#### CHARLES RAY HARRIS, a Minor, by His Next Friend, MRS. LULA JONES, v. WHITE CONSTRUCTION COMPANY and BERNICE S. NELSON.

(Filed 9 July, 1954.)

1. Highways § 4a—

Plaintiff’s own evidence disclosed that he saw barricades and signs warning motorists that the highway was under construction, and that the excavation of a three-foot strip of highway along one side was plainly visible. The remaining portion of the hard surface was sufficiently wide for two vehicles to meet and pass. *Held:*The evidence is insufficient to support the inference that the contractor’s asserted negligence in failing to post a watchman along the excavation and in failing to exercise due care in providing adequate signs, signals and warnings along the approach of the construction project, was a contributing cause of plaintiff’s collision with another vehicle traveling in the opposite direction.

2. Automobiles §§ 13, 18h (2)—

Evidence tending to show that a truck engaged in hauling asphalt was traveling along a one-hundred-foot strip where the highway had been excavated on one side for a width of three feet, leaving about 19 feet of hard surface for two-way traffic, that the truck was being driven 60 to 65 miles per hour, that the driver ran partly off on the shoulder of the road on his right, and in attempting to get back on the highway, lost control and struck plaintiff’s car, which was traveling in the opposite direction, on plaintiff’s right of the center of the highway, *is held*sufficient to be submitted to the jury on the issue of the truck driver’s actionable negligence.

3. Automobiles § 24 *%*e—

Evidence that the defendant driver, who owned his own truck, was operating it in highway construction work in company with trucks owned by the road contractor, that the contractor reserved the right to terminate defendant driver’s services at any time they were unsatisfactory, and that the contractor’s foreman was up and down the construction project at all times during working hours directing the work of all of the drivers and other workers, *is held*sufficient to be submitted to the jury on the question of whether defendant driver was an employee of the road contractor and not an independent contractor.

4. Master and Servant § 4a—

The right to control the workman with respect to the manner and method of doing the work, regardless of whether such right is exercised or not, as distinguished from the mere right to require certain results, is usually determinative of whether the relationship between the parties is that of employer and employee, or independent contractor.

*5575. Trial §§ 31b, 3tf—

An erroneous view of the law or an incorrect application thereof in the court’s charge to the jury must be held for prejudicial error, even though given in stating the contentions of the parties.

6. Appeal and Error § 6c (6) —

A misstatement of a contention need not be brought to the trial court’s attention when such misstatement presents an erroneous view of the law or an incorrect application of it.

Appeal by defendant from *Frizzelle, J.,*and a jury, at 26 October, 1953, Term of Pitt.

Civil action in tort involving an automobile-truck collision on N. 0. Highway No. 43 about four miles west of Greenville.

The paved portion of Highway No. 43 west of Greenville at and near where the collision occurred was in process of being widened from 16 to 22 feet by the addition of a strip of new pavement 3 feet wide on each side. The construction work was being done by the corporate defendant under contract with the State Highway and Public Works Commission. The widening job had been completed where the collision occurred, but a strip on the north side some 100 feet or more long had proved defective and had been excavated to a depth of about 18 inches preparatory to being repaved. A barricade had been placed across the north side of the highway about 20 feet east of the excavation. The barricade was a half-sawhorse device with one end of the bar elevated by uprights about 3 feet high; the other end rested on the ground. The barricade was 6 or 8 feet long. It was so placed on the highway that its upright end protruded from the north side of the road over about 2 feet of the old paving, with the bar extending across the new 3-foot strip of paving and resting on the north shoulder of the road. About 350 feet east of the barricade there was a large sign side of the road reading: “CoNstbuctioN Ahead.” And 50 feet east of that sign was another one on which was printed “Slow.” Also, about 2 miles east of these signs was a third one which read: “DaNger — -Road Hhder OoNstructioN,” with the name of the corporate defendant underneath the sign. All the signs were of standard size and lettering as prescribed by the State Highway and Public Works Commission.

The collision occurred a few minutes after twelve o’clock noon, 31 July, 1951. The plaintiff was driving a Chevrolet sedan, the defendant Bernice S. Nelson a dump truck. The two vehicles, traveling in opposite directions, were meeting near where the strip of new paving had been dug up on the north side of the road preparatory to repaving. The plaintiff was traveling west; the defendant Nelson was going east. Between them was an open, straight stretch of road about 700 feet long, side of which was the excavation previously described.

*558Tbe plaintiff offered evidence tending to show be observed tbe oncoming truck of tbe defendant Nelson at a distance of about 600 feet; tbat plaintiff drove on at a speed of 30 or 35 miles per hour, observed tbe sawborse-barricade 300 feet before be reached it, passed tbe barricade, and continued on along bis right side of tbe center of tbe highway; tbat tbe oncoming truck of Nelson was being operated at tbe excessive speed of from 60 to 65 miles per hour; *that before the two*vehicles met *the*truck left tbe paved portion of tbe highway on its right and ran for a short distance partly on tbe dirt shoulder; that Nelson “snatched it back” on tbe pavement and in doing so lost, or failed to regain, control of tbe truck and permitted it to cross tbe center of tbe highway and collide with tbe plaintiff’s sedan, tbe left front of tbe truck striking tbe left side of tbe plaintiff’s car near the front door and stripping it downward from there. According to tbe plaintiff’s evidence, be bad traveled a distance of 179 feet west of tbe sawborse-barricade when the collision occurred. His car came to rest in tbe excavation side of tbe pavement. In tbe impact tbe plaintiff sustained permanent injuries of a serious nature, including the loss of an arm.

Nelson was working for tbe corporate defendant. He was hauling molten asphalt from tbe corporate defendant’s mixing plant east of tbe point of collision to where the asphalt was being poured west of tbe point of collision. Nelson bad just delivered a load where tbe pouring was under way, and at tbe time of tbe collision was returning, with empty truck, to the mixing plant for another load of asphalt. Under bis hiring arrangement with tbe corporate defendant, be was using bis own truck and was being paid a stated price per ton for hauling. He was operating bis truck along with and-among a fleet of trucks owned by tbe corporate defendant and operated by its own drivers. Nelson, like tbe rest of tbe drivers operating between tbe mixing plant and tbe paving project, was given a ticket by tbe mixing plant foreman showing tbe time each load of molten asphalt was delivered in tbe truck, and be was required to ■deliver it at tbe paving project within a fixed period of time, otherwise tbe asphalt would be too cold for use. Tbe corporate defendant reserved tbe right “to fire” Nelson and terminate bis services any time they were unsatisfactory. Nelson, like tbe other drivers, received direction from tbe corporate defendant as to tbe manner of loading and as to where and bow to unload tbe asphalt. A foreman of tbe corporate defendant was up and down tbe construction project all tbe time during working hours directing tbe work of Nelson and the other drivers and workers. As *the*witness Sattertbwaite put it: “. . . Mr. Ross was tbe superintendent . . . and be directed tbe work. He directed tbe laying of tbe asphalt; . . .”

Tbe plaintiff’s cause of action as declared on in tbe complaint and as sought to be developed by tbe evidence rests on tbe theory tbat bis injuries *559resulted from either or both of two proximate causes, namely: (1) the independent negligence of the corporate defendant in failing to post a watchman at the excavation and in failing to exercise due care in providing signs, signals, and warnings at the approaches to and along the course of the construction project, and (2) Nelson’s negligent operation of the dump truck, imputed to the corporate defendant under the principle of *respondeat superior.*

Both defendants denied all allegations of negligence and further alleged that in any event the negligence, if any, of Nelson was not imputable to the corporate defendant for the reason that he was an independent contractor rather than an employee of the corporate defendant. The defendants also set up and specially pleaded contributory negligence of the plaintiff in bar of recovery, and in support thereof offered substantial evidence tending to show that the collision occurred near the sawhorse-barricade as the plaintiff was swinging wide to the left to pass around the barricade, and that the point of collision was over on the defendant Nelson’s right side of the center of the main traveled portion of the highway.

Other evidence pertinent to decision is set out in the opinion.

The defendants’ separate motions for judgment as of nonsuit, first made when the plaintiff rested his case and renewed at the conclusion of all the evidence, were overruled, after which issues raised by the pleadings were submitted to the jury. The issues submitted presented these questions : (1) negligence as to each defendant; (2) whether the relationship between the corporate defendant and Nelson was that of employer and employee or independent contractor; (3) contributory negligence of the plaintiff; and (4) damages. All the issues were answered in favor of the plaintiff and he was awarded damages in the sum of $27,500.

From judgment entered upon the verdict, the defendants appealed, assigning errors.

*J ames ■& Speight for plaintiff, appellee.*

*Albion Dunn and White & Aycock for defendants, appellants.*

JohNsok, J.

The evidence adduced below is insufficient to support the inference of negligence on the part of the corporate defendant as a proximate cause of the plaintiff’s injuries based on its failure to post a watchman or its failure to provide adequate signs, signals, or warnings for the protection of the traveling public in the vicinity of the excavation. *Presley v. Allen,*234 N.C. 181, 66 S.E. 2d 789; *Wrenn v. Graham,*239 N.C. 462, 80 S.E. 2d 378; 25 Am. Jur., Highways, Sec. 410 *et seq.*Numerous times during the week previous to the collision the plaintiff had passed by the construction project. On the morning of the collision *560be bad driven past tbe excavation several times going to and from Green-ville looking for “tobacco bands.” He knew tbe nature of tbe work being done on tbe highway. Tbe excavation was in plain view. As be approached it, be said be saw tbe barricade for a distance of 300 feet, and according to bis evidence be bad passed 179 feet beyond tbe barricade when tbe collision occurred. It was not a one-way drive alongside tbe excavation. There was adequate space for two vehicles to meet and pass. Therefore, conceding, without deciding, that tbe corporate defendant may have *been negligent in*failing to provide adequate signals, signs, or warnings in tbe vicinity of tbe excavation, even so, it is manifest that such negligence in nowise contributed to tbe plaintiff’s injuries as a proximate cause thereof. On tbe record as presented there is a total lack of causal connection between tbe collision and tbe alleged independent negligence of tbe corporate defendant.

Nevertheless, our examination of tbe record leaves tbe impression tbe evidence is sufficient to carry tbe case to tbe jury on tbe issue of actionable negligence as to the defendant H elson and also as against tbe corporate defendant on tbe theory of *respondeat superior.*

The plaintiff’s testimony to tbe effect that Nelson, while driving 60 to 65 miles per hour, lost control of tbe truck and struck tbe plaintiff’s car over on plaintiff’s right side of tbe center of tbe main traveled portion of tbe highway suffices to make out a *prima facie*case of actionable negligence against Nelson. Whereas, tbe evidence bearing on supervision and direction of Nelson’s work is sufficient to justify the inference that tbe corporate defendant retained control, or right of control, over tbe details of tbe work performed by him. This suffices to make out a *pnma facie*case for tbe plaintiff on tbe issue of *respondeat superior*under application of tbe principles explained and applied in these decisions : *Lassiter v. Cline,*222 N.C. 271, 22 S.E. 2d 558; *Aderholt v. Condon,*189 N.C. 748, 128 S.E. 337. See also *Hinkle v. Lexington,*239 N.C. 105, 79 S.E. 2d 220; *Hodge v. McGuire,*235 N.C. 132, 69 S.E. 2d 227; *Hayes v. Elon College,*224 N.C. 11, 29 S.E. 2d 137.

In *Hinkle v. Lexington, supra, Devin, C. J.,*speaking for tbe Court, said, at p. 107: “Tbe usual test for determining whether tbe relationship between tbe parties is that of employer and employee or independent contractor is whether tbe employer has tbe right to control tbe workman with respect to the manner and method of doing the work as distinguished from tbe mere right to require certain results, and it is not material as determinative of tbe relationship whether tbe employer actually exercises tbe right of control.”

We conclude, therefore, that tbe defendants’ motions for judgment as of nonsuit were properly denied by Judge Erizzelle.

*561However, we are constrained to the view that the defendants are entitled to a new trial for errors appearing in the charge.

The court in charging the jury said: “The plaintiff contends that the defendant Nelson was also negligent in those identical particulars, for that it is alleged that he carelessly and negligently failed to post a watchman in the immediate vicinity where the wreck occurred, or to station a watchman there, or to erect a light there to warn people who had a right to travel over and upon the highway.”

In no aspect of the case was the defendant Nelson under legal duty to post a watchman or provide for the giving of signals or warnings in the vicinity of the construction project which was being carried on by the corporate defendant, and this is so irrespective of whether the relationship between Nelson and the corporate defendant was that of employer and employee or independent contractor.

“It is the duty of the trial court to explain and apply the law to the substantive phases of the evidence adduced (G.S. 1-180), and an instruction which presents an erroneous view of the law or an incorrect application thereof, even though given in stating the contentions of the parties, is error, the rule being that while ordinarily the misstatement of a contention must be brought to the trial court’s attention in apt time, this is not necessary when the statement of the contention presents an erroneous view of the law or an incorrect application of it.” *Blanton v. Dairy,*238 N.C. 382, 385, 77 S.E. 2d 922. See also *McKinney v. High Point,*239 N.C. 232, 79 S.E. 2d 730; *Hartley v. Smith,*239 N.C. 170, 79 S.E. 2d 767.

Since the case goes back for a retrial, we refrain from discussing the rest of the defendants’ exceptions.

New trial.