The motion to dismiss the action as in case of nonsuit was granted as to the Lee Transportation Company and denied as to the Appalachian Construction Company, against whom it was prosecuted to judgment. In its answer the defendant alleged that the Lee Transportation Company was an independent contractor, and it was said on the argument that because of this independent relation the motion for nonsuit was allowed. Decatur Justice, a witness for the plaintiff, testified that he and Tom Freeman were working for the Lee Transpor*719tation Company at tbe time of tbe injury; tbat tbe intestate fell from tbe witness’s truck “after quitting time,” when tbe Transportation Company bad no control over tbe truck or tbe driver. Upon tbis theory it was not only important, but necessary, to ascertain wbetber tbe deceased rode on tbe truck merely at tbe invitation or by tbe license of tbe owner or driver, or wbetber carrying .the deceased on a truck to and from bis work was a part of tbe contract of employment. If tbe defendant was not obligated to provide transportation for tbe deceased a mere change in tbe place of work could hardly be considered tbe proximate cause of tbe injury suffered “after quitting time,” when tbe relation of employer and employee bad temporarily ceased. It is insisted by tbe appellant tbat these phases of tbe evidence were not clearly presented in tbe instructions relating to tbe third issue. Tbe jury was first told in substance tbat a parent who hires a child of tender years has tbe right to limit tbe place where tbe child is to work; tbat it is tbe duty of an employer who assents to tbe limitation to observe it, and tbat bis failure to live up to tbe agreement would be a violation of duty which would entitle tbe plaintiff to recover. If tbe defendant’s contention is correct there may have been a breach of tbe contract under which tbe deceased was employed, and still tbe defendant may not have been liable in damages. Tbis instruction, it is true, is followed by another to the effect that tbe breach of contract must have been a proximate cause of tbe injury; but we find no instruction which specifically sets forth tbe converse of tbis proposition — tbat is, tbat the defendant would not be liable if tbe intestate was injured while on tbe truck of one who at tbe time was in tbe service of an independent contractor, or who, if not in such service at tbe time, invited or permitted tbe intestate to ride on tbe truck as a matter of accommodation, with no agreement express or implied to'render such service, and with no obligation on tbe part of tbe defendant to provide such transportation. Of course there is evidence .that this duty devolved upon the defendant, but this evidence should have been submitted to tbe jury under instructions appropriate to tbe contentions of both parties. The controlling principle is thus stated in Real Estate Co. v. Moser, 175 N. C., 259: “Tbe instruction given is correct as far as it goes, but tbe judge failed to state tbe defendant’s contention and to instruct them tbat tbe defendant bad a right to withdraw bis proposition under certain conditions, and what those conditions were. Even without a specific instruction, it was incumbent upon tbe judge to do tbis, for when tbe judge assumes to charge and correctly charges the law upon one phase of the evidence tbe charge is incomplete unless it embraces tbe law as applicable to tbe respective contentions of each party, and such failure is reversible error.” Jarrett v. *720 High Point Co., 144 N. C., 299; Lea v. Utilities Co., 176 N. C., 514; Butler v. Mfg. Co., 182 N. C., 547.
The following instruction also is subject to exception: “If the plaintiff has satisfied you by the greater weight of the evidence that the real, efficient cause, without which the injury and death would not have resulted, was the breach of this agreement on the part of the defendant, if you find by the greater weight of the evidence that he made the agreement claimed by the plaintiff, then your answer to the first three issues would be Yes, but if the plaintiff has not satisfied you by the greater weight of the evidence, then you would answer the first issue No.” Under what circumstances were the second and third to be answered in the negative? The appellant is entitled to a
New trial.