#### GAITHER GREER v. CALLAHAN CONSTRUCTION CO.

(Filed 9 December, 1925.)

Employer and Employee — Master and Servant — Blasting—Dynamite— Dangerous Instrumentalities — Negligence—Damages.

The contractor for the building of a public highway for the highway commission of a county may not escape liability for the negligent failure of its independent subcontractor to furnish his employee a reasonably safe place to work, and appliances therefor, in the performance of his duty in blasting the roadway when necessary for its completion in accordance with the original contract.

Appeal by defendant from judgment of Ashe Superior Court, July Term, 1925, *Finley, J.*No error.

Action to recover damages for personal injuries sustained by plaintiff while at work as a laborer in the construction of a public highway in Ashe County.

Defendant, Callahan Construction Company, in November, 1919, entered into a written contract with the highway commission of Ashe County, by which defendant undertook to construct for said highway commission a public highway from Lansing, N. C., up Little Horse Creek, ■ to or near White Oak Schoolhouse. Defendant, thereafter, entered into a contract with E. T. Williams by which the said Williams undertook the construction of a portion of said highway in accordance with the contract between defendant and the highway commission.

Plaintiff was employed by the said E. T. Williams during January, 1921, to do whatever he was directed to do as a laborer in the construction of that portion of said highway which said Williams had undertaken to construct. He had no regular job. He sometimes used a pick and shovel, and sometimes worked at the steam drill. He had occasionally aided in blasting with dynamite. He was subject to the orders of Williams or his foreman.

On or about 27 May, 1921, plaintiff was directed by his foreman to take caps, fuses and dynamite, and “shoot off” thirteen holes which had been drilled within a space about ten feet square, for the purpose of blasting. This blasting was necessary for the construction of said highway, under the contract between defendant and the highway commission. An electric battery by means of which the fuses could be ignited from a distance of a hundred feet or more, had been used on the job for igniting the fuses and exploding the dynamite. On this day, however, the electric battery, under the orders of Williams or his foreman, had been taken to another job. Plaintiff was directed by his foreman to ignite the fuses, and thus explode the dynamite, which he *633bad placed in said boles, by means of a torch, made of pine barb, upon wbicb oil bad been poured. Plaintiff was then about twenty-one years of age, and bad bad no previous experience in blasting witb dynamite. He did as be was directed. As be was raising up to leave tbe place where tbe boles bad been drilled, after igniting tbe fuses witb tbe torch, tbe dynamite in one of tbe boles exploded and thus injured bis eye; be was taken at once to a hospital where, after a few weeks, bis eye was removed by a surgeon because of tbe injury sustained by him as a result of tbe explosion of tbe dynamite.

Tbe issues answered by tbe jury are as follows:

1. "Was tbe plaintiff injured by.the negligence of defendant as alleged in tbe complaint? Answer: Yes.

2. Did tbe plaintiff by bis own negligence contribute to bis injury as alleged in tbe answer? Answer: No.

3. "What damages, if any, is tbe plaintiff entitled to recover of tbe defendant? Answer: $5,500.

From tbe-judgment upon this verdict, defendant appealed.

*T. G. Bowie for plaintiff.*

*W. R. Baugess, J. B. Councill, S. P. Graves, Manly, Hendren & Womble and B. A. Doughton for defendant.*

CoNNOR, J.

Defendant, by its assignments of error, based upon exceptions duly taken, presents to this Court, upon appeal from tbe judgment rendered upon tbe verdict, its contention that although plaintiff at tbe time of bis injury was engaged in work upon tbe highway wbicb it bad contracted to do, and that although such injury was caused by tbe failure to instruct plaintiff as to tbe danger of tbe work wbicb be was directed to do or by tbe failure to exercise reasonable care to provide for him a reasonably safe place in wbicb to work, or by tbe failure to exercise reasonable care to provide reasonably safe methods for tbe performance of bis work as a laborer in tbe construction of said highway, defendant is not liable to plaintiff for damages resulting from bis injury because plaintiff was not an employee of defendant but was an employee of E. T. Williams, and that therefore defendant owed plaintiff no duty, tbe breach of wbicb is alleged in tbe complaint as tbe proximate cause of tbe injury.

After all tbe evidence bad been introduced, defendant admitted that E. T. Williams, by whom plaintiff was employed and under whose direction be was at work when be was injured, was an independent contractor of defendant. Defendant in its answer admitted that it was necessary to use dynamite for blasting in tbe construction of said highway under its contract with tbe highway commission of Ashe County. *634The question presented by this appeal, therefore, is whether one who has undertaken the construction of a public highway and who has sublet the construction of a portion of said highway to one who by reason of the terms and provisions of the subcontract is an independent contractor, is liable to an employee of such independent contractor who is injured while at work in the construction of said highway, blasting with dynamite, and whose injury is caused by the breach of a duty which, under the law, an employer owes to his employee, it being admitted that in the construction of the highway under the contract, it was necessary to use dynamite for blasting.

The law relative to the duties which a master or employer owes to his servant or employee while engaged in the performance of duties incident to his employment, is well settled in this and other states whose jurisprudence has a common origin and where the growth of the law has been guided by legislation founded' upon just principles and has been responsive to judicial decisions influenced by an enlightened social conscience; for “the law is not fossilized; it is a growth. It grows more just with the growing humanity of the age and broadens with the processes of the suns.” *Clark, C. J., Pressly v. Yarn Mills,*138 N. C., 416. By growth and development the law meets the manifest requirements of ever-changing economic and industrial conditions. In his dissenting opinion in *Vogh v. Geer,*171 N. C., 612, *Chief Justice Clark,*again said: “The modern and just doctrine that when there are large numbers of employees The business shall bear the loss’ from injury to an employee and that the whole burden shall not fall, as heretofore, with crushing effect upon the unfortunate employee and his dependent family, is now the attitude of the law as it has been expressed by legislation and later by the courts.” The law, however, does not hold a master or employer, even of a large number of servants or employees, liable as an insurer. Liability is predicated only upon negligence or breach of duty. Breach of duties by a master or employer resulting as the proximate cause in injuries to the servant or employee^ fixes upon the master or employer liability for damages for the injuries sustained by the servant or employee. These duties grow out of and are determined by the relationship; liability for damages caused by a breach of such duties is enforced not only in accordance with correct legal principles, but. also in accordance with a sound public policy and in furtherance of an enlightened conception of social justice. However, when the relationship of master or employer and servant or employee does not exist between the person injured and the person upon whom demand for damages is made, there is no liability which the law recognizes and enforces because there is no duty, the breach of which can be assigned as the proximate cause of the injury.

*635One for wbom work is done is not tbe master or employer of bim wbo bas contracted to do tbe work wben by -virtue of tbfe terms of tbe contract, tbe latter is an independent contractor; nor does tbe relationship exist between a contractor and bis subcontractor wben tbe latter is an independent contractor. An independent contractor bas been defined as one wbo exercises an independent employment, contracts to do a piece of work according to bis own judgment and methods and without being subject to bis employer except as to tbe results of tbe work and wbo bas tbe right to employ and ■ direct tbe action of tbe workmen, independently of such employer and freed from any superior authority in bim to say bow tbe specified work shall be done or what tbe laborers shall do as it progresses. *Craft v. Timber Co.,*132 N. C., 151; *Young v. Lumber Co.,*147 N. C., 26; *Gay v. R. R.,*148 N. C., 336; *Denny v. Burlington,*155 N. C., 33; *Johnson v. R. R.,*157 N. C., 382; *Hopper v. Ordway,*157 N. C., 125; *Harmon v. Contracting Co.,*159 N. C., 22; *Embler v. Lumber Co.,*167 N. C., 457; *Vogh v. Geer,*171 N. C., 672; *Gadsden v. Craft,*173 N. C., 418; *Simmons v. Lumber Co.,*174 N. C., 220; *Cole v. Durham,*176 N. C., 289; *Aderholt v. Condon,*189 N. C., 748; *Paderick v. Lumber Co., ante,*308.

The owner, for wbom work is done under a contract, does not owe to employees of bis independent contractor, as thus defined, tbe same duties which a master or employer owes to bis servant or employee; nor does a contractor owe such duties to employees of bis subcontractor wben by tbe terms of tbe subcontract tbe latter is an independent contractor. Tbe relationship between tbe Owner and such employees or between tbe contractor and such employees is not that of master and servant. It is well settled, therefore, as a general rule, that neither tbe owner nor tbe original contractor is liable for tbe negligence of an independent contractor which results in injury to an employee or servant of tbe latter. 14 R. Q. L., pp. 79, 80, and cases cited. “Where tbe contract is for something that may be lawfully done and is proper in its terms and there bas been no negligence in selecting a suitable person to contract with in respect to it, and no general control is reserved either in respect to tbe manner of doing tbe work or tbe agents to be employed in it and tbe person for wbom tbe work is to be done is interested only in tbe ultimate result of tbe -work, and not in tbe several steps as it progresses, tbe latter is not liable to third persons for tbe negligence of tbe contractor as bis master.” Cooley on Torts, 2 ed., sec. 548, p. 646. “An independent contractor is one wbo undertakes to produce a given result but so that in tbe actual execution of tbe work be is not under tbe order or control of tbe person for wbom be does it and may use bis-own discretion in things not specified beforehand. For tbe acts or *636omissions of sucb a one about tbe performance of bis undertaking, bis employer is not liable to strangers.” Pollock on Torts, 12 ed., p. 80.

Tbe rule exempting an owner or contractor from liability for tbe negligence of an independent contractor to a stranger or third person does not necessarily exempt sucb owner or contractor from liability to tbe servant or employee of tbe independent contractor wbo is injured while engaged in work for tbe ultimate benefit of sucb owner or contractor. There is a relationship between tbe owner or contractor and tbe servant or employee of tbe independent contractor which may impose upon tbe former duties which tbe law does not impose upon him with respect to strangers or third persons. Tbe law would not be just to itself or to those wbo have a right to rely upon it for protection, if an owner or contractor could, in all cases, by committing tbe work in which be is interested to an independent contractor, secure absolute exemption from all liability to those wbo by their labor and by methods and under circumstances contemplated when tbe original contract was made, contribute to its full performance.

It is therefore conceded that upon grounds of public policy as well as of justice to individuals, certain exceptions must be made to tbe general rule exempting owners or contractors from liability for.tbe negligence of an independent contractor. It is by exceptions to general rules that tbe law adapts itself to tbe facts of particular cases in order that tbe enforcement of general rules, just as they may be when applied to general conditions, may not by disregarding tbe facts of particular cases, cause injustice to be done. “Where tbe thing contracted to be done is necessarily attended with danger, however skillfully and carefully performed, or is intrinsically dangerous, it is held that tbe party wbo lets tbe contract to do tbe act cannot thereby escape responsibility for any injury resulting from its execution, although tbe act to be performed may be lawful. But if tbe act to be done may be safely done in tbe exercise of due care, although in tbe absence of such care, injurious consequences to third persons would be likely to result, then tbe contractor alone is liable, provided it was bis duty under tbe contract to exercise sucb care.” *Engle v. Eureka Club,*13 N. Y., 100; *Young v. Lumber Co.,*147 N. C., 26.

In *Paderick v. Lumber Co., ante,*308, it was held by this Court that an owner wbo furnished defective machinery to its independent contractor, whose employee was killed by tbe operation of sucb defective machinery, was liable to tbe administratrix of sucb employee for damages. *Clarkson, J.,*in tbe opinion for tbe Court, says: “Under all tbe facts and circumstances of this case, defendant having agreed with L. L. Paderick (wbo was found by tbe jury to be an independent contractor) to furnish tbe loader, in so far as L. L. Paderick and those in bis employ *637are concerned, in the operation of the loader, the principle of master and servant was applicable.” It was held that the defendant owed to the employee of the independent contractor the duties prescribed by law to be observed by a master to a servant.

In *Williams v. Lumber Co.,*176 N. C., 174, the defense based upon defendant’s contention that the injury was the result of the negligence of an independent contractor was held unavailing to defendant, *Walker, J.,*saying: “The Camp Company was authorized to do the work in this way, by using an engine — a dangerous instrumentality — and even if an independent contractor, as contended by defendant, it would still be liable for his acts and the damage which was caused by his acts.”

In *Cole v. Durham,*176 N. C., 289, it is said: “Conceding for the sake of argument, that but for the nature of the work to be done he would be an independent contractor and liable solely for his own negligence, we are of the opininom that the work was of a hazardous character or inherently dangerous, as it is said, and that such a plea does not avail the power company.”

The principle as stated in *Davis v. Summerfield,*133 N. C., 325, is that a man who orders a work to be executed, from which in the natural course of things, injurious consequences to others might be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else — whether it be the contractor to do the work from which the danger arises, or some, independent person — to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed, from which if properly done, no injurious consequences cán arise, and handing over to him work to be done from which mischievous consequences'will arise unless preventive measures are adopted.

Defendant, having undertaken the construction of the highway, with knowledge that it would be necessary to use dynamite for blasting, in performing the work, is not relieved of liability for damages to plaintiff, who was wrongfully injured, while blasting with dynamite, because plaintiff was an employee of an independent contractor, who by his contract undertook to do the work, by blasting with dynamite. Under all the facts and circumstances of this case, as said in *Paderick v. Lumber Co., supra,*defendant having procured E. T. Williams to do the work, which required the use of dynamite — a dangerous instrumentality —stood in the relation of master and servant to plaintiff, an employee of Williams, while engaged in such work, with the instrumentality contemplated when defendant entered into the contract with the highway *638commission. Defendant owed to plaintiff the duties growing out of that relationship, and is liable to plaintiff for damages resulting from injuries caused by breach of such duties. Defendant, having undertaken the construction of the highway, with knowledge that blasting by dynamite was necessary to perform the work under its contract, is not relieved of liability to a laborer, who is injured while engaged in such work, with the dangerous instrumentality contemplated and necessary, because such laborer was an employee of an independent contractor of defendant, whose negligence was the proximate cause of the injury.

We have examined each of the assignments of error based upon exceptions taken by defendant during the progress of the trial. These assignments of error cannot be sustained. The judgment must be affirmed. There is

No error.