Devin, J.
Tbe plaintiff, appellant, assigns error in tbe ruling of tbe trial court in allowing defendant’s motion for judgment of nonsuit at tbe close of tbe plaintiff’s evidence. Tbe motion was based on two grounds, (1) tbat tbe plaintiff’s evidence was insufficient to show negligence on tbe part of tbe defendant, and (2) tbat plaintiff’s action was barred by tbe statute of limitations, G. S., 1-52.
1. Determination of tbe propriety of tbe motion on tbe ground of failure of proof requires tbat tbe evidence offered be considered in tbe light most favorable for tbe plaintiff. On demurrer to tbe evidence tbe plaintiff is entitled to tbe benefit of every fact and inference of fact pertaining to tbe question involved which reasonably may be deduced from tbe evidence.
Plumidies v. Smith,
222 N. C., 326, 22 S. E. (2d), 713.
Applying this rule tbe decision depends on whether there was any substantial evidence, competent to be considered, of negligence on tbe part of tbe defendant proximately causing or contributing to tbe injury
alleged. Of primary significance in tbe law of negligence is the failure to perform some duty which under the circumstances one owes to another as result of which the latter sustains an injury. As was said in
Richmond v. Warren,
307 Mass., 483: “There can be negligence only with relation to a duty to exercise care.”
Out of the circumstances shown by the evidence in this case certain relationships and corresponding duties and obligations are made to appear.
The movement of the steamship
Severance
which collided with plaintiff's structures was controlled by Mr. Dosher, the docking master and pilot employed by the Stone Towing Line. The contract by which the services of Dosher were engaged was not merely a contract of towage but also of pilotage. As such, Dosher was in complete command of the navigation of the ship. In undertaking at the request of the defendant to pilot the ship up the river and through .the draw of the highway bridge, Dosher, representing the Stone Towing Line, was exercising an independent employment.
The West Eldara,
104 E. (2d), 670;
Young v. Lumber Co.,
147 N. C., 26, 60 S. E., 654. He testified he had full charge of the maneuver, and there is no evidence the defendant had right to or exercised control over the steering and handling of the vessel on this occasion.
The Oregon,
158 U. S., 186;
Union Shipping and Trading Co. v. U. S.,
127 F. (2d), 771. But the employment of an independent contractor did not absolve the defendant of liability if the injury complained of was proximately caused by its own negligence, or its own negligence co-operated with the negligence of the independent contractor. 27 A. J., 509; 30 A. L. R., 1508; 44 A. L. R., 962. The doctrine of the employer’s non-liability for the acts of an independent contractor does not apply when the circumstances are such as to impose a duty on the part of the employer to exercise due care to avoid injury.
Evans v. Lumber Co.,
174 N. C., 31, 93 S. E., 430;
Davis v. Summerfield,
133 N. C., 325, 45 S. E., 654. The employer is answerable for injuries occasioned by nonperformance of duties which are incidental to the work and which have not devolved upon the contractor; or where the employer’s negligence co-operates with that of the contractor,
Hunter v. R. R.,
152 N. C., 682, 68 S. E., 237; or where the employer’s act or failure to act was negligent when tested by the standard of reasonable care,
Benninghoff v. Fulterer,
176 Ill. App., 579, 30 A. L. R., 1508; or he has furnished dangerous appliances for the use of the contractor.
Brady v. Jay,
111 La., 1071. Notwithstanding the employment of a licensed and experienced pilot, it was still obligatory upon the defendant, in the performance of its duty to exercise due care to avoid an injury to others which reasonably could have been foreseen, to advise the pilot of dangers in the movement of so large a ship through a narrow draw, dangers due to
faulty maneuverability, of wbicb it had knowledge and of which the pilot was apparently unaware.
While the defendant had the right to assume that the pilot was familiar with the river and its waters, and also that he knew how to handle and steer turret type vessels, it could not, under the circumstances here appearing, reasonably impute to the pilot knowledge of the peculiarities and faulty equipment of the
Severance,
which imported danger when navigated in narrow waters, peculiarities which were not common to all vessels of that type.
In view of the unpredictable tendency of the ship to sheer and the difficulty of keeping her on her course, together with the unfamiliarity of the pilot with these characteristics, the evidence would seem to furnish the basis for the imposition of a duty on the defendant, before attempting to move the ship through the draw, to advise the pilot of these circumstances, so that he might take measures to execute the maneuver with safety. He testified if he had been told she was a cranky ship he would have used another tug in the manner described, and thus prevented the sheer. There is evidence that turret type vessels as a rule were awkward, slow and loggish, but there is some evidence here that the tendency of the ship suddenly to change direction without apparent reason was peculiar to the
Severance.
The pilot who brought her up the Cape Fear River from the bar to Wilmington characterized her as the hardest steering ship he had ever known. In his picturesque language, “she was one of the meanest damn ships he ever piloted on to handle or steer.” Another pilot who had had experience with her had asked to be relieved of handling her. The testimony of the pilot on the occasion of the collision that the failure of the ship to respond to the helm, or the engine to take hold upon his order to reverse, would seem to suggest the inference of defective equipment or fault in the defendant’s engine room. The plaintiff’s evidence, which alone we are considering, does not warrant the definite conclusion as a matter of law that the collision was solely due to the negligence of the pilot.
The authority of the master of a vessel is not in complete abeyance while a pilot is in the discharge of his functions.
Union Shipping & Trading Co. v. U. S., supra.
The ship owner is not exempt from liability where his negligence or that of his agent proximately contributes to the injury,
Matheson v. Norfolk North American Steamshipping,
73 F. (2d), 177; and where the master is aware that under the direction of the pilot the ship is being operated so that it will likely cause injury to another, a duty devolves upon the master to give timely warning.
Jure v. United Fruit Co.,
6 F. (2d), 6;
The Gypsum King,
279 F., 297. The ship owner has the duty to take measures which are apparently necessary to prevent injury which in the exercise of due care could have been fore
seen.
Robins Dry Dock Repair Co. v. Navigazione Libera Triestina,
32 E. (2d), 209;
Orhanovich v. Steam Tug America, 4
F., 337.
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Devin, J.
Tbe plaintiff, appellant, assigns error in tbe ruling of tbe trial court in allowing defendant’s motion for judgment of nonsuit at tbe close of tbe plaintiff’s evidence. Tbe motion was based on two grounds, (1) tbat tbe plaintiff’s evidence was insufficient to show negligence on tbe part of tbe defendant, and (2) tbat plaintiff’s action was barred by tbe statute of limitations, G. S., 1-52.
1. Determination of tbe propriety of tbe motion on tbe ground of failure of proof requires tbat tbe evidence offered be considered in tbe light most favorable for tbe plaintiff. On demurrer to tbe evidence tbe plaintiff is entitled to tbe benefit of every fact and inference of fact pertaining to tbe question involved which reasonably may be deduced from tbe evidence.
Plumidies v. Smith,
222 N. C., 326, 22 S. E. (2d), 713.
Applying this rule tbe decision depends on whether there was any substantial evidence, competent to be considered, of negligence on tbe part of tbe defendant proximately causing or contributing to tbe injury
alleged. Of primary significance in tbe law of negligence is the failure to perform some duty which under the circumstances one owes to another as result of which the latter sustains an injury. As was said in
Richmond v. Warren,
307 Mass., 483: “There can be negligence only with relation to a duty to exercise care.”
Out of the circumstances shown by the evidence in this case certain relationships and corresponding duties and obligations are made to appear.
The movement of the steamship
Severance
which collided with plaintiff's structures was controlled by Mr. Dosher, the docking master and pilot employed by the Stone Towing Line. The contract by which the services of Dosher were engaged was not merely a contract of towage but also of pilotage. As such, Dosher was in complete command of the navigation of the ship. In undertaking at the request of the defendant to pilot the ship up the river and through .the draw of the highway bridge, Dosher, representing the Stone Towing Line, was exercising an independent employment.
The West Eldara,
104 E. (2d), 670;
Young v. Lumber Co.,
147 N. C., 26, 60 S. E., 654. He testified he had full charge of the maneuver, and there is no evidence the defendant had right to or exercised control over the steering and handling of the vessel on this occasion.
The Oregon,
158 U. S., 186;
Union Shipping and Trading Co. v. U. S.,
127 F. (2d), 771. But the employment of an independent contractor did not absolve the defendant of liability if the injury complained of was proximately caused by its own negligence, or its own negligence co-operated with the negligence of the independent contractor. 27 A. J., 509; 30 A. L. R., 1508; 44 A. L. R., 962. The doctrine of the employer’s non-liability for the acts of an independent contractor does not apply when the circumstances are such as to impose a duty on the part of the employer to exercise due care to avoid injury.
Evans v. Lumber Co.,
174 N. C., 31, 93 S. E., 430;
Davis v. Summerfield,
133 N. C., 325, 45 S. E., 654. The employer is answerable for injuries occasioned by nonperformance of duties which are incidental to the work and which have not devolved upon the contractor; or where the employer’s negligence co-operates with that of the contractor,
Hunter v. R. R.,
152 N. C., 682, 68 S. E., 237; or where the employer’s act or failure to act was negligent when tested by the standard of reasonable care,
Benninghoff v. Fulterer,
176 Ill. App., 579, 30 A. L. R., 1508; or he has furnished dangerous appliances for the use of the contractor.
Brady v. Jay,
111 La., 1071. Notwithstanding the employment of a licensed and experienced pilot, it was still obligatory upon the defendant, in the performance of its duty to exercise due care to avoid an injury to others which reasonably could have been foreseen, to advise the pilot of dangers in the movement of so large a ship through a narrow draw, dangers due to
faulty maneuverability, of wbicb it had knowledge and of which the pilot was apparently unaware.
While the defendant had the right to assume that the pilot was familiar with the river and its waters, and also that he knew how to handle and steer turret type vessels, it could not, under the circumstances here appearing, reasonably impute to the pilot knowledge of the peculiarities and faulty equipment of the
Severance,
which imported danger when navigated in narrow waters, peculiarities which were not common to all vessels of that type.
In view of the unpredictable tendency of the ship to sheer and the difficulty of keeping her on her course, together with the unfamiliarity of the pilot with these characteristics, the evidence would seem to furnish the basis for the imposition of a duty on the defendant, before attempting to move the ship through the draw, to advise the pilot of these circumstances, so that he might take measures to execute the maneuver with safety. He testified if he had been told she was a cranky ship he would have used another tug in the manner described, and thus prevented the sheer. There is evidence that turret type vessels as a rule were awkward, slow and loggish, but there is some evidence here that the tendency of the ship suddenly to change direction without apparent reason was peculiar to the
Severance.
The pilot who brought her up the Cape Fear River from the bar to Wilmington characterized her as the hardest steering ship he had ever known. In his picturesque language, “she was one of the meanest damn ships he ever piloted on to handle or steer.” Another pilot who had had experience with her had asked to be relieved of handling her. The testimony of the pilot on the occasion of the collision that the failure of the ship to respond to the helm, or the engine to take hold upon his order to reverse, would seem to suggest the inference of defective equipment or fault in the defendant’s engine room. The plaintiff’s evidence, which alone we are considering, does not warrant the definite conclusion as a matter of law that the collision was solely due to the negligence of the pilot.
The authority of the master of a vessel is not in complete abeyance while a pilot is in the discharge of his functions.
Union Shipping & Trading Co. v. U. S., supra.
The ship owner is not exempt from liability where his negligence or that of his agent proximately contributes to the injury,
Matheson v. Norfolk North American Steamshipping,
73 F. (2d), 177; and where the master is aware that under the direction of the pilot the ship is being operated so that it will likely cause injury to another, a duty devolves upon the master to give timely warning.
Jure v. United Fruit Co.,
6 F. (2d), 6;
The Gypsum King,
279 F., 297. The ship owner has the duty to take measures which are apparently necessary to prevent injury which in the exercise of due care could have been fore
seen.
Robins Dry Dock Repair Co. v. Navigazione Libera Triestina,
32 E. (2d), 209;
Orhanovich v. Steam Tug America, 4
F., 337.
The principle that the collision between a vessel in motion and a stationary object raises the presumption of negligence applies to the one in control of the movement, and, in the absence of evidence that defendant was in actual control of the navigation of the
Severance
at the time of the collision, this rule does not aid the plaintiff here.
The Cromwell,
259 F., 166;
U. S. v. Norfolk-Berkley Bridge Corp.,
29 F. (2d), 115. Nor may it be said that it was the duty of the owner to equip its ship with engines capable of such quick action as to be able to counteract unexpected action on the part of the Towing Company’s pilot.
Calzavaro v. Planet S. S. Corp.,
31 E. (2d), 885.
We think there was some competent evidence to support the plaintiff’s allegation of negligence on the part of the defendant in the respects pointed out, and that the plaintiff was entitled to have its case submitted to the jury under appropriate instructions. In discussing the effect of pertinent portions of the testimony offered by plaintiff, we express no opinion as to the credibility of the testimony or the weight to be given it. Our only province in the premises is to determine whether there be competent evidence sufficient to carry the case to the jury, under the rule in this jurisdiction.
We note that in the U. S. District Court in the case in which the owners of the
Severance
and of the cargo sought recovery against B. B. Stone, trading as Stone Towing Line, the decision in favor of the defendant was reversed on appeal by the Circuit Court of Appeals, Fourth Circuit
(The Severance,
152 F. [2d], 916). In the opinion in that case by
Circuit Judge Dobie
it is said: “Appellees attempt to explain the collision on the ground that the
Severance
was a cranky vessel and difficult to handle, that her engine response was faulty and her steering gear defective. We are not impressed by these contentions. . . . The testimony of Captains Dosher, Peders and Cudworth is far from convincing. This was more than offset by the testimony of the officers and crew of the
Severance.”
It will be noted that this decision was based on testimony heard in the Federal Court and not on that appearing in the record here, and that in that jurisdiction in admiralty the court determined the facts without a jury. Here we consider only the question whether there was any competent evidence of negligence on the part of the ship owner, the defendant here.
2. Under the pleadings the burden was on the plaintiff to show that its action was begun within the time allowed by law. This, we think, it has done by showing that shortly after the injury was sustained it was enjoined by the U. S. Court from proceeding except in'that jurisdiction; that it there filed its claim, promptly, against this defendant; that as
soon as its claim was dismissed from that court for want of jurisdiction
(Louis-Dreyfus v. Paterson Steamships,
43 F. [2d], 824), it caused summons to issue in the present action on the same claim.
We think under the rule in this jurisdiction based upon our statutes, G. S., 1-23 and 1-25, the plaintiff’s action was brought in time and was not barred by the statute of limitations.
Blades v. R. R.,
218 N. C., 702, 12 S. E. (2d), 553;
Harris v. Davenport,
132 N. C., 697, 44 S. E., 406.
For the reasons stated we think the motion for the judgment of nonsuit was improvidently allowed, and that the judgment of dismissing the action must be
Reversed.