J. A. WATSON, Guardian, v. BLACK MOUNTAIN RAILWAY COMPANY.
(Filed 3 December, 1913.)
1. Trials — Continuances—Court’s Discretion — New Parties.
The question of continuance is ordinarily a matter appealing to the discretion of the trial judge, and his action in refusing a motion for a continuance as a matter of right, for making a new party to the action at the instance of the appellant, where no change has thereby been made in the pleadings and the issues, and no suggestion that it would be prejudicial to him to immediately proceed with the trial, is not held erroneous.
2. Same — Prejudice of Rights — Appeal and Error.
There is no change of parties to an action, in a legal sense, where a guárdian ad litem is appointed on the ground of mental incompetency of one of them; and where such guardian is appointed and made a party at the trial term of the action, without change of pleading, it does not give the opposing party a legal right to continue the cause, and the refusal of the trial judge to grant his motion is not reviewable on appeal.
3. Corporations — Negligence—Independent Contractor — Master and Servant — Production of Books — Evidence—Trials.
Where a defendant corporation relies upon the defense of an independent contractor in an action to recover damages for a personal injury alleged to have been negligently inflicted, and upon notice produces at the trial the minutes of the stockholders and directors bearing upon the employment of the alleged independent contractor, the production of the books is at least sufficient evidence of genuineness to justify their admission on the part of the plaintiff, and are properly received in evidence when tendered by him; and it is held in this case that evidence which tended to show that one who substantially owned the defendant company and was in a xiosition to change the contract made by it with him, was not such an independent contractor as would relieve the company from liability for his negligent acts.
4. Master and Servant — 'Negligence—Dangerous Work — Independent Contractor — Vice Principal — Instructions to Employees— Trials — Evidence—Nonsuit.
The plaintiff was engaged at the time of his injury for which this action to recover damages was brought, in drilling holes for blasting a right of way for defendant’s road, using dyna*177mite and powder, and there was evidence tending to show that' tile injury was caused by bis having been directed, by the vice-principal, to drill into a bole in a rock wbicb bad failed to explode, to clear it out, while the safe method, followed up to that time, was to use a sharpened stick or the hands for the purpose; that in using the drill the plaintiff relied upon the knowledge or judgment of the vice-principal, though he was an experienced man in such work: Held,, (1) the evidence was sufficient upon the question of defendant’s negligence to take the case to the jury; (2) the character of this class of work is so intrinsically • dangerous that the defense of independent contractor will not avail. Arthur v: J-Ienry, 157 N. O., 402, cited and applied.
5. Trials — Compromise—Evidence—Witness—Bias.
The defendant corporation was sued to recover damages for personal injury to an employee, and under cross-examination its president was required to testify, under its objection, as to conversations with the plaintiff and his attorneys, in an attempt to compromise the suit before trial, and especially as to his statements that plaintiff’s attorneys were holding up the compromise because of their contingent fee; that under the plaintiff’s arrangement with Ms attorneys he had agreed to pay too much; that he had approached the plaintiff, when he agreed at a prior term of the court not to do so, etc.: Held, the .evidence was competent as bearing upon the bias of the witness in being unduly zealous in the defendant’s behalf, and having been properly restricted by the trial judge to this purpose, its admission was not error.
Appeal by defendant from Daniels, J., at April Term, 1913, of Mitchell.
Tbis is an action to recover damages for personal injury.
Wien tie case was called for trial, tie defendant asked leave to file a plea since last continuance, alleging tlat a guardian lad been appointed for tie plaintiff since tie last term of tie court on tie ground of tie mental incompetency of tie plaintiff.
Tie motion was allowed; tie guardian, Join A. WAtson, came into cotirt and adopted tie complaint heretofore filed.
Tie defendant tlen moved for a continuance on tie ground tlat a new party lad been made at tlis term, but in tie exercise of its discretion tie court overruled tie motion and directed tie cause to proceed, and tie defendant excepted.
*178Tbe plaintiff testified, among other things: “I had worked on the Carolina, Clinchfield and Ohio Railway, off and on, about eight years. I generally drilled, put the loads in holes and shot. I worked mostly with the rock crew. They used dynamite mostly as an explosive on the C. 0. and 0.; sometimes black powder. I had seen a great deal of blasting done with dynamite, and had helped to do it. I had about eight years experience in this kind of work. I had blasted in mica mines. I had full control and use of the' dynamite. I know the danger of dynamite and knew the danger when I worked in mica mines and used the dynamite myself, and I had worked on other roads than the 0. 0. and O. I had right smart experience in work on the Tennessee Central below Knoxville. I worked on the steel gang most of the time. The biggest portion of my life since I have been big enough to do public work, I have worked on the rock crew. I have farmed a little. On all of these jobs we used dynamite. We used powder in the top of the hole generally. We put in powder sometimes to shoot with a fuse. I have loaded a good many of these fuses myself or loaded the powder. All are supposed to go off at once, if there ain’t nothing wrong. I have had a great deal of experience in helping to clean out holes that had been shot. I have been helping,to clean out holes when they failed to fire, for a number of years. I was injured on 16 May, 1911. I have never been able to see anything since that date. I do not go about in the country from house to house when .court is not in session. I never go from one house to another by myself. I never have since I was injured without some one with me. I knew it was dangerous to drill into a hole that had been loaded with dynamite without it having been cleaned out. I knew it was dangerous if you go down to the dynamite. If you happened to strike it, it would explode. The proper method of cleaning out a hole is to clean it out carefully with a swab pole until you get down in order to see if there is any dynamite in there. You would take a sharp stick, sometimes take a little, spoon with a little scraper on it, and sometimes take your hands. There was no danger if you used a sharp stick. Sometimes you *179would use your bauds. There was no danger’in this method. The only dangerous method was drilling in there. I recollect Mr. Buckley coming along before I was injured. He was my foreman. He hired and discharged the men. Mr. Buckley gave orders as to how the work was to be done. Mr. Buckley hiited me. Buckley put me to do the work at.this hole. I was there when the blast was put off. There were five or six holes. They were drilled on the Saturday before that and loaded that morning and fired and then they came back and put us on that hole and blowed up. Mr. Buckley put us on that hole. The first time Mr. Buckley put us to work, he told us to put that hole down. He told us how far to put it. He told us to put them holes about a foot below grade. Manassa Thomas was working with me. ¥e then started to clean the gravel out. Cleaned it out with the stick. Mr. Buckley came along and said, ‘Boys, you can’t get it done that way. Gus, you will have to get a drill and hammer it down.’ We got a drill and Mr. Thomas was holding and I was drilling; we struck five or six licks, and it exploded. After that explosion I didn’t know anything. We didn’t have any drill when he first came there — kinder swabbing it out. There was no drill close to the hole. Mr. Thomas went for the drill and brought it back. He was holding the drill and I was hammering. I stopped cleaning it out the way I was cleaning and put the drill in and went to hammering because I was going to rely on him. I thought if there had been any dynamite in that hole, he knew it. I was relying on his word. I knew I was working under him, and if I didn’t obey his orders he would turn us off. I didn’t know whether there was any dynamite in there or not. I ’lowed he knew or else he would never have put me on.”
One of the defenses relied on by the defendant was that the work, in doing which the plaintiff was injured, was in charge of Charles L. Buffin, an independent contractor, and to meet this defense the plaintiff served notice on the defendant to produce in court the minutes of the meetings of the stockholders and directors of the defendant company. Books purporting to be such minutes were produced in response to the notice, and offered in evidence by the plaintiff.
*180Tbe defendant excepted upon tbe ground that tbe books were not produced under order of court, but in response to notice.
Tbe president of tbe defendant' company was examined as a witness, and among other things testified on cross-examination: “I ’am a lawyer and practice in this county, in Yancey, and in other counties. I have risen in this case and made objections more by intuition than anything else. I did state at tbe last term of tbe court that I knew of no effort to settle this case, and that none would be made. And I would not have made any attempt unless conditions bad radically changed. As I understand tbe law, tbe law wants you to compromise. I approached tbe man to compromise after notice to you and Mr. McBee, and I felt at liberty under all legal ethics to come and approach your client. I offered you an amount that your client said was ample, but was not able to accept because be bad to pay you so much. I told him that all you were after was bis money, and I believe it. Tbe negro is being maintained by you and Mr. McBee. I said you were after tbe railroad’s money. I think that it is professional, after I went to see you gentlemen, and you told me that you and I would part right then. I don’t' think bis Honor could take a right from me authorized by tbe statutes of North Carolina which encourages compromises. I offered yout client tbe amount you bad made to me over there as we got on tbe train at Toecane. I don’t want to go into these things. I want to state in regard to the professional ethics — I don’t want to go into this thing. You know what has actuated me in this cause, and as a matter of fact, I bold the signed statement that this man Forney gave to- me and that bis attorneys wanted to bold up the amount. That they would not ratify the statement over there. I don’t know but that I told your client that he had an improvident contract. I may have stated the amount I offered you is ample. He wanted to take it, but by reason of having to pay you men, he said he was held by your contract. I wanted to pay that negro all that was right, but I don’t think I violated the ethics when I attempted to settle it with him. I think I offered him and his lawyers *181wbat is fair. I think I was justified in going to him. I refer, to what I offered you down at the coal station.”
The defendant objected to the foregoing evidence in regard-to the attempt to compromise the case. Objection overruled. Exception taken, the court stating: “This evidence is offered as having bearing on the weight the jury will give- the testimony of the witness, and for no other purpose, and the jury is not to consider it in any other way.”
At the conclusion' of all the evidence the defendant moved for judgment of nonsuit, which was denied, and the defendant excepted.
There are also several exceptions taken to the rulings upon the question whether Ruffin was an independent contractor.
Yerdict and judgment for the plaintiff, and the defendant appealed.
Hudgins & Watson, John G. McBee, and Pless & Winhorne for plaintiff.
James J. McLaughlin and J. Bis Bay for defendant.
Allen, J.
The guardian was entered upon the record as a party upon the motion of the defendant, and it cannot- well say that it was taken by surprise, nor does it claim that it was not ready for trial, or urge any reason for the continuance except as a matter of legal right upon a new party being made.
If new parties are made or amendments allowed, which change the issues, and a party is not' prepared with his evidence to meet the changed conditions, he is entitled to' a continuance as a matter of right (Dobson v. R. R., 129 N. C., 291), but ordinarily the ruling of the judge upon a motion for continuance is a matter of discretion and not reviewable, and in this case it appears that there was no change in the pleadings or' 'issues, and no suggestion that it would be more prejudicial to the defendant to try at that time than at any other.
We are also of opinion there was no change of parties in a legal sense by marking the name of the guardian on the record.
It was said in Tate v. Mott, 96 N. C., 23: “Generally, an infant can maintain an action if he has a just cause of action, *182just as an adult may do, tbe only difference being in tbe mode of conducting- it. His action must be brought and prosecuted in bis own name, and it is in all respects bis, just as if be were of full age; but it must be managed and prosecuted, not by himself, but by bis guardian or next friend, under tbe supervision and control of tbe court. This is necessary, because of bis presumed' lack of discretion and want of capacity to understand' and manage bis own affairs, bis inability to bind himself and to become liable for costs. Tbe guardian or next friend is not in a legal sense' a party to tbe action, although bis name appears in tbe record,” and this has been approved several times.
Tbe minutes of tbe meetings of tbe stockholders and directors of tbe defendant were properly admitted in evidence.
They were produced by. tbe defendant pursuant to notice, and this 'is at least sufficient evidence of genuineness to justify their admission^ and tbe defendant does not say now they are not tbe minutes.
These minutes not only furnish evidence that Ruffin was not an independent contractor, but they go far to establish that be substantially owned tbe defendant company, and, as testified to by tbe president of tbe company, that be was in a position to change tbe contract under which it was.claimed be was working, at will, as be owned a majority of tbe stock.
If, however, tbe evidence was- incompetent, it would be no ground for a new trial, because tbe doctrine is well established and is applicable here, that tbe work at which the-plaintiff was engaged is so intrinsically dangerous that protection from liability will'not be afforded by an independent contract, and this, also disposes of tbe various exceptions to tbe rulings of bis Honor, and tbe exceptions to bis charge on tbe question of independent contractor. Arthur v. Henry, 157 N. C., 402.
Tbe position óf tbe defendant is undoubtedly true that compromises are favored, and that usually evidence of what has been said or done in an attempt' to settle is not competent, but in this ease it was not offered as an admission of liability nor to attack tbe general character of tbe witness, but to show that although bis motives might be commendable to protect a rail*183road wbicb bad been recently organized, and wbicb be believed meant mucb for tbe development of bis section, wbicb bad theretofore bad no railroad facilities, be was unduly zealous, and bad gone so far as to approach tbe client for tbe purpose of compromising, after agreeing at a prior term of court that this would not be done.
For this purpose tbe evidence was competent, as bearing on the bias of tbe witness, who bad testified to important and material facts in 'behalf of tbe defendant, and bis Honor properly restricted tbe evidence at tbe time it was introduced and again in bis charge.
Tbe motion for judgment of nonsuit ought not to have been allowed.
Tbe evidence is stronger in behalf of tbe plaintiff than in Harris v. Quarry Co., 137 N. C., 204, because in this case there is evidence that.tbe plaintiff was pursuing a method wbicb was safe, when be was directed by tbe party in charge for tbe defendant to adopt another and more dangerous method, wbicb caused bis injury. Tbe authorities sustaining this proposition are collected in Lynch v. R. R., post, 249.
We have examined all of tbe exceptions, including those not assigned as errors in accordance with tbe rules of Court, and find
No error.