The evidence adduced below is insufficient to support the inference of negligence on the part of the corporate defendant as a proximate cause of the plaintiff’s injuries based on its failure to post a watchman or its failure to provide adequate signs, signals, or warnings for the protection of the traveling public in the vicinity of the excavation. Presley v. Allen, 234 N.C. 181, 66 S.E. 2d 789; Wrenn v. Graham, 239 N.C. 462, 80 S.E. 2d 378; 25 Am. Jur., Highways, Sec. 410 et seq. Numerous times during the week previous to the collision the plaintiff had passed by the construction project. On the morning of the collision *560be bad driven past tbe excavation several times going to and from Green-ville looking for “tobacco bands.” He knew tbe nature of tbe work being done on tbe highway. Tbe excavation was in plain view. As be approached it, be said be saw tbe barricade for a distance of 300 feet, and according to bis evidence be bad passed 179 feet beyond tbe barricade when tbe collision occurred. It was not a one-way drive alongside tbe excavation. There was adequate space for two vehicles to meet and pass. Therefore, conceding, without deciding, that tbe corporate defendant may have been negligent in failing to provide adequate signals, signs, or warnings in tbe vicinity of tbe excavation, even so, it is manifest that such negligence in nowise contributed to tbe plaintiff’s injuries as a proximate cause thereof. On tbe record as presented there is a total lack of causal connection between tbe collision and tbe alleged independent negligence of tbe corporate defendant.
Nevertheless, our examination of tbe record leaves tbe impression tbe evidence is sufficient to carry tbe case to tbe jury on tbe issue of actionable negligence as to the defendant H elson and also as against tbe corporate defendant on tbe theory of respondeat superior.
The plaintiff’s testimony to tbe effect that Nelson, while driving 60 to 65 miles per hour, lost control of tbe truck and struck tbe plaintiff’s car over on plaintiff’s right side of tbe center of tbe main traveled portion of tbe highway suffices to make out a prima facie case of actionable negligence against Nelson. Whereas, tbe evidence bearing on supervision and direction of Nelson’s work is sufficient to justify the inference that tbe corporate defendant retained control, or right of control, over tbe details of tbe work performed by him. This suffices to make out a pnma facie case for tbe plaintiff on tbe issue of respondeat superior under application of tbe principles explained and applied in these decisions : Lassiter v. Cline, 222 N.C. 271, 22 S.E. 2d 558; Aderholt v. Condon, 189 N.C. 748, 128 S.E. 337. See also Hinkle v. Lexington, 239 N.C. 105, 79 S.E. 2d 220; Hodge v. McGuire, 235 N.C. 132, 69 S.E. 2d 227; Hayes v. Elon College, 224 N.C. 11, 29 S.E. 2d 137.
In Hinkle v. Lexington, supra, Devin, C. J., speaking for tbe Court, said, at p. 107: “Tbe usual test for determining whether tbe relationship between tbe parties is that of employer and employee or independent contractor is whether tbe employer has tbe right to control tbe workman with respect to the manner and method of doing the work as distinguished from tbe mere right to require certain results, and it is not material as determinative of tbe relationship whether tbe employer actually exercises tbe right of control.”
We conclude, therefore, that tbe defendants’ motions for judgment as of nonsuit were properly denied by Judge Erizzelle.
*561However, we are constrained to the view that the defendants are entitled to a new trial for errors appearing in the charge.
The court in charging the jury said: “The plaintiff contends that the defendant Nelson was also negligent in those identical particulars, for that it is alleged that he carelessly and negligently failed to post a watchman in the immediate vicinity where the wreck occurred, or to station a watchman there, or to erect a light there to warn people who had a right to travel over and upon the highway.”
In no aspect of the case was the defendant Nelson under legal duty to post a watchman or provide for the giving of signals or warnings in the vicinity of the construction project which was being carried on by the corporate defendant, and this is so irrespective of whether the relationship between Nelson and the corporate defendant was that of employer and employee or independent contractor.
“It is the duty of the trial court to explain and apply the law to the substantive phases of the evidence adduced (G.S. 1-180), and an instruction which presents an erroneous view of the law or an incorrect application thereof, even though given in stating the contentions of the parties, is error, the rule being that while ordinarily the misstatement of a contention must be brought to the trial court’s attention in apt time, this is not necessary when the statement of the contention presents an erroneous view of the law or an incorrect application of it.” Blanton v. Dairy, 238 N.C. 382, 385, 77 S.E. 2d 922. See also McKinney v. High Point, 239 N.C. 232, 79 S.E. 2d 730; Hartley v. Smith, 239 N.C. 170, 79 S.E. 2d 767.
Since the case goes back for a retrial, we refrain from discussing the rest of the defendants’ exceptions.