(dissenting).
I dissent from the majority opinion upon the basis that the trial court was correct in holding as a matter of law: (a) Travis Coleman’s status was that of independent contractor at the time of Gary Coleman’s injury;' and (b) the latter assumed the risk that resulted in his injury.
John Baker testified Travis Coleman and David Thacker, both former employees of his at the electric shop, signed contracts to do independent contractor work for him, before the time of the accident. Coleman testified that, as an employee of Baker, he had welded transformers and built charges; but it was only after he became an independent contractor that he began to construct motors.
The contract was made up in duplicate, with Baker signing and retaining one copy and Coleman signing and retaining the other. The contract provided for $1.00 per month rent; for parts to be furnished by Baker; for electricity, acetylene and oxygen to be furnished by Coleman. The payment for finished motors was to be $150 each, plus a rebate of $25 for electricity. The contract states:
“The party of the second part (Coleman) will furnish all labor needed in the manufacture and will also be responsible for any damages caused by his workers and for any accidents they may have or that outside persons may have on or about the premises.”
The contract was for a term of two years and provided for renewals or termination upon 30 days’ notice by either party.
In actual practice, Baker would advance money to Coleman and Thacker, (who also operated as an independent contractor, although he did not sign a contract until July, 1960) in the form of cash and payment of electricity and acetylene bills. The parties would make a final settlement when a machine was completed. Baker had no deduction for social security or income tax when he paid Coleman and Thacker.
Baker owned the building but did not own the lathes or other heavy machinery in the building.
Travis Coleman testified he was self-employed and had been since April, 1960. While he built motors for Baker, he also did work for other people and kept the money for himself. Coleman stated that he, and no one else, determined how many *850hours per day he worked. Baker testified he came to the shop on an average of one day per week for a 10-minute visit, to tell the men when he had work for them and to see if they needed parts.
In Turner v. Lewis, Ky., 282 S.W.2d 624, this Court held that the right of control of work and the methods of its performance are determinative on the question of whether one is a servant or an independent contractor. Here Coleman absolutely controlled the work and the method of its performance. See also Marcum v. United States, 6 Cir., 324 F.2d 787, wherein it was said that, under Kentucky law, the test for determination of whether the alleged servant was an independent contractor rather than a servant in connection with the occurrence in issue is whether the master had the right to control the details of the work. The evidence shows that Baker was’ interested only in the results of the work, i. e. motors, not the details involving their fabrication.
In 27 Am.Jur., Independent Contractors, sec. 2, p. 481, an independent contractor is defined as “ * * * one who, in exercising an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of his employer, except as to the product or result of his work.”
From any point of view, when the foregoing principles of law are applied to the evidence, in my opinion the trial judge had no alternative but to find that Coleman was an independent contractor.
It is also my view Gary Coleman, who was 16 and had finished the second year in high school, at the time he was'injured should be held to the same standard of care as an adult, and that, taking all the factors into consideration in this case, he was properly found by the trial court to be guilty of contributory negligence as a matter of law.
In Wright v. O’Neal, Ky., 320 S.W.2d 606, a 14-year-old farm boy, who was experienced in driving tractors and had been specifically instructed by his employer as to the safe operation of such equipment while mowing on a hill, was killed when the tractor turned over on a hillside. This Court held the boy was contributorily negligent as a matter of law because he had failed to follow the instructions his employer had given him.
A 15-year-old high school student was determined contributorily negligent as a matter of law when he climbed up on the top of one of the sides of a bridge and came into contact with “live” electric wires suspended above him. This Court said in that case, Jones v. Kentucky Utilities Company, Ky., 334 S.W.2d 263: “The youth, James Lynn Jones, who was a high school student, will be deemed to have had sufficient knowledge and appreciation of the danger to himself in climbing and walking upon the top of the high superstructure of the bridge, sixty feet above the river, and to be chargeable with an awareness of danger from the close electric wires.”
In NACCA Law Journal, Vol. 30, p. 62, it is stated: “The favorable mutant laid down in Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859, holding infant drivers to an adult standard of conduct continues to grow in strength and compel adherence. See, e. g., Harrelson v. Whitehead, [236] Ark. [325], 365 S.W.2d 868; Allen v. Ellis, [191] Kans. [311], 380 P.2d 408; Nielson [Nielsen] v. Brown, [232] Ore. [426] 374 P.2d 896.”
Gary Coleman testified in great detail about mine motors, their size, weight, method of operation, type of material, number of gears, etc. On the day of the accident, he. went to the shop for the purpose of driving the motors. He had been doing this for three months, about three times a week. -He operated the motors in the shop, on the road, or on a school yard near the shop.
On the day of the accident he drove the machine inside the shop for his own pleas*851ure. He knew'the machine was 10 feet long, five or more feet wide and weighed several tons. He knew how to stop and start it and how to regulate its speed and change gears. He knew that (as he stated) “ * * * if it got in motion it was subject to run over somebody unless it was being controlled.”
Travis Coleman testified thus about the boy: “I told him if he didn’t stay off it— I told the whole crowd, if the boys don’t stay off-n it — you will get killed.” He stated he gave this warning on the afternoon of the day the accident occurred.
Under the evidence, it is difficult for me to distinguish the case at bar, on the question of whether Gary Coleman could be held contributorily negligent, from the Wright and the Jones cases. Certainly, under the evidence introduced, he had “sufficient knowledge and appreciation of danger to himself” of driving the motor.
I would affirm the judgment.
I am authorized to state that MONTGOMERY, J., joins me in this dissent.