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drain, but having attached to the exercise of the right the condition
of filling up the trench after the drain had been completed, the de-
fendant had employed a contractor to do the whole work. Owing
to the negligence of the latter in filling up the trench, the plaintiff's
wife had sustained personal injury. It was contended that the con-
tractor alone was liable, and it was so held in this Court, but the
Court of Exchequer Chamber held otherwise, and reversed our judg-
ment.^ It is true that in that case the obligation to make good the

V. Smith, iS N. Y. 79 (1858), where, however, it appeared that the vault was
built without any municipal authority ; Spence v. Schultz, 103 Cal. 208'
(1894). but see Frassi v. McDo)iald, supra note 2. Mullins v. Sicgel-Cooper
Company, 183 N. Y. 129 (1905), and Woodman v. Metropolitan R. R., 149
Mass. 335 (1889), appear to carry the employer's liability even further; in
the first case the dangerous condition of the sidewalk was due to the con-
stant passage of heavy wagons of the contractor and in the second the
rails, which the contractor was employed to lay, were so piled that part of
them extended beyond the barriers which he had erected ; see Penny v.
Wimbledon Council, L. R. 1898, 2 Q. B. 212, per Bruce, J., p. 217, where
the Council was held liable for the negligence of a contractor, employed by
it to repair a street, in leaving thereon at night piles of soil and grass
unguarded and unlighted.

In Curtis v. Kilcy. 153 Mass. 123 (1891), it is held that an owner, who,
while work is being done upon his premises by an independent contractor,
invites others to come upon it, is liable for the contractor's neglect to prop-
erly guard or light excavations, or other dangerous conditions, necessarily
incident to the work contracted for; as to liability of landlord to his tenant
under similar circumstances see Wilber v. Follansfcr, 97 Wis. 577 (1897);
Sulzbacker \. Dickie. 6 Daly N. Y. 469 (1876). In De Pahna v. II cuiuiau.
15 N. Alex. 68 (1909), it was held that a landlord, who allows a third person
to rebuild a party wall, knowing that such rebuilding, unless very carefully
done, may undermine the tenant's wall, is liable to the tenant if the wall falls.

Contra: Pfau v. Williamson, 63' 111. '16 (1872); Kippcrly v. Ramsden,
83 111. 354 (1879) ; Smith v. Simmons, 103 Pa. 32 (1883), defendant,- licensed
to dig a ditch in the street to lay his water pipe, let the work to a contractor,
who failed to properly guard and light it ; see also Richmond v. Sitterling.
lOl Va. 354 (1903), semble: but note that in Emmcrson v. Fay, 94 Va. 60
(1896), cited as authority for the dictum, the defendant was held not to be
liable because the excavation was seven feet from the street line. The erri-
ployer is, however, liable unless he can show that he has shifted lis responsi-
bility to protect the public to some one else, as by binding the independent
contractor to take adequate precautions or by turning over to liim the entire
work and the exclusive control of the premises in which it is to be done,
Homan v. Stanley, 66 Pa. 464 (1870), an owner, who had merely let out the
work upon different parts of a building to different contractors, held to have
retained control and power to protect the public and answerable for a failure
to do so, and see Allen v. Willard, 57 Pa. 374 (1868).

^Accord: H^le v. Sitfinqhnurne, etc.. R. R.. 6 H. & N. 488 (1861). draw-
bridge so carelessly built that the draw will not open to afford unimpeded use
of stream as required bv statute authorizing its construction: IVilson and Bro.
V. White, 71 Ga. 506 (1883) : contractor disobeyed ordinance requiring
the owners of all matcrinl piled in street to place lights thereon ; Jolliffe
V. Woodhonse, 10 Times. L. R. ';53 (1894'). defendant having statutory right
to tear down partv wall, liable for contractor's delav in replacing it. When
the statute imposed the duty uoon "the cnrtrnctor" doine the work or on the
"ovi<=-r nr rontr^rtor" the owner is generally held not liable, Koch v. Fn.v. 71
N Y. .Ann. Div. 288 (1902), and in Chartiers Vallcv Gas Co. v. L^-nch. it8 Pa.
362 (1888), the company was held not to be liable for the negligence of a


road was one imposctl by statute; but it can make no difference in
point of principle whether the obhgatiun was inipcjsed by statute or
existed at law; and the case is therefore an authority for saying that
where a work is being executed from which danger may arise to
others, and it thereby becomes incumbent on the party doing or order-
ing it to be done to take measures to prevent damage resulting to
others, he cannot divest himself of liability by transferring the duty
to a contractor.*

In the recent case of Tarry v. .Islitoii, not yet reported (Since
reported, oiitc, p. 314), where the defendant had become occupier of
premises, from which a large lamp was susjjended over the high-
way, and the lamp before he became occupier had become worn
out, — and the defendant having notice of this was therefore under
an obligation, if he continued to maintain the lamp, to take care that
it was not a nuisance to the highway. — and the lamp had fallen down
and injured a person passing, this Court, on a like principle, held the
defendant liable, though he had employed a contractor to attend to
the condition of his lamps.

Both in authority and principle, therefore, we are of opinion
that our judgment should be for the plaintiff; and, that, consequently
this rule to enter the verdict for the defendant should be discharged.

Rule discharged.


~"^ Supreme Court of Ohio, 1899. 61 Ohio St. 215.

MiNSHALL, J. This case was argued and submitted with the
case of the Bridge Co. v. Proctor D. Patrick, the injury in each case,
and for which the action was brought, having been caused by the fall-
ing of the wall, attributed to the negligence of the defendant;
Patrick, therefrom, having received an injury to his person, and he
and his partner, Steinbrock, an injury to their property. In the case
of Patrick and his partner, the case was taken from the jury at the
close of the plaintiff's evidence, on the ground that there was no evi-

contractor under a statute which, in giving gas companies the right to lay
pipe lines, made them liable for "all damages occasioned by reason of the
negligence of said company."

^Accord: Upon very similar facts, Angus v. Daltoti, L. R. 6 A. C. 740
(1881) ; Bonaparte v. U'isonan, 89 Md. 12 (1899), in which it was said that,
the defendant, by giving timely notice t^ his neighbor, and so enabhng him
to protect his own propcrtv. might relieve himself from further liability: Daris
V. Summcrficld, 133 N. €."325 (1903). but see Robinson v. Webb, 11 Bush. Ky.
464 (1875). So where a contractor in building upon defendant's land damages
his neighbor's party wall bv reason of a failure to prop or shore it up. Forder
V. Saks. 18 Dist. of Columbia, 570 (1888^ : Hughes v. Percival, L. R. 8 A. C.
443 (1883). though under the facts the case appears to be decided upon the
principle announced in Covington, etc.. v. Steinhrorlc. ct ai. post p. 622.

So where the defendant under statutory powers constructs a sewer w a
highwav. it is liable for the failure of its contractor to properly supnort ♦l-.e
ga^s mains therein, whereby a leak occurs causing an explosion in the olaintiflF's
adjacent hnu'^o : Hardack'cr v. Idle Disfrief Council. T.. R. t8o6. t O. B. D,
325; contra: Chartiers Valley Gas Co. v. Waters, 123 Pa. 220 (1888).


dence to support the case. The judginent was reversed, on error, by
the general term and cause remanded (4 N. P., 229) ; and error is
prosecuted here to reverse the General Term. In the case of Patrick
alone for an injury to his person, a verdict was rendered for the plain-
tiff, under the charge of the court, to which exceptions were reserved ;
and the judgment was affirmed by the General Term (5 N. P., 374).
A bill of exceptions, taken and made a part of the record, in each
case, contains all the evidence, and, also, in the last case, the charge
of the court and certain instructions that were refused. Both cases,
however, turn upon the question, whether the defendant below was
reheved from liability on the ground of having employed an inde-
pendent contractor to do the work, the negligent doing of which
caused the injury complained of in each case.

In August, 1895, a large brick warehouse, some five stories
high, was in a measure destroyed by fire, the walls of which, at least
the east one, were left standing in such a ruined condition as to be
dangerous to the public, and were required by the Inspector of Build-
ings to be taken down. The east wall extended south along an alley
from its intersection with Second street some ninety or a hundred
feet; and opposite to this wall, on the east side of the alley, was the
property of the plaintiffs. After the notice by the Inspector of Build-
ings, the Bridge Company made a contract with one Hasler to take
down the walls of the building for a consideration agreed on by the
parties, the company retaining no express control of the work; but
stipulating that Hasler, the contractor, should save it harmless in
case of accident to person or property during the work. While en-
gaged in taking down the east wall, a part of it fell and caused the
injury sued for in each case. It was, from the time of the fire, a
mere ruin, "bulged out," as the witness termed it, toward the east,
and manifestly dangerous to the public, of which the plaintiffs below,
were part. It could, however, as shown by the testimony, by the ex-
ercise of great care, have been taken down without probable injury to
others ; and the falling of the wall, or a part of it, was caused by the
negligence and want of skill on the part of the contractor in the mode
adopted for taking it down. This is not controverted by the plaintiff
in error. An attempt was made, after having weakened the wall on
a line below the "bulge" to pull it in upon the premises by a rope, at-
tached to it; but by reason of the "bulge," that part fell outward
over the alley and on the property of the plaintiffs, their property

\ being lower than the wall. This, as the evidence shows, might have
been readily anticipated by a person of skill and experience in such
business. Patrick was at the time in the part of his property on
which the wall fell, and was injured, as was also the property of him-
self and partner. No fault is imputed to him, nor his partner.

The doctrine of independent contractor, whereby one who lets
work to be done by another, reserving no control over the perform-
ance of the work, is not liable to third persons for injuries resulting
from negligence of the contractor or his servants, is subject to sev-
eral important exceptions. One of these, applicable as we think to
this case, is where the employer is, from the nature and character of


the work, under a duty to others to see that it is carefully performed.
It cannot be better stated than in the language used by Cockburn, C.
J., in Bozver v. Fcate (i L. R. Q. B. Div., 321, 326), a leading and
well considered case. It is, "That a man who orders a work to be
executed, from wiiich, in the natural course of things, injurious con-
sequences to his neighbor must be expected to arise, unless means
are adopted by which such consequences may be averted, is bound to
see to the doing of that which is necessary to prevent mischief, and
cannot relieve himself of his responsibility by employing some one
else — whether it be the contractor employed to do the work from
which the danger arises or some independent person — to do what
is necessary to prevent the act he has ordered done from becoming
unlawful." This does not abrogate the law as to independent con-
tractor. It still leaves abundant room for its proper application.
"There is," as stated by Cockburn, "an obvious difference between
committing work to a contractor to be executed, from which, if
properly done, no injurious consequences can arise, and handing over
to him work to be done from which mischievous consequences will
arise unless precautionary measures are adopted."

The weight of reason and authority is to the effect that, where
a party is under a duty to the public, or third person, to see that work /
he is about to do, or have done, is carefully performed so as to avoid I
injury to others, he cannot by letting it to a contractor, avoid his [
liability, in case it is negligently done to the injury of another. '

The duty need not be imposed by statute, though such is fre-
quently the case. If it be a duty imposed by law, the principle is the
same a> if required by statute. Cockburn, C. J., Bozver v. Peate,
supra, at 328. It arises at law in all cases where more or less danger
to others is necessarily incident to the performance of the work let
to contract. It is the danger to others incident to the perform-
ance of the work let to contract, that raises the duty, and
which the employer cannot shift from himself to another, so
as to avoid liability, should injury result to another from negli-
gence in doing the work. In Halliday v. Telephone Company,
supra, the defendant employed a contractor to put in conduit
tubes for it under a highway, and the joints of the tubing were
to be soldered together w'ith melted lead. By the negligence of
the servants of the contractor in doing the work, melted lead, by an
explosion, was splashed over the plaintiff on the public sidewalk, and
the company was held liable. It is there said that, from the author-
ities, "it is very difficult for a person who is engaged in the execution
of dangerous work near a highway to avoid liability by saying that
he has employed an independent contractor, because, it is the duty
of a person who is causing such work to be executed to see that they
are carefully carried out, so as not to occasion any damage to persons
passing by on the highway. I do not agree that this was a case of
mere casual and collateral negligence within the meaning of that
term, for it was negligence in the very act which Higmore was en-
gaged to perform."

So, in Railroad Co. v. Morey, 47 Ohio St., 207, the defendant


employed a contractor to do for it certain plumbing which involved
the opening of the public highway for the purpose of laying a drain
therein. Ihe plaintiff in the night time fell into the ditch by reason
of the negligence of the contractor in not properly protecting it. The
defendant was held liable on the ground stated in the syllabus, which
is as follows: "One who causes work to be done is not liable, or-
dinarily, for injuries that result from carelessness in its performance
by the employes of an independent contractor to whom he has let the
work, without reserving to himself any control over the execution
of it. But this principle has no application where a resulting injury,
instead of being collateral and flowing from the negligent act of the
employe alone, is one that might have been anticipated as a direct
or probable consequence of the performance of the work contracted
for, if reasonable care is omitted in the course of its performance.
In such case the person causing the work to be done will be liable,
though the negligence is that of an independent contractor."^ It is
claimed that this proposition of the syllabus in Railroad Co. v. Morey
should be modified. We see no reason for doing so. It is supported
by reason and authority and many well considered cases. In so far
as Clark v. Fry, 8 Ohio St., 358, may be construed as supporting a
different doctrine, it is not law. It has been properly distinguished
in Railroad Co. v. Morey. It should be confined to the cases where
from the nature of the work or the circumstances under which it is
to be performed, no particular duty is imposed on the party procuring
the work to be done, to see that it is carefully done.

It is urged as unreasonable that one who has work to perform,
that he himself cannot perform, from want of knowledge or skill,
should be held liable for the negligence of one whom he employed

^ So in Joliet v. Harwood, 86 111. no (1877), Dickey, J., p. in, after citing
Dillon on Municipal Corporations, § 792, to the effect that the general rule,
where public work is done by an independent contractor the doctrine of
respondeat superior does not apply, itself "does not apply when the con-
tractor requires the performance of work intrinsically dangerous," says;
"In this case the work which the contractor was employed to do was in-
trinsically dangerous however carefully or skillfully done. The right to re-
covery does not rest upon a charge of negligence on the part of the con-
tractor ; it rests upon the fact that the city caused work to be done which
was intrinsically dangerous — the natural (though not the necessary) conse-
quence of which was injury to the plaintiff's property". Compare the lan-
guage of Schmucker, J., in P. B. & W. R. R. v. Mitchell, 107 Md. 600 (1908)
p. 606: the employer of an independent contractor will be liable "if it (the
injury sustained by the plaintiff) be such as might have been anticipated by
him as a probable consequence of the work let out to the contractor" (which,
he says, is a question of fact for the jury), "and he took no precaution to
prevent it" ; see also A. L. Smith, L. J., in Halliday v. National Telephone Co.,
L. R. 1899, I Q B. 392, p. 400: "It is very difficult for a person who is
engaged in the execution of dangerous works near a highway to avoid
liability by saying that he has employed an independent contractor ; because
it is the duty of a person who is causing such works to be executed to
see that they are properly carried out so as not to occasion any damage to
persons passing by on the highway. I do not agree that this (the explosion
of a benzoline lamp with a defective safety valve) was a case of_ mere
casual or collateral negligence within the meaning of that term, for it was
negligence in the very act (laying telephone wires in a highway) which
Highmore (the contractor) was engaged to perform."


to do it, since, if he did reserve control, it would avail nothing from
his own want of knowledge and skill. There is a seeming force in
this, but only so. It is not agreeable to the principles of distributive
justice. For it is equally a hardship that one should suffer loss by
the negligent performance of work which another procured to be
done for his own benefit, and which he in no way promoted and over
which he had no control. Hence where work is to be done that may
endanger others, there is no real hardship in holding the party, for
whom it is done, responsible for neglect in doing it. Though he may
not be able to do it himself, or intelligently supervise it, he will never-
theless, be the more careful in selecting an agent to act for him. This
is a duty which arises in all cases where an agent is employed ; and
no harm can come from stimulating its exercise in the employment
of an independent contractor, where the rights of others are con-

Applying the principles discussed to the case under review, and
there seems little room for doubt as to how it should be decided.
The duty, as observed, was imposed by law upon the Bridge Com-
pany to take down the walls left standing by the fire, because they
were a menace to the public and the property of persons in the vicin-
ity. The doing of the work necessarily involved danger to others un-
less great care was used ; and the injury resulted from negligence
in doing the work. It was not collateral to the employment, as would
have been the case, had a servant of the contractor, while at work,
negligently let fall a brick upon a person in passing by (Pickard v.
Sinith, supra) ; on the contrary it resulted from the negligent manner
in which the work let to be done was done, and should have been
anticipated by the employer as a probable consequence, unless care
was observed. It is the duty to observe such care, enjoined on a
party by law, that cannot be delegated to another so as to avoid
liability for its neglect. -

^Accord: P. B. & W. R. R. v. Mitchell, 107 Md. 600 (1908), where it
was held that a railroad which employed an independent contractor to erect
an iron bridge over a highway, in the building of which, owing largely to the
short time allowed for its completion, rivets and tools were often dropped,
was liable to a traveler in the highway injured by a hammer, allowed to fall
by one of the workmen. So one employing a contractor to do work, which
requires blasting to be done in a public highway or upon his own premises
in close proximity to a highway, or to the adjoining property of others,
is held in many j^^risdictions to be liable for the injuries caused by the negli-
gence of the contractor or his servants therein, Jolict v. Harivood. 86 III. tig
(1877) ; Chicago v. Murdoch, 212 111. 9 (1904) ; Javics v. McMinimy, 93 Ky.
471 (1892); Vctherbce v. Partridge, 175 Mass. 185 (1900); Noncalk Gas
Co. V. Norwalk, 63 Conn. 495 (1893) ; Stone v. Cheshire, R. R. 10 N. H. 427
(1849), but see IVright v. Halbrook, 52 N. H. 120 (1872). In Indiana, the
employer is said to be liable in Fallender v. Blackball, 39 Ind. App. 121
(1906), but his liability is denied in a dictum in Schiiurr v. Huntindon County,
22 Ind. App. 188 (1008). while in The City of Logansport v. Dick, 70 Ind.
65 (1880), it was held that a city if it holds its highways open for traffic,
while a contractor is blasting thereon, is bound to prevent "dangerous and
imnecessary Hasting" and "if the blasting was necessary, and though dan-
gerous, the danger could be averted by the use of proper precautions, the
city's plain dutv was to require its contractor to use such precautions", per
Howk, J., p. 80. In Wetherhee v. Partridge, supra, Holmes, C. J., says : "In


Court of Appeals of Nezif York, 1893, 137 N. Y. 100.

Andrews, Ch. J. We are of opinion that the motion for a new
trial should have been denied.

The defendant had purchased the premises in March, 1892, for
it uses as a social club. It made a contract with a competent builder
to alter the building thereon in accordance with a plan adopted. The
builder was to furnish the new materials necessary and to do the
work for a fixed price. The improvement contemplated the taking
down of a brick wall, sixteen feet high, on the north line of the
premises, adjoining premises owned by one Ihrig, occupied in part
by plaintiff as a tenant. The wall formed one side of a driveway on
defendant's premises and was roofed over. The roof was formed
by rafters extending from the main building to the brick wall and
fastened to and resting upon a plate on the top of the wall, secured
by bolts, and was covered with boards and shingled. The wall had
been erected 30 or 40 years, and was 8 inches thick and rested on a
stone foundation. It had been worn away next to the driveway by
contact with wagons, and the bricks had been broken along the line
of contact to the depth of 3 or 4 inches. The wall on the Ihrig side
was also in places decayed and the mortar had fallen out. The de-
fendant had never occupied the premises, and when the contract for
repairs was made the keys of the house were given to the contractor.
The contractor commenced the work of taking down the wall by re-
moving the roof which covered it, and taking down the rafters,
which left the wall wholly unsupported, and the day after the roof
was removed the wall fell over towards the Ihrig lot, and the wife
of the plaintiff, with her child, who were in the yard near the wall
were killed.

The evidence tends to show culpable negligence in the manner
of taking down the wall. It was shown that in consequence of its
weakened condition, by reason of age and the decay spoken of, com-

some cases of blasting under an independent contractor we might go no
further than to hold that there was a question for the jury, whether the
danger was so great as to make the defendant liable. But in the case at
bar the danger of blasting within nine feet of the plaintiff's house was so
obnoxious that only one conclusion is possible." Conversely, blasting done
in the course of clearing the way for the construction of a road through
an uninhabited country is clearly not intrinsically dangerous. Houghton v.

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 91 of 124)