duty to furnish adequate facilities for himself and all other employees of bis company. Yet be undertook to stand on a three-inch pipe sixteen or seventeen feet above tbe pavement, with nothing to which be could bold or balance himself except a two-inch upright pipe weighed down at tbe top by a horizontal pipe seven feet long. While undertaking to balance himself by bolding to this slim pipe with bis left band, be reached up and attempted to apply considerable pressure to tbe horizontal pipe with a heavy wrench. Whether he fell because the welded joint broke loose or whether his fall caused the welding to give way is not made to appear. In either event the danger attendant upon the manner and method he voluntarily adopted in doing the work should have been apparent to any man of ordinary prudence. The conclusion that the hazard he thus created was at least one of the proximate causes of his fall and resulting injuries is inescapable. Atkins v. Transportation Co., 224 N.C. 688, 32 S.E. 2d 209; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337; Caulder v. Gresham, 224 N.C. 402, 30 S.E. 2d 312; Samuels v. Bowers, 232 N.C. 149, 59 S.E. 2d 787; Levy v. Aluminum Co., 232 N.C. 158, 59 S.E. 2d 632.

We can appreciate the desire of plaintiff to “turn a dollar” on a small contract and the attendant temptation to “cut corners” and assume risks that otherwise would have been avoided, but this forms no basis for holding defendant liable for the unfortunate occurrence which followed.

The judgment entered in the court below is

Affirmed.