#### MAUD MEHAFFEY, Administratrix of Kenneth Mehaffey, v. APPALACHIAN CONSTRUCTION COMPANY.

(Filed 21 December, 1927.)

1. Negligence — Evidence—Proximate Cause — Instructions.

In an action brought by the personal representative for the wrongful death of the infant deceased alleged to have been caused by the defendant’s breach of a contract made with his father, under conflicting evidence, it is required that the breach of the alleged contract was the proximate cause of the infant’s death, and a charge that leaves out this element of the law is reversible error.

2. Same — Contracts — Independent Contractor — Principal and Agent— Scope of Employment.

In an action to recover damages for the negligent killing by the defendant of plaintiff’s intestate, alleged to have been caused by a breach of contract made for his safety, where the evidence is conflicting, and involves the questions of proximate cause, the fact of employment by an independent contractor and whether the negligence occurred after the deceased’s duties for the day had terminated: *Held,*a charge that instructs affirmatively the principles of proximate cause as to the defendant’s liability under these phases of the case is reversible error to the defendant’s prejudice, unless the negative view of the law is also stated.

Appeal by defendant from *StacTc, J.,*at May Term, 1927, of Haywood.

New trial.

Action for personal injury resulting in death. The plaintiff alleged that the defendant was engaged in building a hard-surface road from Hazelwood to Balsam; that it had several workmen who lived in Hazel-wood ; that it was a part of the contract of employment that the defendant should carry"them to and from the place where they were working; that Decatur Justice and Torn Freeman were employees charged with *718tbe duty of driving the defendant’s trucks; that the Lee Transportation Company was engaged in hauling material for the defendant, and that Justice, Freeman and the Lee Company transported the employees to and from their work. It is alleged that the plaintiff’s intestate, a minor 14 years of age, under a contract with his father, had been employed by the defendant to do certain work in Hazelwood, and in breach of the contract had afterwards been transferred to work on the road and required to ride on one of the defendant’s trucks in going to and from his work; that on the occasion referred to in the complaint this truck, driven by Decatur Justice at an unlawful rate of speed, was following another truck negligently driven by Tom Freeman; that Freeman suddenly turned to the left to enter an intersecting road and compelled Justice to turn to the right in order to avoid a collision, and that the intestate was thrown to the ground and killed.

The defendant answered denying the material allegations, especially that either Justice or Freeman was its employee, and alleging that the Lee Transportation Company was an independent contractor. The action was brought against several parties, but finally prosecuted only against the defendant. The jury answered the issues as follows:

1. Did the defendant, Appalachian Construction Company, agree with Lawson Mehaffey, father of the intestate, Kenneth Mehaffey, to employ the said Kenneth Mehaffey to work at' Hazelwood, and not to be worked on Highway No. 10 outside of Hazelwood, as alleged in the complaint? Answer: Yes.

2. Did the said defendant commit a breach of said agreement, as alleged in the complaint? Answer: Yes.

3. Was the breach of said agreement the proximate cause of the death of plaintiff’s intestate, as alleged in the complaint ? Answer: Yes.

4. What damages, if any, is the plaintiff entitled to recover ? Answer: $7,000.

Judgment for plaintiff and appeal by defendant for error assigned.

*Morgan & Ward and Alley & Alley for plaintiff.*

*A. Hall Johnston for defendant.*

Adams, J.

The motion to dismiss the action as in case of nonsuit was granted as to the Lee Transportation Company and denied as to the Appalachian Construction Company, against whom it was prosecuted to judgment. In its answer the defendant alleged that the Lee Transportation Company was an independent contractor, and it was said on the argument that because of this independent relation the motion for nonsuit was allowed. Decatur Justice, a witness for the plaintiff, testified that he and Tom Freeman were working for the Lee Transpor*719tation Company at tbe time of tbe injury; tbat tbe intestate fell from tbe witness’s truck “after quitting time,” when tbe Transportation Company bad no control over tbe truck or tbe driver. Upon tbis theory it was not only important, but necessary, to ascertain wbetber tbe deceased rode on tbe truck merely at tbe invitation or by tbe license of tbe owner or driver, or wbetber carrying .the deceased on a truck to and from bis work was a part of tbe contract of employment. If tbe defendant was not obligated to provide transportation for tbe deceased a mere change in tbe place of work could hardly be considered tbe proximate cause of tbe injury suffered “after quitting time,” when tbe relation of employer and employee bad temporarily ceased. It is insisted by tbe appellant tbat these phases of tbe evidence were not clearly presented in tbe instructions relating to tbe third issue. Tbe jury was first told in substance tbat a parent who hires a child of tender years has tbe right to limit tbe place where tbe child is to work; tbat it is tbe duty of an employer who assents to tbe limitation to observe it, and tbat bis failure to live up to tbe agreement would be a violation of duty which would entitle tbe plaintiff to recover. If tbe defendant’s contention is correct there may have been a breach of tbe contract under which tbe deceased was employed, and still tbe defendant may not have been liable in damages. Tbis instruction, it is true, is followed by another to the effect that tbe breach of contract must have been a proximate cause of tbe injury; but we find no instruction which specifically sets forth tbe converse of tbis proposition — tbat is, tbat the defendant would not be liable if tbe intestate was injured while on tbe truck of one who at tbe time was in tbe service of an independent contractor, or who, if not in such service at tbe time, invited or permitted tbe intestate to ride on tbe truck as a matter of accommodation, with no agreement express or implied to'render such service, and with no obligation on tbe part of tbe defendant to provide such transportation. Of course there is evidence .that this duty devolved upon the defendant, but this evidence should have been submitted to tbe jury under instructions appropriate to tbe contentions of both parties. The controlling principle is thus stated in *Real Estate Co. v. Moser,*175 N. C., 259: “Tbe instruction given is correct as far as it goes, but tbe judge failed to state tbe defendant’s contention and to instruct them tbat tbe defendant bad a right to withdraw bis proposition under certain conditions, and what those conditions were. Even without a specific instruction, it was incumbent upon tbe judge to do tbis, for when tbe judge assumes to charge and correctly charges the law upon one phase of the evidence tbe charge is incomplete unless it embraces tbe law as applicable to tbe respective contentions of each party, and such failure is reversible error.” *Jarrett v.*
      *720
      *High Point Co.,*144 N. C., 299; *Lea v. Utilities Co.,*176 N. C., 514; *Butler v. Mfg. Co.,*182 N. C., 547.

The following instruction also is subject to exception: “If the plaintiff has satisfied you by the greater weight of the evidence that the real, efficient cause, without which the injury and death would not have resulted, was the breach of this agreement on the part of the defendant, if you find by the greater weight of the evidence that he made *the*agreement claimed by the plaintiff, then your answer to the first three issues would be Yes, but if the plaintiff has not satisfied you by the greater weight of the evidence, then you would answer the first issue No.” Under what circumstances were the second and third to be answered in the negative? The appellant is entitled to a

New trial.