{
  "id": 8549644,
  "name": "J. L. O'BRIANT, doing business as J. L. O'Briant Construction Company v. LEE'S WELDING & STEEL SERVICE, INC., GARLAND C. LEE, JR., and RICHARD POOLE",
  "name_abbreviation": "O'Briant v. Lee's Welding & Steel Service, Inc.",
  "decision_date": "1973-07-25",
  "docket_number": "No. 7314SC294",
  "first_page": "13",
  "last_page": "17",
  "citations": [
    {
      "type": "official",
      "cite": "19 N.C. App. 13"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "38 S.E. 2d 561",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1946,
      "opinion_index": 0
    },
    {
      "cite": "226 N.C. 433",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8620996
      ],
      "year": 1946,
      "opinion_index": 0,
      "case_paths": [
        "/nc/226/0433-01"
      ]
    },
    {
      "cite": "130 S.E. 2d 412",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1963,
      "opinion_index": 0
    },
    {
      "cite": "259 N.C. 283",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8560179
      ],
      "year": 1963,
      "opinion_index": 0,
      "case_paths": [
        "/nc/259/0283-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 453,
    "char_count": 9146,
    "ocr_confidence": 0.536,
    "pagerank": {
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      "percentile": 0.20587976364645197
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    "sha256": "366a98f0b54a355963cbd2917d9d9c135b85159c559db7ef54063c99004bb5b8",
    "simhash": "1:aef3e824bebcd4fe",
    "word_count": 1534
  },
  "last_updated": "2023-07-14T21:32:34.966448+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Britt and Vaughn concur;"
    ],
    "parties": [
      "J. L. O\u2019BRIANT, doing business as J. L. O\u2019Briant Construction Company v. LEE\u2019S WELDING & STEEL SERVICE, INC., GARLAND C. LEE, JR., and RICHARD POOLE"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendants assign as error the failure of the trial court to submit an issue of contributory negligence to the jury based on \u201c(1) \u2022 . . Plaintiff\u2019s failure to inspect and clean the equipment in question prior to the beginning of the welding operation and (2) . . . failure of Plaintiff\u2019s employee to stand as a fire-watch while the welding was being conducted.\u201d\nA specialist employed to overhaul and repair machinery on the owner\u2019s premises in the owner\u2019s absence and free of any supervision by the owner is an independent contractor. Henry v. White, 259 N.C. 283, 130 S.E. 2d 412 (1963). The owner employing a specialist to repair machinery on the owner\u2019s premises, free from control of the owner in the performance of the work, owes such specialist the duty to warn him of hidden dangers known to the owner and not known to the specialist, but the owner is not under duty to exercise care to provide a reasonably safe place for the specialist to work, the specialist being more cognizant of the dangers incident to the machinery than the owner himself. Henry v. White, supra; Deaton v. Elon College, 226 N.C. 433, 38 S.E. 2d 561 (1946).\nClearly the defendant in the instant case was an independent contractor hired by the plaintiff as a specialist to repair the loader by welding it in the field. While the evidence tends to show that employees of the plaintiff were present and at the request of Poole one of the employees raised the arms of the loader, there is no evidence in the record tending to show, that the plaintiff exercised any supervision whatsoever over the work the defendant was hired to do.\nAlthough there is testimony that \u201cas a general rule\u201d hydraulic lines on front end loaders leak and that the \u201cbelly pan\u201d on front end loaders can become clogged with debris, there is no evidence in this record from which the jury could find that either of these conditions existed when defendant undertook to repair the loader nor is there any evidence that plaintiff had knowledge of any hidden or dangerous conditions of which he failed to warn defendant.\nThe record is replete with evidence tending to show that the defendant Poole\u2019s opportunity to inspect the loader and correct any potentially dangerous conditions prior to the commencement of welding was equal to, if not greater than, that of plaintiff. Plaintiff testified: \u201c[I]f there was a hydraulic leak on the surface he could certainly see it. If it was down in the belly pan you could see it.\u201d Plaintiff stated that when the arms of the loader are in a raised position, it is possible to see a portion of the belly pan, but by removing two \u201cside panels,\u201d the entire belly pan can be seen. Defendant Poole testified: \u201cSo far as I was concerned, he had hired me to weld and anything to do with welding was my responsibility so far as the welding of the arm.\u201d Thus, it cannot be said that evidence tending to show only that plaintiff failed to clean and inspect the loader prior to the commencement of welding and to maintain a fire watch during the repair operation was sufficient to require the submission of an issue of contributory negligence. This assignment of error is overruled.\n. Defendants assign as error the denial of their motions for directed verdict and for judgment notwithstanding the verdict. These assignments of error are premised solely on the contention that the evidence disclosed contributory negligence as a matter of law, and for the reasons stated above,, have no merit.\nNo error.\nJudges Britt and Vaughn concur;",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Charles Darsie for 'plaintiff appellee.",
      "Powe, Porter, Alphin & Whichard, P.A., by J. G. Billings for .defendant appellants."
    ],
    "corrections": "",
    "head_matter": "J. L. O\u2019BRIANT, doing business as J. L. O\u2019Briant Construction Company v. LEE\u2019S WELDING & STEEL SERVICE, INC., GARLAND C. LEE, JR., and RICHARD POOLE\nNo. 7314SC294\n(Filed 25 July 1973)\n1. Master and Servant \u00a7\u00a7 3, 18 \u2014 specialist overhauling machinery on owner\u2019s land \u2014 independent contractor \u2014 duty of owner\nA specialist .employed to overhaul and repair machinery on the owner\u2019s premises in the owner\u2019s absence and free of any supervision by the owner is an independent contractor to whom the owner owes the duty to warn of hidden dangers known to the owner and not known to the specialist; however, the owner is not under a duty to exercise care to provide a reasonably safe place for the specialist to work, the specialist being more cognizant of the dangers incident to the machinery than the owner himself.\n2. Master and Servant \u00a7 20.5; Negligence \u00a7 34 \u2014 liability of independent contractor to owner \u2014 insufficiency of evidence of contributory negligence of owner\nIn an action to recover for damages to a tractor with a front end loader allegedly resulting from fire caused by defendant where the evidence tended to show that defendant was an independent contractor hired by plaintiff as a specialist to repair the loader by welding it in the field, that plaintiff had no knowledge of any hidden or dangerous conditions of which he failed to warn defendant, and that defendant had as much, if not more, opportunity than plaintiff to inspect the loader and correct any potentially dangerous conditions prior to commencement of the welding, evidence tending to show only that plaintiff failed to clean and inspect the loader prior to the commencement of welding and to maintain a fire watch during the repair operation was insufficient to require the submission of an issue of contributory negligence to the jury.\nAppeal by defendants from Bailey, Judge, 6 November 1972 Session of Superior Court held in DURHAM County.\nPlaintiff, J. L. O\u2019Briant, doing business as J.\u2019 L. O\u2019Briant Construction Company, instituted this action to recover , of defendants, Lee\u2019s Welding & Steel Service, Inc., Garland C. Lee, Jr., and Richard Poole, $12,423.25 for damages to an International Crawler Tractor with a front end loader (loader) allegedly resulting from a fire negligently caused by defendants when repairing the loader by welding. The material evidence offered by plaintiff tended to show the following:\nPlaintiff contacted defendant Lee about repairing a minor crack in the arm of the loader and on 3 June 1970, defendants Lee and Poole went to the construction site where, the loader was located to make the repair. Lee left prior to the commencement of the welding operation.\nDefendant Poole asked the operator of the loader to raise its arms but made no other preparations before he began to weld. Within one or two minutes after Poole began to weld, the loader caught on fire. Poole testified: \u201cImmediately when the fire started I jumped down and got the fire extinguisher out of the truck and turned it towards the fire and blew the chemicals down in the belly pan towards the fire. It didn\u2019t do any good.\u201d Two employees of plaintiff, present at the construction site, testified that Poole had no fire extinguisher and merely attempted to contain the fire by throwing dirt upon it. The Durham Fire Department was called and finally extinguished the fire.\nErnest H. Andrews, a certified welder experienced in welding front end loaders and other heavy equipment, testified that before welding on a front end loader, he inspects the \u201cbelly pan\u201d to ascertain if there is any flammable substance therein, maintains a fire extinguisher nearby, and uses \u201casbestos cloth or a sheet of metal to direct the fire . . . away from the tractor . . . . \u201d Andrews stated that he considers it his responsibility \u201cto prepare a tractor, for welding as far as cleaning it\u201d and \u201cto take whatever precautions necessary to keep fire away from any inflammable areas.\u201d\nAs a result of the fire, plaintiff incurred expenses of $5,223.25 for the repair of the loader and $6,180.00 for the rental of another loader while the repairs were being made.\nAt the close of plaintiff\u2019s evidence, defendants\u2019 motion for a directed verdict was allowed as to defendant Lee in his individual capacity but denied as to defendant Poole and the corporate defendant.\nDefendants offered evidence tending to show that it is not customary to use asbestos or steel shields or have buckets of sand nearby when welding heavy equipment in the field and that no request was made of defendants to employ such safety devices or to make a \u201cdetailed inspection\u201d of the loader before beginning to weld. Defendant Lee stated that it is customary for the owner or operator of heavy equipment to serve as a fire watch while' it is being welded and that none of plaintiff\u2019s employees did so. Defendants offered additional evidence tending to show that \u201cas a general rule\u201d the hydraulic lines on a front end loader leak fluid which \u201cwould build up on the dirt underneath the vehicle and on the arms\u201d and that \u201cnone of Mr. O\u2019Briant\u2019s employees had cleaned the particular piece of equipment prior to when it was welded.\u201d\nThe following issues were submitted to the jury and answered as indicated:\n\u201c1. Was the plaintiff damaged by the negligence of the defendants as alleged in the Complaint?\nYes, \u25a0\n2. What amount of damages, if any, is plaintiff entitled to recover of the defendants?\n$10,500.00.\u201d\nFrom a judgment entered on the verdict, defendants appealed.\nCharles Darsie for 'plaintiff appellee.\nPowe, Porter, Alphin & Whichard, P.A., by J. G. Billings for .defendant appellants."
  },
  "file_name": "0013-01",
  "first_page_order": 37,
  "last_page_order": 41
}