Evans ex rel. Evans v. Elliott

Stacy, C. J.,

concurring in part and dissenting in part: Two propositions are announced by the majority, (1) that Elliott was an independent contractor, and (2) that the work done was “too obviously dangerous to be debatable.” With the first I agree. With the second I disagree, if by “obviously dangerous” is meant inherently dangerous.

It is to be remembered that Elliott, the independent contractor, Oliver, the owner of the house, and the Edna Mills Corporation are no longer in the ease. They were let out by judgments of nonsuit.

*262Tbe Eockingham Homes, Inc., sold tbe bouse and lot in question to Oliver and agreed to “install in tbe residence situated on tbe above numbered lot batb fixtures, including a bathtub, a lavatory and a commode in tbe bathroom, and a kitchen sink and 30 gallon hot water tank in tbe kitchen.” Jack Elliott, trading as Eeidsville Plumbing Company, was engaged to do tbe work, and tbe terms of bis agreement are in writing. They are clear and speak for themselves. Brock v. Porter, ante, 28. Tbe ascertainment of their meaning and effect is for tbe court, and not for tbe jury. Drake v. Asheville, 194 N. C., 6, 138 S. E., 343; Patton v. Lumber Co., 179 N. C., 103, 101 S. E., 613; Young v. Jeffreys, 20 N. C., 357. Under tbe contract, Elliott agreed tó do tbe work as an independent contractor. Young v. Lumber Co., 147 N. C., 26, 60 S. E., 654.

Now, in respect of tbe character of tbe work to be done, it appears that tbe Oliver bouse is situate in tbe Edna Mills district, a thickly populated area of tbe city of Eeidsville; that a number of children reside in tbe neighborhood; that there are three children in tbe Oliver home and four in tbe Evans home, who live just across tbe street; that these children visit and play together; that other children in tbe neighborhood visit the Oliver children; that in all there are 25 or 30 children in tbe vicinity, and that these facts were known to tbe defendant.

It further appears that Elliott entered upon bis work in January, 1939, two or three weeks prior to plaintiff’s injury; that be dug a ditch, 2%, 3 or 3% feet deep and 2 feet wide from Way Street to the Oliver bouse and extending under tbe bouse to the bathroom for tbe purpose of laying a pipe and connecting with tbe city sewer line; that tbe ditch ran along tbe south end of tbe porch, which was about 2% feet from tbe ground; that there was no railing or banister at this end of the porch; that a section of pipe was lying in or protruding from under tbe bouse and into tbe ditch with a rim or “bell” at tbe end of it; that tbe work was stopped temporarily because of excessive rains, and water in tbe ditch, which prohibited proper leading of tbe joints; that during this time tbe ditch was covered from tbe street to a point “a little by tbe porch, a little by tbe corner” some 12 or 14 inches; that this left an uncovered space beside tbe porch “between two and three feet long and about two feet wide”; and that it is not customary, in work of this kind, to “cover a ditch inside the property.”

It further appears, by admission in defendant’s answer, “that the minor plaintiff either fell or was pushed into the ditch” — that is, into the open space at the south end of the porch, and was injured. There is no other evidence as to how the injury occurred. The record is silent on whether she fell from the porch or reached the opening over the embankment from the south.

*263On this record, then, the question arises whether the plumbing called for in the contract was so inherently dangerous as to render the defendant jointly liable with the independent contractor for failure properly to safeguard the work while in progress. None of the authorities cited in the majority opinion sustains an affirmative answer. On the contrary, they point in the opposite direction.

The installation of plumbing in a private dwelling is not regarded as especially hazardous. Certainly, the plumbing provided for in the contract with Elliott did not require the performance of work “intrinsically or inherently dangerous, however skillfully and carefully performed.” Davis v. Summerfield, 133 N. C., 325, 45 S. E., 654; Dunlap v. R. R., 167 N. C., 669, 83 S. E., 703.

The rule of responsibility in respect of “intrinsically dangerous” work is based on the unusual hazard which inheres in the performance of the contract, and not from any collateral negligence of the contractor. Bibb v. R. R., 87 Va., 711. Mere liability to injury is not the test, as injury may result in any kind of work where it is carelessly done, albeit with proper care it is not especially hazardous. Vogh v. Geer, 171 N. C., 672, 88 S. E., 874. The word “dangerous” means attendant with risk; perilous; something which in itself is unsafe. Scales v. Lewellyn, 172 N. C., 494, 40 S. E., 521.

The act of negligence here relied upon was the failure of the workmen properly to cover the ditch in question during the delay occasioned by the rains. This was Elliott’s negligence, if negligence at all, and not that of the defendant. The delay was not within the contemplation of the parties. Elliott’s negligence in this respect, if such it were, was collateral to the contract. It certainly was not inherent in the work in the sense this term is used to import original liability or a duty in connection with the work which may not be delegated to an independent contractor. Cole v. Durham, 176 N. C., 289, 97 S. E., 33.

The case of Fink v. Missouri Furnace Co., 82 Mo., 276, 52 Am. Rep., 376, is much like this one. There it was held that a person employing a contractor to haul sand was not liable for his negligence in so digging the sand as to form a dangerous bank which caved in and injured a young child. In that case, as here, it appeared “that there were quite a number of houses in the vicinity of said lot which were occupied by families with a number of children.”

Likewise, in Frassi v. McDonald, 122 Cal., 400, 55 Pac., 139, 772, it was held that the owner of a building in process of erection, entrusting to an independent contractor the work of laying pipes in the street, connecting with the building, was not liable for the negligence of the contractor in tearing up the sidewalk in the prosecution of his work, and leaving it in such condition as to be dangerous to persons passing by.

*264The whole subject is fully discussed in Davis v. Summerfield, supra; Denny v. Burlington, 155 N. C., 33, 70 S. E., 1085; Thomas v Lumber Co., 153 N. C., 351, 69 S. E., 275; Hopper v. Ordway, 157 N. C., 125, 72 S. E., 839; Drake v. Asheville, supra; Teague v. R. R., 212 N. C., 33, 192 S. E., 846; Hudson v. Oil Co., 215 N. C., 422, 2 S. E. (2d), 26. See, also, exhaustive note in 76 Am. St. Bep., 382, and annotations in 18 A. L. R., 801, where the authorities from all over the country are collected. This latter annotation follows two cases in the same Beport wherein it is held:

1. “The owner of a building in process of construction by an independent contractor is not liable for injury to a pedestrian on the adjoining street by a hot rivet which falls when thrown from one workman to another as a method of doing the work, where a protective cover had been placed over the sidewalk, since the workman’s act was not a necessary detail of the work so as to render it inherently dangerous and charge the owner with liability.” Smith v. Bank, 135 Tenn., 398, 186 S. W., 465, 18 A. L. R., 788.

2. “The removal of a sign from a building standing flush with the sidewalk is not so inherently dangerous that the property owner cannot relieve himself from liability for injury negligently inflicted by workmen upon persons passing along the street, by letting the work to an independent contractor.” Press v. Penny, 242 Mo., 98, 145 S. W., 458, 18 A. L. R., 794.

Simply stated, the rule is this: If the thing contracted to be done involves, as a direct consequence, a danger which the owner of the premises is bound by law to avoid, or to provide against, then the delegation of the work to an independent contractor will not relieve from liability for consequences proximately resulting from negligence in its performance. But where the work is not inherently dangerous, and the matter complained of is purely collateral to the work contracted to be done, and is entirely the result of the negligence or wrongful acts of the contractor or his workmen, the rule is that the employer is not liable. Robbins v. Chicago, 4 Wall., 657, 18 L. Ed., 427.

Perhaps it should be observed that we are not now concerned with the liability of a 'municipal corporation, where the independent contractor acts only under authority of the city council, King v. R. R., 66 N. Y., 181, or where the safety of a street or sidewalk is involved. Bailey v. Winston-Salem, 157 N. C., 252, 72 S. E., 966; Carrick v. Power Co., 157 N. C., 378, 72 S. E., 1065. Such cases call for the application of other principles.

The building of a house, which includes the installation of plumbing, is not regarded as a dangerous undertaking, Drake v. Asheville, supra, yet in the instant case it is ■ said the work done under the Elliott contract, *265wbicb only calls for the installation of plumbing in the ordinary manner, is “too obviously dangerous to be debatable.” This goes a bow-shot farther than anything in the books.

BabNHill and WiNBORNE, JJ., join in this opinion.