#### J. F. LILLEY v. THE INTERSTATE COOPERAGE COMPANY.

(Filed 21 September, 1927.)

1. Negligence — Master and Servant — Employer and Employee — Independent Contractor — Contracts—Burden of Proof.

In an action to recover damages for an injury alleged to liave been negligently inflicted, tbe burden of proof is on tbe defendant to show that the act complained of was caused by tbe negligence, if any, of an independent contractor, when tbe defense is relied upon.

2. Same — Railroads—Tramroads — Logs and Logging — Skidder — Evidence — Nonsuit—Questions for Jury — Statutes.

Where tbe defense of an independent contractor is relied upon in an action to recover damages for an alleged negligent injury inflicted on the plaintiff, evidence in plaintiff’s behalf tending to show that the relationship of independent contractor had before the happening of the accident been severed and that the defendant’s employees were in charge of and loading logs upon the defendant’s tramroad when the plaintiff’s injury occurred in the course of his employment, is sufficient to take the *251case to the jury, under the facts of this case, as to his employment by the defendant at the time, upon defendant’s motion as of nonsuit. C. S., 567.

3. Verdict — Issues—Appeal and Error — Harmless Error.

Where the answer- by the jury to an issue fully determining the action is given under proper instructions, an error in the instruction of the court on another issue will not be held for reversible error.

4. Master and Servant — Employer and Employee — Negligence — Fellow-Servant — Statutes—Tramroads—Skidder—Logs and Logging.

Where a tram railroad is engaged in loading logs by means of a skidder or loader operated by steam, and there is evidence tending to show that the fellow-servant of the plaintiff engaged in the scope of his employment in loading the logs, negligently caused one of the logs to drop upon the plaintiff and injure him: *Held,*under our statute, the common-law doctrine-exempting the defendant tram does not apply, C. S., 3465, and the defendant is liable in damages for the negligent injury proximately caused.

5. Same — Damages—Contributory Negligence — Diminution of Damages— Nonsuit — Questions for Jury.

Contributory negligence of an employee of a tram railroad company injured while engaged in the course of his employment in loading logs upon the e’ar by a steam-driven skidder, does not bar recovery, but is only to be considered by the jury in diminution of the plaintiff’s damages when considering the issues. C. S., 3467.

6. Instructions — Requests for Instruction — Appeal and Ei'ror — Objections and Exceptions — Master and Servant — Employer and Employee— Negligence.

Where in the servant’s action to recover damages for an alleged negligent injury inflicted upon him by the master, the judge properly charged upon the evidence the principles of law relating to the burden of proof and proximate cause, the defendant must aptly submit a proper request for more explicit instructions thereon in order to avail himself of this position on appeal.

Appeal by defendant from *Daniels, J.,*and a jury, at April Term, 1927, of Beaueobt.

No error.

This was an action for actionable negligence brought by plaintiff against defendant. Tbe defendant set up the defense that D. U. Martin or some of his subcontractors or employees were independent contractors, denied negligence and plead that plaintiff assumed the risk and was guilty of contributory negligence.

The issues submitted to the jury and their answers thereto, were as follows :

“1. Was the plaintiff in the employ of Louis Waters or D. U. Martin, as alleged in the answer? Answer: No.

*“2.*If so, was said D. U. Martin an independent contractor as alleged? Answer: No.

*252“3. Was plaintiff injured by tbe negligence of defendant as alleged in tbe complaint? Answer: Yes.

“4. Did plaintiff by bis own negligence contribute to bis injury? Answer: No.

“5. Wbat damage, if any, is plaintiff entitled to recover of defendant? Answer: $2,000.”

Tbe defendant made numerous exceptions and assignments of error and appealed to tbe Supreme Court. Tbe necessary facts and assignments of error will be considered in tbe opinion.

*Ward & Grimes for plaintiff.*

*Small, MacLean & Rodman for defendant.*

ClaRKSON, J.

Tbe first question presented by defendant: Was tbe burden of proof upon defendant to satisfy tbe jury by tbe greater weight of tbe evidence that plaintiff was not employed by it, but by Louis Waters and D. U. Martin, and to satisfy tbe jury by tbe greater weight of tbe evidence that Martin was an independent contractor, as alleged in tbe answer?

In *Sutton v. Lyons,*156 N. C., 5, it is held: *“*‘Where tbe plaintiff has suffered an injury from tbe negligent management of a vehicle, such as a boat, car or carriage, it is sufficient prima facie evidence that tbe negligence was imputable to tbe defendant to show that be was tbe owner of tbe thing, without proving affirmatively that tbe person in charge was tbe defendant’s servant. It lies with tbe defendant to show that tbe person in charge was not bis servant, leaving him to show, if be can, that tbe property was not under bis control at tbe time, and that tbe accident was occasioned by tbe fault of a stranger, an independent contractor or other person, for whose negligence tbe owner would not be answerable. 1 Sberm. and Redf. Neg., 71. Any other rule, especially where persons are dealing with corporations, which can act only through agents and servants, would render it almost impossible for a plaintiff to recover for injuries sustained by defective machinery or negligent use of machinery.’ *Midgette v. Mfg. Co.,*150 N. C., 341.” *Embler v. Lumber Co.,*167 N. C., 457.

Tbe next question presented by defendant is tbe refusal of tbe court below to enter judgment as in case of nonsuit at tbe conclusion of all tbe evidence. C. S., 567. On a motion to nonsuit, tbe evidence is to be taken in tbe light most favorable to plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to- be drawn therefrom.

*253As to the first issue: Was there'sufficient evidence to be submitted to the jury that the plaintiff was not in the employ of Louis Waters or D. U. Martin? We so bold.

The defendant, Interstate Cooperage Company, was engaged in tbe lumber business. Certain timber was being cut on lands known as J. & W. Dismal tract, under contract between J. & W. Land Company and defendant. A certain logging railroad, about three or.four miles, had been built into the woods from Pinetown. The railroad, engines, cars, railroad skidder or loading machines and logging equipment belonged to defendant. The logs were put on defendant’s cars in the woods and the cars transported by defendant’s engine, or tractor, to Pinetown, where they were transferred to the Norfolk Southern Bail-way Company.

The defendant contends that it had an independent contract with D. U. Martin, and that plaintiff was in the employ of Martin or Waters, subcontractor of Martin; that it had nothing to do with the operation of the logging road or getting the logs out of the woods or loading them; that it was Martin’s duty to get the logs out of the woods, load them on the cars and have them hauled to Pinetown over the logging railroad and delivered to it f. o. b. cars.

On the other hand, plaintiff contended the hands were employed by Louis Waters, who had contracted this machine from Martin. Louis Waters sent for him to go to work there, but on Saturday, at 12 o’clock, Louis Waters gave up the contract he had with Martin, the defendant’s alleged independent contractor. He, plaintiff, went to Pinetown the following Monday morning. “On Monday morning there was some talk about his (Louis Waters) giving up the contract with Martin and he was told to go ahead until Martin could get somebody else to take his place, and he went ahead. I went to work that day. He (Louis Waters) was foreman of the machine. Mr. Pell was there that morning and gave orders. He said here is a crew of men; pick them out and go into the woods.” He, with Macon, Walter and Alvin Waters, Leman Modlin and Joe Hunter were picked out and went into the woods; “we got on the train and went into the woods to work.” It was in evidence that J. W. (Walter) Bell, who gave the orders, had been working for defendant twenty-three years. He was at the time superintendent of defendant’s mill at Belhaven, where the logs out of the woods were taken. “D. H. Martin didn’t stay in the log woods at all. He stayed at the transfer at Pinetown. Mr. Bell was there some part of the time, and sometime the other boss. Mr. McDaniel was the head boss in the woods. He gave the orders and streaked out and located the timber. *254. . . I saw Mr. Bell locating the railroad, streaking it out and taking tbe engine from one loading machine to another.”

S. E. Wallace testified: That he worked for Mr. Bell about the time of plaintiff’s injury. “I saw Mr. Bell around the woods right smart, straightening the lines and seeing that the timber was cut out, seeing that they stayed on certain sections of the land and didn’t get off of it. . . . Louis Waters had contracted the machine, but told me on Saturday that he had given it up. The hands went to work on this machine Monday morning. I don’t remember where I was working when Lilley was hurt. When I was there The Interstate Cooperage Company had the logs taken from the machine in the woods and loaded them on cars. Martin didn’t have anything to do with that when I worked at the transfer loading logs. Mr. Walter (J. WO Bell always paid me for it with a check. Mr. Martin didn’t pay me.”

Leman Modlin testified: “I was at Pinetown when all hands started to the woods with Louis Waters. I saw Mr. Bell there. I heard him say, he came to us and told us, and in consequence of what he said we went into the woods to work. I have seen Mr. Bell around Pinetown and Belhaven and have seen him in the log woods.”

The logs were measured by Mr. McDaniel, an employee of defendant, after they were loaded on cars at Pinetown. McDaniels’ work was scaling logs at Pinetown where they were transferred to the Norfolk Southern Railway, thence to Belhaven, where defendant’s mill was located.

The evidence was sufficient to be submitted to the jury. Their answer to the issue was that plaintiff was not in the employ of Louis Waters or D. U. Martin, as alleged in the answer. In other words, from the evidence they found that plaintiff was in the employ of the defendant on the occasion of the injury. The answer to this issue, we think, makes the second issue immaterial, the good faith of the contract with D. U. Martin, the alleged independent contractor, or that the work was inherently or intrinsically dangerous. These matters are not necessary on the record to be determined or the charge of the court below in reference thereto. From the evidence the issues were separable — the seeming inadvertence in the charge was not prejudicial.

The principle laid down in *Ginsberg v. Leach,*111 N. C., p. 15, is as follows: “The Supreme Court will not consider exceptions arising upon the trial of other issues, when one issue, decisive of the appellant’s right to recover, had been found against him by the jury.” *Hamilton v. Lumber Co.,*160 N. C., 52; *Beck v. Wilkins-Ricks Co.,*186 N. C., 215; *Sams v. Cochran,*188 N. C., 734; *Michaux v. Rubber Co.,*190 N. C., 617; *McNair v. Finance Co.,*191 N. C., 710.

*255On the finding of the jury on the first issue and the facts being sufficient to sustain it, the plaintiff was employed by the defendant operating a logging road.

In *Stewart v. Lumber Co.,*193 N. C., at p. 140, it is said: “The clear language of the Act of 1919, ch. 275, *supra,*says that the provisions of this article (Fellow-servant rule abrogated, O. S., 3465) — contributory negligence no bar, but mitigates damages. C. S., 3467, applies to *logging roads. . . .*(p. 141) In *Mott v. R. R.,*131 N. C., at p. 237, it is said: ‘The language of the statute is both comprehensive and explicit. It embraces injuries sustained (in the words of the statute) by “any servant or employee of the railroad company *... In the course of his service or employment with said company.”*The plaintiff was an employee and was injured in the course of his service or employment,’ citing numerous authorities.” The Fellow-servant doctrine has no application in this action.

The skidder, or loader, consisted of a stationary engine and boiler setting on a flat surface, the engine operated a drum around which a cable revolved and was attached to a swinging boom. In operating the grab, at the end of the cable it was fastened to the log and the log was pulled up by starting the engine and placed on the ear. In the present case the plaintiff, in the course of his employment, fixed the grab as nearly as possible to the center of gravity of the log being-lifted — a cypress log 16 feet long and 14 inches through.

Plaintiff testified: “Macon Waters was operating the engine on the loading machine. I was using the grabs, grabbing the logs. I carried the grab and put it on the log and told Waters to tighten it light. He brought the log up and never gave me any chance to get away. He pulled the log up and the log swung and it hit me on the shoulder and knocked me down. He dropped the log on me, on my leg. It came across me and threw me on my hack and I under the log. It struck my shoulder first. He was where he could see me. The grabs did not turn loose. He dropped the log himself by turning the engine loose and the log came down. . . . The log was a cypress log about fourteen inches through. ... I couldn’t get out of the way. I started to run, but the log knocked me down before I could get out of the way, when I told him to tighten it light. If it had knocked me down, if it had not come down on me I would not have been hurt.” Plaintiff .further testified: “The falling log ruined me. I can’t get about. I can’t travel. I can’t work. I can’t plow. My leg hurts me so bad.”

Dr. J. L. Nicholson, general surgeon at the Fowle Hospital, testified: “It is a permanent injury.”

*256On tbe issue of negligence tbe court below clearly defined negligence and proximate cause and charged: “Under tbis issue tbe question for you to consider is whether or not under tbe circumstances surrounding him, Macon Waters exercised tbe care and prudence a man of ordinary care would use in operating tbe skidder at that time. If you are satisfied by tbe greater weight of tbe evidence that be failed to exercise such care — the burden being on tbe plaintiff — and that tbe failure was tbe proximate cause of tbe plaintiff’s injury, you will answer tbe issue Yes; if not so satisfied, you will answer it No.”

On tbe issue of contributory negligence tbe court below charged: “Upon tbis issue tbe burden is upon tbe defendant, who alleges contributory negligence of tbe plaintiff. Before you can answer tbe issue Yes, you must be satisfied by tbe greater weight of tbe evidence that tbe plaintiff was negligent and that bis negligence was tbe proximate cause of tbe injury. . . . Tbe plaintiff owed a duty similar to that which tbe defendant owed tbe plaintiff in operation of the-skidder, to exercise tbe care that a man of ordinary prudence would exercise to protect himself from danger; if be failed to exercise such care and prudence, and such failure as a proximate result caused tbe injury, then be would be guilty of contributory negligence and your answer to tbe fourth issue would be, Yes.”

If defendant bad wanted a more explicit charge as to proximate cause on tbe contributory negligence issue, such instruction should have been requested. *Fleming v. Utilities Co.,*193 N. C., p. 262. There was no exception or prayer for instructions on tbe issue as to damages.

On tbe whole record we can find no prejudicial or reversible error.

No error.