#### A. W. AVERY, Executor of A. C. AVERY, v. C. M. PALMER and C. C. PERRY.

(Filed 10 April, 1918.)

1. Nonsuit — Evidence—Trials.

On a motion for nonsuit, consideration may be given only to facts and' legitimate inferences therefrom which tends to support the plaintiff's, claim.

2. Contracts — Breach—Negligence.

Negligence as a constituent part of an actionable wrong is the failure-to exercise proper care in the performance of some legal duty which defendant owes the plaintiff growing out of the circumstances in which they are placed, proper care being that degree of care which a prudent man. should use under like circumstances and charged with a like duty. Ramsbottom v. R. R., 138 N. C., 38, cited and approved.

*3793. Same — Legal Duty — Implied Liability.

While it is not usual that the legal duty referred to is involved in the ordinary adjustments for breaches of- contract, a contract may and not infrequently does create the circumstances from which the added duty will arise, and at times the duty is superimposed by the law on the contract relation, as in the case of contracts on the part of public service corporations made in the ordinary exercise and performance of their chartered obligations. Gaslvwell v. Bottling Worlcs, 174 N. C., 324; Dail v. Taylor, 157 N. C., 284; Peanut Go. v. R. R., 155 N. C., 148, cited and applied.

4. Contracts — Negligence—Legal Duty — Damages—Evidence—Trials.

The plaintiff’s intestate, a farmer, owned a roughly constructed two-wheel cart, without body, the pieces on each side continuing to form the shafts, with rounds across, forming a framework for the load, and applying to the defendant to haul a tombstone to be erected five miles in the country, was informed by him that his cart was insufficient and that he*get another, whereupon the intestate insisted that it was and asked the defendant “What do you think the stone weighs?” to which the defendant replied, from the information that he had, 1,650 pounds. There was evidence tending to show that it weighed approximately 2,350 pounds. The agreement was made and the stone accordingly loaded on the cart under the intestate’s sole direction, without chain or other device to hold the stone in place over the axle. In going over the end of a bridge across the road, when there was a drop about two or three inches, the stone fell forward on the intestate, breaking the shafts of the cart and killing him. Held,, not sufficient evidence of a breach of a legal duty owed by the defendant to the intestate to be submitted to the jury on the question of actionable negligence, in an action brought by his executor to recover damages for his wrongful death.

5. Same — Principal and Agent.

Where a dealer in tombstones has shipped one of them to his agent for delivery, properly crated in pursuance to his contract, and the latter has contracted with the plaintiff’s intestate to haul it to its destination some five miles in the country, and while thus being hauled, the stone falls forward and kills the intestate without default or breach of legal duty on the part of the agent, falling within the course and scope of his agency, no breach of a legal duty has been sufficiently shown as to the principal to take the case to the jury upon the issue of his actionable negligence for the death of the intestate. Brown v. Foundry Go., 170 N. C., 38; DaM v. Taylor, 151 N. 0., 284; Gashioell v. Bottling Worlcs, 174 N. C., 324; Peanut Go. v. R. R., 153 N. C., 148, cited and distinguished.

6. Contracts — Negligence—Evidence—False Statements — Fraud.

Where the defendant has agreed with the plaintiff’s intestate to haul a tombstone some five miles in the country to its destination, and the intestate was killed by the tombstone falling upon him en route, evidence that the defendant had told the intestate that the latter’s cart was insecure for the purpose but had yielded to the intestate’s insistence that it was, and had given the weight of the stone as 1,650 pounds, from the best information he had, when it weighed approximately 2,350, and each one *380had the same knowledge and opportunity to estimate the weight: Held insufficient evidence that the defendant induced the intestate to undertake the hauling by false and fraudulent statements.

Civil aotion, tried before Calvert, J., and a jury at November Term, 1917, of CRAVEN.

This action was to recover damages for alleged negligence on the part of defendants, causing the death of plaintiff’s intestate.

There were also allegations in the complaint that plaintiff’s intestate’s death was caused by the false and fraudulent representation on the part of said C. C. Perry as agent of defendant as to weight of a certain tombstone which the intestate undertook to haul and, in doing so, came to his death.

Defendants answered, denying liability. On motion made in apt time, there was judgment of nonsuit and plaintiff excepted and appealed.

D. L. Ward and Guión & Guión for plaintiff.

B. L. Smith, T. D. Warren, and Moore & Dunn for defendants.

IIoke, J-.

There was evidence on the part of plaintiff tending to show that in November, 1916, C. C. Perry, as agent for his codefendant Palmer, had sold to one E. D. Avery a tombstone for his wife and same had been shipped by railroad to Cove City, N. C., to be thence carried and erected at Asbury Church, about five miles distant from the station; that the shipment, consisting of the headstone with base, a footstone and coping, also of stone, to enclose the grave, had been placed on the platform, and this coping proved or estimated to be about half of the entire weight, had .been hauled to the church on the Saturday before by another person; that on the day in question the intestate, who owned a farm in and near Cove City, was there on business with his cart and, learning that the stone was to be hauled, applied to do the work, and the offer was accepted by Perry, who was there in charge, the cart not then being present. This cart, an ordinary one-horse vehicle, having an iron axle with two regular cart wheels with iron tires and superstructure, two shafts of hewn cypress, 5 by 6 inches in size and 13 feet long, eight feet of which was for the body under which the shafts were connected by rings inserted at intervals in bored holes and with uprights also in the shafts. The remaining five feet was for the mule and which was hitched to the first rung. That when intestate drove up to the station platform with his mule and cart, defendant Perry said to him, “That cart is not going to hold that stone,” and intestate replied: “How much do you think it weighs?” and Perry replied “1,650 pounds,” and said: “There is a round out in front of your cart; you had better get a wagon to haul it in.” That intestate replied that his mule hauled that much guano and *381would baul it all right, and, being advised by some one to get-some timbers 2 by 4 for an additional strength to tbe bed of tbe cart, intestate did so. Tbe cart was loaded under bis supervision and started on tbe way. About 2% miles from Cove City tbe road crossed a bridge over a creek wbicb bad some rise in tbe approach and at the further end there was a drop from tbe bridge to tbe road of 2 or 3 inches. Tbe mule pulled tbe load up tbe rise and over tbe bridge, and as tbe cart went oif tbe bridge, intestate jumped up on tbe shafts next tbe mule, and there being no chain or other contrivance to bold tbe stone steady in its place over tbe axle, it slipped forward some inches, broke both shafts, sliding down on intestate and crushed him so that he soon thereafter died.

There were facts in evidence tending to show that the stones loaded by intestate weighed 2,350 pounds, which with the crate would probably run it to 2,500 pounds, and that the cart, if correctly loaded, would have hauled safely as much as 2,000 pounds, but not as much as 3,000; that Perry had not seen tbe stone till it came to tbe station; that tbe weight of tbe entire shipment was 3,000, raised by tbe railroad to something over 3,100, as shipping weight, and this included tbe coping, which was something near one-half of the whole shipment; that the stone was sold by weight and the design of-this stone called for a weight of 1,650 pounds, and tbe data in Perry’s possession all tended to show that 1,650 pounds was tbe true weight or very near it; that intestate was a farmer about 32 years of age, owning property and doing tbe ordinary work of a farmer in lifting and hauling things of weight that came to hand in tbe course of tbe work, and that he had also worked some in the lumbering business. There was also evidence tending to show that in the loading of the stone into tbe cart, wbicb was done under intestate’s supervision, there were, as Stated, no chains or other arrangement by which the weight could be held in its proper place over the axle, and that the break was caused by reason of the stone slipping forward on the shafts chiefly at the drop from the bridge to the dirt road.

On perusal of this record, and in full recognition of the accepted principle that, on a motion for nonsuit, consideration may be given only to facts and legitimate inferences therefrom which tend to support plaintiff’s position, we are of opinion that, in this testimony, in no aspect of it, can a .recovery be sustained by plaintiff either for a negligent or intentional wrong.

In Ramsbottom v. R. R., 138 N. C., 38, negligence, as a constituent part of an actionable wrong, was said to exist when there had been “a failure to exercise proper care in tbe performance of some legal duty wbicb defendant owed to plaintiffs under the circumstances in which they were placed, proper care being that degree of care which a prudent man should use under like circumstances and charged with a like duty.”

*382It is nofr usual that tbe legal duty referred to is involved in the ordinary adjustments for breaches of a contract, though a contract may create the conditions out of which the added duty will arise, as shown in the case of Dail v. Taylor, 151 N. C., 284, an action by a vendee of a lot of Coca-Cola against the vendor and manufacturers for physical injuries caused by an explosion of one of the bottles. Inasmuch as it appeared that some serious injury was likely to follow unless due care was used in bottling this preparation, it was held that, in the absence of any specific warranty to that' effect, the vendor and manufacturer was required to use such care, and, for a breach of duty in this respect and which was the proximate cause of the injury, an action would properly lie. A like ruling has been recently made in Cashwell v. Bottling Works, 174 N. C., 324. Again, this form of liability is at times superimposed by the law in certain kinds of contracts, as in case of contracts of carriage with public service companies, where, for reasons of public policy, a strict performance of the stipulated duties are required, as instanced in Pickett v. R. R., 153 N. C., 148, particularly the concurring opinion of Associate Justice Allen.

Construing the record in view of these principles, so far as defendant Palmer was concerned, he did nothing personally in the matter except to ship the stones properly crated pursuant to his contract and it is not contended that he is in any way responsible, except in so far as it may arise from the conduct of his codefendant Perry at the time and within the course and scope of his agency, and as to the latter, as heretofore stated, we see nothing in this transaction which shows or tends to show any negligent breach pf duty on his part.

This is not a ease of master and servant within the technical and usual meaning of the term, where certain recognized duties exist by reason of the relationship, as in Brown v. Foundry Co., 170 N. C., 38, but the men were dealing at arm’s length with the subject matter of the agreement before them and equally open to the observation of both. All the evidence, both of plaintiff and defendants, tends to show that Perry had not seen these stones till he saw them on the station platform, where it had been placed by the consignee and purchaser and, according to plaintiff’s own testimony, the only statement he made about the weight .was in the effort to dissuade the intestate from the use of the cart, which did not appear to him to be sufficiently strong or secure for the purpose, and though he seems to have been mistaken in his estimate, for it was evidently given only as an estimate; “What do you think it weighs ?” was the question asked by deceased, it was a true statement according to all the data that he had, both the shipping weight and the design and the price, based upon weight, all tending to show that 1,650 pounds or more was the correct weight.

*383And there was nothing concealed or withheld or probably threatening in the making of such a contract, assuredly none that was not equally •open to both. As heretofore stated, the stone was there to show for itself. The question of its weight was well within the intestate’s intelligence and experience; by the terms of the contract, he was to have it loaded and did supervise and direct the loading of it himself, and on the facts presented, we are clearly of opinion that an action predicated upon a negligent breach of duty cannot be sustained against either of defendants.

It was alleged in the complaint and urged on the argument that defendants could be held liable by reason of false and fraudulent statements on the part of the agent Perry, but, as shown by the evidence and "the testimony in behalf of plaintiff, his statements were correct, according to all the data that Perry had and were made, not with a view of enticing the deceased into the contract but in the endeavor to prevent him from undertaking the work without getting another vehicle.

There is, therefore, no element of deceit or fraud in the transaction, and on the facts in evidence the judgment of nonsuit must be affirmed.

Affirmed.