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and the sewer pipe furnished by the employer is too small, and damage is sustained by reason thereof, the employer is liable. (3) The next exception is where the wrongful act is the violation of a duty imposed by express contract upon the employer; for where a person contracts to do a certain thing he cannot evade liability by employing another to do that which he has agreed to perform. For instance, where a company undertook to lay water pipes in a city, agreeing with the city that it would protect all persons against damages by reason of excavations made by them in laying pipes, and to be responsible for all damages which might occur by reason of the neglect of their employes in the premises,” and the company let out the work to a contractor, who used a steam drill in such a manner as to frighten a traveler's horse and injure the traveler, it was held by the supreme court of the United States that the company was liable. St. Paul Water Co. v. Ware, 16 Wall. (U. S.) 566. (4) The next exception is where a duty is imposed by statute. The person upon whom a statutory obligation is imposed is liable for any injury that arises to others from its non-performance or in consequence of its having been negligently performed, either by himselfor by a contractor employed by him. Thus, where the statute imposed upon a railroad company, as a duty to the proprietors of inclosures through which the road passed, the obligation of placing stock-guards, and preserving or supplying fences, on the right of way, and protecting the inclosure from injury, in the construction of its road, the company was held liable for the failure to perform such duty, though resulting from the negligence of a contractor. Houston & G. N. R. Co. 2. Meador, 50 Tex. 77. And it was upon this principle that the cases of Wilson 2. White, 71 Ga. 506; Gray 2. Pullen, 5 Best & S. 970; Hole v. Sittingbounie & S. R. Co., 6 Hurl. & N. 488; and Chicago, St. P. & F. R. Co. v. McCarthy, 20 I11. 388,-relied upon by counsel for the defendant in error, were decided. And the case of Hinde v. Wabash Navigation Co., 15 III. 72, also relied upon for the defendant in error, falls under the same principle. In that case the charter imposed upon the company the duty of paying for all material taken for the use of its work, and expressly gave a remedy against the company; and it was held that the company could not by delegating its work to a contractor escape liability for material taken by him for the work; especially as he was working under the immediate supervision and direction of the engineer of the company. (5) The employer may also make himself liable“ by retaining the right to direct and control the time and manner of executing the work, or by interfering with the contractor and assuming control of
the work, or some part of it, so that the relation of master and servant arises, or so that an injury ensues which is traceable to his interference. But merely taking steps to see that the contractor carries out his agreement, as having the work supervised by an architect or superintendenț, does not make the employer liable; nor does reserving the right to dismiss incompetent workmen.” Lawson, Rights, Rem. & Pr. 299; Harrison v. Kiser, supra. (6) The employer may also be held liable upon the ground that he has ratified or adopted the unauthorized wrong of the independent contractor. See Harrison 7'. Kiser, supra; 2 Thomp. Neg: 903, 915.
Applying the foregoing principles to the facts of this case, we find that the railroad company made a contract with the Chattahoochee Brick Company, whereby the latter agreed to build the former's road from Atlanta Company not to Senoia, according to certain specifications; and liable in this the railroad company did not retain any control over the contractor as to the method or manner of doing the work. The construction company was to furnish the labor and all the materials, including the pipes with which the sewers or culverts were to be built. All the control reserved by the road was that its superintendent was to see that the road was built according to the contract. There is no indication in the record outside of some loose and illegal declarations of third parties, the admission of which as evidence we will speak of presently, tending to show that the railroad company had any authority, power, or control over the construction, as to the manner or means of doing the work. This being true, the railroad company, under the general rule above announced, is not liable for the negligent acts done by the contractor. It was argued by the able counsel for the defendant in error that the building of a railroad necessarily results in a nuisance, unless certain precautions are taken to prevent it; that the low places by which the surrounding lands are drained and from which the water is carried off must be filled up, and, unless certain precautions are taken to provide an escape for the water, a nuisance necessarily results; and that the railroad company cannot escape liability by having the work done by an independent contractor. If the premises of counsel are true, the conclusion might also be true; but if a railroad is built properly, we do not think any nuisance will result from the building. The company, under its charter, had authority of law to do this work; and when it contracted with the construction company it was of course implied that the latter would do the work in a proper and lawful manner. “ A person employing another to do a lawful act is presumed, in the absence of evidence to the contrary, to have employed him to do it in a lawful and reasonable manner; and therefore, unless the parties stand in the relation of master and servant, the employer is not responsible for damages occasioned by the negligent mode in which the work is done.” i Redf. R. R. (6th Ed.) 542. Moreover, the evidence shows that in the very place where this nuisance is said to have occurred the railroad company had provided means which, if used, would have prevented the nuisance. The superintendent directed that a wasteway should be placed there, but the contractor put in a pipe, which the defendant claims was one of the causes of the nuisance, (I) by being too small to carry off the water in proper time, and (2) because it was not put upon the bed of the stream, but several inches above the bed, thereby causing the water to pond near the plaintiff's house. Nor would the other things which it is claimed caused the nuisance, to-wit, the throwing up of the fresh dirt, the convict camp, and the hog and horse lots, render the railroad company liable. It had lawful authority for excavating the hills and filling the bottoms in order to make its roadbed; and the placing of the convict camp and the hog and horse lots near the plaintiff's house was the act of the construction company, over which, it appears from the record, the railroad company had no power or control. So it will be seen that the work committed to the construction company was not wrongful per se, nor did it necessarily result in a nuisance; and therefore does not fall within the first exception to the general rule.
Nor is there any legal evidence to show that it would fall within the second exception. It is claimed that the pond of water was caused by the sewer pipes being too small to carry it off, but there is no evidence that the railroad company directed that this particular size of pipe should be placed at that point. · It is true there are some declarations of Hammond & English to the effect that the superintendent ordered it to be put there, but these declarations were illegal, and should have been excluded. If it should be shown upon the next trial that this particular size of pipe was placed at that point by direction of the company, or if the specifications in the contract required it to be placed there, and it should be further shown that this part of the plan was inferentially defective, and that it caused this nuisance, and the plaintiff sus. tained injury thereby, the railroad company would be liable. But if the railroad company did not direct this particular size of pipe to be placed at that point, or its plans and specifications did not require it, and it was put there by the contractor according to his own judgment, and negligently placed above the bed of the stream, then the railroad com.
pany would not be liable, although it may have had notice from the plaintiff that in his opinion the pipe was too small. If the railroad company had no control over the contractor as to the manner in which he should build the sewer or put in the pipe, any notice which the plaintiff might give its officers would not make it liable. The contractor being in an independent employment, whatever he does outside of or beyond his contract is a collateral act for which the employer is not liable. He is not the servant or agent of the employer, and the employer cannot be held liable for any acts of negligence committed or omitted by him outside of his contract. Where the work he is engaged to do is lawful, the law presumes that he will do it in a lawful manner; and if he does it illegally he is liable and not the employer.
Nor do the facts of the case bring it within the third or the fourth exceptions. There was no duty imposed upon the railroad company, either by contract or by statute, to do this particular work, or to do it in a particular way. Its charter does not impose upon it the duty of building the road, and does not specify the manner in which it shall be built; nor is any liability imposed upon it for acts of the kind complained of in this case. The authorities all hold that a railroad company has the right to make a contract with other parties for the construction of its road, and it is held that a contract of this character is not such a delegation of its chartered rights as to render the company liable for unauthorized wrongs committed by the contractor or his servants while engaged in the work. The principle that a railroad company cannot delegate to an employe its chartered rights and privileges, so as to exempt it from liability, does not extend to the use of the ordinary ways and means for the construction of the road, but to the use of such extraordinary powers only as the company itself could not exercise without having first complied with the conditions of the legislative grant of authority. Thus, after having first procured the right of way, the company can delegate to another lawful authority to enter upon the same and make its roadbed and perform other proper acts of construction; but it cannot delegate such lawful authority without having first secured the right of way by donation, purchase, or the exercise of the right of eminent domain.” Cunningham 2'. International R. Co., 51 Tex. 513. See Pierce, R. R. 290.
As we have already seen, the case does not come within the fifth exception, for there is no legal evidence that the railroad company had any control over
tion shown. the construction, as to the manner or means of doing the work. Nor does it come within the next exception, for the facts do not show any ratification of the wrongful acts of the contractor. It is not shown when the company accepted the road from the contractor. The evidence does show that the work near the plaintiff's house was done either in March, April or May, and that about the ist of June the plaintiff and his wife became sick. But under the contract the road was not to be turned over to the company until several months after this. The company not being in possession of the road at the time the plaintiff received the injury from the nuisance, and there being no evidence to show that it knew there was a nuisance, it cannot be said that the company ratified any act of its contractor which created a nuisance.
It only remains for us to say that we think the court should have excluded the whole answer to the interrogatory set out
in the fourth ground of the motion for a new trial, Evidence as and that the error was not cured by the agreement to cause of
of the defendant's counsel that the whole might be malaria.
read, after the court had decided that only a part of it could be read. In his answer the witness assigned four causes, which, in his opinion, produced the malaria : The embankment of loose earth, the horse lot, and the hog lot, and the dam. This answer was objected to because there was no allegation in the petition that the horse lot and hog lot produced the malaria. The court therefore ruled that these two reasons should be stricken, and the remainder of the answer read. The effect of this ruling was to make the witness testify that the loose earth and the dam alone produced the malaria, when the answer showed that in his opinion it was produced by these and the horse and hog lots. We do not think the answer of the witness ought to have been cut up in this manner. By so doing he was made to testify what he did not intend to. The plaintiff should either have amended his declaration to meet the proof, or the whole answer should have been excluded. Nor do we think the defendant waived this error by consenting, after the above ruling, that the whole should be read. The ruling of the court striking out two of the causes of malaria and leaving in two placed the defendant in a worse position than that in which it would have been if the whole answer had remained. The court should also have excluded the declarations of English & Hammond as set out in the fifth and sixth grounds of the motion. They were not the servants or agents of the railroad company, and any declarations they may have made would not bind the company.