#### MAUDE MEHAFFEY, Administratrix, v. APPALACHIAN CONSTRUCTION COMPANY.

(Filed 3 April, 1929.)

Master and. Servant C 1) — Employer liable for failure to furnish reasonably safe transportation when he assumes this service — Independent contractors.

An employer of labor who assumes to transport his employees to and from work is held in the exercise of ordinary care to do so with reasonable safety, and is liable in damages to one of them injured by the negligent acts of an agent or authorized representative he has selected for that purpose when such injury is thereby proximately caused, irrespective of whether the agency thus selected and acting is an independent or subcontractor, or has contracted to do so for compensation or otherwise.

Civil ACTION, before *Deal, J.,*at February Term, 1928, of Haywood.

Tbe evidence tended to show that Kenneth Mehaffey, a boy about fourteen, years of age, was employed by the defendant to sprinkle concrete in Hazelwood, with the understanding that he was not to be moved to any point outside thereof. The work in Hazelwood was finished about dinner time on 26 May. The defendant had a contract for the construction of a highway and was working upon highway No. 10 at Balsam, a distance of from four to eight miles from Hazelwood. On the afternoon of 26 May the mixer foreman of the defendant directed one Leatherwood, a truck driver for the defendant, to take Kenneth Me-•haffey to Balsam in order to sprinkle concrete at that point. That afternoon a.t quitting time Stevenson, who was superintendent or foreman in charge of the work, remarked in the presence of plaintiff’s intestate and other employees that Leatherwood should wait and take the finishers in and that the other employees could “catch Justice’s other cement trucks.” Kenneth Mehaffey, together with some other employees, climbed on Justice’s truck and started to Hazelwood where he lived. The truck of Justice was running close behind another cement truck operated by a man named Freeman. Freeman intended to turn into a side road on his left and “pulled to the right to make his swing around into the road, and Mr. Justice went to come around Mr. Freeman on the left-hand side of the road, and when Mr. Freeman came across the road to the left Mr. Justice threw his truck back to the right and that threw the little boy off into the center of the highway. . . . The little boy was standing up with his back against the cab with his hand on the side.When he made a quick turn to the right the truck went off on the other side of the road. . . . The little boy fell off on the left-hand side of the road, in the center. Before Mr. Freeman *23went to make bis turn into tbe road to tbe left be threw out bis sign— threw bis band up that way— . . . put bis band out on tbe right-hand side of tbe truck.”

Kenneth Mehaffey was picked up and hurried to tbe hospital, but died on tbe way.

There was evidence tending to show that after tbe road force was moved to Balsam that employees of defendant frequently rode on tbe cement truck of Justice morning and night to and from Hazelwood and Balsam; and further, that Mr. Stevenson bad said be would furnish transportation for what men could ride on tbe company’s trucks, but ordinarily they were out of commission and could not carry tbe men, and be said, “You can go on tbe cement trucks.” Tbe evidence further tended to show that Mr. Stevenson bad requested Mr. Justice to haul tbe men backward and forth. He just told him “tbe company’s trucks could not haul all tbe men, and be wanted to transport men back and forth from Hazelwood to tbe works. Mr. Justice told him be would.” Justice and Freeman were employed by tbe Lee Transportation Company to run trucks and haul’ sand and gravel to tbe works. Tbe Lee Transportation Company was an independent contractor and bad no relationship with tbe defendant except to carry out tbe terms of its subcontract in furnishing certain material for tbe work. There is no evidence that tbe defendant paid Justice or Freeman for any services connected with tbe transportation of employees.

Tbe evidence for tbe defendant was strong and contradicted tbe evidence offered by tbe plaintiff.

Tbe issues and answers of tbe jury thereto were as follows:

1. Did tbe defendant contract with tbe father of tbe deceased to work deceased only in tbe town of Hazelwood, and not on highway No. 10, outside of Hazelwood, as alleged in tbe complaint? Answer: Yes.

2. Did tbe defendant contract or undertake, expressly or by implication, to transport plaintiff’s intestate to and from bis work outside of tbe town of Hazelwood? Answer : Yes.

3. Was Decatur Justice in tbe employ of tbe defendant at tbe time of tbe injury and death of plaintiff’s intestate? Answer: Yes.

4. Was Tom Freeman in tbe employ of tbe defendant at tbe time of tbe injury and death of plaintiff’s intestate? Answer: Yes.

5. Was tbe plaintiff’s intestate injured and killed by tbe negligence of tbe defendant, Appalachian Construction Company, as alleged in tbe complaint? Answer: Yes.

6. Did tbe plaintiff’s intestate, by bis own negligence, contribute to bis injury and death, as alleged in tbe answer? Answer: No.

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

From judgment upon tbe verdict tbe defendant appealed.

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

*A. Hall Johnston for defendant.*

Brogden, J.

What duty is imposed by law upon, an employer who undertakes to transport workmen?

This case was considered by the Court upon a former appeal, and is reported in 194 N. C., 717, 140 S. E., 716. A new trial was awarded upon the ground that .the jury had not been properly instructed upon the question as to whether the defendant contracted to provide transportation for the deceased or whether he was riding upon the truck at the invitation or by the license of the owner or the driver.

It is to be observed that the issues in the case at bar are much more comprehensive than those appearing in the former opinion.

Certain principles relating to 'the question of law involved, have been discussed and enunciated by this Court. In *Haynie v. Power Co.,*157 N. C., 503, 76 S. E., 198, the Court declared: *“We*do not mean to hold that the defendants became insurers of the intestate’s life, but if the agreement be as testified to by plaintiff, it was the duty of defendants to use due diligence and care to keep him away from the machinery and at the work he was hired to perform or else to return him to his father.” *Ensley v. Lumber Co., 165*N. C., 687, 81 S. E., 1010; *Satchell v. McNair,*189 N. C., 472, 127 S. E., 417.

Again, in *Tanner v. Lumber Co.,*140 N. C., 475, 53 S. E., 287, the Court said: “The rigorous rule that once obtained has been greatly modified. The true rule now is more humane and holds the master is liable for negligence in respect to such acts and duties as he is required, or assumed to perform, without regard to the rank or title of the agent entrusted with their performance. As to such acts the agent occupies the place of the master and he is liable for the manner in which they are performed.” To the same effect is *Williams v. R. R.,*190 N. c., 366, 129 S. E., 816, in which the principle of law applicable is thus expressed : “Where the master undertakes to furnish his laborers transportation to and from their work, it is his duty, in the exercise of ordinary care, to see to it that such transportation is rendered as reasonably safe as the character of it will permit.”

The clear meaning of these decisions is that an employer of labor, who either contracts to furnish transportation or assumes the task and responsibility of so doing, is required by law to exercise ordináry care in discharging such obligation, and is therefore liable for the negligence of the person who undertakes for him and by his direction to transport employees. This is true whether the person actually transporting workmen be called servant, agent or independent contractor.

*25Tbe jury bas found from proper evidence tbat tbe defendant bad assumed tbe obligation of transporting workmen from'Balsam to Hazel-wood, and tbat Justice was tbe person employed by tbe defendant for returning Kenneth M’ebaffey and others to their homes; and further, tbat tbe death of plaintiff’s intestate was proximately caused by tbe negligence of tbe defendant.

There is some contention tbat there is no evidence tbat Freeman was employed by tbe defendant to transport laborers, but tbe recovery can be sustained irrespective of either tbe employment or negligence of Freeman, because there is positive evidence tbat tbe truck driven by Justice was especially selected by Stevenson, superintendent of tbe defendant, for returning plaintiff’s intestate to bis home. Moreover, there is sufficient evidence of tbe negligence of Justice. A close scrutiny of tbe record discloses no error of law warranting a new trial, and tbe judgment is affirmed.

No error.