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don & N. W.R. Co., supra, when Platt, B., put to counsel the fol. lowing question : “Suppose the occupier of a house were to direct a bricklayer to make certain repairs to it, and one of his workmen, through his carelessness, were to let a brick fall upon a passer-by, is the owner liable? This was a very pertinent question ; and the decision of that case answered it in the negative.
In every such case, the question is, not whether the owner or proprietor retained any use of the property during the
erection of the work, but who had the efficient conQuestion is trol of the work contracted to be done. Such conwho had con: trol, in cases like the present, is necessarily with
the contractor; and were it otherwise, independent employment would be degraded, its reliability in a great measure destroyed, and the general efficiency of railroad service correspondingly impaired. Hence the books teem with decided cases in which defendants were held not liable for torts committed on their premises by contractors or their agents or servants, although there had not been an entire surrender of the possession of the premises to the contractor. Such was the case in De Forest v. Wright, 2d Mich. 368, where a grocer hired a drayman to haul salt to his store; in Forsyth v. Hooper, 11 Allen (Mass.), 419, where a bell founder employed a person to hoist some bells into a church; see also Harrison v. Collins, 86 Pa. St. 153, and McCarthy v. Second Parish of Portland, 71 Me. 318.
In point of fact, the proposition contended for rests, in ef. fect, upon the unwarranted assumption that the contractor's
foreman, Englesby, whose negligent act caused the There can be injury, had, at one and the same time, two masters but one responsiblosu
--the Railroad Company and Smith, the contractor. perior.
The proposition that the rule of respondeat superior
is applicable only to the immediate superior of the person who does the injury, and that there can be but one such responsible superior, were clearly recognized in the leading cases of Reedie 7. London & N. W. R. Co., and Blake v. Ferris, supra. In Langher v. Pointer, supra, LITTLEDALE, J., puts his opinion, that the owner of the carriage was not liable for the injury to a third person, by the negligent driving of the servant of the stable keeper, expressly on the ground that the driver could not be the servant of both the livery stable keeper and the person riding in the carriage ; and he adds, that he“was the servant of one or the other, but not the servant of one and the other; that the law did not recognize a several liability in two principals."
II. It is contended that the defendant's company, in its contract with Smith, reserved a degree of control over the
work to be erected, which is inconsistent with the idea that Smith was an independent contractor. This contention cannot prevail
. In Thompson on Negli. Effect of dogence, p. 913, it is said: “The mere fact that ihe
taiping som proprietor retains a general supervision over the control
. work, for the purpose of satisfying himself that the contractor carries out the stipulations of his contract, does not make him responsible for wrongs done to third persons in the prosecution of the work—as where a railway employs an engineer to superintend the progress of the consiruction of its road and to see that the work is done according to contract." The author then cites, per contra, the case of Schwartz v. Gilmore, 45 III. 455, and adds: “This, however, is not the sound view of the usual building contract. The contractor stipulates to deliver to the proprietor certain results. He is responsible to the proprietor for these only. The proprietor does not retain control over the contractor as to his methods of proceeding with the work. He could not do so; for the contractor is generally skilled in the business and he is not. No contractor could safely stipulate to do a job at a fixed price, and then allow the proprietor to control him in matters of methods and detail; for this might destroy his power so to order the work as to make his contract a profitable one." Accordingly it has been held that a contract between a municipal corporation and a contractor for the construction of a sewer, containing the provision,-all work to be commenced and carried on, at such times and such places and in such manner as the engineer shall direct,' and requiring the contractor to dismiss from his employment all incompetent and unfaithful persons, did not reduce the contractor to the grade of a servant of the city and make it answerable for his negli. gence. See Erie v. Caulkins, 85 Pa. St. 247; Hunt v. Pennsylvania R. Co., 51 Pa. St. 475; Sherman and Redfield on Negligence, SS 78-81. See also Park o'. Mayor of New York, 8 N. Y., p. 227, and Kelly v. Mayor of New York, u N. Y. 432, which strongly sustain the same view. These views are sustained by a great number of well considered cases, only a few of which, in addition to those already referred to, need be cited. See Reedie v. Ry. Co., supra, Berry v. St. Louis, 17 Mo. 121; Callahan v. Burlington & M. R. R. Co., 23 Iowa, 562; Allen v. Willard, 57 Pa. St. 374; Cuff v. Newark & N. Y. R. Co., 35 N. J. L. 17; Eaton v. European & N. A. R. Co., 59 Me. 520 ; Tibbetts v. Knox & L. R. Co., 62 Me. 437; Samuelson v. Cleveland Iron Min. Co., 49 Mich. 164. The last named case is a complete refutation of the claim in the present case, that the right of inspection carried with it the duty of rejecting all improper workmanship. In that case, the defendant, the owner of an iron mine, contracted with certain persons to work it, but stipulated that the contractors and not the owner should be responsible for any injuries to workmen, and the responsibility was assumed by the contractors. The mine was in proper condition when the contractors took possession ; but the contract contained a stipulation, that when the contractors repaired the mine it should be done under the supervision, advice and control of the defendant's superintendent. In delivering the opinion of the court, and coinmenting on this provision, Judge COOLEY, among other things, said: “But the supervision does not make the owner principal in the mine, or master in the working of it. The owner assumes toward no one the duty to supervise; he does not stipulate to supervise; he only contracts for the privilege. If the mine owner in this case had dismissed the superintendent and sent no one to inspect the working, no miner could complain that a duty owing to him was being neglected. The company had not promised to protect him, or to indemnily him for injuries ; on the contrary, it had expressly stipulated that it would assume no such responsibility. The privilege of intervention for its own protection was reserved; but the neglect of one's own interest is no wrong to others. Legal wrongs must spring from neglect of legal duties;" citing as in point, Reedie v. London & N. W.R. Co., 4th Exch. 244, before referred to.
This view of Judge Cooley is precisely appropriate to the case in hand--so much so that comment is unnecessary. The
injury in that case was to an employe of the conDeiendant not the
tractor, and the same is true in the present case. master of
But in this case, it is a singular fact, that while it contractor's is assumed that Englesby, whose negligent and workmen.
careless act caused the injury, was the servant of the railroad company, yet every authority relied upon presents the case of an injury to a third person; not a single case is cited by the plainti( in which the injury was to an employe of the contractor.
Obviously, if as insisted, the railroad company owed to the plaintiff's intestate the duty of protecting him against injury, it could be on no other ground than that the relation of servant and master existed between them; but it is perfectly clear that no such relation existed. It is equally clear that as the servant of Smith, the plaintiff's intestate did stand in the relation of servant to him and as the second person in the contract for services to be rendered by him. It is clear, therefore, that the plaintiff's intestate was not a third person, or a stranger, either in respect to the rail. road company or Smith, the contractor, but was simply one of the two persons to the contract for service between the
contractor and himself. Hence, the authorities respecting injuries to third persons can have no application to his case. There was no contract relation, express or implied, between the railroad company and the employes of the contractor, or either of them; and as between said company and the plaintiff's intestate there was no relation whatever, other than that which springs from the common bond of society, as expressed in the maxim Sic uteri tuo ut alium non lædes, which imposes upon every man the duty of so using his own as to do no injury to his fellow man. It can in no just sense be said that the railroad company violated this rule ; for it is pretended even that the injury was the result of the careless manner in which the company ran its train on the bridge. On the contrary, it is certified that the company exercised due care in the selection of the material furnished, and that it was suffi. cient for the purposes for which it was intended : that the bridge gave way and fell because the sway braces, lateral braces and struts had not been put in position. And it clearly appears that the mischief was the result of the wrongful act of Englesby, the contractor's agent or servant, in ordering the signal for the train to pass in the then insecure condition of the bridge.
III. And it is also contended that there was an obligation imposed by law upon the railroad company to see that its track was safe, and that it cannot shift this obligation upon an independent contractor. If the plaintiff's intestate had been either a passenger on the ill
safe track. fated train, or an employe of the company, then this insistance would have some show of reason ; but he was neither, and he cannot avail himself of the principles applicable in either class of cases.
IV. But, among other things, it is certified that to run a train of coal cars upon such a bridge in such a condition, would be foolhardy; and this is fastened upon as a conclusive reason for holding the railroad com- Contention pany liable, and upon the express ground, that the that the dandefective and unsafe condition of the bridge was open and obvious and could and ought to have been seen by the company's assistant engineer, Maj. Goodwin, who was on the ground at the time, or just before the accident, and only three minutes before had left the bridge, passed to the rear of the train and was in the act of mounting onto the caboose to return to Lynchburg, when he heard the crash and desisted. Is it credible that he would thus have imperilled his life by attempting to ride over the bridge in the caboose attached to the very train under which the bridge fell, if the darger was open to common observation? We think not.
Defendant's duty to have
ger was an obvious one.
The question whether the span which fell, was, in any particular stage of its progress, sale, was in the nature of things, one to be determined by Smith or his foreman, Englesby, by whoin he acted. This is well illustrated by the correspondence between the parties, leading up to the contract in ques tion. In a letter written by Smith' to Chief Engineer Coe, dated Baltimore, December 9th, 1886, he says: “Replying to yours of the ist inst., I write that during my late absence at St. Louis, my best draughtsman worked out the drawings for the removal of Big Otter Bridge, and when I came to check. ing them up, within a few days, I found that the premises assumed were a little out and a new study is required. This will probably delay matters a few days, etc." Now, was it competent for the assistant engineer, Maj. Goodwin, to interfere and delay the work until he could study the situation upon some theory of his own? Certainly not ; for in the first place, he had no such right under the terms of the contract; and in the second place, any such interference could only have produced confusion and delay, and would have tended to involve his company in liability not contemplated by the contracting parties. It is clear that the danger was not open to common observation, and that the plaintiff's case has no support in the fact that it was foolhardy to run the train on the bridge in its insecure condition. The contractor, acting by his foreman, knew or ought to have known, the condition of the bridge. He reserved for his protection, the right to have the signals for the passage of trains given when his foreman, Englesby, so ordered. The signal was given in obedience to Englesby's order. The bridge was then unsafe: hence the disaster that followed, and for it, the contractor, Smith is alone liable.
This case has been argued for the plaintiff very much as if the plaintiff's intestate was a common day laborer and in the
simplicity of his nature trusted to the railroad Dereased not
company for protection. The facts certified warau inexperi.
rant no such conclusion but quite the contrary. In a telegram to Chief Engineer Coe, dated Baltimore,
January 13th, 1887, Smith says: “Foreman reports James River bridge finished, and he awaiting orders with his gang in Lynchburg. Shall I order them up to Otter or Ivy Creek at once.” On the next day, he says to Engineer Coe: “ I will send Englesby and gang to Harrisonburg if you de cide to postpone the trestling as suggested.” On another occasion he spoke of them as “my erectors.” Now, considering the character of work in which Smith was engaged in connection with the terms used in respect to his workmen,such as “ Englesby and his gang," and "my erectors," the