#### LOUIS HOBBS v. NEW BERN-GHENT STREET RAILWAY COMPANY.

(Filed 6 October, 1920.)

Instructions — Employer and Employee — Master and Servant^ — Evidence— Appeal and Error.

It is reversible error for the trial judge to charge the jury that the plaintiff: was an employee of the defendant to whom the latter owed the duty to furnish a safe place to work, when there was evidence that the plaintiff was at work as an independent contractor.

Appeal by defendant from Connor, J., at the April Term, 1920, of CRAVEN.

This is an action to recover damages for personal injury, the plaintiff alleging that he was an employee of the defendant, and that while in *130tbe performance -of bis duty, taking down certain wires on poles, tbat a pole broke because of its rotten condition, and be was thrown to tbe ground and seriously injured.

Tbe defendant denied tbat tbe plaintiff was in its employment, and alleged tbat be was an independent contractor.

His Honor charged tbe jury tbat if they believed all of tbe evidence, tbe plaintiff was an employee of tbe defendant, and tbat it was tbe duty of tbe defendant to furnish him a reasonably safe place to work, and tbe defendant excepted.

There was a verdict and judgment for tbe plaintiff, and tbe ^defendant appealed.

Moore & Dunn for plaintiff.

W. D. Melver and B. A. Nunn for defendant.

AlleN, J.

We are of opinion, upon an examination of tbe whole evidence, tbat there is a conflict in tbe testimony, and tbat there is some evidence tbat plaintiff was an independent contractor, and, therefore, tbat bis Honor committed error in giving a peremptory instruction to tbe jury.

We refrain from discussing tbe evidence, because, in doing so, we might give undue weight to certain phases of it, and prejudice the rights of tbe parties upon another trial.

New trial.