Francis H. (Francis Hermann) Bohlen.

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maintains a wall, high chimney or other structure so near another's premises
that if it falls, it must, or may probably, fall thereon, and is "bound at peril to
use all known devices to make the structure safe", and this duty is one
which he cannot fulfill by the employment of a competent mason to examine
the chimney, and by relying upon his opinion, Cork v. Blossom, 162 Mass.
330 (1894), per Morton, J., p. ^33, or by employing a competent builder to
build the wall, Gorham v. Gross, 125 Mass. 232 (1878). See also Sturgcs v.
Theological Education Society, 130 Alass. 414 (1881), where it was held that
the defendant who had employed a contractor to construct a drain from
their premises, which involved the piercing of a barrier set under the surface
of the street to prevent the tide from flowing into the cellars of all the
adja<;ent premises, must answer for the contractor's failure to make the
barrie> water-tight after laying the drain; see Earl v. Reid, 21 Ontario L. R.
545 (1910), where the defendant had leased his building for a term of
twenty-five years ; a clause in the lease requires the tenant to make certain
alterations before going into possession, one of which was the removal of a
part of a partition wall, which was to be replaced by pillars. The tenant
engaged a contractor, selected and paid by him, to do the work; the con-
tractor so executed it that the pillars, which the jury found had been placed
in a defective wall, fell and the building collapsed, the outer wall falling upon
an adjacent premises and injuring the plaintiff, who was an employee of the
owner thereof, at work therein. It was held that the owner was liable.

A similar obligation is held to lie upon those who supply temporary
structures such as scaffolds, dangerous, unless carefully constructed (see
frauds v. Cockrell, and Scarle V. Laverock, post p. 635, n. 3), to be used by the
workmen of a contractor, employed by him to do w-ork for him upon his
premises. Mulchcy v. Congregation. 125 Mass. 487 (1878) ; see also Jacobs v.
Fuller & Hutscnpillcr Co.. 67 Ohio, 70 (1902), where it was held that one,
who employs a contractor to manufacture furniture for him. furnishing the
tools, materials and machinery therefor, and who for that purpose furnished
to an inexperienced servant of the latter a machine dangerous for use, unless
the user was properly instructed, was bound at his peril to see to it that such
instructions were given ; see the interesting case of Valliquettc v. Eraser,
9 Ont. L. R. 57 (1905), 39 Can. S. C. i, 1907.

*A1I the important facts are stated in the opinion of the Court, except
the fact that "no admission fee w-as charged, the defendant getting its profit
from carrying the people who attended these exhibitions." and that the "man-
ager" was paid by the company. The same liability attaches where the con-
cessionaire on an amusement privilege charges admission. Mollis v. Assn.,
Texas State Fair v. Brittain. infra, note 2: and, of course, where the admis-
sion so charged is divided between the proprietor and the concessionaire.
Texas Fair v. Marti. 30 Tex. Civ. App. 132 (1002V In Riclunoud. etc.. Ry.
V. Moore's Adm.. infra, note 3, it is held to be immaterial whether the plain-
tiff has come to the park upon the defendant's car or in some other way.



634 THOMPSON V. LOWELL, ETC., RY. CO.

such a place on the line of its railway, which contained a large plat-
form or stage for exhibitions. The defendant entered into a written
contract with a manager, under which the latter furnished and man-
aged various entertainments there, and amongst them an exhibition
of marksmanship by a man born without hands. The defendant paid
for advertising these exhibitions, and carried posters on its cars.
The plaintiff, having seen an advertisement, was a spectator at the
exhibition of marksmanship, having come on one of the defendant's
cars. A butt was provided to receive the bullets. All the appliances
were furnished by the manager or the performer, and nobody in the
defendant's employment exercised any supervision or control over
the performance. Immediately after a shot had been fired, something
struck the plaintifif in the eye. It is not made plain just how the ac-
cident occurred, but on the evidence the jury might find that the
plaintiff was struck in the eye by a small fragment of a bullet or other
metallic substance which flew from the impact when the bullet hit the
butt. There was no suggestion that he was not himself in the exer-
cise of due care, or that he was not in a place provided for specta-
tors.

The defendant asked for an instruction to the jury that it "was
not responsible unless the exhibition was in its nature such that it
would necessarily bring wrongful consequences to pass, unless
guarded against, and the defendant failed to exercise due care to pre-
vent harm." The judge, instead thereof, instructed the jury that "the
defendant is not responsible unless the exhibition was in its nature
such that it would necessarily, or probably cause injury to some
person present under the defendant's invitation, unless guarded
against, and the defendant failed to exercise due care to prevent
harm." The fact that the exhibition was provided and conducted
by an independant contractor would not \vholly relieve the defendant
from responsibility, provided it was of such a kind that it would
probably cause injury to a spectator, unless due precautions were
taken to guard against harm. Curtis v. Kiley, 153 Mass. 123.^ Rich-
mond & Manchester Raikvay v. Moore, 94 Va. 493. Southern Ohio
Railroad v. Morey, 47 Ohio St. 207. Hawver v. Whalen, 49 Ohio
St. 69. Bower v. Peate, i O. B. D. 321. The instruction as given
was right.^



^ See note to Bowen v. Peate, post, p. 621.

* Accord: Conradt v. Clative, 93 Ind. 476 (1883), a horse, tethered in de-
fendant's fair grounds, struck by stray bullet from adjacent shooting gallery;
Thornton v. Maine State Agricultural Society, 97 Me. 108 (1902), visitor to
fair, killed in the same way, while on the railway platform at the gate of the
fair; Richmond etc. R. R. v. Moore's, Adm. 94 Va. 493 (1897), the spectators
at a balloon ascension were allowed to crowd around the place where the
balloon was fastened to two poles loosely set in the ground, which being
necessarily thrown down when the balloon ascended, struck one of them :
aliter, if the dangerous condition is one which is created by the peculiar
manner in which the contractor for his own convenience conducts the
exhibition and which the defendant neither knows of nor has reason to
expect, since it is not a probable incident of the exhibition. Smith v.
Berick, 87 >Td. 6to ('1898') : see Saufnrd v. Parvturket Ry.. post. p. 630;
Sebeck v. Plattdeutsche Volksfest Verein, 64 N. J. L. 624 (1900), semble:



THOMPSON' Z'. I.OWKLL, I:TC., RY. CO. 635

But even under this rule the defendant contends that there was
no evidence upon which the jury were justified in finding that the
plaintiff was injured by any neghgent act or omission on its part; or,
in other words, that there was no evidence of any failure on its part
to perform its duty in the premises. The question is suggested how
far the defendant was bound to go in supervising the instruments
and appliances used, and the other details of the exhibition. Should
it be held to inspect the rifle and the cartridges, to see if they were
safe? Without undertaking to go into unnecessary detail, it is ap-
parent that there zvas evidence tending to shozv that the accident
happened from a cause which might have been prevented, and that
it ought to have been foreseen and guarded against by somebody,
either by the defendant or by the manager; and the jury might come
to the conclusion that in the general arrangements for an exhibition
of this nature the butt should be so placed that fragments wdiich
might fly from the impact of the bullets could not reach the specta-
tors, and that due care zi'as not taken in the arrangement of the stage
zvith reference to possible accidents of this kind, and that the de-
fendant itself failed in its duty in this respect. We cannot say that
this was so much a matter of transitory detail that the manager alone
was responsible for an omission to pay proper attention to securing
the safety of spectators from such a risk.* The case, therefore, was
rightly submitted to the jury.



defendants held to be liable if they had permitted their guest to come
dangerously close to an exhibition of fireworks given for them by a con-
tractor; Mollis V. Kansas City Business Men's Association. 205 Mo. 508
(1907), patron of "merry-go-round" in defendants exhibition injured by
reason of defective axle of the "gondola" in which she was riding; Texas
.State Fair v. Brittain. 118 Fed. 713 ( C. C. A. 5th Cir. 1902), and 7"r.i-a.y
State Fair v. Marti, 30 Tex. Civ. App. 132 (1902), visitors at a fair injured
by collapse of a temporary stand negligently constructed by a concessionaire
of an amusement privilege. See, however, contra, Knottnerus v. Ry. Co.,
93 Mich. 348 (1892); semble.

Nor can one who offers the use of his premises to the public for hire, re-
lieve himself from liability for the safe condition of temporary structures,
erected thereon for their accomodation, by contracting with a competent
builder for their construction ; Francis v. Cockrell, L. R. 5 Q. B. 184, 501
(1870), stewards of race meeting held liable for collapse of grand-stand
built for them by a reputable firm of builders; Dunn v. Brozcn County Ag.
Soc, 46 Ohio St., 93 (i§83), accord semble. So one, who leases his premises,
upon which such structures have been erected by a contractor for the
purpose of enabling the lessee to invite the public to resort thereto upon pay-
ment of an admission fee. is liable for the fall of such structure due to
negligent construction; Fox v. Buffalo Park, 21 N. Y. App. Diy. 321 (1897).
This docs not apply, however, to permanent and substantial buildings bought
or leased by the defendant or built for him by a contractor, which he offers
to the public for hire as a place of resort or of deposit for their goods;
Searlc v. Laverick, L. R. 9 Q. B. 122 (1874"), livery stable keeper held not
liable for injury to a carriage left with him, due to the fall of a shed which
had been built for him by a competent builder; Walden v. Finch. 70 Pa. 460
(1872), owner of storage warehouse not liable to owners of the goods
deposited therein for its collapse, due to the negligence of the builders who
had contracted to erect it.

*As in Sebcck v. Plattdeutsche J'olkfest Verein, 64 X. J. L. 624
(1900), an association giving a festival or picnic, held not liable to a guest
injured by the negligent manner in which tireworks are set off b)' a contractor



r



636 BOWER 1'. PEATE

Nor can it be held that the plaintiff assumed the risk. He might
well rely on those who provided the exhibition and invited him to
attend, to take due care to make it safe from such an injury as he
received.

Exceptions overruled.



BOWER V. PEATE.
In the Court of Queen's Bench Division, 1876. L. R. i Q. B. D. 321.

CocKBURN, C. J. The facts of this case, which involves a point
of considerable importance were as follows : —

The plaintiff and defendant were the owners and occupiers of
two adjoining houses, and it appeared that, prior to the rebuilding
of the defendant's house, as hereinafter mentioned, the walls and
foundations of the plaintiff's house went to a lower level than those
of the defendant's. The defendant, having determined to pull down
his old house and build another on the same site, proposed to carry
the foundations and walls of his new house to a lower depth than
those of the plaintiff; for which purpose it would be necessary to
excavate and remove the soil which before the alteration was adjacent
to the plaintiff's house and land, and by which it had been supported.
In order to do this without injury to the plaintiff's house the well-
known practice of underpinning, or some other safe mode of sup-
porting or shoring the plaintiff's soil and walls during the operations,
would, as was well known, have to be resorted to.

For the purpose of this rebuilding the house and executing the
other necessary works, the defendant entered into a contract with
a builder named Rae, by which Rae contracted to do all the necessary
works. The contract contained the following clause : — "And the
said Thomas Rae further agrees to take upon himself the risk and
responsibility of shoring and supporting, as far as may be necessary,
the adjoining buildings affected by this alteration during the progress
of the works, and to make good any damage which may be sustained
by the said buildings during the progress or in consequence of the
said works hereby contracted for, and to satisfy any claims for com-
pensation arising therefrom which may be substantiated."

After the execution of this contract P.ae, the contractor, pulled
down the defendant's house, and excavated the soil to a lower depth
than the foundation of the walls of the plaintiff's house, and rebuilt
the defendant's house. But owing to defective underpinning, or want
of other support to the plaintiff's soil and walls, in the course of these
operations, injuries occurred to the plaintiff's house which gave rise
to the present action



employed to give an exhibition of them ; Deyo v. Kingston, 88 N. Y. Suppl.
487 (1904), similar facts; see also Knottncrus v. Ry. Co., 93 Mich. 348
(1892), where a car upon a "switch-back" was thrown off the track bv a
chip, recently dropped on the rails by some carpenters who were doing
work nearby, the negligence alleged being the failure to remove the chip
before running the car, and compare Corrigan v. Elsinger. 81 ]VTinn. 42
(1900), note to Covington, etc.. Bridge Co. v. Steinbrock ct al, post p. 646.



BOWER Z'. PEATE 637

No question was made on the argument as to the right of the
plaintiff to the support of the adjacent soil of the defendant for his
house; nor was it doubted that the injuries to the house of which
the plaintiff complained had been occasioned by the removal of such
soil in the execution of the defendant's works. But it was contended
that the defendant, having committed the execution of the work to a
contractor, both as regarded the taking down and rebuilding his
house, and the measures necessary for the protection of the adjoining
house, the contractor, and not the defendant, became liable for any
injury arising from want of due care in shoring or otherwise sup-
porting the plaintiff's house. The argument, as put on behalf of the
defendant, may be shortly stated thus : According to the doctrine in
Bonomi\\Backhouse(gH. L. C. 503; 34 L. J. [Q. B.] 181) ; the tak-
ingaway the soil, to the support of which an adjoining owner is entitled,
is not /;/ se wrongful. It only becomes so when followed bv injurious
consequences to the neighbor. And if, therefore, such inj|irious conse-
quences can be averted by efficient means, as by the substitution of
artificial for the natural support previously afforded by the soil, the
removal of the soil is in no respect wrongful. Here, the defendant, in
one and the same contract, employed the contractor to execute the
work he desired to have done, and to take the necessary measures for
protecting the plaintiff's premises. He authorized him to do the
former only on condition of his preventing it from causing injury
to the plaintiff, and only so far as it could be done consistently with
the safety of the premises of the latter. H, therefore, the work which
the contractor was employed to do had been carried out in conform-
ity with the instructions of the defendant, the work would have been
perfectly lawful, and would have been attended with no injurious
consequences. The injuries complained of have arisen from the neg-
ligence of flic contractor alone. The defendant is, therefore, entitled
to the benefit of the general rule, that when a person employs a con-
tractor to do a work, lawful in itself, and involving no injurious
consequences to others, and damage arises to another party from the
negligence of the contractor or his servants, the contractor and not
the employer is liable.

It appears to us that upon a correct view of the facts, this rea-
soning cannot prevail. In the first place, because the assumption on
which it is founded altogether fails. The contractor was not em-
ployed to give support to the plaintiff's house as part of the work he
was to do for the defendant. It was not included in the specification,
and formed no part of the work he contracted to do, except so far as
was necessary to satisfy his obligation to provide the necessary sup-
port of the plaintiff's house. In addition to which the defendant
stipulates that the contractor shall "take upon himself the risk and
responsibilitv of shoring and sunnorting the adjoining buildinor<; affec-
ted by the alterations." and shall "make good any damage which may
be sustained by the said buildings in consequence nf the works." and
shall "satisfy any claims for compensation arising therefrom." The
effect of this is, not that the defendant orders, or stipulates for. any
specific work necessary for the support of the adjoining buildings,
but that he leaves the recourse to such work entirelv at the discretion



638 BOWER Z'. PEATE

of the contractor, stipulating only that the latter shall bear him harm-
less in the event of any damage taking place. In other words, he
directs an act to be done from which injurious consequences will re-
sult unless means are taken to prevent them in the shape of additional
work, but omits to direct the latter to be done as part of the work
to be executed, contenting himself with securing to himself a pecuni-
ary indemnity in the event of any claim arising from damage to the
adjoining property. He is, therefore, not in the position of a man
who has simply authorized and contracted for the execution of a work
from which, if executed with due care, no injury can arise, and who
is therefore not to be held responsible if, while the work is going on,
injury arises from the negligence of the contractor or his servants.

The answer to the defendant's contention may, however, as it
appears to us. be olaced on a broader ground, namely, that a man
who orders a work to be executed, from which, in the natural course
of things, injurious consequences to his neighbour must be expected
to arise, unless means are adopted by which such consequences may
be prevented, is bound to see to the doing of that which is necessary
to prevent the mischief, and cannot relieve himself of his responsi-
bility by employing some one else — whether it be the contractor em-
ployed to do the work from which the danger arises or some inde-
pendent person — to do what is necessary to prevent the act he has
ordered to be done from becoming wrongful. There is an obvious
difference between committing work to a contractor to be executed
from which, if propcrlv done, no injurious conscnvmccs can arise,
and handing over to him work to he done from ivhich mischievous
consequences will arise unless preventive measures are adopted.
While it may be just to hold the party authorizing the work in the
former case exempt from liability for injury, resulting from negli-
gence which he had no reason to anticipate, there is, on the other
hand, good ground for holding him liable for injury caused by an act
certain to be attended with injurious consequences if such conse-
quences are not in fact prevented, no matter through whose default
the omission to take the necessary measures for such prevention may
arise.

It is true, that according to the doctrine in Bonomi v. Backhouse
(9 H. L. C. 503; 34 L. J. [Q. B.] 181), the removal of the soil, to
the support of which an adjacent building or land may be entitled,
is not in itself wrongful, and become so only when damage to the
adjoining property results; whence it follows that if by artificial
means of support the damage can be prevented, no cause of action
arises. But it is equally clear that if effectual means of prevention
fail to be applied, and damage once results, the act of removal be-
comes wrongful, and an action can be at once maintained.

In the present instance preventive measures adequate to the oc-
casion having failed to be provided, the removal of the soil was fol-
lowed by actual damage to the plaintiff's house, and the act of re-
moval was therefore wrongful as causing a wrong done to the plain-
tiff. But the act of removal was an act done by the order and author-
ity of the defendant — in other words, was the act of the defendant;



ItOVVliR f. PEATE



639



and no man can get rid of liability for injury occasioned to another
by a wrongful act by seeking to throw the responsibility on an agent
whom he has employed to do the act. The agent may no doubt be
responsible, but the responsibility ui the principal i> none the less.

The cases of Pickard v. Smith (10 C. B. [N. S.] 470J and
Gray v. Pullen ( 5 B. & S. 970, 981 ; 32 L. J. [Q. B.] 1O9; 34 L. J.
[Q. B.] 265) are in point to the present cjuestion. Pickard v.
Smith (10 C. B. [N. S.] 470) the defendant, having employed a
coal merchant to put coals into his cellar, was held liable for in-
jury suffered by the plaintiff from his falling through the cellar open-
ing which had been left open by the negligence of the coal merchant's
.•servants. The law is well sta'ted by Williams, J., in delivering the
judgment of the Court. "Unquestionably no one can l)e made liable
for an act or breach of duty unless it be traceable to himself or his
servant or servants in the course of his or their employment. Con-
sequently, if an independent contractor is employed to do a lawful
act, and in the course of the work he or his servants commit some
casual act of wrong or negligence, the employer is not answerable.*
To this effect are many authorities, which were referred to in the
argument. That rule is, however, inapplicable to cases in which the
act which occasions the injury is one which the contractor was
employed to do; nor, by a parity of reasoning, to cases in w^hich
the contractor is intrusted with the performance of a duty incumbent
upon his employer, and neglects its fulfilment, whereby an injury is
occasioned. Now, in the present case, the defendant employed the
coal merchant to open the trap in order to put in the coals ; and he
trusted him to guard it whilst open, and to close it when the coals
were all put in. The act of opening it was the act of the employer,
though done through the agency of the coal merchant ; and the de-
fendant, having thereby caused danger, was bound to take reason-
able means to prevent mischief. The performance of this duty he
omitted ; and the fact of his having intrusted it to a person who also
neglected it, furnishes no excuse either in good sense or law."^



'"If the plaintiff had been injured by any negligent act of the contractor
in unloading the coal, the defendant (his employer) could not be held liable
for the resulting damages". Macfarlane, J. Benjamin v. Metropolitan Street
Ry, 133 Mo. 274 (i!^95). P- 284.

^Accord: Benjamin v. 7?v, supra, contractors, employed to supply the
defendant's power house with "coal, after putting in the coal left the scuttles
open and unguarded; ef, Blessington v. Boston, 153 Mass^ 409; ^^'^^'^^J^-
Vtica n. i. ante, p. 308 : contra, Frassi v. McDonald. 122 Cal. 400 (1878),
opening momentarilv made in a temporary sidewalk, the making of the open-
ing being necessary 'to accomplish the work contracted for. So wherever a de-
fendant employs an indepcndant contractor to do work which necessarily
involves the creation of a condition in a highway, or other place over which
the public have a ri^jht to pass, which will be dangerous to them unless
further steps are taken, by removing the condition itself, or by erectmg
railines. etc., around it or by eiving notice of its existence. the_ defendant
is lialile for the contactors faib're to take s"ch further precautions. Chi-
caao V Rohhivs. 2 Black U. S.. 418 ('tRo2\ 4 .Vail. 467: Wafc- Co.

V Ware, ifi Wall. V. S. cfiS (1872): Railroad Co. v. .Ifprrv. 47 Ohio St.
207 (1800") : McCnrrier v. Hnllister. t' S. D. .7^6 ( loos') : Cnmeron Mill Co.

V Anderson, 34 Tex. Civ. App. 105 (1903), 98 Tex. 156 (1904); Congreve



640 BOWER V. PEATE

In Gray V. Pullen .(5 B. & S. 970; 981 ; 32 L. J. [Q. B.] 169;
34 L. J. [6. B.] 265) the Court of Exchequer Chamber carried
this principle still further. An act of Parliament having authorized
the cutting a trench across a highway for the purpose of making a