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Loma Preta Co., 152 Cal. 500 C1900), one, who stores^ gunpowder on his
premises and allows his tenant for the latter's convenience to remove it,
held liable for the negligence of the tenant's servants, Flynn v. Butler, 189
'Mass. 377 (1905).

One who engages a contractor to clear his waste land by fire has been held
liable for its spread, due to the latter's negligence, in Black v. Christ Church
Financial District, L. R. i8q4, A. C. 48, and St. Louis etc., R. R. v. Madden,
77 Kans. 80 (1908), especially where the contract requires the fire to be set
in a dangerously dry season of the year, or near to highly inflammable
material; Cameron v. Oberlin, 19 Ind. App. 142 (1897) ; Hannan v. Shepper-
ton, 14 Australian, L. T. 83 (1892).

In Corrigan v. Elsinger, 81 Minn. 42 (1900), it was held that a store
keeper, into whose store a counter was being moved, by the manufacturer
who had contracted to install it, while the store was held open for cus-
tomers, was liable to a customer injured by the negligence of the manufac-
turers' servants while engaged in carrying it into the store.



mon prudence required that precautions should have been taken to
prevent its falling either by shoring it up or by removing the roof and
the wall in sections. The evidence is undisputed that this was the
common and usual proceeding under similar circumstances. The offi-
cers of the defendant had no actual knowledge of the condition of the
wall either before or during its removal, or how the work was being
done, and they did not in any way interfere or direct in respect to
the manner of doing the work.

It is the general rule that a party injured by the negligence of
another must seek his remedy against the person whose actual negli-
gence it was which caused the injury, and that such person alone is
liable. (King v. A^ Y. C, etc., R. R. 66 N. Y 182.) The case of
master and servant is an exception, and the negligence of the latter
is imputable to the master where the servant, in doing the act which
occasions the injury, is acting within the scope of his employment.
This exception rests upon most satisfactory reason, because the
servant in the case supposed is acting in place of the master and by
liis appointment, and the master who selects and controls the servant
makes the servant his representative in his business.

But the exigencies of affairs frequently require that persons
exercising independent employments should be entrusted by owners
of property with its improvement, and in various relations and un-
der varying conditions they are employed, not as servants, but as in-
dependent contractors to execute contracts which the person who
secures their services is unable to execute himself, or the execution
of which he prefers to commit to another. The duty which the con-
tractor owes is defined by the contract or implied therefrom. In
such cases the maxim qui facit per aliuiii, facit per se has no appro-
priate application, and there is no reason founded upon public policy,
or the relations betw^een the parties to the contract, which should
subject one party to the contract to liability to third persons, for the
negligence of the other. The principle that no liability on the part of
the innocent party in such cases exists, has become the settled doc-
trine of our law. It leaves an adequate remedy to the party injured,
against the real author of the wrong. There are well understood
exceptions to this rule of exemption. Cases of statutory duty im-
posed upon individuals or corporations ; of contracts which are un-
lawful, or which provide for the doing of acts which when performed
will create a nuisance, are exceptions. In cases of the first men-
tioned class the power and duty imposed cannot be delegated so as to
exempt the person who accepts the duty imposed, from responsibility,
and in those of the second class exemption from liability, would be
manifestly contrary to public policy, since it would shield the one
who directed the commission of the wrong. (Storrs v. Citv of Utica,
17 N. Y. 104 ; Lo^vell v. L. & B. R. Co., 23 Pick. 24 ; Hole'y. S. S. R.
Co.. 6 H. &: X. 488; Butler v. Hunter. 7 id. 826.) There are cases
of still another class where the thing contracted to be done is neces-
sarily attended with danger, however skillfully and carefully per-
formed, or, in the language of Judge Dillon, is "intrinsically dan-
gerous." in which case it is held that the party who lets the contract


to do the act, cannot thereby escape from responsibility for any in-
jury resulting from its execution, although the act to be performed
may be lawful (2 Dillon on Mun. Corp § 1029, and cases cited).
But if the act to be done may be safely done in the exercise of due
care, although in the absence of such care injurious consequences to
third persons would be likely to result, then the contractor alone is
liable, provided it was his duty under contract to exercise such care.
(McCafferty v. L. D. & P. M. R. R. Co., 61 N. Y. 178; Conners v.
Hennessey, 112 Mass. 96; Butler v. Hunter, supra.)

The application of these principles to this case exonerates the
defendant from liability. The taking down of the wall was not in-
trinsically dangerous. The only danger to be apprehended was in
doing it carelessly or unskillfully. It was in the manner of doing it
and not in the thing itself. The danger of leaving the wall without
support was obvious, and could have been easily avoided, and the
usual method required that precautions should be taken. It was the
duty of the contractor to take such precautions, because it was im-
plied in his contract that he should take down the wall in a careful
and proper manner^ (Pollock C. B., Butler v. Hunter, supra). It
does not change the situation of the defendant, that the wall had
become weakened by age and decay. It is the general duty of the
owner of premises to keep the walls of his building in a safe condi-
tion, so that they will not endanger his neighbor by falling, and if
he negligently omits its performance and his neighbor is injured, the
injury is actionable. {Mullen v. St. John, 57 N. Y. 567.) But the
evidence is undisputed that the wall was safe and would not have
fallen if it had been left as it was when the contract was made, sup-
ported by the roof. It was not a menace in its existing condition.
It became dangerous only in consequence of the manner in which the
contractor proceeded to take it down. It would probably have been
less liable to fall, although deprived of the support of the roof, if
the wall had been in perfect repair when the contractor entered upon
the work. But we perceive no causal connection between the neglect
to repair and the injury to the plaintiff's intestate. The sole cause in
a legal sense was the negligence of the contractor in omitting to do
what he was bound to do. The performance of his duty would have
prevented the injur}'.- The order of the General Term should be
reversed and judgment of nonsuit should be entered, with costs to

All concur.

Order reversed and judgment accordingly.

' So in Daniel v. Ry. Co., L. R. 3 C. P. 591 (1869), where the defendant had
employed a contractor to build an iron bridge over its line from whose ap-
pliances a heavy girder had been allowed to fall upon one of its trains,
Blackburn, J. said, p. 594: "though the defendants as reasonable persons must
have known that girders if negligently handled are likely to fall, they could
have no reason to suppose that the persons who were doing the work would
do it so negligently as to hazard the happening of such an event."

^Accord: United Gas Imp. Co. v. Larsen, 182 Fed. 620 (6th Circ. C.
C. A. 1910), a building collapsed during alterations made by independent
contractor; Bibb, Adm. v. R. R., 87 Va. 711 (1891), section of railroad
bridge fell, through the negligence of a contractor employed to repair it
while it was being used for traffic; Daniel v. Ry. Co., L. R. 3 C. P. 216, 591



Supreme Court of Rhode Island, 1896. 19 Rhode Island, 537.

TiLLiNGiiAST, J. The second count alleges that the defendant
is a corporation, incorporated by the General Assembly of the State,
and that in the charter it is provided that the defendant shall be liable
for any loss or injury that any person shall sustain by reason of any
carelessness, neglect or misconduct of its agents or servants, in the
construction, management or use of its tracks, or of the streets where
its tracks are laid ; that the defendant entrusted the construction of
its road, under a contract made by said defendant with certain con-

(1869), L. R. 5 E. & I. App. 45 (i8;i), supra, note i, but see P. W. & B. v.
Mitchell, 107 Md. 600 (1908), note to Covington, etc., Bridge v. Stcinhrock, et
al.. ante. So it is licld in Young v. Lumber Co., 147 X. C. 26 (1908). that
one employing a contractor to fell his timber well within his ovvn property,
but near to a right of way thereon, is not liable for injuries received by one
using such right of way by reason of such contractor's failure to take care to
see that no one was approaching upon the way before cutting down a tree
close to it; see also Knoivlton v. Hoit, 67 N. H. 155 (1891), where a tree
cut by a contractor fell upon the fence of a neighljor.

In Berg v. Parsons, 156 N. Y. 109 (1898), it was held that one employ-
ing a contractor to do work necessitating lilasting upon his premises, was
not answerable for harm resulting from such contractor's negligence therein,
Martin, J., saying : "TIic work did not constitute a public nuisance, and
there was no statute binding the defendant to efficiently perform it. The
work contracted for was lawful and necessary for the improvement and
use of the defendant's property. * * * If a contrary rule was established
it would * * * impose upon the owners of property an improper re-
straint in contracting for its improvement." So persons employing con-
tractors to do blasting have been held not to be responsible for the latter's
negligence therein in Pack v. Mavor of Nczv York, 8 N. Y. 222 (1850);
M^Cafferty v. R. R. 61 N. Y. 178 (1874) ; Tibitts v. R. R. 62 M, E, 437 (1873) ;
Bhiinb V. City of Kansas, 84 Mo. 112 (1884) ; Edmundson v. 7?. R., in Pa.
316 (1885). "in all of tlicse cases, however, "the subject has been approached
solely from the standpoint of master and servant;" Holmes, C. J., Wetherbce
V. Partridge, 175 Mass. 185 (1900) p. 186. The same criticism applies to
many other cases dealing with the employer's liability for the negligent conduct
of independent contractors and their workmen, as in Painter v. Pittsburgh,
46 Pa. 216 (1863), note to Starrs V. Vtica, ante. p. 618, and Smith v. Sim-
mons, 103 Pa. 32 (1883), note 2 to Bozccr v. Pcatc, ante. p. 640; See also
Kno-ivlton v. Hoit, supra; but see Hunt v. Vanderbilt, 115 N. C. 559 (1891),
sometimes cited as in accord with the above cases, in which it was held that
upon a declaratiou in whicli the defendant "is sued for the conduct of (one
doing blasting for him on his premises) as the defendant's servant and not
otherwise," no recovery was possible upon proof that such person was an inde-
pendent contractor, "the principles of law upon which the defendant may be
liable for the conduct (of such person) in these distinct capacities being
widely different."

So it is held in Callahan v. R. R.. 23 Iowa, 562 (-1S67), that one who
employs a contractor to clear his land by burning the scrub or rubbish is
not liable for the failure of the latter to take care to prevent the fire
spreading; Accord: Gillson v. R. R., 35 U. C. Q. B. 475 (1874") ; Shute v.
Princeton. 58 Minn. 337 (1894) ; IVright v. Holbrook. 52 N. H. 120 (1872),
but see the criticism of this case in Thomas v. Harrington. 72 N. H. 45
(1903). per Walker J., p. 48; Ferguson v. Hubbell, 97 N. Y. 507 (1884);
when, however, the contractor had the option to clear the land by fire or
other' means, see Sanford v. Pazi'tucket Ry. Co., post p. 630, and cases in
note thereto.


tractors not residing in the State, to said contractors, and that the
latter, in the process of such construction, on to wit, the third day
of December, 1891, at said Pawtucket, neghgently and carelessly
placed and maintained a rope or wire across said Lonsdale Avenue,
in such a manner as to render said highway dangerous to travelers
in carriages, whereby the plaintiff, on to wit, said third day of De-
cember. 1 89 1, who was then and there riding in a carriage along said
public highway, in the exercise of due care, was caught by said rope
or wire, thrown to the ground and seriously injured, &c.

To the second count the defendant has filed a special plea in bar,
setting up that the acts and deeds complained of therein were not the
acts and deeds of the said defendant corporation, nor the acts and
deeds of any of its servants or agents, but were the acts and deeds of
an independent contractor over whom, and over whose agents and
servants, said defendant corporation had no management, care or con-
trol; and also setting up that the said defendant corporation had no
notice whatever of the alleged wrongful acts of said independent con-
tractor, and that said wrongful acts did not continue for a sufficient
length of time to impute notice thereof to the said defendant cor-
poration. To this special plea in bar the plaintiff has demurred, on
the grounds, (i) that the fact that the work was done by an inde-
pendent contractor, as set forth in said plea, does not constitute a valid
defence to the plaintiff's cause of action; (2) that the lack of notice
to the defendant, as set forth in said special plea, does not constitute
a valid defence to the plaintiff's cause of action; and (3) that said
facts in regard to the work being performed by an independent con-
tractor and said want of notice, as set forth in said plea, do not to-
gether constitute a valid defence to the plaintiff's cause of action.

The only question before us for decision, therefore, is as to the
sufficiency of said special plea in bar. The plaintiff admits at the
outset that the law, as stated by the court in Williams v. Tripp, 1 1 R.
I. 454, is correct, viz., that "When a person has work done for him
under contract, without reserving to himself any direct control of
the contractor or of his men, there is no relation of principal and
agent or of master and servant between him and them, and conse-
quently no such liability for their torts and negligence as is incident
to that relation." But he contends that to this well recognized rule
there is one equally well recognized exception, and that is that no
one can escape from the burden of an obligation imposed upon him
by law by the engaging for its performance by a contractor. In
view of this contention, it becomes necessary to ascertain precisely
what obligation was imposed by law upon the defendant corporation
regarding the construction of its road. Under the provisions of
section 3 of its charter, the duties devolved upon the corporation are
these, viz., that it must put the streets and highways, in which it
shall lay any rails, in as good condition as they were, and keep in re-
pair such portions of the streets as shall be occupied by its tracks;
and it is made liable for any loss or injury that any person shall sus-
tain by reason of any carelessness, neglect or misconduct of it agents
and servants in the management, construction or use of said tracks or


streets. Of course the defendant cannot discharge itself from its
statutory obhgations by engaging for their performance by another.
This is to say, it is bound, at its peril, to put the streets in which it
shall lay any rails in as good condition as they were before, and to
keep in repair such portions of the streets as shall be occupied by its
tracks ; and hence, if it should contract with a third person to do this
work and this third person should fail to do it, the defendant would
doubtless be liable. Hole v. Sittingboiirnc, etc., Ry, Co., L, J. Exch.
81 ; 6 H. & N. 488. But such is not the case before us.
Here the case shows, not that the defendant failed to perform its
said statutory duty, but that an independent contractor, in construct-
ing the road, — a thing which the defendant had a right to do itself,
but was under no obligation to do, — was guilty of negligence. This
negligence, however, cannot be imputed to the defendant, as the rela-
tion of master and servant was not created by the contract between
the parties. The defendant had no control either of the work or of
the workmen employed to perform it. It merely prescribed the
end to be accomplished, and contracted with another to accomplish
that end by such means as the latter might in his discretion employ.
And hence, as to the means employed, the contractor was not a ser-
vant or agent of the defendant, but himself a master; and for any
negligence in connection therewith he alone is liable. The defendant
made no agreement with the contractor as to the particular manner
in which the road should be constructed or the trolley wire erected.
That is to say, the defendant did not authorize the contractor to
place, stretch or maintain a wire or rope across the street, in the
manner complained of. He was simply authorized to construct the
road, thus leaving the manner of doing the same to his skill and
judgment. Moreover, the work authorized to be done was not in
itself a nuisance, nor was it necessarily dangerous or injurious. It
was authorized by law. The manner in which it was done was the
sole cause of the injury complained of. Hence, the obstruction or
defect created in the street was purely collateral to the work con-
tracted to be done, and was entirely the result of the wrongful or
careless acts of the contractor or his workmen; and in such case it
is well settled that the employer is not liable. Rohhins v. Chicago,
4 Wall. 657. It is to be observed, also, that the defendant not only
did not authorize the obstruction complained of, but had no notice
thereof either express or implied.

Had the obstruction resulted directly from the act which the
contractor agreed and was authorized to do. then both the defendant
and the contractor would have been equally liable to the injured
party. St. Paul Water Co. v. Ware, 16 Wall. 566; Canmvi
V. Stenhenville, etc., R. R. Co., 4 Ohio St. 399. This principle
is well illustrated in Ellis v. Sheffield Gas Consumers' Co.. 2
E. &. B. 767. There the defendant made a contract with
Watson Bros, to open trenches along the streets of Sheffield,
in order that defendant might lay gas pipes therein, and after-
wards to fill up the trenches and make good the surface with flag-
ging. Watson Bros., by their servants, opened the trenches along


one of the streets in question, and after the pipes were laid proceeded
to fill up said trenches and restore the flagging. In doing so, how-
ever, they carelessly left a heap of stones and earth upon the foot
way ; and the plaintiff, passing along the street, fell over the same
and was injured. Neither the defendant nor Watson Bros, had any
legal excuse for breaking open the street in the manner described,
which was a public nuisance. In a suit against the gas company to
recover for the injury sustained, the court held that the cause of
the accident was the very thing done in pursuance of the specific
direction of the defendant contained in their contract, and not the
negligence of those doing the thing, and hence the defendant was

Patvlet v. Rutland, etc., R. R. Co., 28 Vt. 297, is strongly in
point. In that case the defendant had made a contract with Page
& Eastman to build a section of its road. Page & Eastman underlet
a job of building the abutments of a bridge to one Chandler who,
with his own men, built the abutments; and the obstruction in the
highway which caused the injury to the plaintiff' was the act of
Chandler's employees in drawing the stone for the abutment. The
court held that, as the act contracted to be done was a lawful one
and in no way involved the commission of a public nuisance, and that
as it had become such purely from the neglect of the person who had
contracted to do the job, the latter alone was liable for the damage

■ To the same effect are Pack v. Mayor of Nezv York, 4 Selden,
222; Hole v. Sittinghourne, etc., Ry. Co., supra; Pcachey v. Rozv-
land, 13 C. B. 182; Hillard v. Richardson. 3 Gray, 349; Bailey v.
Troy, etc., R. R. Co., 57 Vt. 252; Storrs v. Utica, 17 N. Y. 104;
I Hughes v. Cincinnati, etc., Ry. Co., 39 Ohio St. 461 ; and numerous
other cases which might be cited. ^

-^JAccord: Atlanta, etc., R. R. v. Kimberly, 87 Ga. 161 (1891), railroad
company held not liable for nuisance caused by contractor's improper loca-
tion of his "convict camp" and horse lot; Carter v. Berlin Mills Co., 52 N. H.
52^ (1876), defendant not liable for flowage of plaintiff's land through im-
proper management of its dams by a contractor, who was allowed to use them
for the purpose of carrying out his contract to cut and "drive" the defendants
logs; Harrison v. Collins, 86 Pa. 153 (1878), owner of factory not liable for
the act of a "rigger" employed to, install a heavy boiler, who for his own
convenience and to simplify his work, removed the cover of a coal hole in
the sidewalk of defendant's premises; compare Pickard v. Smith, 10 C. B. N.
S. 470 (1861) ; Fulton Street Ry. Co. v. McConnell. 87 Ga. 756 (1891), tracks,
taken from the gutter, when they had been delivered and placed loosely in
position in the street, long in advance of the time, when they could be prop-
erly and finally laid, held to be an obstruction not inherent in the nature of the
work contracted for but. on the contrary, one unnecessarily created by the
method of doing the work adopted by the contractor for his own convenience ;
but compare with this case Woodman v. R. R., I49 Mass. 335 (1889), and
Mullins v. Sicgel-Cooper, 183 N. Y. 129 (190s).

So in Overton v. Freeman, 11 C. B. 867 (1852). the defendant, who, havmg
contracted to pave a certain district in the parish of St. Paucras, had employed
a sub-contractor to lav the kerb-stone in a certain street, was held not liable
for injuries which the plaintiff received through falling o^'cr stones negligently
placed in the pathway by the sub-contractor: acrord. Hilliard v. Rirhordson,
3 Gray, 349 (1855), owner not answerable for the consequence of the piling


Court of Appeals of Maryland, 1895, 80 Md. 348.

Boyd, J.: This suit was instituted by Minnie IMoores and her
husband against the City and Suburban Railway Company for in-
juries sustained by her through the alleged negligence of the defend-
ant's agents. Whilst she was driving along the Baltimore c.nd York-
town Turnpike Road her horse was frightened at a steam engine,
which was being used for hauling cars containing ballast to be put
on the tracks of the Railway Company. The defendant introduced
in evidence two contracts between the President, Managers and
Company of the Baltimore and Yorktown Turnpike Road and one
James B. White, by which the latter contracted to do certain work
for the Turnpike Company, including the delivery of broken stone
to be used in ballasting and back-filling the railway tracks constructed
on the pike, and also in macadamizing the pike, and claims that the
work was being done under these contracts by White as an inde-
pendent contractor.

The defendant offered two prayers, which were refused by the
Court below, which raise the only questions presented for our con-
sideration. The first prayer asked that the jury be instructed, that
if they found there was a contract between the Turnpike Com-
pany and White for doing certain work upon and adjacent to the
bed of said turnpike offered in evidence; that said White conducted
the work under the terms of said contract, without any interference
on the part of the Turnpike Company or the defendant in mode or
manner of doing the work ; and that the injury complained of resulted
from the running of an engine engaged in the prosecution of the
work, which belonged and was under the control of said White, then
the plaintiff could not recover.

The second asked the Court to instruct the jury, that if they
found that the Turnpike Company and White entered into the agree-
ments oft'ered in evidence to do certain work therein set out ; that

Online LibraryFrancis H. (Francis Hermann) BohlenCases on the law of torts (Volume 1) → online text (page 92 of 124)