Wright v. Phœnix Utility Co.

151 S.E. 241, 198 N.C. 204, 1930 N.C. LEXIS 298

• Court: Supreme Court of North Carolina
• Decided: January 22, 1930
• Status: Published

Opinion

BbogdeN, J.

It is to be observed that tbe plaintiff was not engaged in constructing tunnels, but that bis sole duty was to open sacks of cement. Necessarily cement dust would arise from sucb an operation.

Practically every phase of tbe law of removal bas been discussed by tbis Court in a long line of opinions;, and it is, therefore, unnecessary to “thresh over old straw.”

Tbe simple question is whether tbe record, in tbe case at bar, falls within tbe principles of law announced in Crisp v. Fibre Co., 193 N. C., 77, 136 S. E., 238, and Givens v. Mfg. Co., 196 N. C., 377, 145 S. E., 681, or within tbe principles announced in Rea v. Mirror Co., 158 N. C., 24, 73 S. E., 116; Johnson v. Lumber Co., 189 N. C., 81, 126 S. E., 165, and Cox v. Lumber Co., 193 N. C., 28, 136 S. E., 254.

We are of tbe opinion that tbe case falls within the line represented by tbe Rea, Johnson and Cox cases, supra. Tbe petition for removal clearly discloses and engenders tbe conclusion, by ample statement of fact, that tbe resident defendant, Jack Ferguson, was not a foreman, alter ego, or vice-principal. However, tbe Carolina Power and Light Company, a resident of North Carolina, was also joined, but it is clear that tbe real defendant, Phoenix Utility Company, was an independent contractor. Tbe Carolina Power and Light Company would not be liable, therefore, unless tbe work was inherently or intrinsically dangerous. Tbe term “intrinsically dangerous” bas been defined by tbis Court in several decisions, notably Scales v. Lewellyn, 172 N. C., 494, 90 S. E., 521. “We have recently said that “Tbe rule in regard to 'intrinsically dangerous' work is based upon tbe unusual danger which inheres in tbe performance of tbe contract, and not from tbe collateral negligence of tbe contractor. Mere liability to injury is not tbe test, as injuries may result in any kind of work where it is carelessly done, although with proper care it is not specially hazardous.” Vogh v. Geer, 171 N. C., 672, 23 A. L. R., 1016.

Applying tbe principles of law to tbe particular facts in tbe case at bar, we are of opinion that tbe work required of plaintiff does not fall within tbe legal classification of “inherently dangerous.” Hence it necessarily follows that tbe real defendant is tbe Phcenix Utility Company, a nonresident corporation, and tbe order of removal was properly made.

Affirmed.