HOKE, J., concurs in the result.
CLARK, C. J., dissents. *Page 746 This is an action brought to recover of the defendant Wells Brothers Company damages for an injury sustained by the plaintiff. The F. C. Geer Company is named as defendant, but no recovery is sought as to them. The firm of Soper McDonald is also named as defendant, but they have not been served with process and are not parties to the action.
The Geer Company entered into a contract with the defendant Wells Brothers Company to erect a five-story building in the city of Durham in accordance with the plans and specifications of the architect: This defendant thereupon entered into a contract with Soper McDonald, construction steel and iron contractors, in a written contract set out in the record. Under the terms of this contract Soper McDonald undertook to construct all the steel and iron work for the building, employing their own artisans and having entire charge of the steel and iron work to be constructed in accordance with the plans and specifications of the architect. It is plain that according to this contract Soper McDonald were independent contractors, and also, upon all the evidence, that the plaintiff was their servant exclusively. Young v. Lumber Co., 147 N.C. 26;Gay v. R. R., 148 N.C. 336; Beal v. Fiber Co., 154 N.C. 147.
The added circumstance that the Wells Company allowed Soper McDonald to use their derrick and engine, and loaned them plank for covering the girders temporarily during the erection of the building, cannot have the effect to change their relationship, nor does it establish the relation of master and servant between the Wells Company and the plaintiff. Emerson v.Fay, 94 Va. 60; Gay v. R. R., supra.
That portion of the contract which is material is in these words: "It is understood that party of the first part will allow party of the second *Page 747 part use of one guy derrick and engine, together with the plank necessary to cover over during erection, all of which is loaned at the risk of party of the second part, and is to be returned to party of the first part in first-class condition and to be maintained and kept in good order by party of the second part until its return to party of the first part. Any repairs or replacements to be done at the cost and risk of party of the second part. It is further agreed and understood that party of the second part assumes all responsibility in the operation and use of this equipment and plank. It is also agreed and understood that the above mentioned guy derrick, engine, and plank will be delivered (675) f. o. b. cars, Durham, N.C. by party of first part to party of the second part."
It is to be noted that Soper McDonald, the parties of the second part, assumed all the responsibility in the operation and use "of the equipmentand plank furnished them by the Wells Company." The evidence tends to prove that the plaintiff was employed by Soper McDonald as a steel and iron worker. On 21 October, 1914, plaintiff was working on the fourth floor of the building. The temporary plank had been laid down across the girders for the workmen to stand on. One of the planks had a knot in it that broke and caused the plaintiff to fall to the lowest floor of the building, in consequence of which he was severely injured.
The evidence tends to prove that all the planks used for temporary covering were furnished by the Cary Lumber Company of Durham upon the order and for the account of Wells Company. They were delivered at the building by the wagons of the lumber company. When Soper McDonald needed any of these boards, their superintendent, Engler, would advise the defendant's superintendent, Holloway, and the latter would phone the Cary Lumber Company the order. No planks were ordered other than those requested by Engler.
On arrival of the planks at the building, Engler would take charge of them and he and the other employees of Soper McDonald, including the plaintiff, would hoist the planks by means of a derrick either direct from the lumber wagons or in some instances from the ground (where a large number of them had been piled), into the building, and would lay the planks across the girders for temporary flooring.
The evidence tends to prove that none of the employees of the Wells Company had anything to do with the planks after they reached the building. Nor did they have anything to do with unloading them from the wagons, putting them in the building, or laying the floors. Soper McDonald did all of that.
The evidence shows that all of these planks were new and of the same character. A large number of them had knots in them, all were of the *Page 748 dimensions customary for such work, and were used and placed in the usual way. The evidence shows that the employees of Soper McDonald, themselves, selected such planks as they desired and elevated them to that part of the building where they were needed, and that the use to be made of these planks and what particular planks should be laid at any particular point was left to the employees of Soper McDonald to determine.
There is evidence tending to prove that plaintiff was a member of the Structural Steel and Iron Workers' Union, and that the rules of that union require that no one handle these covering planks except the steel workers themselves. While this is not admitted by the plaintiff, (676) there is evidence tending to prove it, and that in the work on the Geer building the rules and customs of the Steel and Iron Workers' Union were observed.
The plaintiff and his witnesses testify that the plank which broke with him contained a knot which caused the plank to break, and that there were knots in practically all of the planks they were using, but that there were no defects in this particular plank apparent to him. Plaintiff, himself, testified that he did not make any request for more plank or for any different plank, and that he made no complaint to any one when he noticed that nearly all of the planks had knots in them. Plaintiff further testified that the fact that the planks had knots in them would not make them necessarily dangerous for the work he was engaged in, nor would the matter of the thickness of the plank, but the danger would be controlled by the size of the knot.
It is insisted that the Wells Company are liable for the negligence of Soper McDonald, upon the theory that this kind of work is what is called "intrinsically dangerous," such as blasting with dynamite and the like. According to that contention, the Geer Company, the owner of the building, would be liable as much so as the Wells Company; but the work contracted for was not of the kind described in any of the cases wherein the owner is held liable for the contractor's negligence upon the ground of inherent danger. The work contracted for here was the erection of an ordinary concrete building, hundreds of which are being constructed in this country every day. The plaintiff was an experienced artisan in that kind of work.
We find no precedent that holds that this work is of that character which the policy of the laws requires that the owner shall not be permitted to free himself from liability by contract with another for its execution.Brogden v. Perkins, 66 L.R.A., 924; Lafferty v. Gypsum Co., 83 Kan. 349;Boomer v. Wilbur, 176 Mass. 482.
The rule in regard to "intrinsically dangerous" work is based upon the unusual danger which inheres in the performance of the contract, *Page 749 and not from the collateral negligence of the contractor. Mere liability to injury is not the test, as injuries may result in any kind of work where it is carelessly done, although with proper care it is not specially hazardous. Therefore, it is held that the erection of a building is not within the undertakings called specially hazardous. Richmond v. Sittending,101 Va. 354.
We think, however, that there was error in the charge of the court which entitled the defendant to a new trial.
There is evidence which tends to prove that Wells Brothers, the general contractors, sublet the structural steel work to Soper McDonald, agreeing to allow them the use of a derrick and engine and the plank to cover over during erection, Soper McDonald assuming all responsibility in the use and operation of the equipment and plank; (677) that the plaintiff was employed by Soper McDonald, and was injured while in this employment by stepping on a defective plank; that Wells Brothers Company placed the order for plank, when needed, with a reliable manufacturing plant, which furnished lumber of average grade and quality; that the manufacturing plant delivered the plank at the building to Soper McDonald, whose duty it was to inspect the plank and to reject any found defective; that the plaintiff was working under the rules of a union, of which he was a member, which made it a part of the contract of employment that the employee should have the right to inspect all materials furnished him, and to refuse any that was defective; that the plaintiff helped to place the plank which caused his injury.
If this evidence is true, the defendant has performed its duty, and is not negligent, and this phase of the case was not presented to the jury.
On the contrary, the jury was told, in substance, that the issue of negligence could be answered "Yes" if the defendant did not use ordinary care in selecting the plank, leaving out of consideration that it was furnished subject to acceptance and inspection by Soper McDonald and the plaintiff.
It is unnecessary to discuss the fellow-servant doctrine or that of assumption of risk. Those questions do not arise in this case. In our opinion its proper determination depends on whether the duty of inspecting the flooring rested on the plaintiff and the subcontractors, Soper McDonald, or on the Wells Company. Upon that proposition there is evidence which should be submitted to the jury under proper instructions.
New trial.
HOKE, J., concurs in result. *Page 750