reasonable inference is that the plaintiff's intestate was one of the gang-one of the erectors, and that they were all trained hands in the art of bridge erection.

analogous authorities.

It may be stated in general that companies constructing railroads and cities constructing public works in the performance of corporate duties have again and again been held exempt from liability for the negligence of con- Further tractors, and sub-contractors, or their agents or servants. In addition to the authorities already referred to in support of this proposition, only a few more need be cited. See King v. New York Cent. & H. R. R. Co., 66 N. Y. 182; Gosham . Gross, 125 Mass. 232; Cunningham 2. International R. Co., 51 Tex. 503; Painter v. Mayor of Pittsburg, 46 Pa. St. 221; Steel v. South Eastern R. Co., 16 C. B. 550; Clark v. Vermont &C. R. Co., 28 Vt. 297; Callahan . Burlington & M. R. R. Co., 23 Iowa, 562; Cuff v. Newark & N. Y. R. Co., 35 N. J. L. 17; West v. St. Louis & V. & T. H. R. Co., 63 III. 545 Tibbitts v. Knox & L. R. Co., 62 Me. 437; McCafferty v. Spuyten Duyvil & P. M. R. Co., 61 N. Y. 178.

In the last named case, it was held :

Ist. That a railroad company which had let by contract the entire work of constructing its road, and had no control over those employed in the work, was not liable for injuries to a third person, occasioned by the negligent acts of those employed in doing the work, such as blasting in a manner to throw rocks upon the lands of another.

2d. That a party is not chargeable with the negligent acts of another in doing work upon his lands, unless he stands in the character of employer to the one guilty of the negligence, or unless the work as authorized by him would necessarily produce the injuries complained of, or they are occasioned by the omission of some duty incumbent upon him.

3d. That there is no distinction in this respect between an owner of real and of personal property, and the former is held to no stricter liability for his negligent use and management of his real estate, or of negligent acts upon it by others, than is the latter as to a similar use of his property.

Judgment

affirmed.

Such is the true doctrine, and we adopt it as the only doctrine justly applicable to the present and all similar cases. There is, therefore, no just ground upon which the plaintiff in error, the plaintiff below, can base a right of recovery in the present case. We are of opinion that there is no error in the judgment of the court below. As all other questions raised are dependent upon that raised by the plaintiff's first and most material bill of exceptions, which has been very fully considered, and as the determination thereof on the facts and law of the case, will

probably operate as a final disposition of the case itself, we deem it unnecessary to consider the questions raised by other exceptions of minor importance. The judgment of the court below is correct, and must be affirmed.

Liability of Railroad Company for Tort of Independent Contractor.-See ante Atlanta & Florida R. Co. 2. Kimberly, and note, p. 307, 315.

Who are Independent Contractors.-See Rogers v. Florence R. Co. (S. Car.), 39 Am. & Eng. R. Cas. 348, note 354; note 44 Id. 653.

STEWART CHUTE LUMBER CO.

V.

MISSOURI PACIFIC R. Co. et al.

(Nebraska Supreme Court, Sept. 22, 1891.)

Mechanic's Lien-Material Furnished Railroad Contractor.-Lumber sold to a subcontractor on a railway, for the erection of shanties for his employes and stables for his teams, is not within the statute granting a lien for labor performed or material furnished in the construction, repair, and equipment of the railroad, and gives no right of action against the railway company. Stewart Chute Lumber Co. v. Missouri Pac. R. Co., 28 Neb. 39, 39 Am. & Eng. R. Cas. 566, overruled. COBB, C. J., dissenting.

ON rehearing.

MAXWELL, J.-An opinion was filed in this case in 1889, which is reported in 28 Neb. 39, 39 Am. & Eng. R. Cas. 566, the judgment of the court below being reversed, Case stated. and judgment entered in this court for the plaintiff. As that decision was rendered by a divided court, a motion for a rehearing was sustained, and the cause is again submitted to the court.

The facts, in brief, are these: One Marcus Cavanaugh was a subcontractor on the Missouri Pacific Railway in the construction of that road from Weeping Water to Lincoln, and purchased from the plaintiff building material to the amount of $296.19, for the construction of shanties for the persons employed by him on his subcontract, and also for the construction of stables for the teams used by said employes in grading the road. The shanties and stables had no connection whatever with the railway. Under this state of facts, can the plaintiff enforce its claim against the railway company for the amount of Cavanaugh's debt? Section 1, art. 2, chap. 54. Comp. St. provides " that whenever any laborer upon any railroad, canal, viaduct, bridge, ditch, or other similar improvement in this state shall have just claim or demand for labor performed on any such rail

Statutory provision.

road, canal, bridge, ditch, viaduct, or other similar improvement against any person or persons who are, or any company which is, a contractor on such railroad, canal, viaduct, or bridge, or against any person or persons who are subcon-' tractors with any person or persons or company contracting with any such railroad, bridge, viaduct, or ditching company. for the construction of any part of such railroad, bridge, canal, viaduct, or ditch of any such company, every such railroad, canal, bridge or ditch company shall be liable to pay such laborer the amount of such claim or demaud, with 10 per cent. interest thereon: provided, such laborer shall have given notice within sixty days after the last item of labor shall have been performed that he or she has such claim or demand. Such notice shall be given in writing, and shall specify the peculiar nature and amount of the claim or demand, and shall be delivered to the president or vice-president, superintendent, agent, or the managing director or chief engineer of any such company, or to the engineer of any such company, or to the engineer in charge of that portion of the work, or any portion of the railroad, canal, viaduct, bridge or ditch upon which such labor is performed. Sec. 2. When material shall have been furnished or labor performed in the construction, repair, and equipment of any railroad, canal, bridge, viaduct, or other similar improvement, such labor and material man, contractor, or subcontractor shall have a lien therefor, and the said lien therefor shall extend and attach to the erections, excavations, embankments, bridges, roadbed, and all land upon which the same may be situated, including the rolling stock thereto appertaining and belonging, all of which, including the right of way, shall constitute the excavation, erection, or improvement provided for and mentioned in this act." The lien is given for material which "shall have been furnished or labor performed in the construction, repair, and equipment of any railroad."

liable

These words do not include lumber, material, or labor which was not performed or furnished in the construction, repair, or equipment of the road. If this were not so, there would be no limit to the liability of a rail- Company not way company. If, by a strained construction of the statute, the company is held liable for material used for shanties, it would, by the same rule, be liable also for food and clothing for the employes, and feed for the teams; and it would be difficult to tell where its liability would cease. The lien is created by statute, and, independently of that, no cause of action exists against the company. The question here presented was before the supreme court of Michigan in

Dudley v. Toledo, A. A. & N. M. R. Co., 65 Mich. 655, 30 Am. & Eng. R. Cas. 236, and it was held that debts incurred for the board and clothing of hands employed in constructing the railroad, and feed for teams used in that business, do not come within the provisions of the statute, and cannot be enforced against the railway company. That decision, in our view, is correct. It follows that the judgment heretofore rendered by this court is reversed, and the judgment of the court below affirmed.

NORVAL, J., Concurs.

COBB, C. J., dissents, for reasons stated in his former opinion.

Liens for Materials Supplied to Contractors for the Construction of Railroads. In a note to the report of this case on the original hearing, 39 Am. & Eng. R. Cas. 575, the decision of the Nebraska court was shown to be in direct conflict with a line of well considered cases, and to be wrong in principle. It is satisfactory to observe that the supreme court of Nebraska has at length overruled its former erroneous decision and is now in line with the other courts.

INDEX TO THE NOTES.

The General Index follows this.