Mehaffey v. Appalachian Construction Co.

146 S.E. 72, 197 N.C. 22, 1929 N.C. LEXIS 133

• Court: Supreme Court of North Carolina
• Decided: April 3, 1929
• Status: Published

Opinion

Brogden, J.

What duty is imposed by law upon, an employer who undertakes to transport workmen?

This case was considered by the Court upon a former appeal, and is reported in 194 N. C., 717, 140 S. E., 716. A new trial was awarded upon the ground that .the jury had not been properly instructed upon the question as to whether the defendant contracted to provide transportation for the deceased or whether he was riding upon the truck at the invitation or by the license of the owner or the driver.

It is to be observed that the issues in the case at bar are much more comprehensive than those appearing in the former opinion.

Certain principles relating to 'the question of law involved, have been discussed and enunciated by this Court. In Haynie v. Power Co., 157 N. C., 503, 76 S. E., 198, the Court declared: “We do not mean to hold that the defendants became insurers of the intestate’s life, but if the agreement be as testified to by plaintiff, it was the duty of defendants to use due diligence and care to keep him away from the machinery and at the work he was hired to perform or else to return him to his father.” Ensley v. Lumber Co., 165 N. C., 687, 81 S. E., 1010; Satchell v. McNair, 189 N. C., 472, 127 S. E., 417.

Again, in Tanner v. Lumber Co., 140 N. C., 475, 53 S. E., 287, the Court said: “The rigorous rule that once obtained has been greatly modified. The true rule now is more humane and holds the master is liable for negligence in respect to such acts and duties as he is required, or assumed to perform, without regard to the rank or title of the agent entrusted with their performance. As to such acts the agent occupies the place of the master and he is liable for the manner in which they are performed.” To the same effect is Williams v. R. R., 190 N. c., 366, 129 S. E., 816, in which the principle of law applicable is thus expressed : “Where the master undertakes to furnish his laborers transportation to and from their work, it is his duty, in the exercise of ordinary care, to see to it that such transportation is rendered as reasonably safe as the character of it will permit.”

The clear meaning of these decisions is that an employer of labor, who either contracts to furnish transportation or assumes the task and responsibility of so doing, is required by law to exercise ordináry care in discharging such obligation, and is therefore liable for the negligence of the person who undertakes for him and by his direction to transport employees. This is true whether the person actually transporting workmen be called servant, agent or independent contractor.

Tbe jury bas found from proper evidence tbat tbe defendant bad assumed tbe obligation of transporting workmen from'Balsam to Hazel-wood, and tbat Justice was tbe person employed by tbe defendant for returning Kenneth M’ebaffey and others to their homes; and further, tbat tbe death of plaintiff’s intestate was proximately caused by tbe negligence of tbe defendant.

There is some contention tbat there is no evidence tbat Freeman was employed by tbe defendant to transport laborers, but tbe recovery can be sustained irrespective of either tbe employment or negligence of Freeman, because there is positive evidence tbat tbe truck driven by Justice was especially selected by Stevenson, superintendent of tbe defendant, for returning plaintiff’s intestate to bis home. Moreover, there is sufficient evidence of tbe negligence of Justice. A close scrutiny of tbe record discloses no error of law warranting a new trial, and tbe judgment is affirmed.

No error.