F' 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 A TREATISE 
 
 On the Law of 
 
 Independent Contractors 
 
 And 
 
 Employers' Liability 
 
 Including 
 
 Formation of the Relation 
 
 Employers* General and Exceptional Liability 
 
 Interliability of Employers and Contractors 
 and their Subordinates 
 
 By 
 
 Theophilus J. Moll 
 
 Of the Indianapolis Bar — Dean of the American 
 Central Law School, Indianapolis 
 
 CINCINNATI 
 
 THE W. H. ANDERSON CO. 
 inio.
 
 T 
 l<T|0 
 
 Copyright, 1910, 
 
 BY 
 
 THE W. H. ANDERSON CO.
 
 To the 
 
 Instructors and Students 
 
 with whom, during the past decade, he 
 
 has been intimately associated, this 
 
 modest volume is sincerely 
 
 Dedicated 
 
 by 
 The Author.
 
 PREFACE 
 
 The increasing number of cases involving- liability grow- 
 ing out of the relation of Independent Contractor and the 
 corresponding importance of the subject seem to justify a 
 separate treatise on that subject. In the 110 years that have 
 elapsed since the leading case of Bush v. Steinman was 
 decided, more than fifteen hundred cases bearing more or 
 less on the law of Independent Contractor have been passed 
 upon, the great majority of these within the past twenty- 
 five years. So far there has been no separate text on the 
 subject, although Judge Thompson devoted to it a number 
 of sections of his Commentaries on Negligence and Mr. 
 C. B. Labatt has written several very excellent and ex- 
 haustive monographic notes along the same lines. To these 
 the author acknowledges very material assistance in the 
 preparation of the present volume. 
 
 The subject is naturally divided into a discussion of (1) 
 The Relation of Independent Contractors; (2) The Gen- 
 eral and Exceptional Liability of the Employer to Third 
 Persons, and (3) The Interliability of Employers and Inde- 
 pendent Contractors and the Subordinates of each. These 
 subdivisions are treated in the order given. 
 
 Cross references are given to the National Reporter 
 System and to all the current general, and to many of the 
 special, leading-case publications, to which are added, paren- 
 thetically, the years in which the various cases were decided. 
 Those cases which the author considers the leading ones, 
 as to Independent Contractors, are set out in small capitals. 
 
 In the hope that his effort will be of some service to the 
 profession and craving their indulgence for any imperfec- 
 tions, the author submits this volume. 
 
 Theophilus J. Moll. 
 
 Indianapolis, December 1, 1909.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 Who Are Independent Contractors, 
 
 section page 
 
 1. Representation 2 
 
 2. Distinction between agents and servants 3 
 
 3. Agent defined 4 
 
 4. Master and servant defined 4 
 
 5. Same — Servants by estoppel 6 
 
 6. Same — Servants of two masters ^ 
 
 7. Same — Transfer of service 8 
 
 8. Same — Compulsory service 1 1 
 
 9. Same — Volunteers as servants 12 
 
 10. Basis of constituent's liability 13 
 
 11. Same — Of principal's liability 14 
 
 12. Same — Of master's liability 15 
 
 13. Distinction between servants and independent contractors... 18 
 
 14. Same — Between agents and independent contractors 21 
 
 15. Doctrine of respondeat superior 23 
 
 16. Independent contractor defined 26 
 
 17. Relation of subcontractor 30 
 
 18. Tests of relation of independent contractor 30 
 
 19. Same — Retaining control 32 
 
 20. Same — How far retained 37 
 
 21. Same — Right of dismissal 47 
 
 22. Same — Supervision or approval by employer 49 
 
 23. Same — Same — By architect 52 
 
 24. Same — Same — By engineer 53 
 
 25. Same — Purpose of retaining control 56 
 
 26. Same — Surrendering or retaining control of premises 57 
 
 27. Same — Construction of contract of employment 58 
 
 28. Same — Same — Question for court 61 
 
 29. Same — Same — Question for jury 62 
 
 30. Same — Identity of employer and independent contractor 65 
 
 31. Same — Whose servant the wrongdoer is 65 
 
 vii
 
 VIU CONTENTS. 
 
 SECTION PAGE 
 
 32. Same — Burden of proof, on whom 68 
 
 33. Same — Obligation of personal performance as test 70 
 
 34. Same — Compensation as test 70 
 
 35. Same — Character of work as test 75 
 
 36. Same — Relation determined by statute 78 
 
 37. Pleading the relation 80 
 
 38. Particular instances of independent contractors 81 
 
 39. Effect of death as test 94 
 
 CHAPTER 11. 
 General Rule of Employer's Liability. 
 
 45. General rule stated 96 
 
 46. Basis of non-liability 98 
 
 47. Early rule stated 101 
 
 48. Bush v. Steinm ann 102 
 
 49. Basis of early rule discussed 110 
 
 50. Distinction as to real and personal property Ill 
 
 51. Present rule and tendency 112 
 
 52. Effect of non-interference 115 
 
 53. General rule as to liability of municipalities 116 
 
 54. Same — As to school districts! 119 
 
 55. Same — As to railroad companies 119 
 
 56. Same — As to other undertakings 120 
 
 57. Same — As to subcontractors 121 
 
 58. General rule after acceptance 123 
 
 CHAPTER III. 
 Employer's Exceptional Liability — I. Character of Work. 
 
 65. Exceptions to general rule 124 
 
 66. Doctrine of collateral negligence 132 
 
 67. Contract work a nuisance 134 
 
 68. Same — Unauthorized 139 
 
 69. Same — Unlawful, other than nuisance 141 
 
 70. Same — Calling for injurious result 143 
 
 71. Same — Result unforeseen 147 
 
 72. Work dangerous per se — General rule 148
 
 CONTENTS. IX 
 
 SECTION PAGE 
 
 73. Same— Blasting 154 
 
 74. Same — Fires 159 
 
 75. Same — Excavations 162 
 
 76. Same — Explosives 164 
 
 n. Same — Balloon ascensions 165 
 
 78. Same — Logging 166 
 
 79. Same — Overhanging objects 166 
 
 CHAPTER IV. 
 Employer's Exceptional Liability — IL Character of Obligation. 
 
 85. Absolute duty 168 
 
 86. Statutory duty, generally 170 
 
 87. Same — Excavating, generally 173 
 
 88. Same — Same — Shoring 174 
 
 89. Same — Authorized appropriations 175 
 
 90. Same — Conditional undertakings 175 
 
 91. Same — Licensee's liability to public 178 
 
 92. Proprietor's duty regarding sidewalks 180 
 
 93. Same — Regarding highways 187 
 
 94. Same — Reipoving condemned buildings 191 
 
 95. Same — As to adjoining owners 193 
 
 96. Same — Condition of premises, generally 197 
 
 97. Same — Duty to supervise 197 
 
 98. Same — Duty as to invitees 199 
 
 99. Same — Furnishing appliances 200 
 
 100. Building contracts, generally 201 
 
 101. Same — Relation, how shown 203 
 
 102. Same — Management of machinery 203 
 
 103. Same— Party walls 204 
 
 104. Same — Removing dangerous wall 204 
 
 105. Same — Exempt though fatal 205 
 
 106. Landlord and tenant, generally 206 
 
 107. Same — Discharging legal duty 209 
 
 108. Same — Personally supervising 210 
 
 109. Same — Work imminently dangerous 210 
 
 110. Master's non-assignable duty 212
 
 CONTENTS. 
 
 CHAPTER V. 
 
 Employer's Exceptional Liability— II. Character of Obligation 
 
 (Continued). 
 
 SECTION page 
 
 115. Franchise rights, generally 213 
 
 116. Railroad companies, generally 215 
 
 117. Same — Delegating operation of road 217 
 
 118. Same — Contractor operating road 217 
 
 119. Same — Contractor in control at time of injury 220 
 
 120. Same— Contractor negligently managing construction train.. 221 
 
 121. Same — Presumption as to direction by employer 221 
 
 122. Same — Contractor killing cattle 222 
 
 123. Same — Contractor failing to fence 223 
 
 124. Same — Contractor or servant trespassing 224 
 
 125. Same — Duty to traveler as to excavations 228 
 
 126. Same — Lessee operating road 229 
 
 127. Same — Trustee operating road 233 
 
 128. Same — Using tracks in common 233 
 
 129. Same — Liability as warehouseman 234 
 
 130. Street railroads 234 
 
 131. Carrier's duty, generally 234 
 
 132. Same — Safe premises 236 
 
 133. Same — Safe vehicles, etc 237 
 
 134. Same — Safe tracks, etc 238 
 
 135. Same — Sleepers, etc 240 
 
 136. Same — Special contract as to freight 241 
 
 137. Same — As to running trains 241 
 
 138. Same — As to criminal acts 242 
 
 139. Cities and towns, generally 243 
 
 140. Same — Jointly with contractor 245 
 
 141. Same — Safety of streets 248 
 
 142. Same — Constructing sewers 254 
 
 143. Same — Grading street 255 
 
 144. Same — As to bridges 257 
 
 145. Same — Necessity as to notice 257 
 
 146. Same — Contractor's trespasses 258 
 
 147. Counties 259 
 
 148. Public utility companies 260 
 
 149. Public charities 260 
 
 150. Public exhibitions 266 
 
 151. "Profit" corporations 267
 
 CONTENTS. XI 
 
 CHAPTER VI. 
 Employer's Exceptional Liability — III. Conduct of Employer. 
 
 SECTION PAGE 
 
 160. Liability under express contract 269 
 
 161. Same— Effect of statute 271 
 
 162. Same — Duty to contract 272 
 
 163. Contract for defective plans 273 
 
 164. Selecting contractor, generally 274 
 
 165. Same — Degree of care 277 
 
 166. Same — Incompetency known 279 
 
 167. Identity of employer and contractor 280 
 
 168. Employer wrongfully interfering 281 
 
 169. Same — What amounts to interference 282 
 
 170. Employer reserving control 283 
 
 171. Same — Partly doing work 285 
 
 172. Same — Permitting use of defective appliances 286 
 
 173. Employer accepting work 286 
 
 174. Same — What is acceptance 287 
 
 175. Same — Knowledge of condition 289 
 
 176. Same — Work abandoned by contractor 289 
 
 177. Contractor generally exempt 291 
 
 CHAPTER VII. 
 Employer's Liability to His Own Servants. 
 
 180. General rule as to liability for independent contractor's act.. 292 
 
 181. Whether person injured was servant or independent con- 
 
 tractor 295 
 
 182. Negligence of contractor 296 
 
 183. Same — Supplying appliances 296 
 
 184. Same — Supplying scaffolds 299 
 
 185. Same — Supplying elevators 300 
 
 186. Same — Supplying derricks 301 
 
 187. Same — Supplying railroad bridges 301 
 
 188. Employer's duty to inspect 303 
 
 189. Assuring safety of place 305 
 
 190. Defect known to employer 306 
 
 191. Question for jury 307 
 
 192. Relation between employer and contractor 307 
 
 193. Same — Master's duty to furnish contractor safe tools, etc 307 
 
 194. Same — Discharge of franchise 308
 
 Xll CONTENTS. 
 
 SECTION PAGE 
 
 195. Negligence of contractor's servants 309 
 
 196. Same — Whether fellow-servants 310 
 
 197. Negligence of servants of lessors and others 313 
 
 198. Liabilit}' regarding subcontractors 314 
 
 CHAPTER VIII. 
 Employer's Liability to Contractors and Their Servants. 
 
 200. Employer's liability to contractors, generally 315 
 
 201. Same — Relation of parties 316 
 
 202. Same — Liability on contract 317 
 
 203. Liability, generally, to contractors' servants 318 
 
 204. Joint liability of employer and contractor 319 
 
 205. Relation of parties 320 
 
 206. Liability as to condition of premises 323 
 
 207. Same — Employer controlling or directing work 326 
 
 208. Same — Safety of premises 328 
 
 209. Same — Employer accepting work 330 
 
 210. Same — Competency of co-workers 331 
 
 211. Contributory negligence 333 
 
 CHAPTER IX. 
 
 Contractor's Liability — Subcontractors. 
 
 215. Contractors' liability, generally 334 
 
 216. Same — Relation of parties 336 
 
 217. Same — Statutory right 337 
 
 218. Same — Negligent performance of work 337 
 
 219. Same — Following defective plans, etc 338 
 
 220. Same — Acts of employer 339 
 
 221. Same — Injury to wrongdoer 340 
 
 222. Same — Injury to his own servant 340 
 
 223. Same — Between contractors and their servants 341 
 
 224. Same — Injury to vendee's servant 342 
 
 225. Same — Condition of employer's premises 344 
 
 226. Same — Contractor's legal representative 345 
 
 227. Same — Injury to employer's tenant 345 
 
 228. Same — Acceptance by employer 346 
 
 229. Same — Indemnity to employer 349 
 
 230. Subcontractors 350
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Abbott V. Johnson Co. (1887), 114 
 
 Ind. 61 . . 126, 147. 
 Abbott v. Johnstown, etc., Rail- 
 road (1880), 80 N. Y. 27, 36 
 
 Amer. Rep. 572. . 
 Abston V. Walden Academy 
 
 (1907), 118 Tenn. 24, 102 S. W. 
 
 351.. 149. 
 Adams v. University Hospital 
 
 (1907), 122 Mo. 675, 99 S. W. 
 
 453, Huff. Cas. Agcy. (2d ed.), 
 
 677.. 149. 
 Adams Express Co. v. Schofield 
 
 (1901), 111 Ky. 832, 64 S. W. 
 
 903.. 28. 
 Alabama, etc.. Railroad v. Cos- 
 
 kry (1890), 92 Ala. 254, 9 So. 
 
 202.. 24, 121. 
 Alabama, etc.. Railroad v. Martin 
 
 (1893), 100 Ala. 511, 14 So. 
 
 401.. 24, 123. 
 Alabama, etc.. Railroad v. Wil- 
 liams (1890), 92 Ala. 277, 9 So. 
 
 203. .121. 
 Albany v. Cunliff (1849), 2 N. Y. 
 
 165.. 228. 
 Albert v. Sweet (1889, N. Y.), 42 
 
 Am. & Eng. R. Cas. 216, 22 N. 
 
 E. 762.. 223. 
 Aldritt V. Gillette, etc., Co. (1902), 
 
 85 Minn. 206, 88 N. W. 741. .65, 
 
 97. 
 Alexander v. Mandeville (1889), 
 
 33 111. App. 559.. 23. 
 Allan v. St.\te, etc., Co. (1892). 
 
 132 N. Y. 91, 30 N. E. 482, 15 
 
 L. R. A. 166, 28 Amer. St. Rep. 
 
 556.. 38. 
 
 Allen v. Hayward (1845), 7 Q. 
 
 B. 960, 4 Eng. R. etc., C. 104. . 
 
 16, 71. 
 Allen V. Willard (1868), 57 Pa. 
 
 374.. 28, 51, 93. 
 Althorf V. Wolfe (1860), 22 N. 
 
 Y. 355.. 9. 
 American. The (1874), L. R., 6 
 
 P C \2,7 38 
 Anaces, The (1898), 87 Fed. 
 
 565.. 7. 
 Anderson v. Boyer (1897), 13 
 
 App. Div. 258, 43 N. Y. Supp. 
 
 87. Cf. (1898), 156 N. Y. 93, 
 
 50 N. E. 976.. 196. 
 Anderson v. Fleming (1903), 160 
 
 Ind. 597, 67 N. E. 443, 66 L. R. 
 
 A. 119, 16 Am. Neg. R. 606. n. . 
 
 72, 86, 91, 97, 115, 126. 131, 139, 
 
 140, 141, 160, 180. 
 Anderson v. Moore (1903), 108 
 
 111. App. 106.. 106. 
 Anderson v. Tug River, etc., Co. 
 
 (1906), 59 W. Va. 301, 53 S. E. 
 
 713.. 72. 
 Andrews v. Boedecker (1885), 17 
 
 111. App. 213, 9 Amer. St. Rep. 
 
 649. .95. 
 Andrews v. Runyon (1884), 65 
 
 Cal. 629, 4 Pac. 669.. 93, 95. 
 Andrews Brothers v. Burns 
 
 (1901), 22 Ohio C. C. 437.. 208. 
 Angus V. Dalton (1878), L. R., 4 
 
 Q. B. D. 162 (see, also, Dalton 
 
 V. Angus) . .72. 
 Ann V. Herter (1903), 79 N. Y. 
 
 Supp. 825.. 93. 
 Anne Arundel County v. Du- 
 
 vall (1880). 54 Md. 350, 39 
 
 Amer. Rep. 393.. 147. 
 
 xiii
 
 XIV 
 
 TABLE OF CASES. 
 [References are to sections.] 
 
 Appel V. Eaton, etc., Co. (1902), 
 
 97 Mo. App. 428, 71 S. W. 
 
 741.. IS. 
 Arasmith v. Temple (1882), 11 
 
 111. App. 39.. 32. 
 Ardesco, etc., Co. v. Gilson 
 
 (1870), 63 Pa. St. 146.. 73, 164. 
 
 183. 
 Arkerson v. Denison (1875), 117 
 
 Mass. 407.. 184. 
 Arthur v. Texas, etc., R. (1905), 
 
 139 Fed. 127; (1907), 204 U. S. 
 
 505. 40 A. & E. Ry. C— N. 
 
 S. 17.. 131. 
 Aston V. Nolan (1883), 63 Cal. 
 
 269.. 95, 162. 
 Atchison Co. v. Sullivan (1898), 
 
 7 Kans. App. 152, 53 Pac. 142, 
 
 4 Amer. Neg. Rep. 149.. 141. 
 Atchison, etc.. Railroad v. Davis 
 
 (1885), 34 Kans. 202, 8 Pac. 
 
 530.. 118. 120. 
 Atl.\nta Railroad v. Kimberley 
 
 (1891), 87 Ga. 161, 13 S. E. 277, 
 
 27 Amer. St. Rep. 231.. 45, 55, 
 
 65, 67, 90, 116, 163, 168. 
 Atlanta, etc., R. v. West (1905), 
 
 121 Ga. 641, 49 S. E. 711, 104 
 
 Amer. St. Rep. 179, 67 L. R. A. 
 
 701.. 9. 
 Atlantic, etc., Co. v. Coneys 
 (1897), 82 Fed. 177,28 C. C. A. 
 
 388, Huff. Cas. Agcy. (2d ed.), 
 
 583, Burd. Cas. Torts, 403, n . . 
 ..7, 20. 
 Atwood V. Chicago, etc.. Railroad 
 (1896), 72 Fed. 447.. 6. 13, 15. 
 
 Babbage V. Powers (1891). 130 
 
 N. Y., 281, 29 N. E. 132, 14 L. 
 R. A. 398.. 69. 
 Babcock, The William F., In re 
 
 (1887), 31 Fed. 418. .210. 
 Badenhop v. Sandhurst (1864, 
 
 Vict), 1 W. W. & A. B. 136.. 
 
 141. 
 
 Bailey v. New York (1842), 3 
 
 Hill (N. Y.), 532, 38 Amer. Dec. 
 
 669.. 176. 
 Bailey v. Troy, etc.. Railroad 
 
 (1883). 57 Vt. 252, t2 Amer. 
 
 Rep. 129.. 15. 
 Baird v. Dunn (1895), 33 New 
 
 Brunsw. 156.. 110. 
 Baker v. Grand Rapids (1897, 
 
 Mich.), 1 Am. Neg. R. 90.. 142. 
 Baker v. Louisville, etc., Co. 
 
 (1901). 106 Tenn. 490. 61 S. W. 
 
 1029. 53 L. R. A. 474.. 211. 
 Baldwin v. Abraham (1901), 67 
 
 N. Y. Supp. 1079, 171 N. Y. 
 
 677, 64 N. E. 1118. .38. 
 Balsley v. St. Louis, etc.. Rail- 
 road (1886), 119 111. 68, 8 N. 
 
 E. 859, 59 Amer. Rep. 784.. 122, 
 
 126. 
 Baltimore v. O'Donnell (1879), 
 
 53 Md. 110, 36 Am. Rep. 395.. 
 93. 139, 141. 
 
 Baltimore, etc., Co. v. Jamar 
 (1901), 93 Md. 404, 49 Atl. 847, 
 86 Amer. St. Rep. 428. .8, 205. 
 
 Baltimore, etc.. Railroad v. 
 Paul (1895), 143 Ind. 23, 40 
 N. E. 519, 28 L. R. A. 216.. 126. 
 
 Barclay v. Puget Sound, etc., 
 Co. (1908), 48 Wash. 241, 93 
 Pac. 430, 16 L. R. A.— N. S. 
 140.. 20, 38. 
 
 Bargv. Bonsfield (1896), 65 Minn. 
 355, 68 N. W. 45.. 13, 19. 
 
 Barham v. Ipswich Dock (1885), 
 
 54 L. T.— N. S. 23.. 75. 
 Barowski v. Schultz (1901), 112 
 
 Wise. 415, 88 N. W. 236.. 200. 
 BarreU v. Singer, etc., Co. (1865), 
 
 1 Sweeny (N. Y.), 545.. 224. 
 Barrow Steamship Co. v. Kane 
 
 (1898), 88 Fed. 197.. 132, 133, 
 
 137, 148. 
 Barry v. City of St. Louis (1852), 
 
 17 Mo. 121.. 50, 53, 139. 
 Barry v. Ferkildsen (1887), 72 
 
 Cal. 254, 15 Pac. 657, 1 Amer. 
 
 St. Rep. 55.. 68, 92.
 
 TABLE OF CASES. 
 
 XV 
 
 [References are to sections.] 
 
 Bartlett v. Baker (1864), 3 Hurl. 
 
 & C. 153.. 217. 
 Hartley v. Trorlicht (1892), 49 
 
 Mo. App 214.. 180, 185. 
 Bast V. Leonard (1870), 15 Minn. 
 
 304.. 19, 174, 230. 
 Battv V. Duxiniry (1852), 24 Vt. 
 
 155.. 141. 
 Bauer v. Rochester (1891), 59 
 
 Hun (N. Y.). 615, 12 N. Y. 
 
 Supp. 418.. 67. 
 Bauer v. St. Louis, etc., Railroad 
 
 (1885), 46 Ark. 388.. 197. 
 
 B.\UMEISTER V. M.XRKHAM (1897), 
 
 101 Kv. 122, 39 S. W. 844, 41 Id. 
 
 816, 72 Amer. St. Rep. 397, 2 
 
 Amer. Neg. Rep. 363.. 171. 
 Baxter v. Warner (1876). 6 Hun 
 
 (N. Y.), 585.. 93. 
 Bav Citv, etc.. Railroad v. Austin 
 
 (1870), 21 Mich. 390.. 118. 
 Bayer v. Railroad Co. (1896), 68 
 
 111. App. 219.. 21, 22. 
 Beatrice, see Citv of. 
 Beattv V. Detroit (1901), 129 
 
 Mich. 20, 88 N. W. 71.. 140. 
 Beattv V. Thileman (1890), 29 N. 
 
 Y. St. Rep. 498, 8 N. Y. Supp. 
 
 640.. 20. 
 Beberich v. Ebach (1890), 131 Pa. 
 
 165. 18 Atl. 1008.. 57, 173, 175, 
 
 176. 
 Beckman v. Meadville, etc.. R. 
 
 (1907), 219 Pa. 26, 67 Atl. 983, 
 
 51 A. & E. R. C— N. S. 224.. 
 
 38. 
 Belknap, The (1873), 2 Low. Dec. 
 
 281, Fed. Cas. 1244.. 38. 
 Bell V. Portland (1876), 2 Vict. 
 
 L. R. 197.. 147. 
 Benian v. Rufford (1851), 1 
 
 Sim.— N. S. 550.. 126. 
 Bemisch v. Roberts (1891), 143 
 
 Pa. St. 1. 21 .^tl. 998.. 110. 
 Benedict v. .Martin (1862), 36 
 
 Barb. (N. Y.). 288.. 50. 
 Benjamin v. Metropolitan Street 
 
 Railroad (1896). 133 Mo. 274. 
 
 34 S. W. 590.. 92. 
 
 Bennett v. Louisville, etc.. Rail- 
 road (1880), 102 U. S. 577. .206. 
 
 Bennett v. Mt. Vernon (1904), 
 124 Iowa, 537, 100 N. W. 349, 16 
 Amer. Neg. R. 612, n..53, 139. 
 
 Bennett v. Truebody (1885), 66 
 Cal. 509, 6 Pac. 329, 56 Am. Rep. 
 117, 13 Am. Neg. C. 517, n..l6, 
 38, 45. 
 
 Benton v. Beattie (1891), 63 Vt. 
 186, 22 Atl. 422.. 
 
 Benton v. Trustees (1885), 140 
 Mass. 13, 54 Amer. Rep. 436.. 
 149. 
 
 Berberick, see Beberich. 
 
 Berg v. Parsons (1898), 156 N. Y. 
 109, 50 N. E. 957, 41 L. R. A. 
 391, 66 Amer. St. Rep. 542, 47 
 Cent. L. J. 237, Burd. C. Torts, 
 406, note, 4 Am. Neg. R. 432, 
 Huff. Cas. Agcy. (2d ed.), 603. . 
 
 19, 65, 67, 69, 73, 90, 164. 165. 
 166, 168. 
 
 Bernaur v. Hartman, etc., Co. 
 (1889), 33 111. App. 491.. 21. 26. 
 
 Bernstein v. Roth (1893), 145 111. 
 189, 34 N. E. 37.. 29. 
 
 Berry v. Ferkildsen. see Barry. 
 
 Bessemer, etc., Co. v. Doak 
 (1907). 151 Ala. 670. 44 So. 627, 
 12 L. R. A.— N. S. 389.. 14. 
 
 Bibb v. Norfolk, etc., Railroad 
 (1890,87 Va. 711, 14 S. E. 167, 
 47 Am. & Eng. R. Cas. 651.. 15, 
 
 20, 25, 11, 168, 206. 
 
 BiCKFORD V. Richards (1891), 154 
 
 Mass. 163, 27 N. E. 1014. 26 
 
 Amer. St. Rep. 224.. 230. 
 Bill V. New York, etc., Co. (1901), 
 
 69 N. Y. Supp. 989.. 21 5. 
 Binnie v. Parlane (1825). 4 Sc. 
 
 Sess. Cas. (1st scr.), 122.. 90. 
 Birmingham v. McCrarv (1887), 
 
 84 Ala. 469, 4 So. 630. 27 Cent. 
 
 L. J. 598.. 65, 93, 141, 145. 
 Bjornsen v. Saccone (1899), 88 
 
 111. App. 6.. 16. 100.
 
 XVI 
 
 TABLE OF CASES. 
 [References are to sections.] 
 
 Black V. Christ Church, etc., Co. 
 
 (1894). A. C. 48, 7 Am. Neg. R. 
 
 158. n..65, 72, 74. 
 Blackstone v. Chelmsford, etc., 
 
 Co. (1898), 170 Mass. 321, 49 N. 
 
 E. 635.. 221, 228. 
 Black-well v. Wiswall (1855), 24 
 
 Barb. (N. Y.), 355.. 15, 126. 
 Bl.\ke v. Ferris (1851), 5 N. Y. 
 
 48, 55 Amer. Dec. 304.. 20. 45, 
 
 50. 72, 73, 91, 93, 100, 168, 184. 
 Blake V. Fox (1892), 17 N. Y. 
 
 Supp. 508.. 106, 109. 
 Blake v. St. Louis (1867), 40 Mo. 
 
 569.. 141. 
 Blake v. Thirst (1863), 2 Hurl. & 
 
 C. 20.. 15, 21. 
 Blake v. Woolf (1898), 2 Q. B. 
 
 426.. 106. 
 Blakemore v. Bristol, etc.. Rail- 
 road (1858), 8 El. & Bl. 1035.. 
 
 183, 224. 
 Blattenberger v. Schuylkill, etc., 
 
 Co. (1839), 2 Miles (Pa.), 309. . 
 
 50. 
 Blessington v. City of Boston 
 
 (1891), 153 Mass. 409, 26 N. E. 
 
 1113.. 69, 115, 142. 
 Bloomfield, etc., Railroad v. Grace 
 
 (1887), 112 Ind. 128, 13 N. E. 
 
 680.. 124. 
 Bloomfield, etc.. Railroad v. Van 
 
 Slike (1886), 107 Ind. 480, 8 N. 
 
 E. 269.. 124. 
 Blumb v. City, etc. (1884), 84 Mo. 
 
 112, 54 Amer. Rep. 87.. 20, 25, 
 
 67, 72, 73. 
 Board, etc., v. AUman (1895), 142 
 
 Ind. 573, 42 N. E. 206. .92, 147. 
 Board, etc., v. Vickers (1900), 62 
 
 Kans. 25, 61 Pac. 391.. 219. 
 Boardman v. Creighton (1902), 
 
 95 Me. 154, 49 Atl. 363.. 70, 97. 
 Bohrer v. Harness Co. (1898), 19 
 
 Ind. App. 489, 45 N. E. 668, 49 
 
 N. E. 296.. 168, 176. 
 Bonaparte v. Wiseman (1899), 
 
 89 Md. 12, Atl. 918, 44 L. R. 
 
 A. 482, Burd. C. 404. .70, 72, 75. 
 
 Boniface v. Relyea (1868), 6 
 
 Robt. 397.. 32. 
 Boomer v. Wilbur (1899), 176 
 
 Mass. 482, 57 N. E. 1004, 53 L. 
 
 R. A. 172, Huff. Cas. Agcy. (2d 
 
 ed.). 600, 8 Am. Neg. R. 246.. 
 
 20, 26, 28, 66, 93, 104. 
 Booth v. Railroad Co. (1893), 140 
 
 N. Y. 267, 35 N. E. 592, 24 L. 
 
 R. A. 105, 37 Am. St. R. 552, 
 
 Burd. C. 717.. 73. 
 Borough, etc.. Depot, see Depot. 
 Boss V. Jarmulowsky (1903), 81 
 
 N. Y. Supp. 400.. 106. 
 Bossence v. Kilmore (1883), 9 
 
 Vict. L. R. 35.. 72. 
 Boston v. Worthington (1858), 
 
 10 Gray (Mass.), 496, 71 Am. 
 
 Dec. 678.. 140. 
 Boswell v. Laird (1857), 8 Cal. 
 
 469, 68 Am. Dec. 345.. 38, 50. 
 
 164, 173, 175. 
 Boucher v. New York, etc., R. 
 
 (1907), 196 Mass. 355, 82 N. E. 
 
 15, 13 L. R. A.— N. S. 1177, 50 
 
 A. & E. Ry. Cas. 1..115, 117. 
 Bower v. Peate (1876), L. R., 1 
 
 Q. B. D. 321, 11 Am. Neg. R. 
 
 645.. 65, 66, 67, 72, 94, 95, 103. 
 Bowers v. Lovekin (1856), 6 El. 
 
 & Bl. 584.. 33. 
 Bowyer v. Anderson (1831), 2 
 
 Leigh, 550.. 38. 
 BoYD V. Chicago, etc., Co. (1905), 
 
 217 111. 332, 75 N. E. 496, 108 
 
 Am. St. 253, 43 A. & E. Ry. 
 
 Cas.— N. S. 154.. 38. 
 Brackett v. Lubke (1862), 4 
 
 Allen (Mass.), 138, 81 Am. 
 
 Dec. 694.. 13, 34, 35, 38, 45, 124. 
 Bradley v. Hartford, etc., Ins. Co. 
 
 (1883), 19 Fed. 246.. 216. 
 Brady v. Chicago, etc., R. Co. 
 (1902), 114 Fed. 100, 57 L. R. 
 
 A. 712. .7, 13. 
 Bragdon v. Perkins, etc., Co. 
 
 (1898), 87 Fed. 109.. 224. 
 Braisted v. Brooklyn, etc., R. 
 (1899), 61 N. Y. Supp. 674. .95.
 
 TABLE OF CASES. 
 [References are to sections.] 
 
 XVU 
 
 Braidwood v. Bonnington, etc., 
 
 Co. (1866), 2 Scot. L. R. 152.. 
 
 97. 
 Brannock v. Elmore (1892), 114 
 
 Mo. 55. 21 S. W. 451.. 73, 90, 
 
 164, 166. 
 Brehm v. Great Western (1861), 
 
 34 Barb. (N. Y.), 256.. 133. 
 Brennan v. Kllis (1893), 70 Hun, 
 
 472, 24 N. Y. Supp. 426.. 107. 
 Brennan v. Gallick ( ), 20 N. 
 
 Y. St. 1023, 30 Abb. N. C. 166. . 
 
 11. 
 Brennan v. Schreiner (1892), 20 
 
 N. Y. Supp. 130, 28 Abb. N. Cas. 
 
 481.. 73. 
 Breslin v. Sparks (1904), 97 App. 
 
 Div. 69, 89 N. Y. Supp. 627.. 7. 
 Breux v. Montreal (1896), 9 
 
 Queb. S. C. 503.. 149. 
 Bright v. B.\rnett, etc., Co. 
 
 (1894), 88 Wis. 299, 60 N. W. 
 
 418, 26 L. R. A. 524.. 208, 230. 
 Brine v. Great Western R. 
 
 (1862), 2 Best. & S. 402. .217. 
 Brooks V. Somerville (1881), 106 
 
 Mass. 271.. 139. 
 Brophy v. Bartlett (1888), 1 Silv. 
 
 Ct. App. (N. Y.), 575.. 29, 182. 
 Broslin v. Kansas City, etc., R. 
 
 (1897), 114 Ala. .398, 21 So. 475, 
 
 9 A. & E. R. C— N. S. 99. .208. 
 Bross V. Carnegie Steel Co. 
 
 ( ), 28 Pitts. L. J.— N. S. 
 
 318.. 219. 
 Brow V. Boston, etc., R. (1892), 
 
 157 Mass. 399, 32 N. E. 362. .6. 
 Brown v. Engineering Co. (1896), 
 
 166 Mass. 75, 34 N. E. 1118, 33 
 
 L. R. A. 605, 55 Am. St. 382. .20. 
 Brown v. McLeish (1887), 71 
 
 Iowa, 381, 32 N. W. 385.. 72. 
 Brown v. Rothwell, etc., Co. 
 
 (1906), 132 Iowa, 631, 110 N. 
 
 W. 12.. 38. 
 Brown v. Smith (1890), 86 Ga. 
 
 274, 12 S. E. 411, 22 Am. St. 
 
 456, 14 Am. Neg. Cas. 80, n..7. 
 
 Brown v. Sullivan (1888), 71 Tex. 
 
 470, 10 S. W. 288.. 196. 
 Brown v. Werner (1873), 40 Md. 
 
 15.. 94. 
 Bruce v. Central M. E. Church 
 
 (1907), 147 Mich. 230, 110 N. 
 
 W. 951, 11 Am. & Eng. Ann. 
 
 Cas. 151, Huff. Cas. Agcy. (2d 
 
 ed.), 686.. 149. 
 Brunswick, etc., Co. v. Bruns- 
 wick, etc., R. (1898,) 106 Ga. 
 
 270, 39 S. E. 92, 71 Am. St. 
 
 249.. 129. 
 Brusso V. Buffalo (1882), 90 N. 
 
 Y. 679.. 139, 141, 145. 
 Buckner v. Richmond, etc., R. 
 
 (1895), 72 Miss. 873, 18 So. 
 
 449.. 126. 
 Buddin V. Fortunato (1890), 10 
 
 N. Y. Supp. 115.. 73. 
 Buffalo V. Clement (1892), 19 N. 
 
 Y. Supp. 846.. 68. 
 
 BUFF.'VLO V. HOLLOW.W (1852), 7 
 
 N. Y. 493, 57 Am. Dec. 550. .70, 
 
 160. 
 Buri5.\nk v. Bethel, etc., Co. 
 
 (1883), 75 Me. 373. 46 Am. R. 
 
 400.. 38. 
 BuRDicK V. Che.\ule (1875), 26 
 
 Oh. St. 393. 20 Am. R. 767.. 
 
 224. 
 Burger v. Philadelphia (1900), 
 
 196 Pa. St. 41. 46 Atl. 262.. 140. 
 Burgess v. Gray (1845), 1 Man. 
 
 G. & S. 578. 1 C. B. 578.. 15, 34, 
 
 GJ, 168. 
 Burke v. DeCastro, etc., Co. 
 
 (1877), 11 Hun (N. Y.), 354.. 
 
 224. 
 Burke v. Ireland (1901), 26 App. 
 
 Div. 487, 50 N. Y. Supp. 369. 
 
 166 N. Y. 305. 59 N. E. 914. .38, 
 
 71, 100, 164, 168. 
 Burke v. Norwich, etc., R. (1867), 
 
 34 Conn. 474, 13 Am. Neg. C. 
 
 662.. 196. 
 Burmester v. New York, etc.. R. 
 
 (1881), 47 N. Y. Supp. Ct. 264.. 
 
 168.
 
 XVIU 
 
 TABLE OF CASES. 
 [References are to sections.] 
 
 Burnes v. Kansas City, etc., R. 
 
 (1895). 129 Mo. 41, 31 S. W. 
 
 347.. 180, 190. 
 Burns v. Cork, etc., R. (1863), 
 
 Irish R., 13 C. L.— N. S. 543.. 
 
 133. 134. 
 Burns v. McDonald (1894), 57 
 
 Mo. App. 599.. 100. 
 Burns v. Michigan Paint Co. 
 
 (1908), 152 Mich. 613, 116 N. 
 
 W. 182, 16 L. R. A.— N. S. 816. . 
 
 38. 
 Burton v. Galveston, etc., R. 
 
 (1884), 61 Tex. 526, 21 A. & E. 
 
 R. Cas. 218.. 7, 19, 21, 118. 
 Bush V. Grant (1901), 22 Ky. Law 
 
 R. 1766, 61 S. W. 363.. 172. 
 Bush v. Steinman (1799), 1 B. 
 
 & P. 404.. 15, 16, 46. 47, 48, re- 
 ported in full.. 49, 50, 51, 53, 72. 
 
 86. 100, 116. 125. 
 BusHBY V. New York, etc., R. 
 
 (1887), 107 N. Y. 374, 14 N. E. 
 
 407, 1 Am. St. R. 844.. 110. 
 Butler V. Bangor (1877), 67 Me. 
 
 385.. 142. 
 Butler V. Hunter (1862), 7 Hurl. 
 
 & N. 826, 8 Am. Neg. R. 301, 
 
 n..72, 94. 97. 
 Butler V. Lewman (1902), 115 
 
 Ga. 752, 42 S. E. 98.. 206. 
 Butler V. Townsend (1891), 126 
 
 N. Y. 105, 26 N. E. 1017.. 188. 
 Butts V. Mackey Co. (1893), 72 
 
 Hun, 562. 25 N. Y. Supp. 531 . . 
 
 20, 107, 168. 
 Butts V. Mackcv Co. (1895), 147 
 
 N. Y. 715, 42 N. E. 722.. 107, 
 
 168. 
 Bvrnes v. Western (1896), 17 
 
 New South Wales L. R. 80.. 26. 
 
 Cabot v. Kingman (1896), 166 
 Mass. 403, 44 N. E. 344. 33 L. 
 R. A. 45.. 85. 
 
 Cairo, etc., R. v. Woolsey (1877), 
 85 III. 370.. 124. 
 
 Caldwell v. New Jersey, etc., Co. 
 
 (1872), 47 N. Y. 282.. 133. 
 Callahan v. Burlington, etc., R. 
 
 (1867), 23 Iowa, 562.. 24, 52, 
 
 116. 
 Callahan v. Phillips Academy 
 
 (1901), 180 Mass. 183, 62 N. E. 
 
 260.. 100. 
 Callan v. Bull (1896), 113 Cal. 
 
 593, 45 Pac. 1017. .20, 22. 
 Callan v. Pugh (1900), 54 App. 
 
 Div. 545, 66 N. Y. Supp. 1118.. 
 
 203, 207. 
 Camblin v. Phila., etc., R. (1907), 
 
 218 Pa. 54, 66 Atl. 977, 50 A. & 
 
 E. R. Cas.— N. S. 160.. 117. 
 Cameron v. Eraser (1881), 9 Sc. 
 
 Sess. Cas. (4th ser.), 26.. 95. 
 Cameron v. Nystrom (1893), A. 
 
 C. 308.. 31. 
 Cameron v. Oberlin (1897), 19 
 
 Ind. App. 142, 48 N. E. 386. .72, 
 
 74, 95. 
 Cameron v. Vandegrifif (1892), 53 
 
 Ark. 381, 13 S. W. 1092.. 221, 
 
 223. 
 Cameron, etc., Co. v. Anderson 
 
 (1904). 98 Tex. 156, 81 S. W. 
 
 282, 1 L. R. A.— N. S. 198, 16 
 
 Am. Neg. R. 599, 608. .45, 79, 
 
 93. 
 Camp V. Church Wardens, etc. 
 
 (1852), 7 La. Ann. 321.. 23. 
 Campbell v. Lunsford (1887), 83 
 
 Ala. 512. 3 So. 522.. 38. 
 Capital Electric Co. v. Hauswald 
 
 (1898), 78 111. App. 359.. 115, 
 
 126. 
 Carey v. Courcell (1865), 17 La. 
 
 Ann. 108.. 176, 230. 
 Cargill V. Duffy (1903), 123 Fed. 
 
 721.. 27, 38. 
 Carlson v. Stocking (1895), 91 
 
 Wis 432, 65 N. W. 58.. 19, 67, 
 
 72, 74. 
 Carmen v. Steubenville, etc., R 
 (1854), 4 Oh. St. 399.. 73, 124. 
 Carrico v. Railroad Co. (1891), 
 
 35 W. Va. 389, 14 S. E. 12.. 70, 
 
 131, 133, 134.
 
 TABLE OF CASES. 
 
 XIX 
 
 [References are to sections.] 
 
 Carrico v. Railroad Co. (1894), 
 
 39 W. Va. 86, 19 S. E. 571, 24 
 
 L. R. A. 50.. 19, 70, 131, 133, 
 
 134. 
 Carroll v. Staten Island Rail- 
 road (1874), 58 N. Y. 126, 17 
 
 Am. Rep. 221.. 133. 
 Carroll v. Plympton (1860) , 9 
 
 Upp. Can. C. P. 345.. 74. 
 Carter v. Berlin Mills (1876), 
 
 58 N. H. 52, 42 Am. R. 572. .38, 
 
 73, 97. 
 Carty v. London (1889), 18 Ont. 
 
 R. 122.. 140. 
 Cary v. Chicago (1895), 60 111. 
 
 App. 341.. 20. 
 Case, etc.. Works v. Niles, etc., 
 
 Co. (1895), 90 Wis. 590, 63 N. 
 
 W. 1013.. 224. 
 Casement v. Brown (1893), 148 
 
 U. S. 615.. 16. 22, 23, 168. 
 C.\TTERLiN V. Frankfort (1881), 
 
 79 Ind. 547, 41 Am. R. 677.. 140. 
 Central, etc., Co. v. Bailey (1903), 
 
 28 Ky. L. R. 873. 76 S. W. 
 
 842.. 208. 
 Central, etc., Co. v. Grider 
 
 (1903). 115 Ky. 745, 74 S. W. 
 
 1058. 65 L. R. A. 455, 16 Am. 
 
 Neg. R. 610. n..l 72. 208. 
 Central Railroad v. Grant (1872), 
 
 46 Ga. 417, 14 Am. Neg. Cas. 
 
 212, n..35, 116. 
 Central Railroad v. Passmore 
 
 (1892), 90 Ga. 203, 15 S. E. 
 
 760.. 197. 
 Central, etc.. Railroad v. Morris 
 
 (1887), 68 Tex. 59, 3 S. W. 
 
 457.. 126. 
 Central, etc.. Railroad v. Wood 
 
 (1901). 129 Ala. 483, 29 So. 
 
 775 . . 126. 
 Central Transportation Co. v. 
 
 Pullman, etc., Co. (1891), 139 
 
 U. S. 62, 11 Sup. Ct. 478.. 126. 
 Chapin v. Holvoke, etc., Assn. 
 
 (1896), 165 Mass. 280, 42 N. 
 
 E. 1130.. 149. 
 
 Chapman v. Parlane (1825), 3 Sc. 
 
 Sess. Cas. (1st ser.), 585.. 90. 
 Charlebois v. Railroad Co. (1892), 
 
 91 Mich. 59. 51 N. W. 812.. 119. 
 Charles v. Taylor (1878), L. R., 
 
 3 C. P. D. 492.. 29. 
 Charlock v. Freel (1891), 125 N. 
 
 Y. 357, 26 N. E. 262.. 19, 27, 
 
 218, 222. 
 Charticrs, etc., Co. v. Lynch 
 
 (1888), 118 Pa. St. 362, 12 Atl. 
 
 435.. 76, 175. 
 Chartiers, etc., Co. v. Waters 
 
 (1888), 123 Pa. St. 220, 16 Atl. 
 
 423.. 86. 
 Chattahoochee, etc., Co. v. Bres- 
 
 well (1893), 92 Ga. 631, 18 S. 
 
 E. 1015.. 8. 
 Chattahoochee, etc., R. v. Behr- 
 
 man (1903), 136 Ala. 508, 25 
 
 So. 132.. 66. 
 Chattahoochee, etc., R. v. Zeber- 
 
 man (1903), 136 Ala. 132, 30 
 
 A. & E. R. C— N. S. 929.. 69. 
 Chattanooga, etc., R. v. Whiteland 
 
 (1892), 89 Ga. 190, 15 S. E. 
 
 44.. 118. 
 Chattanooga, etc., R. v. Liddell 
 
 (1890). 85 Ga. 482, 11 S. E. 
 
 853, 8 R. & Corp. L. J. 296, 21 
 
 Am. St. R. 169.. 118. 
 Cheetham v. Hampton (1791), 4 
 
 Tenn. 318. 
 Chesapeake, etc., Co. v. Alle- 
 ghany Co. (1881). 57 Md. 201, 
 
 40 Am. R. 430. .92. 
 Chicago V. Dermody (1871), 61 
 
 111. 431, 14 Am. Neg. Cas. 418, 
 
 n..l9, 97. 
 Chicago v. Murdock (1904), 212 
 
 III. 9, 7 N. E. 46, 103 Am. St. 
 
 R. 221.. 24, 115, 139. 
 Chicago V. Norton, etc., Co. 
 
 (1900), 97 111. App. 651; (1902), 
 
 196 111. 580, 63 N. E. 1043.. 85. 
 Chicago V. Robbins (1862), 2 
 
 Black (U. S.), 418.. 65, 66, 67, 
 
 91, 93, 205.
 
 XX 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Chicago, etc., Co. v. Campbell 
 (1904), 116 111. App. 322. .30, 38. 
 Chicago, etc.. Co. v. La Mantion 
 (1904), 112 111. App. 43.. 215, 
 219. 
 Chicago, etc., Co. v. Moren 
 (1900), 185 111. 571, 57 N. E. 
 773.. 198. 
 Chicago, etc., Co. v. Myers 
 (1897), 168 111. 139, 48 N. E. 
 66. .30, 72, 76, 115, 168. 
 Chicago, etc., Co. v. Stanford 
 
 (1902). 105 111. App. 99.. 126. 
 Chicago, etc., R. v. Clark (1889). 
 26 Nebr. 645, 42 N. W. 703.. 
 171. 
 Chicago, etc., R. v. Eaton 
 (1902), 194 111. 441, 62 N. E. 
 784, 88 Am. St. 161.. 189. 
 Chicago, etc., R. v. Ferguson 
 (1893), 3 Colo. App. 414, 33 
 Pac. 684, 13 Am. Neg. Cas. 
 647, n . . 124. 
 Chicago, etc., R. v. Hart (1902), 
 
 104 111. App. 57.. 126. 
 Chicago, etc., R. v. Hennessey 
 (1884), 16 111. App. 153.. 71, 
 102. 
 Chicago, etc., R. v. Hutchinson 
 (1891), 45 Kans. 186. 25 Pac. 
 576.. 123. 
 Chicago, etc., R. v. LaMantie, see 
 
 Chicago, etc., Co. 
 Chicago, etc., Co. v. McCarthy 
 (1858), 20 111. 385, 71 Am. Dec. 
 285.. 19, 124. 
 Chicago, etc., R. v. Moranda 
 (1879), 93 111. 314, 34 Am. R. 
 168.. 46. 
 Chicago, etc., R. v. Meech (18%), 
 163 III. 305, 45 N. E. 220.. 126. 
 Chicago, etc., R. v. Schmitz 
 (1904), 211 111. 446, 71 N. E. 
 1050.. 126. 
 Chicago, etc., R. v. Watkins 
 (1890), 43 Kans. 50, 22 Pac. 
 985, 40 A. & E. R. Cas. 499. .124. 
 Chicago, etc., R. v. Whipple 
 (1859), 22 111. 105.. 122, 124, 
 126. 
 
 Chicago, etc., R. v. Yarbrough 
 (1896, Tex. Civ. App.), 35 S. 
 W. 422.. 118. 
 Choctaw, etc., R. v. Wilker 
 (1906), 16 Okla. 384, 84 Pac. 
 1086, 3 L. R. A.— N. S. 595, 
 46 A. & E. Ry. Cas. 759.. 124, 
 175, 176. 
 Church v. Chicago, etc., R. 
 (1892), 50 Minn. 218, 52 N. W. 
 647, Huff. Cas. Agcy. (2d ed.), 
 639, 16 L. R. A. 861.. 9. 
 Church, etc., v. Buckhart (1842), 
 
 3 Hill (N. Y.), 193.. 149. 
 Church, etc., v. Paterson, etc., 
 R. (1901), 66 N. J. L. 218, 49 
 Atl. 1030, 55 L. R. A. 81; 
 (1903), 68 N. J. L. 399, 53 Atl. 
 449, 1079.. 163. 
 Chute V. Moeser (1908), 11 Kans. 
 
 706, 95 Pac. 398. .38. 
 Cincinnati v. Stone (1855), 5 Oh. 
 
 St. 38.. 15, 19, 22. 
 Cincinnati, etc., R. v. Finnell 
 (1900), 108 Ky. 135, 55 S. W. 
 902, 57 L. R. a. 266.. 9. 
 Circleville v. Neuding (1885), 41 
 
 Oh. St. 465.. 93, 139, 141. 
 City of Beatrice v. Reid (1894), 
 41 Nebr. 214, 59 N. W. 770.. 53, 
 67, 141. 
 City of Chicago v. Joney (1871), 
 60 111. 383, 14 Am. Neg. Cas. 
 418, n..l9, 21. 
 City of Independence v. Slack 
 (1895), 134 Mo. 66, 34 S. W. 
 1094.. 92, 97. 
 City of Ironton v. Kelley (1882), 
 
 38 Oh. St. 50.. 141. 
 City of Richmond v. Long 
 (1867), 17 Graft. (Va.), 375, 94 
 Am. Dec. 461.. 149. 
 City of San Antonio, The (1905), 
 135 Fed. 879, 143 Fed. 955 
 (1906).. 
 City of Sterling v. Schiffmacher 
 
 (1892), 47 III App. 141.. 141. 
 City of Tiffin v. McCormack 
 (1878), 34 Oh. St. 68, 32 Am. 
 Rep. 408.. 35.
 
 TABLE OF CASES, 
 
 XXI 
 
 [References are to sections.] 
 
 City, etc., St. R. Co. v. Moores 
 
 (1894), 80 Md. 348, 30 Atl. 643, 
 
 45 Am. St. 345.. 72, 85. 
 Clapp V. Kemp (1877), 122 Mass. 
 
 481.. 18, 45. 
 Clare v. National, etc., Bank 
 
 (1875), 8 Jones & Sp. 104. .22. 
 Clark V. Chicago, etc., R. (1879), 
 
 92 111. 43.. 197. 
 Clark v. Fry (1858), 8 Oh. St. 
 
 358, 72 Am. Dec. 590. .65, 67, 
 
 70, 100, 168. 
 Clark V. Hannibal, etc., R. (1865), 
 
 36 Mo. 202.. 52, 85, 115, 124. 
 Clark V. Railroad Co. (1854), 28 
 
 Verm. 103.. 45, 116. 
 Clark V. St. Louis, etc., R. ( , 
 
 Ark.), 44 Am. & Eng. R. C— 
 
 N. S. 39.. 123. 
 Cleadon, The (1860), 14 Moo. P. 
 
 C. C. 97.. 38. 
 Cleghorn v. Taylor (1856), 18 Sc. 
 
 Sess. Cas. (2d ser.), 664.. 16, 
 
 176. 
 Clement v. Canfield (1856), 28 
 
 Vt. 302.. 126. 
 Clevel.vnd, etc., R. v. Berry 
 
 (1899), 152 Ind. 607, 53 N. E. 
 
 415, 46 L. R. A. 38.. 180. 
 Clevel.\nd, etc., R. v. Walrath 
 
 (1882), 38 Oh. St. 461, 43 Am. 
 
 R. 433.. 135. 
 Clothier v. Webster (1862), 12 C. 
 
 B.— N. S. 790.. 216, 217. 
 Cloud Co. V. Vickers (1900), 62 
 
 Kans. 25, 61 Pac. 391.. 163. 
 Coal Run, etc., Co. v. Strawn 
 
 (1884), 15 III. App. 347.. 38. 
 Coates V. Chapman (1900), 195 
 
 Pa. 109, 45 Atl. 676.. 196. 
 CoGGiN V. Central R. (1879), 62 
 
 Ga. 685, 35 Am. R. 132.. 7. 
 Cogswell V. West St., etc., R. 
 
 (1892), 5 Wash. 46. 31 Pac. 
 
 411.. 126. 
 Cohen v. Simmons (1892), 66 
 
 Hun, 634, 21 N. Y. Supp. 385.. 
 
 95. 
 
 Cole V. Louisiana, etc., Co. (1908), 
 
 121 La. 771, 46 So. 801.. 30. 
 Coleman v. State (1892), 134 N. 
 
 Y. 564, 31 N. E. 902.. 69. 
 Coleridge, The (1896), 72 Fed. 
 
 676 (Cf. Saunders v. C.)..7. 
 CoLGROVE V. Smith (1894), 102 
 
 Cal. 220, 36 Pac. 411, 27 L. R. 
 
 A. 590. .65, 72, 85. 
 Collins V. N. Y., etc., Med. Soc. 
 
 (1901), 59 N. Y. App. Div. 63, 
 
 69 N. Y. Supp. 106.. 149. 
 Collis V. Selden (1868), L. R., 3 
 
 C. P. 495.. 224. 
 Columbus, etc., R. v. Arnold 
 
 (1869), 31 Ind. 177, 99 Am. 
 
 Dec. 615.. 165. 
 Congregation v. Smith (1894), 
 
 163 Pa. St. 561, 30 Atl. 279, 43 
 
 Am. St. Rep. 808. 26 L. R. A. 
 
 504, 39 Cent. L. J. 452.. 19, 173, 
 
 175, 228. 
 Congreve v. Smith (1858), 18 N. 
 
 Y. 79, Chase C. Torts, 180.. 67, 
 
 68, 92. 
 Conlin V. Charleston (1868), 15 
 
 Rich. L. 201.. 50, 182. 
 Conlon V. Eastern, etc., R. (1883), 
 
 135 Mass. 195, 15 A. & E. R. 
 
 Cas. 99.. 193. 
 Connell)' v. Boothby, etc., Co. 
 
 (1899), 190 Pa. St. 553, 42 Atl. 
 
 1024.. 7. 
 Connelly v. Faith, see Connelly v. 
 
 Boothbv. 
 Connelly "v. Rist (1897), 45 N. Y. 
 
 Supp. 321.. 206. 
 Connor v. Pennsylvania R. 
 
 (1904), 24 Pa. Super. Ct. 241.. 
 
 3S. 
 Connor v. Sisters, etc. (1900), 10 
 
 Ohio Dec. 86, 7 Ohio— N. P. 
 
 514.. 149. 
 Connors v. Hennessey (1873), 112 
 
 Mass. 96.. 72, 95, 164. 
 Connors v. Great Northern, etc., 
 
 Co. (1904), 90 App. Div. 311, 
 
 85 N. Y. Supp. 644.. 9.
 
 XXll 
 
 TABLE OF CASES. 
 [References are to sections.] 
 
 Consolidated, etc., Co. v. Kiehl 
 
 (1901), 190 111. 145, 60 N. E. 
 
 87, 16 Am. Neg. R. 613, n..7. 
 Consolidated, etc., Co. v. Keifer 
 
 (1890). 134 111. 481, 25 N. E. 
 
 799. 10 L. R. A. 696, 23 Am. 
 
 St. 688.. 204. ^ 
 
 Consolidated, etc., Co. v. Seniger 
 
 (1899). 179 111. 370. 53 N. E. 
 
 733.. 27. 
 Conway v. Furst (1895), 57 N. 
 
 J. L. 645, 32 Atl. 380.. 185, 193. 
 Coon V. S3-racuse, etc., R. (1849), 
 
 6 Barb. 231.. 46. 
 
 Cooper v. Seattle (1897), 16 
 
 Wash. 462. 47 Pac. 887. 58 Am. 
 
 St. 46.. 19. 168. 
 CoRBiN V. Mills (1858). 27 Conn. 
 
 274, 71 Am. Dec. 63.. 19, 34. 
 Cork v. Blossom (1894), 162 
 
 Mass. 330, 38 N. E. 495, 26 
 
 L. R. A. 256, 44 Am. St. Rep. 
 
 362.. 104. 176. 
 Corrigan v. Elsinger (1900), 81 
 
 Minn. 42, 83 N. W. 492.. 18, 
 
 19, 20. 
 Costigan, Ex parte (1884). Newf. 
 
 R. 414.. 36. 
 Cotton v. Lindgen (1895), 106 
 
 Cal. 602, 39 Pac. 939, 46 Am. 
 
 St. 255.. 7. 
 Coughlin V. Cambridge (1896), 
 
 166 Mass. 268. 44 N. E. 218.. 7. 
 Coughlin V. Gillison (1898), 68 
 
 L. J. Q. B.— N. S. 147.. 183. 
 CouGHTRY V. Globe, etc., Co. 
 
 (1874), 56 N. Y. 124, 15 Am. 
 
 R. 387.. 98, 99. 230. 
 Covington v. Gevler (1891), 93 
 
 Ky. 275, 19 S. W. 741.. 20. 
 Covington, etc.. Co. v. Stein- 
 
 BROCK (1899), 61 Oh. St. 215, 55 
 
 N. E. 618, 76 Am. St. Rep. 375, 
 
 7 Am. Neg. R. 154. .65, 66, 72, 
 85, 94, 95. 
 
 Cox v. Central, etc., R. (1898), 
 170 Mass. 129, 49 N. E. 97, 9 
 Am & Eng. R. Cas.— N. S. 
 591.. 74. 
 
 Cox V. Mason (1903). 89 N. Y 
 
 App. Div. 219, 85 N. Y. Supp. 
 
 973.. 224. 
 Coyle V. Pierrepont (1885), 37 
 
 Hun, 379.. 210. 
 Craft V. Albemarle, etc., Co. 
 
 (1903), 132 N. C. 151, 43 S. E. 
 
 597, 30 A. & E. Rv. Cas.— N. S. 
 
 84, 16 Am. Neg. R. 615, n..26. 
 Craig V. Inhabitants (1908, 
 
 Mass.), 85 N. E. 855.. 141. 
 Crane Elevator Co. v. Lippert 
 
 (1894), 63 Fed. 942, 11 C. C. 
 
 A. 521.. 227. 
 Crawford v. Maxwell (1842), 3 
 
 Humph. (Tenn.), 476.. 215. 
 Crawford v. Peel (1887), Ir. L. 
 
 R., 20 C. P. 332.. 86, 87. 
 Crawford v. The Wells City 
 
 (1889), 38 Fed. 47.. 196. 
 Creed v. Hartman (1864), 29 N. 
 
 Y. 591. 86 Am. Dec. 341.. 67, 
 
 68, 92, 230. 
 Crenshaw v. UUman (1893), 113 
 
 Mo. 633, 20 S. W. 1077.. 70, 92, 
 
 95, 168. 
 Crisler v. Ott (1894), 72 Miss. 
 
 166, 16 So. 41 6.. 69. 
 Cross V. Koster (1897, N. Y. App. 
 
 Div.), 3 Am. Neg. R. 256. .79. 
 Crudup V. Schreiner (1901), 98 
 
 111. App. 337.. 65. 
 Crusselle v. Pugh (1881), 67 Ga. 
 
 430, 44 Am. R. 724.. 38, 106. 
 Cuff v. Railroad Co. (1870), 35 
 
 N. J. L. 17, 10 Am. R. 205, 16 
 
 Am. Neg. Cas. 668, n..45, 51, 
 
 57, 65, 67, 72, 73, 90, 164. 
 Cullom v. McKelvey (1898), 49 
 
 N. Y. Supp. 669.. 20. 
 Cummins v. City of Seymour 
 
 (1881), 79 Ind. 491.. 92. 
 Cunningham v. International 
 
 Railroad (1879), 51 Tex. 503, 
 
 32 Am. R. 632.. 18, 116, 118. 
 Cunningham v. Syracuse, etc., Co. 
 
 (1897). 20 App. Div. 171. 46 
 
 N. Y. Supp. 954.. 7. 
 Currier v. Lowell (1834), 16 
 
 Pick. 170.. 141.
 
 TABLE OF CASES. 
 
 xxm 
 
 [References are to sections.] 
 
 CuRTiN V. Somerset (1891), 140 
 
 Pa. St. 70, 21 Atl. 244, 12 L. 
 
 R. A. 322, 23 Am. St. Rep. 
 
 220.. 173, 224, 228. 
 Curtis v. Kiley (1891), 153 
 
 Mass. 123, 26 N. E. 421, Burd. 
 
 Cas. Torts. 403.. 67, 69, 75, 93, 
 
 98, 106, 107, 115, 183. 
 Cuthbertson v. Parsons (1852), 
 
 12 C. B. 304.. 38. 
 
 Daegling v. Gilmore (1868), 49 
 
 111. 248, 14 Am. Neg. Cas. 416. . 
 
 219. 
 Dagcnais v. Haule (1897, Queb.), 
 
 11 C. S. 225.. 34. 
 Dale V. Hill, etc., Co. (1904), 108 
 
 Mo. App. 90, 82 S. W. 1092.. 
 
 196. 
 Daley v. Boston, etc., R. (1888), 
 
 147 Mass. 101, 16 N. E. 690. .38. 
 Dallas, etc., R. v. Able (1888), 72 
 
 Tex. 150, 9 S. W. 871, 37 A. & 
 
 E. R. Cas. 453.. 118. 
 Dalton V. Angus (1881), 6 App. 
 
 C. 829. 7 Am. Neg. R. 157, n.. 
 
 65, 97, 160. 
 Dalton V. Bachelor (1857), 1 
 
 Post. & F. 15.. 38. 
 Dalvell V. Tvrer (1858). 28 Law 
 
 J., Q. B. 52.. 57. 
 Dane v. Cochrane, etc., Co. 
 
 (1895), 164 Mass. 453, 41 N. E. 
 
 678.. 35. 
 Daniel v. Metropolitan R. (1871), 
 
 L. R.. 5 H. L. 63.. 72. 
 Darmstaetter v. Moynahan (1873), 
 
 27 Mich. 188.. 34, 91. 
 Daugherty v. Herzog (1896), 145 
 
 Ind. 255, 44 N. E. 457, 57 Am. 
 
 St. Rep. 204, 32 L. R. A. 837.. 
 
 224, 228. 
 Davie v. Levy (1887), 39 La. 
 
 Ann. 551, 2 So. 395. 4 Amer. 
 
 St. Rep. 225.. 66, 67, 70, 168. 
 Davis v. Central Cong. Society 
 (1880), 129 Mass. 367, 37 Am. 
 
 R. 368.. 149. 
 
 Davis v. Summerfield (1903), 
 133 N. C. 325, 45 S. E. 654. 63 
 L. R. A. 492. 92 Amer. St. Rep. 
 225, 16 Am. Neg. R. 611, n..65, 
 95. 
 Davison v. Shanahan (1892), 93 
 
 Mich. 486. 53 N. W. 624. .95. 
 Davoust v. City, etc. (1906), 149 
 
 Cal. 69, 84 Pac. 760, 9 Am. & 
 
 Eng. Ann. C. 847.. 38. 
 Dayton v. Pease ( ), 8 Oh. 
 
 St. 80.. 70. 
 Decola v. Cowan (1906), 102 Md. 
 
 551, 62 Atl. 1026. .29. 
 Deford v. State (1868), 30 Md. 
 
 179.. 15, 67, 100, 164. 
 DeForest v. Wright (1852), 2 
 
 Mich. 368. .38. 45, 50. 
 Delaware, etc., R. v. Hardy 
 
 (1896). 59 N. J. L. 35, 34 Atl. 
 
 986, 16 Am. Neg. Cas. 658, n.. 
 
 6,7. 
 Delaware, etc., R. v. Trautwein 
 
 (1890), 52 N. J. L. 169, 41 Atl. 
 
 178, 7 L. R. A. 435. 7 R. & 
 
 Corp. L. J. 316, 19 Amer. St. 
 
 Rep. 442.. 132. 
 Delnionico v. New York (1848), 
 
 1 Sandf. S. C. (N. Y.), 222.. 53. 
 Delory v. Blodgett (1904). 185 
 
 Mass. 126, 69 N. E. 1078, 64 L. 
 
 R. A. 114.. 7. 
 Deming v. Terminal Co. (1900), 
 
 63 N. Y. Snpp. 615, 49 N. Y. 
 
 App. Div. 493, Huff. Cas. Agcy. 
 
 (2d ed.), 608.. 87, 93. 
 Denver v. Rhodes (1886), 9 Colo. 
 
 554, 13 Pac. 729.. 19. 
 Denver, etc., R. v. Gustafson 
 
 (1895), 21 Colo. 393, 41 Pac. 
 
 505.. 6. 
 Depot v. Simmons (1886), 112 
 
 Pa. St. 384. 5 Atl. 434, 56 Am. 
 
 Rep. 31 7.. 140. (See Susque- 
 hanna Depot V. Simmons.) 
 Detroit v. Corey (1861), 9 Mich. 
 
 165, 80 Am. Dec. 78.. 13, 20, 34, 
 
 93. 161. 
 Devlin v. Smith (1887). 89 N. 
 
 Y. 470, 42 Am. Rep. 311.. 110, 
 
 183, 184, 188, 193, 228, 230.
 
 XXIV 
 
 TABLE OF CASES. 
 [References are to sections.] 
 
 Devo V. Kingston, etc.. R. (1904), 
 
 88 N. Y. Supp. 487.. 150. 
 Dickson v. Hollister (1889), 123 
 Pa. St. 431, 16 Atl. 484, 10 Am. 
 St. Rep. 533.. 21. 
 Diethers v. St. Paul, etc., Co. 
 (1902), 86 Minn. 474, 91 N. W. 
 15.. 6. 
 Dillon V. Hunt (1884), 82 Mo. 
 
 155.. 67, 94, 166. 
 Dillon V. Hunt (1891), 105 Mo. 
 154, 16 S. W. 516, 24 Am. St. 
 374.. 67. 
 Dillon V. Sixth Avenue R. (1884), 
 
 97 N. Y. 627.. 70. 
 Dixon v. Chicago, etc., R. 
 (1891), 109 Mo. 413, 19 S. W. 
 412, 18 L. R. A. 792.. 196. 
 Donaldson v. Commissioners 
 (1890), 30 New Bruns. 279.. 
 149. 
 Donnellv v. Boston, etc., Ceme- 
 tery (1888). 146 Mass. 163, 15 
 N. E. 505.. 149. 
 Donovan v. Long (1893), 1 Q. 
 B. D. 629, Hufif. Cas. Agcy. 
 (2d ed.), 615, Burd. C. Torts, 
 409.. 7. 
 Donovan v. Transit Co. (1894), 
 102 Cal. 245, 36. Pac. 517. .58, 
 130. 134. 
 Doolan v. Midland R. (1877), L. 
 
 R., 2 App. C. 792.. 136. 
 DooLEY V Sullivan (1887), 112 
 Ind. 451, 14 N. E. 566, 2 Amer. 
 St. Rep. 209.. 92, 142. 
 Doran v. Flood (1891), 47 Fed. 
 
 543.. 93, 105, 222. 
 Dorrity v. Rapp (1878), 72 N. 
 Y. 307.. 86. 
 
 Dorse v. Fisher ( ), 10 Ohio 
 
 Dec. 163.. 106. 
 Dougherty Co. v. Newsom (1899), 
 107 Ga.' 811, 33 S. E. 660.. 161. 
 Downes v. Harper Hospital 
 (1894), 101 Mich. 555, 60 N. 
 W. 42, 45 Am. St. 427.. 149. 
 Downey v. Lowe (1897), 22 N. 
 Y. App. Div. 460, 48 N. Y. 
 Supp 207.. 87, 90, 92. 
 
 Drake v. Seattle (1902), 30 
 Wash. 81, 70 Pac. 231, 94 Am. 
 St. Rep. 844.. 141. 
 Drennan v. Grady (1897), 167 
 
 Mass. 415, 45 N. E. 741.. 206. 
 Drennan v. Smith (1896). 115 
 
 Ala. 396, 22 So. 442.. 181. 
 Drennon v. Patton, Worsham, etc., 
 Co. (1908), Tex. Civ. App., 109 
 S. W. 218.. 16, 38. 
 Dresden, The (1894), 62 Fed. 
 
 438.. 148. 
 Dressell v. Kingston (1884), 32 
 
 Hun, 533.. 67. 
 DriscoU v. Humes, etc., Co. 
 (1908, R. L), 69 Atl. 766.. 196. 
 Driscoll v. Norwich, etc., R. 
 (1894), 65 Conn. 230, 32 Atl. 
 354.. 126. 
 Driscoll v. Towle (1902), 181 
 Mass. 416, 63 N. E. 922, Huff. 
 Cas. Agcv. (2d ed.), 618.. 7, 20, 
 29, 38. 126. 
 Dublin v. Taylor, etc., R. (1899), 
 
 92 Tex. 535, 50 S. W. 120.. 
 Duchemin v. Board, etc., (1880), 
 
 Newf. 236.. 14L 
 Duer v. Consolidated Gas Co. 
 (1903), 86 App. Div. 14, 83 N. 
 Y. Supp. 714.. 70, 95. 
 Duncan v. Anderson (1876), 56 
 Ga. 398.. 28. 
 
 Duncan v. Findlater ( ), 6 
 
 Clark & F. 894.. 49. 
 Duncan v. Magistrates, etc. (1877, 
 Ct. of Sess.), 14 Scot. L. R. 
 603.. 126, 134. 
 Dunleavy v. Sullivan (1908, 
 
 Mass.), 85 N. E. 866.. 184. 
 Dunton v. Niles (1892), 95 Cal. 
 494, 30 Pac. 762.. 19. 
 , DuPratt V Lick (1869), 38 Cal. 
 691.. 15. 
 Dutton v. Amesbury Natl. Bank 
 (1902), 181 Mass. 154, 62 N. E. 
 405, Huff. Cas. Agcy. (2d ed.), 
 591.. 29, 35, 50. 
 
 DWINNELLE V. NeW YoRK, ETC., 
 
 R. (1890), 120 N. Y. 117, 24 
 N. E. 319, 8 L. R. A. 224, 17 
 Amer. St. Rep. 611.. 133, 135.
 
 TABLE OF CASES. 
 
 XXV 
 
 [References are to sectlons.l 
 
 Dwyer v. National Steamship Co. 
 (1880), 17 Blatchf. 472, 4 Fed. 
 493.. 210. 
 
 Earl V. Beadleston (1877), 10 
 
 Jones & S. (N. Y.), 294. .66, 94. 
 Earl v. Lubbock (1905), 1 K. 
 
 B. 253, 1 Amer. & Eng. Ann. 
 
 Cas. 753.. 160, 224, 230. 
 East Anglian R. v. Eastern 
 
 Counties R. (1851), 11 C. B. 
 
 775, 7 Eng. R. & Corp. Cas. 
 
 150.. 126. 
 Easter v. Hall (1901). 12 Wash. 
 
 160, 40 Pac. 728.. 78. 
 East Line, etc., R. v. Culberson 
 
 (1888), 72 Tex. 375, 10 S. W. 
 
 706, 13 Amer. St. Rep. 805, 3 
 
 L. R. a. 567.. 126, 205. 
 East Line, etc., R. v. Lee (1888), 
 
 71 Tex. 538, 9 S. W. 604.. 126. 
 Easton, etc.. Congregation, see 
 
 Congregation, etc. 
 East St. Louis v. Giblin (1878), 
 
 3 111. App. 219.. 34. 
 East St. Louis v. Murphy (1899), 
 
 89 111. App. 22.. 143. 
 Eaton v. Railway Co. (1871), 
 
 59 Me. 520, 8 Amer. Rep. 430. . 
 
 36, 45, 52, 97, 116, 168. 
 Eblin V. Miller (1880), 78 Ky. 
 
 371 . . 106. 
 Eby V. Lebanon Co. (1895), 166 
 
 Pa. 632, 31 Atl. 332.. 147. 
 Eckman v. Lauer (1897), 67 
 
 Minn. 221, 69 N. W. 893.. 223. 
 Edmundson v. Pittsburg, etc., R. 
 
 (1885), 111 Pa. St. 316, 2 Atl. 
 
 404, 23 A. & E. R. Cas. 423. .52, 
 
 72>, 116. 
 Edw. Thompson Co. v. Clark 
 
 (1904), 109 N. Y. Supp. 700.. 
 
 13. 
 EiGHMY V. Union Pacific R. 
 
 (1895), 93 Iowa, 538, 61 N. W. 
 
 1056, 27 L. R. A. 296.. 149. 
 Eldred v. Mackie (1901), 178 
 
 Mass. 1, 59 N. E. 673.. 22, 100, 
 
 169. 
 
 Elliott V. Concord (1853), 27 N. 
 
 H. 204.. 141. 
 Elliott v. Pray (1865), 10 Allen, 
 
 378, 87 Amer. Dec. 653. .99. 
 Ellis v. Sheffield Gas Co. 
 
 (1853), 2 Ell. & B. 767.. 65, 67, 
 
 68, 69, 70. 
 Elton, The (1906), 142 Fed. 367, 
 
 73 C. C. A. 467.. 7. 
 Emmerson v. Fav (1896), 94 Va. 
 
 60. 26 S. E. 386. .28, 29, 34, 93, 
 
 140. 
 Empire, etc., Co. v. Brady (1896), 
 
 164 111. 58, 45 N. E. 486.. 224. 
 Engel v. Eureka Club (1893), 
 
 137 N. Y. 100, 32 N. E. 1052, 33 
 
 Amer. St. Rep. 695, Huff. Cas. 
 
 Agcy. (2d ed.), 599, n..65, 72, 
 
 79, 100, 103, 104. 
 Englar v. Seattle (1905), 40 
 
 Wash. 72, 82 Pac. 136, 19 Am. 
 
 Neg. R. 49.. 196. 
 Erie v. Calkins (1877), 85 Pa. 
 
 St. 247, 27 Amer. Rep. 642. .20, 
 
 24, 27, 52, 53, 93, 100. 
 Erie City, etc., Works v. Barber 
 
 (1883), 102 Pa. St. 156.. 216. 
 Erskine v. Chino, etc., Co. (1895), 
 
 71 Fed. 270.. 183. 
 Evans v. Martin (1880), 6 Vict. 
 
 L. R. 176.. 91. 
 Evans v. Murphv (1898), 87 Md. 
 
 498, 40 Atl. 109.. 70. 
 EvANSViLLE V. Senhenn (1897), 
 
 151 Ind. 42, 47 N. E. 634, 51 
 
 N. E. 88, 41 L. R. A. 728, 68 
 
 Amer. St. Rep. 218.. 32, 92, 141, 
 
 145. 
 
 EVANSVILLE, ETC., R. V. GrIFFI.N 
 
 (1885). 100 Ind. 221, 50 Amer. 
 
 Rep. 788.. 206. 
 Evarts v. St. Paul, etc, R. 
 
 (1894), 56 Minn. 141, 57 N. W. 
 
 459, 45 Amer. St. Rep. 460, 22 
 
 L. R. A. 663.. 9. 
 Ewan v. Lippincott (1885), 47 
 
 N. J. L. 192, 54 Am. R. 148. .27. 
 Evlcr V. Alleghany Co. (1878), 49 
 
 'Md. 257, 33 Amer. Rep. 249.. 
 
 141.
 
 XXVI 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Falendar v. Blackwell (1906), 39 
 
 Ind. App. 121, 79 N. E. 393. .16, 
 
 37, 76. 
 Fanjov v. Scales (1865), 29 Cal. 
 
 243.. 175. 
 Farren v. Sellers (1887), 39 La. 
 
 Ann. 1011, 3 So. 363, 4 Am. 
 
 St. 256. .23. 207. 
 Farrigan v. Pevear (1906), 193 
 
 Mass. 147, 78 N. E. 855, 8 Am. 
 
 & Eng. Ann. Cas. 1109. 118 Am. 
 
 St. 484.. 149. 
 Farwell v. Boston, etc., R. 
 
 (1842), 5 Met. 55, 38 Am. Dec. 
 
 339.. 46. 
 Fell V. Rich Hill, etc., Co. (1886), 
 
 23 Mo. App. 216.. 20. 
 Felton V. Deall (1850), 22 Vt. 
 
 170, 54 Am. Dec. 61.. 31, 38. 
 Fenner v. Crips Bros. (1899), 109 
 
 Iowa, 155, 80 N. W. 526.. 7. 
 Ferguson v. Hubbell (1884), 97 
 
 N. Y. 507, 49 Am. R. 5 14.. 28, 
 
 34, 74. 
 Field V. French (1898), 80 111. 
 
 App. 78.. 224. 
 Fink v. Missouri, etc., Co. 
 
 (1884), 82 Mo. 276, 52 Am. R. 
 
 376.. 34. 35. 
 Fink V. St. Louis, etc., R. (1872), 
 
 71 Mo. 52.. 139. 
 Finkelstein v. Balkin (1907), 103 
 
 N. Y. Supp. 99.. 38. 
 Fire Ins. Patrol v. Boyd (1888), 
 
 120 Pa. St. 624, 15 Atl. 553, 6 
 
 Am. St. 745, Huff. Cas. Agcy. 
 
 (2d ed.), 670.. 149. 
 First Pres. Cong., see Congrega- 
 tion, etc. 
 Fish V. Dodge (1862), 38 Barb. 
 
 (N. Y.), 163.. 215. 
 Fisher v. Minegaux (1906), 73 N. 
 
 J. L. 424, 63 Atl. 902.. 196. 
 Fisher v. New Bern (1906), 140 
 
 N. C. 506, 53 S. E. 342.. 38. 
 Fisher v. Rankin (1894), 78 Hun 
 (N. Y.), 407, 29 N. Y. Supp. 
 
 143.. 168. 
 
 Fisher v. Trvon (1898), 15 Oh. 
 
 C. C. 541 . .93. 
 Fisher v. West Virginia, etc., R. 
 
 (1894), 39 W. Va. 366, 19 S. 
 
 E. 578, 23 L. R. A. 758.. 126. 
 Fitzgerald v. Timoney (1895), 34 
 
 N. Y. Supp. 460.. 106. 
 Fitzmaurice v. Fabian (1892), 147 
 
 Pa. St. 149, 23 Atl. 444. .173, 
 
 228. 
 Fitzpatrick v. Chicago, etc., R. 
 
 (1888). 31 111. App. 649.. 72, 
 
 168, 195. 
 Florsheim v. DuUaghan (1895), 
 
 58 111. App. 593.. 67. 
 Flower v. Adam ( ), 2 
 
 Taunt. 314. .49. 
 Floyd V. Weaver (1852), 21 L. J., 
 
 Q. B.— N. S. 151.. 33. 
 Fluker v. Georgia, etc., R. 
 
 (1889), 81 Ga. 461, 9 S. E. 529, 
 
 2 L. R. A. 843, 17 Am. St. 328.. 
 
 38. 
 Flynn v. New York, etc., R. 
 
 (1883), 17 Jones & S. (N. Y.), 
 
 60.. 75. 
 Ford V. Arbuckle (1907), 107 
 
 App. Div. 221, 94 N. Y. Supp. 
 
 1097.. 196. 
 Ford V. Oamaru (1883), New 
 
 Zeal. L. R., 1 Sup. Ct. 97.. 196. 
 Fordyce v. Woman's, etc., Assn. 
 
 (1906), 79 Ark. 559, 96 S. W. 
 
 155.. 149. 
 Foreman v. Mayor (1871), L. R., 
 
 6 Q. B. 214.. 149. 
 Forsvth V. Hooper (1865), 11 
 
 Alien, 41 9.. 34, 93. 
 Fort Wayne v. Christie (1901), 
 
 156 Ind. 172, 59 N. E. 385.. 24, 
 
 181. 
 Foster v. Chicago (1902), 197 111. 
 
 264, 64 N. E. 322.. 20, 25. 
 Foster v. National, etc., Co. 
 
 (1907), 216 Penn. 279, 65 Atl. 
 
 618.. 34. 
 Foster v. Wadsworth, etc., Co. 
 
 (1897), 168 111. 514, 48 N. E. 
 
 163.. 34, 45.
 
 TABLE OF CASES. 
 
 XXVU 
 
 [References are to sections.] 
 
 Fowler v. Saks (1890), 7 
 
 Mackey (D. C), 507, 7 L. R. 
 
 A 649. .85. 
 Fox V. Buffalo Park (1897), 21 
 
 App. Div. (N. Y.), 321, 47 N. 
 
 Y. Supp. 788.. 150. 
 Fox V. Ireland (1900), 46 App. 
 
 Div. (N. Y.), 541, 61 N. Y. 
 
 Supp. 1061.. 165. 
 Fox V. Porter (1895), 18 Pa. Co. 
 
 Ct. 641.. 230. 
 Fox V. Wm. Wharton Co. (1900, 
 
 N. J. L.), 7 Am. Neg. R. 467.. 
 
 215. 
 Francis v. Cockrell (1870), L. R., 
 
 5 Q. B. 184, 501.. 150. 
 Francis v. Johnson (1904), 127 
 
 Iowa, 391, 101 N. W. 878, 17 
 
 Am. Neg. R. 507.. 74. 
 Frankfort v. Allen (1904), 26 Ky. 
 
 L. R. 581, 82 S. W. 292.. 86. 
 Frascr v. Red River, etc., Co. 
 
 (1891), 45 Minn. 235, 47 N. W. 
 
 785.. 110. 
 Frassi v. McDonald (1898). 122 
 
 Cal. 400, 55 Pac. 139, 772. .23, 
 
 93. 
 Freeman v. Minneapolis, etc., R. 
 
 (1881), 28 Minn. 443, 10 N. W. 
 
 594.. 89. 
 French v. Vix.(1894), 143 N. Y. 
 
 90, 37 N. E. 612.. 73. 
 Frerker v. Nicholson (1907), 41 
 
 Colo. 12, 92 Pac. 224, 13 L. R. 
 
 A.— N. S. 1122.. 216. 
 Fromme v. Idc (1891), 14 N. Y. 
 
 Supp. 802; (1893). 23 N. Y. 
 
 Supp. 56; (1895), 144 N. Y. 
 
 630, 39 N. E. 493.. 218. 
 Fuller v. Citizens Bank (1882), 
 
 15 Fed. 875.. 93. 
 Fuller v. Grand Rapids (1895), 
 
 105 Mich. 529, 63 N. W. 530. . 
 
 143. 
 Fulton Co. St. R. v. McConnell 
 (1891), 87 Ga. 756, 13 S. E. 
 
 828.. 75. 
 Furey v. New York, etc., R. 
 (1902), 67 N. J. L. 230, 51 Atl. 
 
 505.. 211. 
 
 Gagnon v. Dana (1898), 69 N. 
 
 H. 264, 39 Atl. 982, 41 L. R. A. 
 
 389, 76 Am. St. 170.. 183. 
 Gahagen v. Aermotor Co. (1897), 
 
 67 Minn. 252, 69 N. W. 914. .19. 
 Galatia, etc., Co. v. Harris 
 
 (1904), 116 111. App. 70.. 34. 
 Gallagher v. Southwestern, etc., 
 
 Co. (1876), 28 La. Ann. 943.. 
 
 16, 65. 
 Galveston, etc., R. v. Garteiser 
 
 (1895), 9 Tex. Civ. App. 456, 
 
 29 S. W. 939.. 126. 
 Gardner v. Bennett (1874), 6 
 
 John. & Sp. 197.. 
 Gardner v. Friedrich (1898), 25 
 
 N. Y. App. Div. 521, 49 N. Y. 
 
 Supp. 1077.. 200, 219. 
 Gardner v. Smith (1859), 7 
 
 Mich. 410. 74 Am. Dec. 722.. 
 
 118, 123. 
 Gay V. Roanoke, etc., Co. (1908, 
 
 N. C), 62 S. E. 436.. 16. 
 Gayford v. Nichols (1854), 9 
 
 Exch. 702.. 50, 66, 95. 
 Gayle v. Missouri, etc., Co. 
 
 (1903), 177 Mo. 427, 76 S. W. 
 
 987.. 20, 29. 
 Geer v. Darrow (1891), 61 Conn. 
 
 220, 23 Atl. 1087.. 34, 218. 222. 
 Geist v. Rothschild (1900), 90 111. 
 
 App. 324.. 23, 100. 
 Georgia, etc., R. v. Bernstein 
 
 ( ), 113 Ga. 175, 38 S. E. 
 
 394.. 73. 
 Georgia, etc., R. v. Propst (1888), 
 
 85 Ga. 203, 4 So. 711.. 9. 
 Geokgi.v, etc., R. v. Friddell 
 
 (1887), 79 Ga. 489, 7 S. E. 214, 
 
 11 Am. St. 444.. 128. 
 Gerlach v. Edelmcvcr (1881), 15 
 
 Jones & S. 292. 88 N. Y. 
 
 645.. 7. 
 Giacomini v. Pacific, etc., Co. 
 
 (1907). 5 Cal. App. 218, 89 Pac. 
 
 1059.. 38. 
 Gilbert v. Beach (1855). 16 N. Y. 
 
 606.. 50, 100, 168.
 
 XXVUl 
 
 TABLE OF CASES. 
 [References are to sections.] 
 
 Gilbert v. Halpin (1858), Exch., 
 
 3 Ir. Jur.— N. S. 300. .68. 
 Gilbert v. Nagle (1875), 118 
 
 Mass. 278.. 99. 
 Gile V. J. W. Bishop Co. (1903), 
 184 Mass. 413, 68 N. E. 837.. 
 225. 
 Gill V. Atlantic, etc., R. (1875), 
 
 27 Oh. St. 240.. 123. 
 
 Gillson V. North Grey, etc., Co. 
 
 (1874), 35 U. C, Q. B. 475.. 74. 
 
 Gilmore v. Philadelphia, etc., R. 
 
 (1893), 154 Pa. St. 375, 25 Atl. 
 
 774.. 132. 
 
 Ginther v. Yorkville (1897), 3 Pa. 
 
 Super. 403.. 53. 
 Giraudi v. Electric, etc., Co. 
 (1895), 107 Cal. 120, 13 Amer. 
 Neg. Cas. 517, n..225. 
 Gittens v. Wm. Porter Co. (1903), 
 90 Minn. 512, 97 N. W. 378.. 
 186. 
 Gitzenhoffen v. Sisters, etc., Assn. 
 (1907), 32 Utah, 46, 88 Pac. 
 691 . . 149. 
 Gladestry, The (1904), 128 Fed. 
 
 591.. 7. 
 Glaser v. Michelson (1904), 86 
 
 N. Y. Supp. 286.. 169. 
 Glasgow V. Gillenwaters (1902), 
 23 Kv. L. R. 2375, 67 S. W. 
 381.. 141. 
 Glavin v. Rhode Island Hos- 
 pital (1879), 12 R. I. 411, 424, 
 34 Am. R. 675.. 149, 164. 
 Gleeson v. Railroad Co. (1890), 
 
 140 U. S. 435.. 92. 
 Glickauf v. Maurer (1874), 75 
 
 111. 289, 20 Am. R. 238.. 26. 
 Goddard v. Harpswell (1892), 84 
 Me. 499, 24 Atl. 956, 30 Am. 
 St. 373, 411.. 72. 
 Godfrey v. New York (1905), 104 
 App. Div. 357, 93 N. Y. Supp. 
 899, aff'd (1906), 185 N. Y. 563, 
 n N. E. 1187.. 141. 
 Goldman v. Mason (1888), 18 N. 
 Y. Super. R. 376, 2 N. Y. Supp. 
 337.. 20. 
 
 Goldschmid v. Mayor (1897, N. 
 Y. App. Div.), 1 Am. Neg. R. 
 508.. 143. 
 Gooch V. Association (1872), 109 
 
 Mass. 558.. 149. 
 Good v. Johnson (1907), 38 Colo. 
 440, 88 Pac. 439, 8 L. R. A.— 
 N. S. 896..16, 20, 28, 203, 205. 
 Goodlander v. Standard, etc., Co. 
 
 (1894), 63 Fed. 400.. 224. 
 GoRHAM V. Gross (1878), 125 
 Mass. 232, 28 Am. R. 234.. 65, 
 70, 176. 
 Gourdier v. Cormack (1853), 2 E. 
 
 D. Smith, 254.. 50. 
 Goyle V. Missouri, etc., Co., see 
 
 Gayle. 
 Grace v. Hyde, etc., Co. (1904), 
 
 208 111. 147, 70 N. E. 12.. 7. 
 Grace, etc., Co. v. Probst (1904), 
 208 111. 147, 70 N. E. 12.. 7, 34. 
 Grand Rapids, etc., R. v. Hunt- 
 ley (1878), 38 Mich. 537, 31 
 Am. R. 321.. 133. 
 Grant v. Shaw (1872), 9 Scot. 
 
 L. R. 254.. 38. 
 Grant v. Stillwater (1886), 35 
 Minn. 242, 28 N. W. 660.. 139. 
 Gray v. PuUen (1864), 5 B. & S. 
 970, 7 Am. Neg. R. 158, n. .65, 
 12, 86, 90, 160. 
 Great Northern R. v. Eastern 
 Counties R. (1851), 9 Hare, 
 306, 7 Eng. R. & Corp. Cas. 
 643.. 126. 
 Green v. Berge (1894), 105 Cal. 
 52, 38 Pac. 539,45 Am. St. 25.. 
 75. 
 Green v. Sansom (1899), 41 Fla. 
 
 94,25 So. 332.. 7. 
 Green v. Soule (1904), 145 Cal. 
 96, 78 Pac. 337, 17 Am. Neg. R. 
 8.. 20, 22, 57, 65. 
 Gregory v. Hill (1869), 8 So. 
 
 Sess. Cas. (3d ser.), 282.. 46. 
 Griffith V. Wolfram (1875), 22 
 Minn. 185, 16 Am. Neg. Cas. 
 219, n..l71.
 
 TABLE OF CASES. 
 
 XXIX 
 
 [References are to sections.] 
 
 Griggs V. Houston (1881), 104 
 
 U. S. 553, 8 A. & E. R. C. 
 
 359.. 86. 
 Groesbeck v. Pinson (1899), 21 
 
 Tex. Civ. App. 44, 50 S. W. 
 
 620.. 34. 
 Grote v. Chester, etc., R. (1848), 
 
 2 Exch. 251, 5 Eug. R. & C. 
 
 Cas. 649.. 133. 
 Groves v. Rochester (1886), 39 
 
 Hun (N. Y.), 5.. 141. 
 Groves v. Wimborne (1898), 2 
 
 Q. B. 402.. 184. 
 Gulf, etc., R. v. Delaney (1900), 
 
 22 Tex. Civ. App. 427, 55 S. W. 
 
 538.. 186. 192. 
 Gulf, etc., R. v. Shearer (1892), 
 
 1 Tex. Civ. App. 343, 21 S. W. 
 
 133.. 186. 
 Gulzoni V. Tyler (1883), 64 Cal. 
 
 334, 30 Pac. 981.. 31. 
 Gwathney v. Little Miami R. 
 
 (1861), 12 Ohio St. 92.. 29, 38. 
 
 Haas V. Missionary Society 
 
 (1893), 6 Misc. (N. Y.), 281, 
 
 26 N. Y. Supp. 868.. 149. 
 Hackett v. Western Union Tel. 
 
 Co. (1891), 80 Wis. 187, 49 N. 
 
 W. 822, 10 Rail. & Corp. L. J. 
 
 390.. 72, 75. 
 Haefelin v. McDonald (1904), 96 
 
 App. Div. (N. Y.), 213, 89 N. 
 
 Y. Supp. 395.. 53. 
 Hale V. Johnson (1875), 80 111. 
 
 185, 14 Am. Neg. Cas. 417, n.. 
 
 71, 206. 
 Haley v. Lumber Co. (1892), 81 
 
 Wis. 412, 51 N. W. 321, 956. . 
 Hallidav v. National Tel. Co. 
 
 (1891'), 1 Q. B. 221; (1899), 2 
 
 Q. B. 392.. 45, 65. 
 Haluptzok v. Great Northern 
 
 R. (1893). 55 Minn. 446, 57 N. 
 
 W. 144. HufT. Cas. Agcv. (2d 
 
 ed.), 635. 26 L. R. A. 739.. 9. 
 Hamilton v. Fond du Lac (1876), 
 
 40 Wis. 47.. 146. 
 
 Hamner v. Whaien, see Hawver. 
 Haniford v. Kansas City (1890). 
 
 103 iMo. 172, 15 S. W. 753.. 67, 
 
 139. 
 Hannigan v. Union, etc., Co. 
 
 (1896), 3 App. Div. 618, 38 N. 
 
 Y. Supp. 272.. 9. 
 Hannon v. St. Louis Co. (1876), 
 
 62 Mo. 313.. 19. 
 Hannon v. Shepparton (1892, 
 
 Vict.), 14 Austr. L. T. 83.. 74. 
 Hannon v. Siegel, Cooper Co. 
 
 (1901), 167 N. Y. 244, 60 N. E. 
 
 597, 52 L. R. A. 429.. 5. 
 Plardaker v. Idle District (1896), 
 
 1 Q. B. 335.. 13, 27, 50, 65, 142, 
 
 184. 
 Harden v. N. Car. R. Co. (1901), 
 
 129 N. C. 354, 40 S. E. 184, 85 
 
 Am. St. 747. 55 L. R. A. 784. . 
 
 126. 
 Harder v. Buck, etc., Co. (1896), 
 
 136 Mo. 3, Zl S. W. 115.. 180. 
 Harding v. Boston (1895), 163 
 
 Mass. 14, 39 N. E. 411.. 20, 22, 
 
 27, 168. 
 Hardy v. Rvle (1829), 4 Mann. 
 
 & R. 295.. 36, 215. 
 Hardy v. Sheddon Co. (1897), 47 
 
 U. S. App. 362, 37 L. R. A. 33, 
 
 78 Fed. 672.. 7. 
 Hargadine v. Omaha, etc., Co., 
 
 see Omaha, etc., Co. 
 Harkins v. Standard, etc., Re- 
 
 fmerv (1877), 122 Mass. 400.. 
 
 31. 
 Harmon v. Columbia, etc., R. 
 
 (1888), 28 S. C. 401, 5 S. E. 
 
 835, 13 Amer. St. 686.. 126. 
 Harold. The (1884), 21 Fed. 
 
 428. .7, 57. 
 Harper v. Milwaukee (1872), 30 
 
 W^isc. 365.. 19, 20, 168. 
 Harper v. Newport, etc., R. 
 
 (1890), 12 Kv. L. R. 333. 14 S. 
 
 W. 346.. 381. 
 Harrington v. Lansingburgh, see 
 
 Herrington. 
 Harris v. McNamara (1892), 97 
 
 Ala. 181. 12 So. 103.. 32, 34, 38.
 
 XXX 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Harrison v. Collins (1878), 86 
 
 Pa. St. 153, 27 Am. R. 699.. 16, 
 
 34. 45. 56. 
 Harrison v. Kiser (1887), 79 Ga. 
 
 588, 4 S. E. 320.. 52, 95. 
 Hart V. Ryan (1889), 3 Silv. 
 
 Sup. Ct. 415. 6 N. Y. Supp. 
 
 921.. 29. 
 Hartwig v. Bay State, etc., Co. 
 
 (1887), 43 Hun (N. Y.), 
 
 425.. 8. 
 Harvey v Hillsdale (1891), 86 
 
 Mich. 330, 49 N. W. 141.. 140. 
 Hass v. Philadelphia, etc., Co. 
 
 (1879), 88 Pa. 269, 32 Am. R. 
 
 462. .29. 
 Hastey v. Sears (1892), 157 
 
 Mass. 123, 31 N. E. 759, 34 
 
 Am. St. 267.. 7. 
 Hauser v. Metropolitan Street R. 
 
 (1899), 58 N. Y. Supp. 286. .71. 
 Hawke v. Brown (1898), 50 N. 
 
 Y. Supp. 1032, 28 App. Div. Zl, 
 
 Hufif. Cas. Agcy. (2d ed.), 589, 
 
 n..20, 57, 97, 163, 165, 206, 230. 
 Hawver v. Wh.\len (1892), 49 
 
 Ohio St., 69, 29 N. E. 1049, 14 
 
 L. R. A. 828.. 26, 67, 92, 93. 
 Hawxhurst v. New York (1887), 
 
 43 Hun (N. Y.), 588.. 144. 
 Hay v. Cohoes (1849), 2 N. Y. 
 
 159, 51 Am. Dec. 279.. 73. 
 Hearn v. Quillen (1901), 94 Md. 
 
 39, 50 Atl. 402.. 19. 
 Hearns v. W.-vterbury Hospital 
 
 (1895), 66 Conn. 98, 33 Atl. 595, 
 
 31 L. R. A. 224, Hufif. Cas. 
 
 Agcy. (2d ed.), 683.. 149. 
 Heaven v. Pender (1883), L. R., 
 
 11 Q. B. D. 503, 6 Am. Neg. 
 
 R. 479, n, 7 Am. Neg. R. 624, 
 
 n..206, 228. 
 Hedge v. Williams (1901), 131 
 
 Cal. 455, 63 Pac. 721, 64 Id. 106, 
 
 82 Am. St. 366.. 31. 
 Hefifernan v. Bernhard (1863), 1 
 
 Robt. (N. Y.), 436.. 168. 
 Hegeman v. Western R. (1853), 
 
 16 Barb. 353; (1855), 13 N. Y. 
 
 9, 64 Am. D. 517.. 133. 
 
 Heidenag v. City of Philadelphia 
 
 (1895), 168 Pa. 72, 21 Atl. 
 
 1063.. 46. 
 Heizer v. Kingsland, etc., Co. 
 
 (1892), 110 Mo. 605, 19 S. W. 
 
 630, 33 Am. St. 482, 15 L. R. 
 
 A. 821.. 224. 
 Hepburn v. Phila. (1892), 149 Pa. 
 
 St. 335, 24 Atl. 279, 33 Am. St. 
 
 482, 15 L. R. A. 821.. 139, 141. 
 Herder, see Harder. 
 Heriot's Hospital v. Ross (1846), 
 
 12 CI. & F. 507.. 149. 
 Herrington v. Lansingburgh 
 
 (1888), 36 Hun (N. Y.), 598, 
 
 110 N. Y. 145, 17 N. E. 728, 6 
 
 Am. St. 348.-67, 73, 140. 
 Hewett V. Woman's, etc., Assn. 
 
 (1906), 73 N. H. 556, 64 Atl. 
 
 190.. 149. 
 Hexamerv. Webb (1896), 101 N. 
 
 Y. 377, 4 N. E. 755, 54 Am. R. 
 
 703, Chase C. Torts, 240.. 19, 
 
 35, 45, 93. 
 HiGGiNS V. Western Union Tel. 
 
 Co. (1898), 156 N. Y. 75, 50 
 
 N. E. 500, 66 Am. St. 537, Burd. 
 
 C. Torts. 413, n..7, 58. 
 
 Hill V. Haves (1908, Mass.), 85 
 
 N. E. 434.. 92. 
 Hill V New River, etc., Co. 
 
 (1868), 9 B. & S. 303.. 67. 
 Hill v. Schneider (1897), 13 App. 
 
 Div. 299, 43 N. Y. Supp. 1, 1 
 
 Am. Neg. R. 141.. 73. 
 Hill V. Tattenham (1898), 79 
 
 Law T.— N. S. 495.. 141. 
 HiLLiARD V. Richardson (1855), 
 
 3 Gray (Mass.), 349, 63 Am. 
 
 D. 743.-15,38,45, 46, 50, 51, 53, 
 93, 116. 
 
 Hilsdorf v. St. Louis (1869), 45 
 
 Mo. 94, 100 Am. Dec. 352.. 15, 
 
 53. 67. 
 HiNCK V. Milwaukee (1879), 46 
 
 Wise. 565, 1 N. W. 230, 32 Am. 
 
 R. 735.. 139, 141. 
 Hinde v. Wabash, etc., R. (1853), 
 
 15 111. 72.. 89, 90, 118, 124.
 
 TABLE OF CASES. 
 
 XXXI 
 
 [References are to sections.] 
 
 Hitte V. Republican, etc., R. 
 
 (1886), 19 Nebr. 620, 28 N. W. 
 
 284, 29 A. & E. R. Cas. 586.. 
 
 120. 
 Hoadley v. International, etc., Co. 
 
 (1899), n Vt. 79, 47 Atl. 169.. 
 
 200, 201. 
 HOFF V. S HOCKLEY (1904), 122 
 
 Iowa, 720, 98 N. W. 573, 101 
 
 Am. St. 289, 64 L. R. A. 538, 
 
 16 Am. Neg. R. 607, n..56, 90, 
 
 93. 
 Hoffner v. Prettyman (1897), 6 
 
 Pa. Super. Ct. 20.. 223. 
 Hogan V. Arbuckle (1902), 11 N. 
 
 Y. Supp. 22.. 206. 
 Hole v. Sittingbourne Railroad 
 
 (1861), 6 H. & N. 488, 7 Am. 
 
 Neg. R. 157, n., 8 Am. Neg. R. 
 
 301, n..65, 66, 67, 70, 85, 86, 90, 
 
 91, 92, 97, 183. 
 Holland, etc., Co. v. Baird ( ), 
 
 169 N. Y. 136, 62 N. E. 149. .11. 
 
 HOLLENBECK V. WiNNEBAGO Co. 
 
 (1880), 95 111. 148, 35 Am. R. 
 
 151.. 
 Holliday v. National Tel. Co. 
 
 (1899), 2 Q. B. 392.. 67, 76, 85. 
 Holmes v. Birmingham, etc., R. 
 
 (1904). 140 Ala. 208. 37 So. 
 
 338.. 196. 
 Holmes v. Northeastern, etc., R. 
 
 (1869), L. R., 4 Exch. 254, 9 
 
 Am. Neg. R. 569, n..99. 
 Holmes v. Tennessee, etc., R. 
 
 (1897), 49 La. Ann. 1465, 22 So. 
 
 403, 1 Amer. Neg. Rep. 174.. 
 
 13, 19. 
 Holt V. Whatlev (1874). 51 Ala. 
 
 569.. 21 5. 230. 
 HoMAN V. Stanley (1870), 66 
 
 Pa. St. 464. 5 Am. R. 389.. 22, 
 
 97. 
 Hookev V. Oakdale (1895), 29 
 
 Pitts. L. J.— N. S. 453.. 24. 
 Hooper v. Southern, etc., Co. 
 
 (1903), 133 N. C. 375. 45 S. E. 
 
 771 . . 196. 
 Horner v. Nicholson (1874), 56 
 
 Mo. 220.. 163, 219. 
 
 llorton V. Vulcan, etc., Co. 
 
 (1897). 13 App. Div. 508, 43 N. 
 
 Y. Supp. 699.. 38. 
 Houghton v. Loma, etc., Co, 
 
 (1907), 152 Cal. 500, 93 Pac. 
 
 82, 14 L. R. A.— N. S. 913.. 73. 
 Houston v. Isaacs (1887), 68 
 
 Tex. 116, 3 S. W. 693.. 175. 
 Houston, etc., R. v. Meador 
 
 (1878), 50 Tex. 77.. 90, 93, 106, 
 
 118. 
 Houston, etc., R. v. Van Bayless 
 
 (1876), 1 Wills. (Tex. Civ. 
 
 App.), 247.. 118. 
 Howard v. Ludwig (1902), 171 
 
 N. Y. 507, 64 N. E. 172. .29. 
 
 HOWARTH V. McGUGAN (1893), 
 
 23 Ont. R. 396, 47 Am. & Eng. 
 
 Corp. Cas. 133.. 53, 67, 141. 
 Huey V. Indianapolis, etc., R. 
 
 (1873), 45 Ind. 320.. 122. 
 Huff v. Ford (1878), 126 Mass. 
 
 24, 30 Am. R. 645.. 7, 31. 
 Huflf V. Watkins (1880), 15 S. C. 
 
 85, 40 Am. R. 680. .34. 
 Hughbanks v. Boston, etc., Co. 
 
 (1894), 90 Iowa, 267, 60 N. W. 
 
 640, 14 Am. Neg. Cas. 592, n.. 
 
 22, 28, 38. 
 Hughes V. Bover ( ), 9 Watts, 
 
 556.. 49. 
 Hughes V. Percival (1883), 8 
 
 App. Cas. 443.. 65, 160. 
 Hughes V. Railway Co. (1883), 
 
 39 Ohio St. 461, 15 A. & E. R. 
 
 C. 100.. 20. 67. 124, 168. 
 Hughson V. Railroad Co. (1893), 
 
 2 .\pp. (D. C), 98.. 38. 
 llumpton V. Unterkircher (1896), 
 
 97 Iowa. 509, 66 N. W. 776, 14 
 
 Am. Neg. Cas. 595.. 16, 22, 203. 
 Hundhausen v. Bond (1874), 36 
 
 Wise. 29.. 66, 67. 
 Hunt V. Boston, etc., R. (1908, 
 
 Mass.), 85 N. E. 446.. 202. 
 Hunt V. Pennsylvania R. (1866), 
 
 51 Pa. St. 475.. 20, 116. 
 Hunt V. Vanderbilt (1894). 115 
 
 N. C. 559, 20 S. E. 168.. 37, 11. 
 
 K'X-
 
 XXXll 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Huntt V. McNamee (1905). 72 C. 
 
 C. A. 441, 141 Fed. 293. .72. 165. 
 Huset V. Case, etc., Co. (1903), 
 
 120 Fed. 865.. 224. 
 Hvde V. Wilmore (1895). 35 N. 
 
 Y. Supp. 681 . . 106. 
 
 Illinois, etc., R. v. Barron (1866), 
 
 5 Wall, 90.. 126. 
 Illinois, etc., R. v. Buchanan 
 
 (1907). 103 S. W. 272, 31 Kv. 
 
 L. R. 722.. 149. 
 Illinois, etc., R. v. Finnigan 
 
 (1859), 21 111. 646.. 122, 124. 
 Illinois, etc., R. v. Cox (1858), 
 
 21 111. 20, 71 Am. Dec. 298.. 7. 
 Illinois, etc., R. v. Kanouse 
 
 (1866). 39 Ills. 272, 89 Am. 
 
 Dec. 307.. 122, 124. 
 Illinois, etc., R. v. Phillips (1868). 
 
 49 Ills. 234.. 165. 
 Indemaiir v. Dames (1866), 1 C. 
 
 P. 274, 6 Am. Neg. R. 479, n., 
 
 9 Id. 567, n..99, 206. 
 Independence, see City of. 
 Indiana, etc., Co. v. Cray (1897), 
 
 19 Ind. App. 565,48 N. E. 803.. 
 
 22, 34. 
 IndianapoHs v. Marold (1900), 
 
 25 Ind. App. 428, 58 N. E. 512. . 
 
 141. 
 Ingram v. Barnes (1857), 7 El. & 
 
 Bl. 115, 132.. 215. 
 In re, see name. 
 International, etc., R. v. Eckford 
 
 (1888), 71 Tex. 274, 8 S. W. 
 
 679.. 126. 
 International, etc., R. v. Kuehn 
 
 (1888), 70 Tex. 582, 8 S. W. 
 
 484.. 126. 
 Interstate, etc., Co. v. Fox (1889), 
 
 41 Kans. 715, 21 Pac. 797, 39 
 
 A. & E. R. C. 318.. 203. 
 
 Jackson v. Norfolk, etc., R. 
 (1897). 43 W. Va. 380, 27 S. 
 E. 278, 31 S. E. 258, 46 L. R. 
 A. 337.. 27. 
 
 Jacksonville v. Drew (1882), 19 
 
 Fla. 106. 45 Am. R. 5.. 141. 
 Jacobs v. Fuller, etc., Co. (1902), 
 
 67 Oh. St. 70, 65 N. E. 617, 
 
 65 L. R. A. 833, 13 Am. Neg. 
 
 R. 208, 16 Id. 611, n..70, 72, 
 
 92, 160, 193, 208. 
 James v. McMinimy (1892), 93 
 
 Kv. 471, 20 So. 435, 40 Am. 
 
 St. 200, 15 Am. Neg. Cas. 
 
 233, n..73. 
 James v. Phila. Traction Co. 
 
 (1898), 185 Penn. 75, 39 Atl. 
 
 889.. 206. 
 James v. San Francisco (1856), 
 
 6 Cal. 528, 65 Am. Dec. 526.. 
 
 161. 
 James McNeil & Co. v. Crucible, 
 
 etc., Co. (1904), 207 Pa. St. 
 
 493, 56 Atl. 1067.. 18, 76, 167. 
 Jansen v. Jersey City (1898), 61 
 
 N. J. L. 243, 39 Atl. 1025, 4 Am. 
 
 Neg. R. 313.. 53. 
 Jaskoey v. Consolidated Gas Co. 
 
 (1901), 67 N. Y. Supp. 976.. 20, 
 
 22. 
 Jehle V. Ellicott, etc., Co. (1898), 
 
 31 App. Div. 336, 52 N. Y. 
 
 Supp. 366. .223. 
 Jefferson v. Chapman (1889), 
 
 127 111. 438. 20 N. E. 33, 11 
 
 Am. St. 139.. 53, 72, 79, 85, 92, 
 
 139, 141. 
 Jefiferson v. Jameson, etc., Co. 
 
 (1897). 165 111. 138, 46 N. E. 
 
 272.. 23, 51. 106, 107. 
 Jensen v. Barbour (1895), 15 
 
 Mont. 582, 39 Pac. 906. .20, 27. 
 Jensen v. Waltham (1896). 166 
 
 Mass. 344, 44 N. E. 339.. 141. 
 Jcssup V. Sloneker (1891). 142 
 
 Pa. St. 527, 21 Atl. 988. .215. 
 Jewell V. Mt. Vernon (1904), 91 
 
 App. Div. 578. 87 N. Y. Supp. 
 
 120.. 53. 
 Joel V. Woman's Ho.spital (1895), 
 
 89 Hun (N. Y.). 73, 35 N. Y. 
 
 Supp. 37.. 149. 
 Johnson v. Ashland, etc., Co. 
 
 (1888), 71 Wis. 553, 37 N. W. 
 
 823. 5 Am. St. 243.. 9.
 
 TABLE OF CASES. 
 
 xxxm 
 
 [References are to sections.] 
 
 John<;on v. Boston (1875), 118 
 
 Mass. 114.. 7. 
 Johnson v. Great Northern, etc., 
 
 Co. (1908), 93 Pac. 516, 48 
 
 Wash. 325.. 29. 
 Johnson v. Plelbing (1907), 92 
 
 Pac. 360, 6 Cal. App. 424.. 100. 
 Johnson v. Lindsay (1891), A. C. 
 
 371.. 196. 
 John.son v. Minneapohs, etc., R. 
 
 (1904), 140 Mich. 292, 103 N. 
 
 W. 594.. 211. 
 Johnson v. Netherlands, etc., Co. 
 
 (1892), 132 N. Y. 576, 30 N. 
 
 E. 505.. 7. 
 Johnson v. Richmond, etc., R. 
 
 (1890), 86 Va. 975, 11 S. E. 
 
 829. .229. 
 Johnson v. Spe.\r (1889), 76 
 
 Mich. 139, 15 Am. St. 298. 42 
 
 N. W. 1092.. 20. 
 John Spry, etc., Co. v. Dugpan 
 
 (1898), 80 III. App. 394; (1899), 
 
 182 111. 218, 54 N. E. 1002.. 
 
 196, 200, 206. 
 Johnston V. Hastie (1870), 30 U. 
 
 C, Q. B. 232.. 20. 
 Johnston v. Ott (1893). 155 Pa. 
 
 St. 17, 25 Atl. 751.. 57. 
 Johnston v. Phoenix, etc.. Co. 
 
 (1901), 60 N. Y. Supp. 947, 169 
 
 N. Y. 581, 62 N. E. 10%.. 70, 
 
 110. 
 JoLiET V. Harwood (1877), 86 
 
 111. 110, 29 Am. R. 17.. 72, IZ. 
 Joliet V. Seward (1877), 86 III. 
 
 402.. 72. 
 Joliffe V. Woodhouse (1894, C. 
 
 A.). 10 Times L. R. 553.. 103. 
 Jones V. Bird (1822), 5 Barn. & 
 
 Aid. 837.. 216. 
 Jones V. Chantrv (1874), 4 N. Y. 
 
 Sup. Ct. 63.. 168. 
 Jones V. Corporation (1885), 14 
 
 Q. B. D. 890.. 38. 
 Jones V. Mavor, etc. (1885), 14 
 
 Q. B. D. 890.. 31. 
 Jones V. Philadelphia Traction 
 
 Co. (1898). 185 Pa. St. 75. 39 
 
 Atl. 889. .223. 
 
 Jones v. St. Louis, etc., Co. 
 
 (1894), 125 Mo. 675, 28 S. W. 
 
 883, 26 L. R. A. 718, 46 Am. St. 
 
 514.. 135. 
 Joseph, John, The (1898), 86 
 
 Fed. 471, 30 C. C. A. 199.. 7. 
 JosLiN V. Grand Rapids, etc., Co. 
 
 (1883), 50 Mich. 516, 45 Am. 
 
 R. 54.. 7. 38. 
 Juliet v. Harwood, see Joliet. 
 
 Kahner v. Otis . Elevator Co. 
 
 (1904), 96 N. Y. App. Div. 169, 
 
 89 N. Y. Supp. 185.. 224. 
 Kampmann v. Rothwell (1908, 
 
 Tex.), 109 S. W. 1089, 17 L. 
 
 R. A.— N. S. 258.. 20, 65, 92, 
 
 229. 
 Kane v. Mitchell, etc., Co. 
 
 (1895), 90 Hun, 65, 35 N. Y. 
 
 Supp. 581. 153 N. Y. 680, 48 
 
 N. E. 1105.. 196. 
 Kansas, etc., R. v. Fitzsimmons 
 
 (1877), 18 Kans. 34.. 116, 118, 
 
 119. 120. 
 Kansas Citv, etc., R. v. Loosley 
 
 (1907), 76 Kans. 103, 90 Pac. 
 
 990.. 20. 
 Karl V. Juniata Co. (1903), 206 
 
 Pa. St. 633, 56 Atl. 78.. 34. 
 Kearney v. Oakes (1890), 18 
 
 Can. S. C. 148.. 36. 
 Keegan v. Western Railroad 
 
 (1853), 8 N. Y. 175, 59 Am. 
 
 Dec. 476. .67. 
 Kelleher v. Schmitt, etc., Co. 
 
 (1904), 122 Iowa. 635, 98 N. 
 
 W. 482, 16 Am. Neg. R. 609, 
 
 n..20. 
 Kellogg V. Pavne (1866), 21 
 
 Iowa, 575.. 34. 51, 67. 
 Kellv V. tlowell (1884), 41 Oh. 
 
 St. 438.. 96. 
 Kelly V. New York (1854), 11 
 
 N. Y. 432. Huff. Cas. Agcy. 
 
 (2d ed.). 589.. 53, 67, 73, 166. 
 
 168.
 
 XXXIV 
 
 TABLE OF CASES. 
 [References are to sections.] 
 
 Kelly V. New York (1905), 106 
 
 App. Div. 576, 94 N. Y. Supp. 
 
 872. .53. 
 Kelly v. Tyra (1908), 103 Minn. 
 
 176, 114 N. W. 750, 17 L. R. 
 
 A.— N. S. 334.. 9, 196, 198, 230. 
 Kennedy v. Manhattan R. (1895), 
 
 145 N. Y. 288, 39 N. E. 956.. 
 
 193. 
 Kentucky, etc., Co. v. Bryan 
 
 (1905). 27 Kv L. R. 136, 84 
 
 S. W. 537.. 203, 208. 
 Kentucky, etc., Co. v. Sydor 
 
 (1904), 119 Ky. 18, 82 S. W. 
 
 183, 68 L. R. A. 183.. 210. 
 Kenvon v. Chicago City Ry. Co. 
 
 (1908), 235 111. 406, 85 N. E. 
 
 660.. 91. 
 Kepperly v. Ramsden (1876), 83 
 
 111. 354.. 72, 91. 
 Kerr v. Atlantic, etc., R. (1895), 
 
 25 Can. S. C. 197.. 66. 
 Ketcham v. Cohn (1893), 51 N. 
 
 Y. St. R. 213, 22 N. Y. Supp. 
 
 181.. 69. 
 Ketcham v. Newman (1894), 141 
 
 N. Y. 205. 36 N. E. 197, 24 
 
 L. R. A. 102.. 67, 69, 88, 92, 103. 
 Ketterer v. Ky. State Bd., etc. 
 
 ( , Ky.), 115 S. W. 200, 20 
 
 L. R. A.— N. S. 274.. 149. 
 Keys V. Second Baptist Church 
 
 (1904), 99 Me. 308, 59 Atl. 
 
 446, 17 Am. Neg. R. 516.. 16, 
 
 65. 
 Khron v. Brock (1887), 144 Mass. 
 
 516. 11 N. E. 748.-72, 173, 176, 
 
 228. 
 Kiddle v. Lovett (1885), L. R., 
 
 16 Q. B. D. 605.. 184. 
 Killea v. Faxon ( ), 125 Mass. 
 
 485.. 7. 
 Kilrov V. Delaware, etc., Co. 
 
 (1890), 121 N. Y. 22, 24 N. E. 
 
 192.. 207. 
 Kimball v. Cushman (1869), 103 
 
 Mass. 194, 4 Am. R. 528.. 7, 20. 
 King V. Cleveland (1885), 28 
 
 Fed. 835.. 141. 
 
 King V. Livermore (1876), 9 Hun 
 
 (N. Y.), 298; (1277), 71 N. Y. 
 
 605.. 95. 
 King v. Railroad Co. (1876), 66 
 
 N. Y. 181, 23 Am. R. 37. .45, 50, 
 
 51, 102, 141, 168. 
 Kinney v. N. Car., etc., R. (1898), 
 
 122 N. C. 961, 30 S. E. 313.. 126. 
 Kinsley v. Lake Shore, etc., R. 
 
 (1874), 125 Mass. 54, 28 Am. R. 
 
 200.. 133, 135. 
 Kirbv V. Lackawanna, etc., Co. 
 
 (1905), 109 App. Div. .334, 95 
 
 N. Y. Supp. 833.. 38. 
 Kirk V. Homer (1894), 11 Hun, 
 
 459, 28 N. Y. Supp. 1009.. 141. 
 Kitchen v. Riter, Conley, etc., Co. 
 
 (1904), 207 Pa. St. 558, 56 
 
 Atl. 1083.. 18, 225. 
 Klages v. Gillette, etc., Co. (1902), 
 
 86 Minn. 458, 90 N. W. 1116.. 
 
 29. 
 Klepsch v. McDonald (1892), 4 
 
 Wash. 436, 30 Pac. 991, 8 Wash. 
 
 162, 35 Pac. 621, 31 Am. St. 
 
 936. JZ. 
 Knicely v. West Virginia, etc., 
 
 R (1908, W. Va.), 17 L. R. A. 
 
 — N. S. 371, 61 S. E. 811.. 18, 
 
 27, 205. 
 Knight V. Fox (1850), 5 Exch. 71, 
 
 20 L. J. Ex. 9.. 51, 57. 
 Knottherus v. North, etc., S. R. 
 
 Co. (1892), 93 Mich. 348, 53 N. 
 
 W. 529, 17 L. R. A. 726.. 98. 
 Knowhon v. Hoit (1891), 67 N. 
 
 H. 155, 30 Atl. 346.. 16, 72. 
 Knoxville, etc., Co. v. Dodson 
 
 (1881), 7 Lea. (Tenn.), 367. .16. 
 Koch v. Fox (1892), 75 N. Y. 
 
 Supp. 913.. 90. 
 Koch v. Sackman, etc., Co. (1894), 
 
 9 Wash. 405, 37 Pac. 763.. 95. 
 Kollock V. City of Madison 
 
 (1893), 84 Wise. 458, 54 N. W. 
 
 725.. 69, 141, 218. 
 Koontz V. District of Columbia 
 
 (1904, D. C), 24 App. 59.. 53.
 
 TABLE OF CASES. 
 
 XXXV 
 
 [References are to sections.] 
 
 Korn V. Weir (1904), 88 N. Y. 
 
 Supp. 976, 16 Am. Neg. R. 611, 
 
 n . . 100. 
 Krause v. Sacramento (1874), 48 
 
 Cal. 222.. 161. 
 Krulder v. Woolverton (1895), 11 
 
 Misc. (N. Y.), 537, 32 N. Y. 
 
 Supp. 742, 152 N. Y. 638, 46 N. 
 
 E. 1148.. 196. 
 Kueckel v. Rvder (1900), 170 N. 
 
 Y. 562, — N. E. ..16, 34. 
 
 Kuehn v. Milwaukee (1896), 92 
 
 Wise. 263, 65 N. W. 1030.. 53. 
 Kuelling v. Roderick, etc., Co. 
 
 (1903), 88 N. Y. App. Div. 309, 
 
 84 N. Y. Supp. 622.. 224. 
 
 Lacour v. New York (1854), 3 
 
 Duer, 406..143. 
 Lacy v. GETM.^N (1890), 119 N. 
 
 Y. 112, 23 N. E. 452, 6 L. R. 
 
 A. 728, 16 Am. St. 806.. 38. 
 LaGroue v. New Orleans (1905), 
 
 114 La. 253, 38 So. 160.. 53. 
 Lake Erie, etc., R. v. Griffin 
 
 (1883). 92 Ind. 487.. (1886), 
 
 107 Ind. 464.. 124. 
 Lake Superior, etc., Co. v. Erick- 
 
 SON (1878), 39 Mich. 492, 33 
 
 Am. R. 423.. 96, 207. 
 Lakin v. Oregon, etc., R. (1887), 
 
 15 Ore. 220, 15 Pac. 641.. 9. 
 Lakin v. Willamette, etc., R. 
 
 (1886), 13 Ore. 436. 11 Pac. 68. 
 
 57 Am. R. 25.. 118. 
 Lancaster v. Greaves (1829), 9 
 
 Barn. & C. 628.. 36. 
 Lancaster v. Insurance Co. 
 
 (1887), 92 Mo. 460, 5 S. W. 
 
 23, 1 Am. St. 739. .92, 97. 
 Lancaster Av., etc., Co. v. 
 
 Rhoads (1887), 116 Pa. St. 377, 
 
 9 Atl. 852, 2 Am. St. 608.. 75, 
 
 134. 141. 151. 163, 164. 
 Langen v. Tyler (1902). 114 Fed. 
 
 716, 51 C. C. A. 503.. 9. 
 
 Langley v. R. Co. (1857), 10 
 
 Gray (Mass.), 103.. 126. 
 Langridge v. Levy (1837), 2 
 
 Mees. & W. 519, 4 Id. 337.. 91. 
 Larock v. Ogdensburgh, etc., R. 
 
 (1882), 26 Hun. 382.. 209. 
 Larow v. Clute (1891), 60 Hun, 
 
 580. 14 N. Y. Supp. 616.. 92. 
 Larson v. American, etc., Co. 
 
 (1905), 40 Wash. 224. 82 Pac. 
 
 294, 11 Am. St. 904.. 196. 
 Larson v. Metropolitan St. R. 
 
 (1892), 110 Mo. 234, 19 S. W. 
 
 416, 33 Am. St. R. 439, 16 L. R. 
 
 A 330, 45 Alb. L. J. 514, 34 
 
 Cent. L. J. 51 3.. 19, 20, 52. 95, 
 
 168. 
 Lasker, etc., Assn. v. Hatcher 
 
 (1894, Tex. Civ. App.), 28 S. 
 
 W. 404.. 106. 109. 
 Latorre v. Central, etc., Co. 
 
 (1896), 9 App. Div. 145, 41 N. 
 
 Y. Supp. 99.-29. 
 Laubheim v. Royal, etc.. Co. 
 
 (1887), 107 N. Y. 228, 13 N. E. 
 
 781, 1 Am. St. 815.. 165. 
 Laugher v. Painter (1826), 5 B. & 
 
 C. 547.. 49. 50. 
 Lauro v. Standard Oil Co. (1902), 
 
 74 App. Div. 4, 76 N. Y. Supp. 
 
 800.. 7. 
 Lawrence v. Great Northern R. 
 
 ( ), 16 Q. B. 643.. 217. 
 
 Lawrence v. Shipman (1873). 39 
 
 Conn. 586, Huff. Cas. Agcy. 
 
 (2d ed.), 596.. 38, 45, 65. 95, 
 
 106, 164, 168. 
 Leader v. Moxan (1773). 3 Wils. 
 
 461, 2 W. Bl. 924.. 20. 
 Leavitt v. Bangor, etc., R. 
 
 (1897), 89 Me. 509, 36 Atl. 998, 
 
 36 L. R. a. 382, 7 A. & E. Ry. 
 
 Cas. 354, 1 Am. Neg. R. 605.. 
 
 28, 74, 118. 
 Lebanon Light, etc.. Co. v. Leap 
 
 (1894), 139 Ind. 443, 39 N. E. 
 
 57.. 85. 
 Leber v. Minneapolis, etc., R. 
 
 (1882). 29 xMinn. 256, 13 N. W. 
 
 31.. 67.
 
 XXXVl 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Leeds v. Richmond (1885), 102 
 
 Ind. Zll, 1 N. E. 711.. 160. 
 LeMaitre v. Davis (1881), L. R., 
 
 19 Ch. Div. 281.. 95. 
 Lendberg v. Brotherton, etc., Co. 
 
 (1889). 75 Mich. 84, 42 N. W. 
 
 675.. 205. 
 Lenderink v. Rockford (1904), 
 
 135 Mich. 531, 98 N. W. 4, 16 
 
 Am. Neg. R. 614, n..22. 
 Lennox v. Harrison (1858). 7 U. 
 
 C. C. P. 496.. 36. 
 Lesher v. Wabash, etc., Co. 
 
 (1852), 41 111. 85, 56 Am. Dec. 
 
 494.. 89. 118. 124. 
 Leslie V. Pounds (1812), 4 Taunt. 
 
 649.. 49. 
 Leslie v. Rich Hill, etc., Co. 
 
 (1892), 113 Mo. 31, 19 S. W. 
 
 308.. 180. 
 Levenite v. Lancaster (1906), 215 
 
 Pa. 576, 64 Atl. 782.. 141. 
 Liebold v. Green (1897), 69 111. 
 
 App. 527.. 206. 
 LiNNEHAN V. Rollins (1884), 137 
 
 Mass. 123, 50 Am. R. 287, Huff. 
 
 Cas. Agcy. (2d ed.), 587, Burd. 
 
 Cas. Torts, 400. 15 Am. Neg. 
 
 Cas. 666, n . . 19, 27. 
 Linton v. Smith (1857), 8 Gray 
 
 (Mass.), 147.. 16. 34. 
 Lisnacrieve, The (1898), 87 Fed. 
 
 570.. 7. 
 Little V. Hackett (1885), 116 U. 
 
 S. 366.. 38. 
 Littledale v. Lonsdale ( ), 2 
 
 H. Bl. 267.. 49. 
 Lockwood V. New York (1858), 
 
 2 Hilt. (N. Y.), 66.. 67, 70, 
 
 142. 
 Logan V. N. Car. R. Co. (1895), 
 
 116 N. C. 940, 21 S. E. 959.. 
 
 126. 
 
 LOGANSPORT V. DiCK (1880), ^Q 
 
 Ind. 65. 36 Am. R. 166. .67, 11. 
 
 93. 
 Long V. Moon (1891), 107 Mo. 
 
 3.34, 17 S. W. 810. 
 Longg V. Stanley, etc., Co. (1903), 
 
 69 N. J. L. 31, 54 Atl. 251.. 9. 
 
 Lookout Mt.. etc., Co. v. Lea 
 
 (1906), 144 Ala. 169, 39 So. 
 
 1017, 42 A. & E. Rv. Cas. 10. . 
 
 196. 
 Loop v. Litchfield (1870), 42 
 
 N. Y. 351, 1 Am. R. 543.. 224. 
 Lord V. Spielman (1898), 29 App. 
 
 Div. 292, 51 N. Y. Supp. 534.. 
 
 38. 
 LosEE V. Buchanan (1873), 51 
 
 N. Y. 476, 10 Am. R. 623, 
 
 Chase's Cas. Torts (Supp.), 
 
 15.. 165. 
 LosEE V. Clute (1873), 51 N. Y. 
 
 494, 10 Am. R. 638, Chase's Cas. 
 
 Torts (Supp.), 4.. 224. 
 Lough rain v. Autophone Co. 
 
 (1902), n N. Y. App. D. 542, 
 
 78 N. Y. Supp. 919.. 38. 
 Louisville, etc., R. v. Cheatham 
 
 (1907), 118 Tenn. 160, 100 S. 
 
 W. 902.. 38. 
 Louisville, etc., R. v. Conroy 
 
 (1886), 63 Miss. 562, 56 An. 
 
 R. 810.. 38. 
 Louisville, etc., R. v. Katzen- 
 
 berger (1886), 16 Lea. (Tenn.), 
 
 380, 57 Am. R. 232.. 135. 
 Louisville, etc., R. v. Tow 
 
 (1901), 23 Ky. L. R. 408, 63 
 
 S. W. 27. 66 L. R. A. 941, 21 
 
 A. & E. Rv. Cas.— N. S 441.. 
 
 18, 20, 22, 164, 169. 
 Louisville University v. Hammock 
 
 (1907, Ky.), 106 S. W. 219.. 
 
 149. 
 Louthern v. Hewes (1902), 138 
 
 Cal. 116, 70 Pac. 1065, 16 Am. 
 
 Neg. R. 613, n..26, 56. 
 Lowell v. Boston, etc., R. 
 
 (1839), 23 Pick. (Mass.), 24, 34 
 
 Am. Dec. 33.. 47, 70. 116, 124, 
 
 125. 
 Lvtle V. Conover Bldg. Co. (1902), 
 
 12 Oh. Dec. 346, 11 Am. Neg. 
 
 R. 641, n..65. 
 
 M 
 
 Mabev & Cooper, The (1871), 14 
 Wall. (U. S.), 204.. 38.
 
 TABLE OF CASES. 
 
 XXXVU 
 
 [References are to sections. 1 
 
 MacDonald v. O'Reilly (1904), 
 
 45 Ore. 589, 78 Pac. 753. .34, 
 
 220. 
 MacDonald v. Wyllie (1898), 1 
 
 Sc. Sess. Cas. (5th ser.), 339.. 
 
 184. 
 Macfie V. Hutchinson (1887), 12 
 
 Ont. Pr. Rep. 167.. 215. 
 Machu v. London, etc.. R. (1848), 
 
 2 Exch. 415, 5 Eng. Ry. Cas. 
 
 302.. 138. 
 Macon, etc., R. v. Mayes (1873), 
 
 49 Ga. 355, 15 Am. R. 678.. 197, 
 
 210. 
 Madigan v. Wellington, etc., R. 
 
 (1883), N. Zeal. L. R.. 2 S. C. 
 
 209.. 72. 
 Magdaline, The (1898), 91 Fed. 
 
 798.. 141. 
 Magee v. Troy (1888), 48 Hun, 
 
 383, 1 N. Y. Supp. 541.. 141. 
 Maguire v. Magce (1888, Pa.), 13 
 
 Atl. 551.. 225. 230. 
 Mahanev Tp. v. Scholly (1877). 
 
 84 Pa! 136.. 161. 
 Mahar v. Steur (1898), 170 Mass. 
 
 454, 49 N. E. 741.. 171. 
 Mahon v. Burns (1894), 29 N. Y. 
 
 Supp. 682, 34 Id. 91.. 106. 
 Mahoney v. Dankwert (1899), 108 
 
 Iowa, 321, 79 N. W. 134.. 74. 
 Maloney v. Bradley (1891), 14 
 
 N. Y. Supp. 794; (1892), 18 Id. 
 
 757.. 109. 229. 
 Maltbie v. Bolting (1893), 6 Misc. 
 (N. Y.). 339, 26 N. Y. Supp. 
 
 903.. 92. 
 Mamer v. Lussem (1872), 65 111. 
 
 484.. 70. 
 Manchester v. Warren (1893), 67 
 
 N. H. 482, 32 Atl. 763.. 78. 
 Manhattan R. v. Cornell (1891), 
 
 7 N. Y. Supp. 557. 130 N. Y. 
 
 637, 29 N. E. 151.. 229. 
 Mann v. O'Sullivan (1899), 126 
 
 Cal. 61. 58 Pac. 375, 77 Am. St. 
 
 149.. 37. 
 Mansfield, etc.. Co. v. McEnery 
 (1879), 91 Pa. St. 185.. 110. 
 
 Mappin v. Washington Co. (1893), 
 
 92 Ga. 130, 17 S. E. 1009.. 161. 
 Maria. The (1839), 1 W. Rob. 
 
 95.. 38. 
 Marrow v. Flimby, etc., Co. 
 
 (1898), 2 Q B. 588.. 205. 
 Marsh v. Hand (1890), 120 N. 
 
 Y. 315, 24 N. E. 463. 
 Marsh v. Philadelphia (1894). 8 
 
 Pa. Dist. Rep. 340.. 72, 88. 
 Martin v. Tribune Association 
 
 (1883), 30 Hun (N. Y.), 291.. 
 
 22, 92. 
 Martin v. Sunlight, etc., Co. 
 
 (1896), 17 New So. Wales, L. 
 
 R. 364.. 206. 
 Martin v. Temperly (1843), 4 Q. 
 
 B. 295.. 8, 38. 
 Marvin, etc., Co. v. Ward (1883), 
 
 46 N. J. L. 19.. 224. 
 Mary, The (1879), L. R., 5 Prob. 
 
 Div. 14.. 38. 
 Mason v. Tower Hill Co. (1895), 
 
 83 Him (N. Y.), 479, 32 N. Y. 
 
 Supp. 36.. 206, 208. 
 Massev v. Oates (1905), 143 Ala. 
 
 248, 39 So. 142.. 92. 
 Mathenv v. Wolffs (1865), 2 
 
 Duv. (Ky.), 137.. 67. 
 Mathes v. Kerrigan (1886), 53 N. 
 
 Y. Super. 431.. 200. 
 Matthews v. West London, etc., 
 
 Co. (1813), 3 Campb. 403..47. 
 Mattise v. Manufacturing Co. 
 
 (1894), 46 La. Ann. 1535. 15 
 
 So. 400, 49 Am. St. 356. .85. 
 Mauer v. Ferguson (1892), 17 N. 
 
 Y. Supp. 349.. 223. 
 Mavhew v. Sullivan, etc., Co. 
 
 ("1884). 76 Me. 100, 15 Am. 
 
 Neg. Cas. 296, n..20, 201. 
 Mavor, etc., v. McCarv (1887), 84 
 
 Ala. 469, 4 So. 630.. 72, 141. 
 IMeany v. Abbott (1867), 6 Phila. 
 
 (Pa.), 256.. 106. 
 Mefford v. Louisville, etc., R. 
 
 (1892), 14 Ky. L. R. 327, 20 
 
 S. W. 263.. 28, 38.
 
 XXXVlll 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Meier v. Morgan (1892). 82 
 
 Wise. 29. 52 N. W. 174. 33 Am. 
 
 St. 39.. 70, 163, 168, 190. 
 Meier v. Pennsylv.ania R. Co. 
 
 (1870). 64 Pa. 228, 3 Am. R. 
 
 581 . . 133. 
 Memphis v. Lasser (1849), 9 
 
 Humph. (Tenn.), 1..47. 
 Mersev. etc.. Co. v. Gibbs (1864), 
 
 L. R.. 1 H. L. 93.. 13, 149. 
 Methodist Episcopal Church v. 
 
 Rensh (1857), 7 Oh. St. 369.. 
 
 226. 
 Metropolitan, etc., R. v. Dick 
 
 (1900), 87 111. App. 40.. 115. 
 Metzinger v. New Orleans Board, 
 
 etc. (1907), 120 La. 124, 44 So. 
 
 1007.. 38. 
 Mever v. Ken von, etc., Co. (1905), 
 
 95 Minn. 329, 104 N. W. 132.. 9. 
 Mever v. Midland R. (1873), 2 
 
 Nebr. 391.. 85. 
 Meyers v. City of Philadelphia 
 
 (1907), 217 Pa. St. 159, 66 Atl. 
 
 251, 10 L. R. A.— N. S. 678.. 
 
 143. 
 Mevers v. Easton (1878), 4 Vict. 
 
 L. R. 283.. 109. 
 Meyers v. Snider (1848), Bright 
 
 (Pa.), 489.. 47. 
 Mevers v. Syndicate, etc., Co. 
 
 ('l907), 47 Wash. 48, 91 Pac. 
 
 549.. 38. 
 Michael v. Alestree (1677), 2 
 
 Lev. 172, 3 Keb. 650.. 10. 
 Michael v. Stanton (1875), 3 
 
 Hun (N. Y.), 462.. 21. 
 Mickee v. W. A. Wood, etc., Co. 
 
 (1894), V Hun (N. Y.), 559, 
 
 28 N. Y. Supp. 918.. 189. 
 Miller v. Lasher (1890), 37 111. 
 
 App. 609.. 69. 
 Miller v. Merritt, etc., Co. (1905), 
 
 211 Pa. 127, 60 Atl. 508. .23. 
 Miller v. Minnesota, etc., R. 
 
 (1888), 76 Iowa, 665; 39 N. W. 
 
 188, 14 Am. St. 258, 38 A. & E. 
 
 R. Cas. 234.. 38, 55. 
 Miller v. Moran, etc., Co. (1905), 
 
 39 Wash. 631, 81 Pac. 1089, 1 
 
 L. R. A.— N. S. 283.. 18, 193, 
 
 230. 
 Miller V. Railroad Co. (1890), 125 
 
 N. Y 118, 26 N. E. 35.. 126. 
 Milligan V. Wedge (1840), 12 
 
 Ad. & E. 737.. 34, 38, 49, 50, 
 
 207. 
 Mills V. Holton ( ), 2 Hurl. 
 
 & N. 14.. 106. 
 Mills V. Thomas, etc., Co. (1900), 
 
 54 App Div. 124, 66 N. Y. Supp. 
 
 398, 65 N. E. 1119, 172 N. Y. 
 
 660.. 7. 
 Minor v. Clark (1889), 8 N. Y. 
 
 Supp. 616. .225. 
 Mitchell V. Southern R. (1903), 
 
 24 Kv. L. R. 2388, 74 S. W. 
 
 216.. 229. 
 M'Lean v. Russell (1850), 12 Sc. 
 
 Sess. Cas. (2d sen), 887.. 57, 
 
 93, 164. 
 Moffett V. Koch (1901), 106 La. 
 
 371, 31 So. 40.. 16. 
 
 Mohr V. McKenziem (1895), 60 
 111. App. 575.. 230. 
 
 Moline v. McKinnie (1888), 3D 
 III. App. 419.. 93. 
 
 Montgomery, etc., Co. v. Mont- 
 gomery, etc., R. (1888), 86 Ala. 
 
 372, 5 So. 735.. 126. 
 Montgomery St. R. v. Smith 
 
 (1905), 146 Ala. 316, 39 So. 
 
 757, 42 A. & E. Ry. C— N. S. 
 
 131.. 72. 
 Moore v. Gimson (1889). 5 Times 
 
 L. R. 177.. 189. 
 MooKE V. Sanborn (1853), 2 
 
 Mich. 519, 59 Am. Dec. 209.. 34, 
 
 57. 
 Moore v. Stainton (1903), 80 App. 
 
 Div. 295, 80 N. Y. Supp. 244, 
 
 177 N. Y. 581, 59 N. E. 1127.. 
 
 30. 
 Moore v. Townsend (1899), 76 
 
 Minn. 64, 78 N. W. 880.. 176. 
 Moran v. Carlson (1904), 95 App. 
 
 Div. 116, 88 N. Y. Supp. 
 
 520.. 7. 
 Moran v. Corliss, etc., Co. 
 
 (1899), 21 R. I. 386, 43 Atl. 874, 
 
 45 L. R. A. 267.. 110, 186.
 
 TABLE OF CASES. 
 
 XXXIX 
 
 [References are to sections.] 
 
 Morgan v. Bowman (1856), 22 
 
 Mo. 538.. 21, 34. 
 Morgan v. Smith (1893), 159 
 
 Mass. 570, 35 N. E. 101, 15 Am. 
 
 Neg. Cas. 667, n. .19, 20, 34, 196. 
 Morrell v. Rheinfrank (1885), 24 
 
 Fed. 94.. 207. 
 Morris v. Androscoggin R. Co. 
 
 (1855), 39 Me. 274, 63 Am. 
 
 Dec. 621.. 228. 
 Morton v. Detroit, etc., R. (1890), 
 
 81 Mich. 423, 46 N. W. 111.. 
 
 188 
 Morton v. Thurher (1881), 85 N. 
 
 Y. 550.. 106. 
 Morton v. Union Tr. Co. (1902), 
 
 20 Pa. Super. Ct. 325.. 229. 
 Mound Citv, etc., Co. v. Conlon 
 
 (1887), 92 Mo. 221, 4 S. W. 
 
 922.. 20. 
 Mulchey v. Methodist, etc.. So- 
 ciety (1878), 125 Mass. 487. 6 
 
 Reptr. 751. 15 Am. Neg. Cas. 
 
 661. n..99, 176. 209. 
 MuLL.'VN V. Philadelphia, etc., 
 
 Co. (1875), 78 Pa. 25, 21 Am. 
 
 R. 2.. 29. 
 Mullen v. St. John (1874), 57 
 
 N. Y. 567, 15 Am. R. 530.. 103. 
 Mullich V. Brocker (1905). 119 
 
 Mo. App. 332. 97 S. W. 549.. 16. 
 Mullins V. Siegel. etc., Co. (1904), 
 
 88 N. Y. Supp. IZl; (1905), 183 
 
 N. Y. 129, 75 N. E. 1112.. 66, 92. 
 Mumby v. Bowden (1889), 25 
 
 Fla. 454, 6 So. 453.. 19, 26, 106. 
 Munroe v. Fred T. Ley & Co. 
 
 (1907), 156 Fed. 468.. 33. 
 Murphy v. Altman (1884), 28 
 
 App. Div. 472, 51 N. Y. Supp. 
 
 106. .206. 
 Murphy V. Caralli (1864), 3 
 
 Hurl. & C. 462.. 207. 
 Murphv V. Lowell ( ), 124 
 
 Mass. 564.. 73. 
 Murphy v. Ottawa (1887), 13 
 
 Ont. 334.. 22. 
 Murphy v. Perlstein (1902), 76 
 
 N. Y. Supp. 657.. 93. 
 
 Murray v. Arthur (1901), 98 111. 
 
 App. 331.. 69, 85, 100. 
 Murrav v. Currie (1870). L. R.. 
 
 6 C. P. 24.. 46. 
 Murray v. Dwight (1900), 161 
 
 N. Y. 301, 55 N. E. 901. 48 L. 
 
 R. A. 673, Huff. Cas. Agcy. (2d 
 
 ed.), 620.. 4, 13, 31, 38. 
 Murray v. Lehigh, etc., R. 
 
 (1895). 66 Conn. 512, 34 Atl. 
 
 506, 32 L. R. A. 539.. 134. 
 Murrav v. Pawtucket, etc., R. 
 
 (1903). 25 R. T. 209, 55 Atl. 
 
 491.. 133. 
 Murtfelt V. N. Y., etc., R. (1886), 
 
 102 N. Y. 702, 25 A. & E. R. 
 
 Cas. 144. .66, 124. 
 Myer v. Hobbs (1876). 57 Ala. 
 
 175, 29 Am. R. 719.. 72. 
 Myers v. Holborn (1895), 58 N. 
 
 J. L. 193, 33 Atl. 389. 30 L. R. 
 
 A. 345, 55 Am. St. 606.. 38. 
 Mynard v. Syracuse, etc., R. 
 
 (1877). 71 N. Y. 180, 27 Am. 
 
 R. 28.. 229. 
 
 Mc 
 
 McAllister v. Albany (1890), 18 
 
 Ore. 426, 23 Pac. 845.. 140. 
 McAllister v. Burgess (1894). 161 
 
 Mass. 271. 37 N. E. 173.. 149. 
 McBeath v. Rawle (1901), 93 111. 
 
 App. 212.. 180. 
 McCafferty v. Spuyten D., etc., 
 
 R (1874). 61 N. Y. 178. 19 .\m. 
 
 R. 267.. 50. 65, 72, 73. 116, 120. 
 McCaffrey v. Mossberg, etc., Co. 
 
 (1901), 23 R. L 381. 50 Atl. 651. 
 
 91 Am. St. 637, 55 L. R. A. 
 
 822.. 224. 
 McCall V. Pacific, etc., Co. (1898), 
 
 123 Cal. 42, 55 Pac. 706.. 193. 
 McCamus v. Citizens, etc., Co. 
 
 (1863). 40 Barb. (N. Y.), 381.. 
 
 32. 176. 
 McCann v. Kings Co., etc., R. 
 
 (1892), 46 N. Y. St. R. 327, 19 
 
 N. Y. Supp. 668.. 55.
 
 xl 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 McCann v. Waltham (1895), 163 
 
 Mass. 344, 40 N. E. 20.. 141. 
 McCarrier v. Hollister (1902), 
 15 S. D. 366, 89 N. W. 862, 91 
 Am. St. 695. 11 Am. Neg. R. 
 641.. 67, 75, 93. 
 McCarthy v. Second Parish 
 (1880), 71 Mo. 318, 36 Am. R. 
 320.. 38. 93. 
 McCarthy v. Yomig (1861). 16 
 
 Hurl. & N. 329.. 183. 
 McCartv v. Muir (1893), 50 111. 
 
 App. 5 10.. 38. 
 McClammv v. Spokane (1904), 36 
 
 Wash. 339, 78 Pac. 912.. 140. 
 McCleary v. Kent (1854), 3 Duer, 
 
 27.. 22. 
 
 McColligan v. Pennsylvania R. 
 
 Co. (1906), 214 Pa. St. 229. 53 
 
 Atl. 792, 6 L. R. A.— N. S. 544, 
 
 112 Am. St. 739.. 7. 
 
 McCoRD V. Western Union Tel. 
 
 Co. (1888), 39 Minn. 181, 39 N. 
 
 W. 315, 1 L. R. A. 143, 12 Am. 
 
 St. 636, Huff. Cas. Agcy. 306. .6. 
 
 McCoy V. Kansas City, etc., R. 
 
 (1889), 36 Mo. App. 445.. 126. 
 
 McDermott v. McDonald (1894), 
 
 55 111. App. 226.. 106. 
 McDonald, see aso, MacDonald. 
 McDonald v. Massachusetts, 
 ETC., Hospital (1876), 120 Mass. 
 432, 21 Am. Rep. 529.. 149. 
 McDonald v. Morrison (1898), 15 
 
 Qucb. Sup. Ct. 143.. 227. 
 McDonnell v. Rifle, etc., Co. 
 (1888), 71 Mich. 61, 38 N. W. 
 681.. 69. 
 McDonough v. Pelham, etc., Co. 
 (1906), 111 App. Div. 585, 98 N. 
 Y. Supp. 90.. 7. 
 McDowell V. H. Ramsdell, etc., 
 Co. (1894), 78 Hun, 228, 28 N. 
 Y. Supp. 821.. 38. 
 McElroy v. Nashua, etc., R. 
 (1849), 4 Cush. (Mass.), 400, 50 
 Am. D. 794.. 134. 
 McElroy v. Australian, etc., Co. 
 (1899), 24 Vict. L. R. 953.. 33. 
 
 McEnany v. Kyle (1887), 14 Daly, 
 
 268.. 189. 
 
 McEvoy V. Saulte Ste. Marie 
 
 (1904), 136 Mich. 172, 98 N. W. 
 
 1000.. 140. 
 
 McFadden v. Jewell (1903). 119 
 
 Iowa, 321, 93 N. W. 202, 60 L. 
 
 R. A. 401, 97 Am. St. 321.. 53. 
 
 McGuire v. Grant (1856), 25 N. 
 
 J. L. 356, 67 Am. Dec. 49. 
 McHarge v. Newcomer (1907), 
 117 Tenn. 595, 100 S. W. 700, 9 
 L. R. A.— N. S. 298.. 16, 27, 65, 
 79,92. 
 Mclnerny v. Delaware, etc., R. 
 (1897), 151 N. Y. 411, 45 N. 
 E. 848.. 7. 
 Mclnnulty v. Primrose (1897), 24 
 Sc. Sess. Cas. (4th ser.), 442.. 
 189. 
 Mclntyre v. Boston, etc., R. 
 (1895), 163 Mass. 189, 39 N. E. 
 1012.. 110. 
 Mclntyre v. Gallach (1883), 11 
 Sc. Sess. Cas. (4th sen), 64.. 
 176. 
 McKenna v. Kimball (1888), 145 
 
 Mass. 555, 14 N. E. 789.. 15. 
 McKeon v. Bolton (1851), 1 Ir. 
 
 C. L. Rep. 377.. 35. 
 McKeon v. Louis Weber, etc., Co. 
 (1903), 84 N. Y. Supp. 913.. 
 201. 
 McKinley v. Chicago, etc., R. 
 (1890), 40 Mo. App. 449.. 85, 
 171. 
 McLaughlin v. New York, etc., 
 Co. (1894), 7 Misc. 119, 24 N. 
 Y. Supp. 248.. 38. 
 McLean, see M'Lean. 
 McLean v. Burbank (1866), 11 
 
 Minn. 277.. 133. 
 McMillan v. Walker (1881), 21 
 
 N. B. 31.. 163. 
 McMullen v. Hoyt (1867), 2 Daly 
 
 (N. Y.), 271.. 38. 
 McxMullen v. New York (1905), 
 
 93 N. Y. Supp. 772.. 22. 
 McNamee v. Hunt (1898), 87 Fed. 
 298.. 73.
 
 TABLE OF CASES. 
 
 xli 
 
 [References are to sections.] 
 
 McNulty V. Ludwig (1908), 109 
 
 N. Y. Supp. 703.. 79. 
 McPadden v. New York, etc., R. 
 
 (1871), 44 N. Y. 478, 4 Am. R. 
 
 705.. 133. 
 McWilliams v. Detroit, etc., Co. 
 
 (1875), 31 Mich. 274.. 90. 
 
 Nahm v. Register, etc., Co. 
 
 (1905), 120 Ky. 485, 87 S. W. 
 
 296, 9 Am. & Eng. Ann. Cas. 
 
 209.. 106, 107, 109. 
 Nashville v. Brown (1871), 9 
 
 Heisk. (Tenn.), 1, 24 Am. R. 
 
 289.. 47, 53, 141. 
 National Bank v. Atlanta, etc., R. 
 
 (1886), 25 S. C. 220.. 126. 
 National, etc., Co. v. Foster, etc., 
 
 Co. (1908, Ind.),85 N. E. 489. . 
 
 202. 
 Necher v. Harvev (1883), 49 
 
 Mich. 518, 14 N. W. 503.. 224. 
 Negus v. Becker (1894), 143 N. 
 
 Y 303, 38 N. E. 290, 25 L. R. 
 
 A. 667, 42 Am. St. 724.. 103. 
 Nelson v. Richardson (1903). 108 
 
 111. App. 121.. 38. 
 Nelson v. Vermont, etc., R. 
 
 (1854), 26 Vt. 717, 62 Am. Dec. 
 
 614.. 126. 
 Nelson v. Young (1904), 81 N. 
 
 Y. Supp. 69, affd 180 N. Y. 
 
 523, n N. E. 1146.. 100. 206, 
 
 230. 
 Neuman v. Greenleaf, etc., Co. 
 
 (1898), 73 Mo. App. 326.. 175. 
 Neumeister & Eggers (1899), 29 
 
 App. Div. 385, 51 N. Y. Supp. 
 
 481.. 105. 
 Nevins v. Peoria (1866), 41 111. 
 
 502. 89 Am. Dec. 392.. 20, 22, 
 
 53, 70, 168. 
 Newcomb v. Boston, etc., De- 
 partment (1890), 151 Mass. 
 
 315, 24 N. E. 39, 6 L. R. A. 
 
 778.. 149. 
 
 Newman v. New York (1908), 57 
 
 Misc. 636, 108 N. Y. Supp. 676. . 
 
 141. 
 Newton v. Ellis (1885), 5 El. & 
 
 Bl. 115.. 15, 70. 
 New Albany, etc.. Mill v. Cooper 
 
 (1892), 131 Ind. 363, 30 N. E. 
 
 394, 14 Am. Neg. Cas. 456.. 21, 
 
 22. 
 New Albany, etc.. R. v. Maiden 
 
 (1859), 12 Ind. 10.. 123. 
 New Orleans R., see also. Rail- 
 road Co. 
 New Orleans, etc., R. v. Nor- 
 wood (1885), 62 Miss. 565, 52 
 
 Am. R. 191.. 21. 
 New Orleans, etc.. R. v. Reese 
 
 (1884), 61 Miss. 581, 18 A. & E. 
 
 R. Cas. 110.. 38, 57. 
 New York v. Bailey (1845), 2 
 
 Denio, 433.. 47. 
 New York v. Brady (1893), 70 
 
 Hun, 250, 24 N. Y. Supp. 296.. 
 
 229. 
 New York, etc., R. v. Cromwell 
 
 (1900), 98 Va. 227, 35 S. E. 444, 
 
 49 L. R. A. 462, 81 Am. St. 
 
 722.. 136. 
 New York, etc., R. v. New Jer- 
 sey, ETC.. R. (1897), 60 N. J. 
 
 L. 338, 61 Id. 287, 38 Atl. 828, 
 
 41 Id. 1116, 43 L. R. A. 849, 
 
 854.. 38. 
 New York, etc., R. v. Winans, see 
 
 York, etc.. R. v. Winans. 
 Nicholson v. Mounsey ( ). 15 
 
 East, 384.. 15. 
 Nienieyer v. Weyerhauser (1895), 
 
 •95 Iowa, 497, 64 N. W. 416.. 
 
 208. 
 Niobe, The (1888), L. R., 13 
 
 Prob. Div. 155.. 38. 
 Nisbett V. Dixon (1852), 14 Sc. 
 
 Sess. Cas. (2d ser.), 973.. 16. 
 Noble V. Hahnemann Hospital 
 (1906). 112 N. Y. App. Div. 
 
 663, 98 N. Y. Supp. 605.. 149. 
 Noggle V. Carlisle, etc., R. (1906), 
 
 215 Penn. 357, 64 Atl. 547. 44 
 
 A. & E. R. C— N. S. 627.. 76.
 
 xlii 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Norfolk, etc., R. v. Stevens 
 
 (1899), 97 Va. 631, 34 S. E. 
 
 925. 46 L. R. A. 367.. 55, 180, 
 
 187, 193. 
 Norman v. Dowd (1903), 83 N. 
 
 Y. Supp. 693.. 206. 
 Norman v. Middlesex, etc., Co. 
 
 (1905). 71 N. J. L. 652, 60 Atl. 
 
 936.. 196. 
 NoRRis V. Androscoggin R., see 
 
 Morris. 
 North Chicago St. R. Co. v. 
 
 Dudgeon (1900), 184 111. 477, 56 
 
 N. E. 796.. 110. 189, 194. 
 Northern, etc.. R. v. Herbert 
 
 (1886), 116 U. S. 647.. 180. 
 Northern, etc., R. v. Peterson 
 
 (1896), 162 U. S. 346.. 27. 
 Northern Trust Co. v. Palmer 
 
 (1898). 70 111. App. 93, 171 111. 
 
 383, 49 N. E. 553, 3 Am. Neg. 
 
 R. 531 . . 104. 
 Northrup v. Hay ward (1906), 99 
 
 Minn. 299, 109 N. W. 241.. 20. 
 Norton v. Wiswall (1858), 26 
 
 Barb. (N. Y.), 618.. 38. 
 Norwalk, etc., Co. v. Norwalk 
 
 (1893), 63 Conn. 495, 28 Atl. 
 
 321.. 20. 27, 70, 72. n, 164, 166, 
 
 168. 
 Norwich, etc., Co. v. New York, 
 
 etc., Co. (1884), 22 Fed. 672.. 
 
 200. 
 Nugent v. Boston, etc.. R, 
 
 (1888), 80 Me. 62, 12 Atl. 797, 
 
 6 Am. St. 151.. 126. 
 Nyback v. Champagne, etc., Co. 
 
 (1901), 48 C. C. A. 632, 109 
 
 Fed. 732.. 35. 
 
 O'Brien v. Board, etc., (1880), 6 
 
 Vict. L. Rep. 204.. 97. 
 O'Brien v. Cunard S. S. (1891), 
 
 154 Mass. 272, 28 N. E. 266, 13 
 
 L. R. A. 329.. 38. 
 
 O'Connor v. Schnepel (1895), 33 
 
 N. Y. Supp. 562.. 106. 
 O'Hale V. Sacramento (1874), 48 
 
 Cal. 212.. 161. 
 O'Hara v. Laclede, etc., Co. 
 
 (1908), 131 Mo. App. 428, 110 
 
 S. W. 642.. 148. 
 Ohio, etc., R. v. Dunbar (1850), 
 
 20 111. 623, 71 Am. Dec. 201.. 
 
 124, 126. 
 Old Colony R. Co. v. Slavins 
 
 ( ), 148 Mass. 363, 19 N. E. 
 
 372, 12 Am. St. R. 558.. 229. 
 Oldfield V. Furness (1893, C. A.), 
 
 58 J. P. 102, 9 Times L. R. 
 
 513.. 21. 
 Omaha v. Jensen (1892), 35 
 
 Nebr. 68, 37 Am. St. 432, 52 
 
 N. W. 883.. 79, 141, 142, 145. 
 Omaha, etc., Co. v. Hargadine 
 
 (1904), 5 Nebr. (unoff.), 418, 98 
 
 N. W. 1071, 36 A. & E. Ry. 
 
 Cas.— N. S. 827, 16 Am. Neg. 
 
 R. 610, n., s. c, suh nom., Har- 
 gadine V. Omaha, etc., Co. 
 
 (1906), 76 Nebr. 729, 107 N. W. 
 
 864..20, 85, 203. 
 Ominger v. New York, etc., R. 
 
 (1875), 4 Hun (N. Y.). 159.. 
 
 205. 
 O'Neill V. Blase (1902), 94 Mo. 
 
 App. 648, 68 S. W. 764.. 34. 
 Oregon R., etc., Co. v. Oregonian 
 
 Rv. Co. (1888), 130 U. S. 1.. 
 
 126. 
 O'Rourke v. Feist (1899), 59 N. 
 
 Y. Supp. 157, 42 App. Div. 136. . 
 
 106, 107, 109. 
 O'Rourke v. Hart (1880), 7 
 
 Bosw. (N. Y.), 511, 9 Id. 301.. 
 
 66. 
 Ortlip V. Philadelphia, etc., R. 
 
 (1901). 198 Pa. St. 586, 48 Atl. 
 
 497.. 183, 194. 
 Osljorn V. Union, etc., Co. (1869), 
 
 53 Barb. (N. Y.), 629.. 67, 160. 
 Otis, etc., Co. V. Wingle (1907), 
 
 82 C. C. A. 62, 152 Fed. 914.. 7.
 
 TABLE OF CASES. 
 
 xliii 
 
 [References are to sections.] 
 
 Outrine, etc., Co. v. Gregory 
 
 (1903), 28 Vict. L. R. 586. .34. 
 Overhouser v. American, etc.. Co. 
 
 (1902), 118 Iowa, 417, 92 N. 
 
 W. 74.. 29. 
 Overseer, etc.. v. Pelton (1901), 
 
 129 Mich. 31, 87 N. W. 1029. .78. 
 Overseer, etc., see also, Road 
 
 District. 
 Overton v. Freeman (1852), 11 C. 
 
 B. 867, 9 Am. Neg. R. 122, n . . 
 
 51, 57, 230. 
 
 Pack V. Mayor, etc., Co. (1853), 
 
 8 N. Y. 222, Huff. Cas. Agcy. 
 
 (2d ed.), 590. n..20, 50, 51, 52, 
 
 53, 67. 73. 
 Painter v. Mavor, etc. (1863), 46 
 
 Pa. 213.. 46, 51, 52, 53. 141. 183. 
 Palmer v. Lincoln (1876), 5 
 
 Nebr. 137, 25 Am. R. 470. .70. 
 Park V. Adams Co. (1891). 3 Ind. 
 
 App. 530. 30 N. E. 147. .92, 147. 
 Parker v. Waycross, etc., R. 
 
 (1888), 81 Ga. 387. 8 S. E. 
 
 871.. 
 Parkes v. Seasongood (1907), 152 
 
 Fed. 583.. 38. 
 Parkhurst v. Swift (1903). 31 
 
 Ind. App. 521, 68 N. E. 620, 16 
 
 Am. Neg. R. 613, n..38. 
 Parks v. Northwestern Univer- 
 sity (1905), 218 111. 381, 75 N. 
 
 E. 991. Huff. Cas. Agcy. (2d 
 
 ed), 674, 4 Am. & Eng. Ann. 
 
 C. 103.. 149, 165. 
 Parr v. Sparteneurgh, etc., R. 
 
 (1895). 43 S. C. 197, 20 S. E. 
 
 1009.49 Am. St. 826.. 126. 
 Parrott v. Chicago, etc.. R. (1905), 
 
 127 Iowa, 419, 103 N. W. 352.. 
 
 18, 24. 
 Parte nheimer v. Van Order 
 
 (1855), 20 Barb. 479.. 230. 
 Pasquini v. Lowery (1892). 18 N. 
 
 Y. Supp. 284. 63 Hun, 632. .218. 
 
 223. ■ 
 
 Patcrson, etc., R. v. Rector, see 
 
 Rector v. P. 
 Patterson v. Austin (1895), 15 
 
 Tex. Civ. App. 201, 29 S. W. 
 
 1139.. 141. 
 Pawlet v. Rutland, etc.. R. (1855), 
 
 28 Vt. 297.. 51, 116, 120. 
 Payne v. Rogers ( ), 2 H. Bl. 
 
 350. .49. 
 Peachey v. Rowland (1853), 13 
 
 C. B. 182.. 34, 35. 
 Pearl v. West End Ry. (1900), 
 
 176 Mass. 177, 57 N. E. 339. 49 
 
 L. R. A. 826. 79 Am. St. 309, 
 
 Burd. Cas. Torts, 407.. 38. 
 Pearson v. Cox (1877), 2 C. P. 
 
 Div. 369.. 15, 72, 93. 
 Pearson v. Zable (1879), 78 Ky. 
 
 170.. 70. 
 Peerless Manufacturing Co. v. 
 
 Bagley (1901), 126 Mich. 225, 
 
 85 N. W. 568, 53 L. R. A. 285, 
 
 86 .\m. St. 537.. 106, 107, 109. 
 Pender v. Raggo (1896), 178 Pa. 
 
 St. 337, 35 Atl. 11 15.. 207. 
 Pendlehur\- v. Greenhalgh, see 
 
 Pendleton. 
 Pendleton v. Greenhaugh (1875), 
 
 1 Q. B. 36.. 15, 46. 
 Pennsylvania Co. v. Eilett (1890). 
 
 132 111. 654, 24 N. E. 559.. 126. 
 Pennsylvania Co. v. Gallagher 
 
 (1884), 40 Oh. St. 637, 48 Am. 
 
 R. 689.. 27. 
 Pennsylvania Co. v. Rov (1880), 
 
 102 U. S. 451.. 133. 135. 
 Pennsylvania Co. v. Sloan 
 
 (1888), 125 111. 72, 17 N. E. 
 
 37, 8 Am. St. 337.. 126. 
 Pennsylvania, etc.. Co. v. Gra- 
 ham (1869), 63 Pa. 290, 3 Am. 
 
 R. 549.. 90. 
 Pennsvlvaiiia R. Co. v. La Rue 
 
 (1897), 81 Fed. 148, 27 C. C. A. 
 
 363.. 110. 
 Pennv v. Council (1898). 2 Q. B. 
 
 212. 7 Am. Neg. R. 158. n..65, 
 
 70, 72, 139. 
 Peoria, etc., R. v. Lane (1876). 83 
 
 111. 448.. 126.
 
 xliv 
 
 TABLE OF CASES. 
 
 [Referencea are to sections.] 
 
 Pepke V. Grace Hospital (1902), 
 
 130 Mich. 493, 90 N. W. 278.. 
 
 149. 
 Perkins v. New York, etc., R. 
 
 (1862), 24 N. Y. 196, 82 Am. D. 
 
 282.. 229. 
 Perry v. House of Refuge (1884), 
 
 63 Md. 20.. 149. 
 Perrv v. Lord (1885), 17 Mo. 
 
 App. 212.. 35. 67. 
 Perry v. Payne (1907), 217 Pa. 
 
 252. 66 Atl. 553, 11 L. R. A.— 
 
 N. S. 1173. 10 Am. & Eng. Ann. 
 
 Cas. 589. .210, 229. 
 Pettengill v. Yonkers (1889), 
 
 116 N. Y. 558, 15 Am. St. 442, 
 
 22 N. E. 1095.. 139, 145. 
 Peyton v. Richards (1856), 11 La. 
 
 Ann. 62.. 16, 23. 219, 230. 
 Pfau V. Williamson (1873), 63 111. 
 
 16.-93,229. 
 Philadelphia, etc., R. v. An- 
 derson (1880), 94 Pa. St. 351, 
 
 39 Am, R. 787.. 131. 
 Philadelphia, etc., R. v. Hahn 
 
 (1888, Pa.), 22 W. N. C. 32, 12 
 
 Atl. 479, 32 A. & E. R. Cas. 
 
 24.. 117. 
 Philadelphia, etc., R. v. Mitchell 
 
 (1908, Md.), 69 Atl. 422, 17 L. 
 
 R. A.— N. S. 974, 52 A. & E. 
 
 Ry. Cas.— N. S. 783.. 79. 
 Philadelphia, etc., R. v. Philadel- 
 phia, etc., Co. (1859), 23 How. 
 
 (U. S.), 209.. 176. 
 Phillips V. Byrne (1877), 3 Vict. 
 
 L. R. 179.. 68. 
 Phillips V. Veazie (1855), 40 Me. 
 
 98.. 141. 
 Pickard v. Smith (1861), 10 C. 
 
 B.— N. S. 470, 7 Am. Neg. R. 
 
 158, n., 8 Am. Neg. R. 264, n.. 
 
 45, 65, 72, 99. 
 Pickens v. Diecker (1871), 21 
 
 Oh. St. 212, 8 Am. R. 55.. 16. 
 Pielte V. Brewing Co. (1892), 91 
 
 Mich. 605, 52 N. W. 152, 13 
 
 Am. Neg. Cas. 53, n..l02. 
 Pierrepont v. Loveless (1878), 72 
 
 N. Y. 211.. 34. 
 
 Pinkerton v. Penn., etc., Co. 
 
 (1899), 193 Penn. 229, 44 Atl. 
 
 284.. 126. 
 Pioneer, etc., Co. v. Clifford 
 
 (1906), 125 111. App. 352.. 7. 
 Pioneer, etc., Co. v. Hansen 
 
 (1898), 176 111. 100, 52 N. E. 
 
 17, 3 Am. Neg. R. 16.. 20, 21, 
 
 22, 57. 
 Pioneer, etc., Co. v. Howell 
 
 (1901). 189 111. 123, 59 N. E. 
 535.. 101. 
 Pitcher v. Lennon (1886), 16 
 
 Misc. (N. Y.), 609, 38 N. Y. 
 
 Supp. 1007.. 38, 68. 
 Pitts V. Kings Bridge, etc.. Board 
 
 (1871), 25 L. T.— N. S. 195.. 70. 
 Pittsburg, etc., R. v. Campbell 
 
 (1877), 86 111. 443.. 126. 
 Pittsburg, etc., R. v. Sullivan 
 
 (1895), 141 Ind. 83, 40 N. E. 
 
 138, 50 Am. St. 313, 27 L. R. A. 
 
 40.. 165. 
 
 PiTTSFIELD, etc., Co. V. PiTTSFIELD, 
 
 ETC., Co. (1902), 71 N. H. 522. 
 
 53 Atl. 807, 60 L. R. A. 116.. 65, 
 
 107, 224, 227. 
 Pointer, see Painter. 
 Pope V. King (1908, Md.), 69 
 
 Atl. 417, 16 L. R. A.— N. S. 
 
 489.. 174. 
 Potter V. Seymour (1859), 4 
 
 Bosw. (N. Y.), 140.. 22, 45. 
 Pound V. Port Huron, etc., R. 
 
 (1884), 54 Mich. 13, 19 N. W. 
 
 570.. 123. 
 Powell v. Construction Co. 
 
 (1890), 88 Tenn. 692, 13 S. W. 
 
 69, 17 Am. St. 925.. 7, 16, 17, 
 
 20, 22, Zl, 57. 
 Powers v. Harlow (1884), 53 
 
 Mich. 507, 51 Am. R. 154.. 206. 
 Powers V. Massachusetts, etc., 
 
 Hospital (1899), 101 Fed. 896.. 
 
 149. 
 Prairie, etc., Co. v. Doig (1873), 
 
 70 111. 52.. 102. 
 Pregenzer v. Burleigh (1893), 26 
 
 N. Y. Supp. 35.. 38.
 
 TABLE OF CASES. 
 
 xlv 
 
 [References are to sections.] 
 
 Proctor V. San Antonio St. R. 
 (1901), 26 Tex. Civ. App. 148, 
 62 S. W. 939.. 204. 
 
 PULLM.VN, ETC., Co. V. LaACK 
 
 (1892), 143 111. 242, 32 N. E. 
 285, 18 L. R. A. 21 5.. 197. 
 Pye V. Faxon (1892), 156 Mass. 
 471, 31 N. E. 640. .66, 70, 85, 
 92, 115. 
 
 Quarman v. Burnett (1840), 6 M. 
 
 & W. 499. 4 Am. Neg. R. 437, 
 
 n..l4, 38, 50, 51. 
 Queen, see Regina. 
 Quested v. Newburjport, etc., R. 
 
 (1879), 127 Mass. 204.. 126. 
 Quinn v. Complete, etc., Co. 
 
 (1891), 46 Fed. 506.. 31. 
 Quinn v. Railroad Co. (1895), 
 
 94 Tenn. 713, 30 S. W. 1036, 45 
 
 Am. St. 767, 28 L. R. A. 552.. 
 
 165. 
 
 Railroad Co. v. Hanning (1872), 
 
 15 Wall. (U. S.). 649, 7 Am. 
 
 Neg. Cas. 309. .20, 27, 65. 
 Railroad Co. v. Morey (1890), 47 
 
 Oh. St. 207, 24 N. E. 269, 7 L. 
 
 R. A. 701, 43 Am. & Eng. R. 
 
 Cas. 97.. 67, 70, 79, 93. 
 Railroad Co. v. Rav (1898), 101 
 
 Tenn. 1, 46 S. W. 554.. 38. 
 Railroad Co. v. Walrath (1882), 
 
 38 Oh. St. 461, 43 Am. R. 433.. 
 
 133. 
 Rait V. New England, etc., Co. 
 
 (1896), 66 Minn. 76, 68 N. W. 
 
 729.. 13, 19,29. 
 Randleson v. Murray (1838), 8 
 
 A. & E. 109, 4 Am. Neg. R. 
 
 642, n..47, 207. 
 Randolph v. Feist (1898), 52 N. 
 
 Y. Supp. 109.. 107. 
 
 Rankin v. Dixon (1847), 9 Sc. 
 
 Sess. Cas. (2d ser.), 1048.. 16. 
 Rankin v. Merchants, etc., Co. 
 
 (1884), n Ga. 229. 54 Am. R. 
 
 874, 14 Am. Neg. Cas. 75.. 38. 
 Rapson v. Cubitt (1842), 9 Mees. 
 
 & W. 710.. 50, 57. 
 Rathbone, ex parte (1892), 13 
 
 New South W. L. R. 56.. 33. 
 Ray V. City of Poplar BlufiF 
 
 (1897), 70 Mo. App. 252.. 70, 
 
 141. 
 Read v. East Providence, etc. 
 
 (1898), 20 R. I. 574, 40 Atl. 
 
 760, 4 Am. Neg. Rep. 589.. 58, 
 
 174, 228. 
 Reagan v. Casey (1894), 160 Mass. 
 
 374, 36 N. E. 58.. 93. 
 Rector, etc., v. Paterson, etc., 
 
 R. (1901), 66 N. J. L. 218, 49 
 
 Atl. 1030, 55 L. R. A. 81; 
 
 (1902), 68 N. J. L. 399, 53 Atl. 
 
 449, 1079, 16 Am. Neg. R. 614, 
 
 n..219. 
 Reed v. Alleghany (1875), 79 Pa. 
 
 St. 300.. 20, 52, 53. 
 Reedie v. London, etc., R. (1849), 
 
 4 Exch. 244, 6 Eng. R. & C. 
 
 Cas. 184, 4 Am. Neg. R. 438, n., 
 
 9 Id. 122. n..l5. 21. 45, 46, 50, 
 
 51, 52. 100. 116. 
 Reeves v. State Bank ( ), 8 
 
 Oh. St. 476.. 15. 
 Regina v. Bailey (1871), 12 Cox 
 
 C C 56 38 
 Regina v. Clifford (1878), 3 N. 
 
 Zeal. J.— N. S. 51.. 215. 
 Regina v. Gibbs (1855), 6 Cox C. 
 
 C. 455.. 29. 
 Regina v. Goodbody (1838), 8 
 
 Car. & P. 665.. 36. 
 Regina v. Hall (1875), 13 Cox 
 
 C. C. 49.. 215. 
 Regina v. Hey (1847), 2 Car. & 
 
 K. 985.. 36. 
 Regina v. Hughes (1846), 2 Cox 
 
 C. C. 104.. 35-. 
 Regina v. Lvnch (1854), 6 Cox 
 
 C. C. 445.^36.
 
 xlvi 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Regina v. Mav (1861), Leigh & 
 
 C. C. C. 13.. 4, 38. 
 Regina v. Negus (1873), L. R., 2 
 
 N. C. 37.. 4. 
 Regina v. Siffidge (1853), Legge, 
 
 New So. W. 793.. 36. 
 Regina v. Stephens (1865). L. R., 
 
 1 Q. B. 702.. 124. 
 Regina v. Thomas (1853), 6 Cox 
 
 C. C. 403.. 36. 
 Regina v. Tite (1861), 8 Cox C. 
 
 C. 458.. 38. 
 Regina v. Walker (1858), 27 L. 
 
 J. Mag. C— N. S. 208.. 4. 
 Reid V. Darlington, etc.. Board 
 
 (1877, Q. B. D.), 41 J. P. 581.. 
 
 147. 
 Reier v. Detroit, etc.. Works 
 
 (1896), 109 Mich. 244, 67 N. W. 
 
 120, 4 Am. & Eng. Corp. Cas. 
 
 — N. S. 459, 16 Am. Neg. Cas. 
 
 30, n..208. 
 Reilly v. Chicago, etc., R. (1904), 
 
 122 Iowa, 525, 98 N. W. 464, 
 
 33 A. & E. Ry. C— N. S. 418, 
 
 16 Am. Neg. R. 611, n..55. 
 Reuben v. Swigert (1898), 7 Oh. 
 
 Dec. 638, 15 Oh. C. C. 565.. 86, 
 
 90. 92. 
 Rex V. Carr (1811), Russ. & R. 
 
 C. C. 198.. 38. 
 Rex V. Hughes (1832), 1 Moody 
 
 C. C. 370.. 36. 
 Rex V. McNanee (1832), 1 Moody 
 
 C. C. 368.. 36. 
 Rex V. Medley (1834), 6 Car. & 
 
 P. 292.. 124. 
 Reynolds v. Braithwaite (1889), 
 
 131 Pa. St. 416, 18 Atl. 110.. 46, 
 
 168. 
 Reynolds v. Van Beuren (1898), 
 
 155 N. Y. 120, 49 N. E. 763, 
 
 42 L. R. A. 129.. 216. 
 Rheola, The (1884), 19 Fed. 926.. 
 
 208. 
 Rice V. Smith (1902), 171 Mo. 
 
 331, 71 S. W. 127.. 206. 
 Rich v. Miimeapolis (1887), 37 
 
 Minn. 423, 35 N. W. 2, 5 Am. 
 
 St. 861.. 143. 
 
 RiCH.\RDS0N V. Carbon, etc., Co. 
 
 (1893). 6 Wash. 52, 20 L. R. A. 
 
 338, 32 Pac. 1012, Huff. Cas. 
 
 Agcy. (2d ed.), 685, n. ; (1895), 
 
 10 Wash. 648, 39 Pac. 95.. 149. 
 Richev v. DuPre (1883), 20 S. 
 
 C. 6.. 34. 
 Richmond v. Lincoln (1906). 167 
 
 Ind. 468, 29 N. E. 445.. 38. 
 Richmond v. Long, see City of R. 
 Richmond v. Sitterding (1903), 
 
 101 Va. 354, 43 S. E. 562, 99 
 
 Am. St. 879, 65 L. R. A. 445, 
 
 16 Am. Neg. R. 609, n..4, 13, 
 
 14, 16, 18, 19, 20, 21, 25, 26, 27, 
 
 31, 32, 33, 34, 35, 38, 45, 69, 72, 
 
 93, 100, 140. 
 Richmond, etc., R. v. Elliott 
 
 (1893), 149 U. S. 266.. 188. 
 Richmond, etc., R. v. Moore 
 
 (1897), 94 Va. 493, 27 S. E. 
 
 70, 37 L. R. A. 258.. 77. 
 Ricketts v. Birmingham St. R. 
 
 (1888), 85 Ala. 600, 5 So. 353.. 
 
 126. 
 Ricketts v. Chesapeake, etc., R. 
 
 (1890), 33 W. Va. 433, 10 S. E. 
 
 901, 7 L. R. A. 354, 25 Am. St. 
 
 901.. 89. 
 Ridgwav v. Downing Co. (1900), 
 
 109 C^a. 591, 34 S. E. 1028, 7 
 
 Am. Neg. R. 218.. 19, 56, 65. 
 Riedel v. Moran, etc., Co. (1894), 
 
 103 Mich. 262, 61 N. W. 509. . 
 
 92. 
 Riley v. State Line, etc., Co. 
 
 (1877), 29 La. Ann. 791, 29 Am. 
 
 R. 349.. 16, 210. 
 Riley v. Warden (1848), 2 Exch. 
 
 59.. 33. 
 Rimley v. Philadelphia (1904, 
 
 Penn.), 57 Atl. 347, 16 Amer. 
 
 Neg. R. 608, n..l41. 
 Ringue v. Oregon, etc., Co. (1904), 
 
 44 Ore. 407, 75 Pac. 703.. 5. 
 Road District, etc., v. Pelton 
 
 (1901), 129 Mich. 31, 87 N. W. 
 
 1029.. 78. 
 Robbins V. Atkins (1897), 168 
 
 Mass. 45, 46 N. E. 425, 1 Am. 
 
 Neg. R. 617.. 109.
 
 TABLE OF CASES. 
 
 xlvii 
 
 [References are to sections.] 
 
 Robbins v. Chicago (1866), 4 
 
 Wall. (U. S.), 567.. 66, 67. 7U, 
 
 92, 93. 
 RoBiuEAux V. Hebert (1907), 118 
 
 La. 1089, 43 So. 887, 12 L. R. 
 
 A.— N. S. 632.. 16, 183. 
 Robinson v. Pittsburg, etc.. Co. 
 
 (1904), 63 C. C. A. 258, 129 
 
 Fed. 324.. 196. 
 Robinson v. Webb (1875), 11 
 
 Bush (Ky.), 464.. 15. 51, 100, 
 
 168, 170. 
 Rock v. Americ.\n Construction 
 
 Co. (1908). 120 La. 831, 45 S. 
 
 741, 14 L. R. a.— N. S. 653.. 
 
 148. 
 Rockford. etc.. R. v. Wells (1872), 
 
 66 111. 321.. 123, 124. 
 RoDOY V. Missouri, etc., R. 
 
 (1891), 104 Mo. 234, 15 S. W. 
 
 1112. 12 L. R. A. 746, 24 Amer. 
 
 St. R. 333.. 224. 
 Roe V. Winston (1902), 86 Minn. 
 
 V, 90 N. W. 122.. 7. 19. 
 Roemer v. Striker (1893). 21 N. 
 
 Y. Supp. 1090; (1894), 142 N. 
 
 Y. 136. 36 N. E. 308.. 73. 
 Rogers v. Florence R. (1889), 
 
 31 S. C. 378. 9 S. E. 1059, 39 
 
 Am. & Eng. R. Cas. 348. .20, 24. 
 Rome, etc., R. v. Ch.\steen 
 
 (1889), 88 Ala. 591, 7 So. .94, 
 
 40 Am. & Eng. R. Cas. 559.. 
 
 20. 32. 55, 118. 122. 
 Rook V. New Jersey-, etc., Works 
 
 (1894), 76 Hun (N. Y.), 54, 27 
 
 N. Y. Supp. 623.. 223. 
 Roonev v. Brogan. etc.. Co. 
 
 (1905), 95 N. Y. Supp. 1..206. 
 Roswell V. Prior (1702), 12 Mod. 
 
 635.. 48. 
 Rotter V. Goerlitz (1890). 12 N. 
 
 Y. Supp. 210.. 106. 
 Rourkc V. White Moss. etc.. Co. 
 
 (1877), 2 C. P. D. 205. 1 C. P. 
 
 556.. 7, 34. 
 
 RUMMELL V. DlLWORTH (1885), 
 
 111 Pa. 343, 2 Atl. 355; (1890), 
 131 Pa. St. 609. 19 Atl. 345. 17 
 Am. St. 827.. 34. 
 
 Russell v. Columbia (1881), 74 
 
 Mo. 480, 41 Am. R. 325.. 139, 
 
 145. 
 Russell V. Buckhout (1895), 87 
 
 Hun, 46, 34 N. Y. Supp. 271 . . 
 
 38. 
 Rmh V. Surrey Dock Co. (1891), 
 
 8 Times L. R. 116.. 29. 
 Ryan v. Curran (1878), 64 Ind. 
 
 345, 31 Am. R. 123.. 92. 
 Ryan v. New York. etc.. R. 
 
 (1902), 115 Fed. 197.. 205. 
 Rvder v. Thomas (1878). 13 
 
 Hun (N. Y.), 296.. 50, 51, 65, 
 
 93, 100. 
 
 S 
 
 Sabin v. Vermont, etc., R. (1853), 
 
 25 Vt. 363.. 73. 
 Sacher v. Waddell (1903). 98 
 
 Md. 43. 56 Atl. 399, 103 Am. 
 
 St. 374.. 7. 29. 
 Sack V. St. Louis, etc., Co. (1905), 
 
 112 Mo. App. 476, 87 S. W. 
 
 79.. 200. 210. 
 Sackewitz v. American, etc., Co. 
 ■ (1899). 70 Mo. App. 144.. 110, 
 
 180. 
 Sadler v. Henlock (1855), 4 E. 
 
 & B. 570.. 18. 28. 34. 35. 45. 12. 
 St. Clair, etc., Co. v. Smith 
 
 (1890), 43 111. App. 105.. 34. 
 St. Johns, etc.. R. v. Shallev 
 
 (1894). ZZ Fla. 397, 14 So. 890.'. 
 
 19, 21. 
 St. Louis, etc., R. v. Arnold 
 
 (1903), 32 Te.x. Civ. App. 272, 
 
 74 S. W. 81 9.. 229. 
 St. Louis, etc., R. v. Davenport 
 
 ( ), — Ark. , — S. W. 
 
 , 48 A. & E. Rv. C— N. S. 
 
 516.. 32. 
 St. Louis, etc., R. v. Dawson 
 (1902). 30 Tex. Civ. App. 261. 
 70 S. W. 450.. 198.
 
 X 
 
 Iviii 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 St. Louis, etc., R. v. Drennan 
 
 (1887), 26 111. App. 263—124. 
 St. Louis, etc.. R. v. Knott (1891), 
 
 54 Ark. 424, 16 S. W. 9.. 124. 
 St. Louis, etc., R. v. Madden 
 
 (1908), V Kans. 80, 93 Pac. 
 
 586, 17 L. R. a.— N. S. 788, 
 
 50 A. & E. R. C— N. S. 48.. 
 
 66, 74. 
 St. Louis, etc., R. v. Renfroe 
 
 (1907), 82 Ark. 143, 100 S. W. 
 
 889, 10 L. R. A.— N. S. 317.. 
 
 136. 
 St. Louis, etc., R. v. Ritz (1883), 
 
 30 Kans. 31, 2 Pac. 27.. 120. 
 St. Louis, etc., R. v. Trigg (1897), 
 
 63 Ark. 536, 40 S. W. 579. .126. 
 St. Louis, etc., R. V. Willis (1888), 
 
 38 Kans. 330, 16 Pac. 728, 33 
 
 A. & E. R. Cas. 397.. 55, 120, 
 
 174. 
 St. Louis, etc., R. v. Yonley 
 
 (1900), 53 Ark. 503, 13 S. W. 
 
 333, 14 S. W. 800, 45 Am. & 
 
 Eng. R. Cas. 578, 9 L. R. A. 
 
 604.. 34, 36, 55, 74. 
 St. P.aul v. Seitz (1859), 3 
 
 Minn. 297, 11 Am. D. 753.. 20, 
 
 70, 139. 
 St. Peter v. Denison (1874), 58 
 
 N. Y. 416, 17 Am. R. 258.. 216. 
 S.\liotte v. King, etc., Co. (1903), 
 
 122 Fed. 378, 58 C. C. A. 466, 65 
 
 L. R. A. 620, 16 Am. Neg. R. 
 
 615, n..l8, 24, 45, 46, 47, 51, 
 
 52, 65, 66, 70, 72, 73, 97, 100, 
 
 228. 
 Salisbury v. Erie Railway 
 
 (1901), 66 N. J. L. 233, 50 Atl. 
 
 117, 88 Am. St. 480, 55 L. R. A. 
 
 578.. 72. 
 Salvas V. New City Gas Co. 
 
 (1879, Quebec), 2 L. N. S. C. 
 
 97.. 67. 
 Samuel v. Novak (1904), 99 Md. 
 
 558, 58 Atl. 19.. 95. 
 Samuelson v. Cleveland, etc., 
 
 Co. (1882), 49 Mich. 164, 13 N. 
 
 W. 499, 43 Am. R. 456.. 160, 
 
 206. 
 
 Samvn v. McCloskey (1853), 2 
 
 Oh. St. 536. .20, 26. 
 San Antonio, etc., Co. v. Dixon 
 
 (1897), 17 Tex. Civ. App. 320, 
 
 42 S. W. 1009.. 208. 
 Sanford v. Pawtucket, etc., R. 
 
 (1896), 19 R. L 537, 35 Atl. 67, 
 
 4 Am. & Eng. Ry. Cas.— N. S. 
 
 318, 33 L. R. A. 564. .28, 57, 93, 
 
 116. 
 Sanford v. Standard Oil Co. 
 
 (1890), 118 N. Y. 576, 16 Am. 
 
 St. 787, 24 N. E. 313..7. 
 Saunders v. Coleridge (1896, D. 
 
 C), 72 Fed. 676.. 27. 
 Saunders v. Toronto (1889), 26 
 
 Ont. App. R. 265.. 19, 20. 
 Savannah v. Waldner (1873), 49 
 
 Ga. 316.. 141. 
 Savannah, etc., R. v. Phillips 
 
 (1892), 90 Ga. 829, 17 S. E. 
 
 82.. 58, 92, 176, 193, 205. 
 ScAMMON V. City, etc. (1861), 
 
 25 111. 424, 79 Am. D. 334, 14 
 
 Am. Neg. Cas. 418, n..70, 72, 
 
 91, 93. 
 Scarborough v. Ala., etc., R. 
 
 (1891), 74 Ala. 497, 10 So. 
 
 316.. 120. 
 Scanlon v. Watertown (1897), 14 
 
 App. Div. 1, 43 N. Y. Supp. 
 
 618, 1 Am. Neg. R. 487.. 140. 
 Scharff v. Southern Ills., etc., Co. 
 
 (1905), 115 Mo. App. 157, 92 S. 
 
 W. 126.. 38. 
 Scheller v. Silbermintz (1906), 50 
 
 Misc. 175, 98 N. Y. Supp. 230.. 
 
 90. 
 Schip V. Pabst Brewing Co. 
 
 (1896), 64 Minn. 22, 66 N. W. 
 
 3.. 164, 206, 210. 
 Schnurr v. Huntington Co. (1899), 
 
 22 Ind. App. 188, 53 N. E. 
 
 425.. 73, 164. 
 School District v. Fuess (1881), 
 
 98 Pa. 600, 42 Am. R. 627.. 22. 
 Schular v. Hudson R. R. (1862), 
 
 38 Barb. 653.. 20, 21, 116. 
 Schute v. Princeton, see Shute.
 
 TABLE OF CASES. 
 
 xlix 
 
 [References are to sections.] 
 
 Schutte V. United, etc, Co. (1902), 
 
 68 N. J. L. 435, 53 Atl. 204, 16 
 
 Am. Neg. R. 614, n..57, 90, 215_. 
 Schwartz v. Gilmore (1867), 45 
 
 111. 455, 92 Am. Dec. 227.. 19, 
 
 38, 170. 
 Schweikardt v. St. Louis (1876), 
 
 2 Mo. App. 571.. 139, 200. 
 Scott V. Springfield (1899), 81 
 
 Mo. App. 312.. 21. 
 Searle v. Laverick (1874), L. R., 
 
 9 Q. B. 122.. 107. 
 Seattle v. Buzby (1880), 2 Wash. 
 
 25, 3 Pac. 180.. 139. 
 Sebeck v. Plattdeutsche, etc. 
 
 (1900), 64 N. J. L. 624, 46 Atl. 
 
 631, 50 L. R. A. 199, 81 Am. 
 
 St. 512.. 164. 
 Sellars v. Dempsey (1898), 49 N. 
 
 Y. Supp. 765.. 208. 
 Serandat v. Saisse (1866), L. R., 
 
 1 P. C. 152.. 20, 35. 
 Sesler v. Rolfe, etc., Co. (1902), 
 
 51 W. Va. 318, 41 S. E. 216.. 
 
 200. 
 Sessengut v. Posey (1879), 67 
 
 Ind. 408, 33 Am. R. 98. .95. 
 Sewall V. St. Paul (1874), 20 
 
 Minn. 511.. 230. 
 Seymour V. Cummins (1889), 119 
 
 Ind. 148, 21 N. E. 549, 5 L. R. 
 
 A. 126.. 67. 
 Sharman v. Sanders (1853), 13 
 
 C. B. 166.. 33. 
 Sharp V. Gray (1833), 9 Bing. 
 
 457, 2 Moore & S. 621.. 133. 
 Shaw V. Crocker (1871), 42 Cal. 
 
 435.. 21 5. 
 Shaw V. West, etc., Co. (1872, Ct. 
 
 of Sess.). 9 Scot. L. R. 254.. 
 
 205. 
 Shea V. Reems (1884), 36 La. 
 
 Ann. 966.. 13, 34. 
 Shea V. River, etc., Bd. (1880), 
 
 Ir. L. R., 6 C L. 179.. 67. 
 Sheltrawn v. Michigan, etc., R. 
 
 (1901), 128 Mich. 669, 87 N. 
 
 W. 893.. 210. 
 Shepard v. Buffalo, etc., R. 
 
 (1866), 35 N. Y. 641.. 123. 
 
 Shepard v. Creamer (1894). 160 
 
 Mass. 496, 36 N. E. 475.. 149. 
 Sherman v. Delaware, etc., Co. 
 
 (1899), 71 Vt. 325,45 Atl. 227.. 
 
 196. 
 Shute V. Princeton Tp. (1894), 58 
 
 Minn. 337, 59 N. W. 1050.. 71, 
 
 74. See, also. Schute. 
 Siemsen v. Oakland, etc., R. 
 
 (1901). 134 Cal. 494, 66 Pac. 
 
 672.. 133. 
 Silvers v. Nerdlinger (1868), 30 
 
 Ind. 53.. 47, 92. 
 Silverton v. Marriott (1888), 59 
 
 L. T.— N. S. 61.. 176. 
 Simons v. Gregory (1905), 120 
 
 Ky. 116, 85 S. W. 751.. 224. 
 Simonton v. Perry (1901, Tex. 
 
 Civ.), 62 S. W. 1090.. 20. 
 Sims v. Dominion, etc., Co. 
 
 (1901), 2 Ont. L. R. 69.. 191. 
 Sincer v. Bell (1895), 47 La. Ann. 
 
 1548, 18 So. 755.. 230. 
 Singer Manufacturing Co. v. 
 
 Rahn (1889), 132 U. S. 518, 
 
 Huff. Cas. Agcy. 9. .27, 28, 34, 
 
 45. 
 Sinquasi, The (1879), L. R.. 5 
 
 Prob. Div. 241.. 38. 
 Skeiton v. Fenton, etc., Co. 
 
 (1894). 100 Mich. 87, 58 N. W. 
 
 609.. 67. 
 Skeiton v. Larkin (1894), 82 
 
 Hun. 388, 31 N. Y. Supp. 234; 
 
 (1895). 146 N. Y. 365, 41 N. E. 
 
 90.. 176. 
 Slater v. Mersereau (1876), 64 
 
 N. Y. 138.. 57, 97. 230. 
 Slattery v. Walter, etc., Co. 
 
 (1901). 179 Mass. 307, 60 N. E. 
 
 782.. 183. 
 Slavton V. West End St. R. Co. 
 
 0899, Mass.), 6 Am. Neg. R. 
 
 289.. 121. 
 Sleeman v. Barrett (1864), 2 
 
 Hurl. & C. 934.. 215. 
 Slingerland v. East Jersey, etc., 
 
 Co. (1896). 58 N. J. L. 411, 33 
 
 Atl. 843.. 230.
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Slingsley. The (1903), 120 Fed. 
 
 748.. 7, 21. 
 Sly V. Edgely (1806), 6 Esp. 6.. 
 
 47. 
 Smallwood v. B.-\ltimore, etc., 
 
 R. (1906), 215 Pa. St. 540, 64 
 
 Atl. 1Z2, 7 Am. & Eng. Anno. 
 
 Cas. 525.. 205. 
 Smith V. Belshaw (1891), 89 
 
 Cal. 427, 26 Pac. 834. .206. 
 Smith V. Creole (1853), 2 Wall. 
 
 Jr. 485, Fed. Cas. 13033.. 38. 
 Smith V. Humphreyville (1907, 
 
 Tex. Civ. App.), 104 S. W. 
 
 495.. 208. 
 Smith v. Milwaukee, etc., Ex- 
 change (1895), 91 Wise. 360, 
 
 64 N. W. 1041, Hufif. Cas. Agcv. 
 
 (2d ed.), 591, n., 51 Am. St 
 
 912, 30 L. R. A. 504.. 22, 90, 
 
 92, 93, 168. 
 Smith v. Renick (1898), 87 Md. 
 
 610, 41 Atl. 56, 42 L. R. A. 
 
 m ..71. 
 Smith V. St. Joseph (1890), 42 
 
 Mo. App. 392.. 141. 
 Smith V. Seattle (1899), 20 Wash. 
 
 613, 56 Pac. 389.. 139. 
 Smith v. Simmons (1883), 103 
 
 Pa. St. 32, 49 Am. R. 11 3.. 34, 
 
 141. 
 Smith V. Traders Exch., see S. 
 
 V. Milwaukee, etc. 
 Snark. The (1899), 68 Law T.— 
 
 N. S. 25.. 20. 
 Solomon Railroad v. Jones (1833), 
 
 30 Kans. 601, 2 Pac. 657, 15 
 
 A. & E. R. C. 201.. 205. 
 Southern Ohio R. v. Morey, see 
 
 Rv. Co. V. Morey. 
 Southern R. v. Drake (1902), 107 
 
 111. App. 12.. 205. 
 Southern R. v. Newton (1908), 
 
 108 Va. 114, 60 S. E. 625, 51 
 
 A. & E. R. C— N. S. 528.. 
 
 189. 
 Southern, etc., Co. v. Church 
 
 (1903), 32 Tex. Civ. App. 325, 
 
 74 S. W. 797, 75 Id. 317, 16 
 
 Am. Neg. R. 611, n..203, 208. 
 
 Southern, etc., R. v. Wallace 
 
 (1899), 23 Tex. Civ. App. 12, 
 
 54 S. W. 638.. 18. 
 Southwell V. Detroit (1889), 74 
 
 Mich. 438, 42 N. W. 118.. 141. 
 Southwestern Tel. Co. v. Paris 
 
 (1905), 39 Tex. Civ. App. 424, 
 
 87 S. W. 724.. 100. 
 Spaight V. Tedcastle (1881), L. 
 
 R., 6 App. C. 21 7.. 38. 
 Speed V. Atlantic, etc., R. (1879), 
 
 71 Mo. 303, 2 A. & E. R. Cas. 
 
 77.. 20. 21, 35. 
 Spence v. Schultz (1894), 103 
 
 Cal. 208, n Pac. 220.. 65, 69, 75, 
 
 92, 93. 
 Springfield v. LeClaire (1869), 49 
 
 111. 476.. 139. 
 Springfield Light, etc., Co. v. 
 
 Calvert (1907), 231 111. 290, 83 
 
 N. E. 184, 14 L. R. A.— N. S. 
 
 782.. 220. 
 Sproul v. Hemingway (1833), 14 
 
 Pick. (Mass.), 1, 25 Am. Dec. 
 
 350.. 38. 
 Staldter v. Huntington (1899), 
 
 153 Ind. 354, 55 N. E. 88.. 20, 
 
 IZ. 
 Standard Oil Co. v. Anderson 
 
 (1907), 152 Fed. 166, 81 C. C. 
 
 A. 399.. 7. 
 State v. Coe (1881), 72 Me. 456.. 
 
 36. 
 State V. Emerson (1881). 72 Me. 
 
 455.. 36. 
 State V. Swavzee (1889). 52 N. 
 
 J. L. 129, 18 Atl. 697.. 18. 
 Steam Navigation Co. v. British, 
 
 etc.. Navigation Co. (1868), L. 
 
 R., 3 Exch. 330.. 8. 
 Stearns v. Atlantic, etc., R. 
 
 (1858), 46 Me. 116.. 126. 
 Steel v. Southeastern R. Co. 
 
 (1855), 16 C. B. 550. .22, 24, 
 
 116. 
 Steeples v. Panel, etc., Co. (1903), 
 
 2>2, Wash. 359, 74 Pac. 475.. 193. 
 Steinbrook v. Covington, etc., Co. 
 
 (1897). 4 Oh.— N. P. 229, 6 Oh. 
 
 Dec. 328.. 104.
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Stephen v. Commissioners (1876), 
 
 3 Scss. Cas. 535.. 19, 20, 25, 184. 
 Stepliens v. London, etc., R. 
 
 (1886), L. R.. 18 Q. B. D. 121.. 
 
 138. 
 Steppe v. Alter (1896), 48 La. 
 
 Ann. 363, 19 So. 147, 55 Am. 
 
 St. 281.. 92. 
 Ster V. Tuety (1887), 45 Hun 
 
 (N. Y.), 49.. 92. 
 Sterger v. Van Siclen ( ), 
 
 7 N. Y. Supp. 805.. 106. 
 Sterling v. Schiffmacher (1892), 
 
 47 111. App. 141.. 141. 145. 
 Stevens v. Armstrong (1852), 6 
 
 N. Y. 435.. 45. 
 Stevenson v. Wallace (1876), 27 
 
 Gratt. (Va.), 77.. 65, 67. 
 Stewart v. Californi.\, etc., Co. 
 
 (1900), 131 Cal. 125. 63 Pac. 
 
 177. 52 L. R. A. 205, Burd. Cas. 
 
 Torts, 412.. 31, 67. 
 Stewart v. Ferguson (1899). 60 
 
 N. Y. Supp. 429.. 110. 
 Stewart v. Putnam (1879), 127 
 
 Mass. 403.. 98. 
 Stone V. Cartwright ( ), 6 
 
 Term. Rep. 411.. 49. 
 Stone V. Cheshire R., see Stone v. 
 
 R. Corp. 
 Stone V. Codman (1834), 15 Pick. 
 
 (Mass.), 297.. 35. 
 Stone v. Railroad Corpor.^tion 
 
 (1849), 19 N. H. 427. 51 Am. 
 
 D. 192.. 47. 50. 74. 116, 124. 
 Stork v Philadelphia (1900), 
 
 195 Pa. 101, 45 Atl. 678, 49 L. 
 
 R. A. 600: (1901). 199 Pa. St. 
 
 462,49 Atl. 236.. 20. 88. 
 Stormcock, The (1885), 53 L. T. 
 
 — N. S. 53, 5 Asp. Mar. L. Cas. 
 
 470.. 38. 
 Storrs v. City. etc.. (1858). 17 
 
 N. Y. 104. 72 Am. Dec. 437.. 65, 
 
 70, 73, 85, 91, 93, 141, 160. 
 Storv V. Concord, etc., R. (1900), 
 
 70 N. H. 364, 48 Atl. 288.. 197. 
 Straus V. Buchman (1904), 89 N. 
 
 Y. Supp. 226.. 21 5. 
 
 Strauss v. City, etc. (1900), 108 
 
 Ky. 155, 55 S. W. 1075.. 66, 93, 
 
 100. 
 Sturgess v. Society (1881), 130 
 
 Mass. 414, 39 Am. R. 463.. 65, 
 
 69, 95, 98, 164, 176. 
 Sturgis v. Boyer (1860), 24 How. 
 
 (U. S.), 110.. 38. 
 Suburban, etc., R. v. Balkwill 
 
 (1900), 94 111. App. 454.. 121. 
 Sullivan v. Durham (1898), 35 
 
 App. Div. 342, 54 N. Y. Supp. 
 
 962.. 70. 72. 
 Sullivan v. Louisville, etc., Co. 
 
 (1872), 9 Bush (Ky.), 81, 15 
 
 Am. Neg. Cas. 147.. 222. 
 Sullivan v. New Bedford, etc., 
 
 Co. (1906). 190 Mass. 288, 76 N. 
 
 E. 1048.. 38. 
 Sulzbacher v. Dickie (1876), 6 
 
 Daly (N. Y.), 469, 51 How. Pr. 
 
 500.. 106, 107, 109. 
 Susouehanna Depot v. Simmons 
 
 (1886), 112 Pa. 384, 5 Atl. 434, 
 
 56 Am. R. 317.. 141. 
 Svenson v. Atlantic, etc., Co. 
 
 (1874), 57 N. Y. 108.. 196. 
 Swan v. Jackson (1889). 55 Hun 
 
 (N. Y.), 194, 7 N. Y. Supp. 
 
 821.. 177, 224. 
 Swart V. Justh (1904). 24 App. 
 
 (D. C), 596.. 228. 
 Sweeney v. Boston, etc.. R. 
 
 (1878), 128 Mass. 5, 1 Am. & 
 
 Eng. R. C. 138.. 205. 
 Sweeney v. Murphv (1880), 32 
 
 La. Ann. 628.. 16, 38. 
 Sweet v. Gloversville (1877), 12 
 
 Hun (N. Y.). 302.. 145. 
 Svmons v. Alleghany Co. (1907), 
 
 'l05 Md. 254. 65 Atl. 1067.. 65. 
 
 Talbott V. Board, etc.. (1908, 
 Ind.), 85 N. E. 376.. 202. 
 
 Tanco v. Booth (1891), 15 N. Y. 
 Supp. 110.. 38.
 
 Hi 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Tarry v. Ashton (1876). L. R., 1 
 
 Q. B. D. 314, 7 Am. Neg. R. 
 
 157, n..65. 92. 93. 124, 176, 183. 
 Tatje V. Frawley (1900, La.), 27 
 
 So. 339. .215. 
 Taylor v. Dunn (1891), 80 Tex. 
 
 652, 16 S. W. 732.. 45. 
 Taylor v. Greenhalgh (1876), 24 
 
 Week. Rep. 311.. 139. 
 Tavlor v. Mexican, etc., R. (1847), 
 
 2 La. Ann. 654.. 38. 
 Taylor, etc., R. v. Warner (1895), 
 
 88 Tex. 642, 31 S. W. 66, 32 S. 
 
 W. 868; (1899), 92 Tex. 535, 50 
 
 S. W. 120; (1900, Tex.), 60 S. 
 
 W. 442.. 32, 92, 118, 121, 173. 
 Teller v. Bay, etc., Dredging Co. 
 
 (1907, Cal), 90 Pac. 942. 12 L. 
 
 R. A.— N. S. 267.. 20, 34, 52. 
 Tennessee, etc., Co. v. Hayes 
 
 (1892), 97 Ala. 201, 12 So. 98.. 
 
 35. 
 Texas, etc., R. v. Johnson (1899, 
 
 Tex. Civ. App.), 6 Am. Neg. R. 
 
 716.. 86. 
 Texas, etc., R. v. Juneman (1895), 
 
 71 Fed. 939, 18 C. C. A. 249.. 
 115, 116. 
 
 Texas, etc., R. v. Parsons (1908, 
 
 Tex. Civ. App.), 109 S. W. 
 
 240.. 16. 
 Thomas v. Altoona, etc., R. 
 
 (1899), 191 Pa. 261, 43 Atl. 
 
 215, 6 Am. Neg. R. 383.. 20, 22. 
 Thomas v. Harrington (1903), 
 
 72 N. H. 45, 54 Atl. 285. 65 L. 
 R. A. 742, 16 Am. Neg. R. 608, 
 n..67, 68, 93. 
 
 Thompson v. Lowell, etc., R. 
 
 (1898), 170 Mass. 577, 49 N. E. 
 
 913, 40 L. R. A. 345, 64 Am. St. 
 
 323.. 72, 150. 
 Thompson v. West Bay City 
 
 (1904), 137 Mich. 94, 100 N. 
 
 W. 280, 16 Am'. Neg. R. 607. 
 
 n..l45. 
 Thornton v. Lennon (1898), 29 
 
 App. Div. 628, 51 N. Y. Supp. 
 
 433.. 105. 
 
 Thornton v. Hogan (1903), 82 
 App. Div. 500, 81 N. Y. Supp. 
 544.. 
 Thorpe v. New York, etc., R. 
 (1879), 76 N. Y. 406. 32 Am. R. 
 325. .135. 
 Threlkeld v. White (1890), 8 
 
 New Zeal. L. R. 513.. 34, 35. 
 Tibhetts v. Knox, etc., R. (1873), 
 62 Me. 437.. 72, 73, 116. 
 
 Tiffin V. McCormack ( ). 34 
 
 Ohio St. 638, 32 Am. R. 408.. 
 73. 
 
 Tillet V. Norfolk, etc., R. ( ), 
 
 118 N. C. 1031, 24 S. E. 111.. 
 126. 
 Toledo V. Cone (1884), 41 Oh. St. 
 
 149.. 181. 
 Toledo, etc.. Co. v. Bosch (1900), 
 41 C. C A. 482, 101 Fed. 530.. 
 72, 110, 180, 193. 
 Toledo, etc., R. v. Beggs (1877), 
 85 111. 80, 28 Am. R. 61 3.. 133, 
 165. 
 Toledo, etc., R. v. Conroy (1890), 
 
 39 111. App. 351.. 116. 
 Toledo, etc., R. v. Rumbold 
 
 (1866), 40 111. 143.. 122, 124. 
 Trainor v. Philadelphia, etc., R. 
 (1890), 137 Pa. 148, 20 Atl. 
 632.. 163, 183, 193. 
 Tread well v. New York (1861), 
 1 Daly (N. Y.), 123.. 22, 70, 
 201. 
 Trego V. Honeybrook (1894), 160 
 
 Pa. St. 76, 28 Atl. 639.. 143. 
 Tremain v. Cohoes (1849), 2 N. 
 
 Y. 163, 51 Am. Dec. 284.. 73. 
 Trinity, etc., R. v. Lane (1891), 
 79 Tex. 643. 15 S. W. 477, 16 
 S. W. 18.. 126. 
 Tucker v. Axbridge, etc.. Bid. 
 (1889), Q. B. D. 53, J. P. 87.. 
 35. 
 Turner v. Great Eastern R. Co. 
 (1875), 33 L. T.— N. S. 431.. 
 31. 
 
 Turner v. McCarty ( ), 4 E. 
 
 D. Smith (N. Y.), 247.. 106.
 
 TABLE OF CASES. 
 
 liii 
 
 [References are to sections.] 
 
 Turner v. Newburg (1888), 109 
 N. Y. 301. 16 N. E. 344, 4 Am. 
 St. 453.. 67, 139. 141. 145. 
 
 Tyler v. Tehama Co. (1895), 109 
 Cal. 618, 42 Pac. 240.. 163. 
 
 Ullman v. Hannibal, etc., R. 
 
 (1877), 67 Mo. 118.. 124. 
 Ulrich v. New York, etc., R. 
 
 (1888). 108 N. Y. 80, 15 N. E. 
 
 60, 2 Am. St. 369.. 135. 
 Union, etc., R. v. Artist (1894), 
 
 60 Fed. 365.. 149. 
 Union, etc., R. v. Billiter (1890), 
 
 28 Nebr. 422, 44 N. W. 483. 16 
 
 Am. Neg. Cas. 580, n..l96. 
 Union, etc., R. v. Hause (1871), 
 
 1 W30. 27.. 118. 
 Union Steamship Co. v. The Ara- 
 
 can (1874), L. R., 6 P. C. 127.. 
 
 38. 
 Uppington v. City of New York 
 
 (1901), 165 N. Y. 222. 59 N. E. 
 
 91, 53 L. R. A. 550, 6 Am. Neg. 
 
 R. 366.. 18, 20, 21, 53. 
 Upton V. Townsend (1855), 17 C. 
 
 B. 30, 71.. 71. 
 
 Vanderpool v. Husson (1858), 28 
 
 Barb. (N. Y.), 196.. 100. 
 Van Steenburg v. Tobi.\s (1837), 
 
 17 Wend. 562, 31 Am. Dec. 
 
 310.. 230. 
 Van Tassell v. Manhattan, etc.. 
 
 Hospital (1891), 39 N. Y. St. 
 
 R. 781, 15 N. Y. Supp. 620.. 
 
 149. 
 Van Winter v. Henry Co. (1883), 
 
 61 Iowa, 684, 17 N. W. 94.. 140. 
 Veazie v. Penobscot R. (1860), 
 
 49 Me. 119.. 19. 20. 
 Veitch V. Jenkins (1907), 107 Va. 
 
 68, 57 S. E. 574.. 38. 
 
 Vermont, etc., R. v. Baxter 
 
 (1850), 22 Verm. 365.. 124. 
 Vickers v. Cloud Co. ((1898), 59 
 
 Kans. 86. 52 Pac. 73.. 147. 
 Victoria, The (1895), 69 Fed. 
 
 160.. 7. 
 Vincennes v. Specs (1905). 35 
 
 Ind. App. 389, 74 N. E. 277.. 
 
 140. 
 Vincennes, etc., Co. v. White 
 
 (1890), 124 Ind. 376, 24 N. E. 
 
 747.. 20. 22, 203. 
 Virginia, etc., R. v. Sanger (1859), 
 
 15 Gratt. (Va.), 230, 10 Am. 
 
 Neg. Cas. 366.. 133, 134. 
 ViRGiNi.\, ETC., R. V. Washington 
 
 (1890), 86 Va. 629, 10 S. E. 
 
 927, 43 Am. & Eng. R. Cas. 
 
 688, 7 L. R. A. 344.. 126. 
 VoGEL V. New York (1883), 92 
 
 N. Y. 10, 44 Am. R. 349.. 170, 
 
 176. 
 Vosbeck v. Kellogg (1899), 78 
 
 Minn. 176, 80 N. W. 957. .20, 
 
 25. 28, 65, 102. 
 Vosburgh v. Lake Shore, etc., 
 
 R. (1884), 94 N. Y. 374, 46 Am. 
 
 R. 142.. 187, 188. 
 
 Wabash, etc., R. v. Farver 
 
 (1887). Ill Ind. 195. 12 N. E. 
 
 296, 60 Am. R. 696. 31 A. & E. 
 
 Ry. Cas. 134.. 37, 38, 67, 74, 92. 
 Wabash, etc., R. v. Kelley (1899). 
 
 153 Ind. 119.. 149. 
 Wabash, etc. R. v. Peyton 
 
 (1883), 106 111. 534, 46 Am. R. 
 
 705.. 134. 
 Wabash, etc., R. v. Shacklet 
 
 (1883), 105 111. 364, 44 Am. R. 
 
 791.. 126. 
 Wabash, etc., R. v. Williamson 
 
 (1891), 3 Ind. App. 190, 29 N. 
 
 E. 455.. 123. 
 Wads worth v. Duke (1873), 50 
 
 Ga. 91.. 201.
 
 liv 
 
 TABLE OF CASES. 
 
 [References are to sections.] 
 
 Wadsworth, etc., Co. v. Foster 
 (1893), 50 111. App. 513; 
 (1897), 168 111. 514. 48 N. E. 
 163.. 38. 
 Wagner v. Boston, etc., R. (1905), 
 188 Mass. 437, 74 N. E. 919.. 
 210. 
 Walker v. McMillan (1882), 6 
 
 Can. S. C. R. 241.. 68. 
 Wallace v. New Castle, etc., R. 
 (1891). 11 Pa. Co. Ct. 347.. 
 124. 
 Wallace v. Southern, etc., Co. 
 (1897), 91 Tex. 18, 40 S. W. 
 399. .20, 29, 207. 
 Waller v. Lasher (1890), 17 111. 
 
 App. 609.. 69. 
 Waltemever v. Wisconsin, etc., R. 
 (1887)^ 71 Iowa, 626, 33 N. W. 
 140. 30 Am. & Eng. R. Cas. 
 384.. 124. 
 Wannamaker v. Rochester (1892), 
 
 17 N. Y. Supp. 321.. 183. 
 Ward V. Lee (1857), 7 El. & Bl. 
 
 426. .216. 
 Ward V. New England, etc., Co. 
 (1891), 154 Mass. 419, 28 N. E. 
 299.. 7, 29. 
 Ward V. St. Vincent's Hospital 
 (1899), 39 App. Div. 624, 57 N. 
 Y. Supp. 784.. 149. 
 Ware v. Water Co. (1870), 2 Abb. 
 (U. S.), 261 (Cf. Water Co. v. 
 Ware). 
 Washington, etc., Co. v. Wilkin- 
 .son (1885, Pa.), 1 Cent. Rep. 
 637, 2 Atl. 338.. 20. 
 Washington, etc., R. v. Brown 
 (1873), 17 Wall. (U. S.), 445.. 
 126. 
 Water Co. v. Ware (1872), 16 
 Wall. (U. S.), 566.. 65, 66, 67, 
 73, 86, 110, 160. 
 Waters v. Fuel Co. (1892), 52 
 Minn. 474, 55 N. W. 52, 32 Am. 
 St. 564.. 34. 
 Watson V. Oxanna, etc., Co. 
 (1891), 92 Ala. 320, 8 So. 770.. 
 132, 220. 
 
 Watson Lodge v. Drake (1895), 
 16 Kv. L. Rep. 669, 29 S. W. 
 632.. is, 19. 
 Weber V. Railroad Co. (1897), 
 20 App. Div. 292, 47 N. Y. 
 Supp. 7.. 86, 91, 168. 
 Webster, etc., Co. v. Mulvanny 
 
 (1897), 68 111. App. 607, 168 
 111. 311, 48 N. E. 168.. 206. 
 Welch V. McAllister (1884), 15 
 
 Mo. App. 492.. 206. 
 Welch v. Maine, etc., R. (1894), 
 86 Me. 552, 30 Atl. 116, 25 L. 
 
 R. A. 661.. 9. 
 Welfare v. London, etc., R. 
 
 (1869). L. R., 4 Q. B. 693.. 32, 
 
 35. 
 Welsh V. Lehigh, etc., Co. (1886, 
 
 Pa.), 5 Atl. 48.. 206. 
 Welsh V. Parrish (1892), 148 Pa. 
 
 St. 599, 24 Atl. 86.. 22, 168, 206. 
 Welsh V. St. Louis (1880), 73 Mo. 
 
 71.. 139, 141. 
 Wendler v. Equitable, etc.. So- 
 ciety (1897), 45 N. Y. Supp. 
 
 866.. 20. 
 Wertheimer v. Saunders (1897), 
 
 95 Wis. 573, 70 N. W. 824, 37 
 
 L. R. A. 146.. 70, 106, 109. 
 West V. St. Louis, etc., R. (1872), 
 
 63 111. 545.. 116, 206. 
 West, etc., R. v. Wakefield, etc., 
 
 Board (1864), 33 L. J. Mag. 
 
 Cas.— N. S. 174.. 86. 
 Wetherbee v. Partridge (1899), 
 
 175 Mass. 185, 55 N. E. 894, 78 
 
 Am. St. 486.. 72, >3, 95. 
 Weyland v. Elkins ( ), Holt— 
 
 N. P. 227, 1 Starkie, 272. .1.5, 49. 
 Whelen v. Stevens (1827), 2 Tay- 
 lor (Ont.), 439.. 36. 
 Wheelhouse v. Darch (1877), 28 
 
 U. C. C. P. 269.. 88. 
 White V. Green (1904, Tex.), 82 
 
 S. W. 329.. 164. 
 White V. New York (1897), 15 
 
 App. Div. 440, 44 N. Y. Supp. 
 
 454.. 70, 143. 
 White v. Philadelphia (1902), 201 
 
 Pa. St. 512, 51 Atl. 332.. 53, 142.
 
 TABLE OF CASES. 
 
 Iv 
 
 [References are to sections.] 
 
 Whitney v. Atlantic, etc., R. 
 
 ( 1857), 44 Me. 362, 69 Am. Dec. 
 
 103.. 126. 
 Whitney v. Clifford (1879), 46 
 
 Wise. 138, 32 Am. R. 703.. 163. 
 Whitney, etc., Co. v. ORourke 
 
 (1898), 68 111. 487, 172 111. 177, 
 
 50 N. E. 242. .23, 34, 222. 
 Whitson V. Ames (1897), 68 
 
 Minn. 23, 70 N. W. 793, 2 Am. 
 
 Neg. R. 178.. 34. 
 Wiener v. Halleck ( ), 14 N. 
 
 Y. Supp. 365.. 73. 
 Wiese v. Rcmme (1897), 140 Mo. 
 
 289, 41 S. W. 797, 3 Am. Neg. 
 
 R. 222.. 1 06. 
 Wiest V. Coal Creek Railroad 
 
 (1906), 42 Wash. 176, 84 Pac. 
 
 725.. 7. 
 Wiggin V. St. Louis (1896), 135 
 
 Mo. 558, 37 S. W. 528.. 92, 93, 
 
 141. 
 Wilber v. Follansbee (1897), 99 
 
 Wis. 577, 72 N. W. 741, 73 Id. 
 
 559.. 106, 109. 
 Wilbur V. White (1903), 98 Me. 
 
 191. 56 Atl. 657, 16 Am. Neg. 
 
 R. 606, n..35, 69. 
 Wilkinson v. Detroit, etc., Works 
 
 (1889), 73 Mich. 405, 41 N. W. 
 
 490.. 176, 183. 
 Willard V. Newbury (1850), 22 
 
 Vt. 458.. 141. 
 Wm. Cameron Co. v. Realmuto 
 
 (1907, Tex. Civ. App.), 100 S. 
 
 W. 194.. 20. 
 William F. Babcock, The, In re 
 
 (1887), 31 Fed. 418.. 210. 
 WiLLi.AMs V. Irrigation Co. 
 
 (1892), 96 Cal. 14, 30 Pac. 961, 
 
 31 Am. St. 172.. 70, 72, 85. 
 Williams v. Pullman, etc., Co. 
 
 (1888). 40 La. Ann. 417, 4 So. 
 
 85. 8 Am. St. 538.. 135. 
 Williams v. Tripp (1878), 11 R. 
 
 I. 447.. 97. 
 Williamson v. Fisher (1872), 52 
 
 Mo. 198.. 95. 
 Williamson v. Louisville, etc.. 
 
 School (1894), 95 Ky. 251, 44 
 
 Am. St. 243; (1905). 78 Conn. 
 
 276, 61 Atl. 1069.. 149. 
 Wilmot v. McPadden (1906), 79 
 
 Conn. 367, 65 Atl. 157, 19 L. R. 
 
 A.— N. S. 1 101.. 94, 96, 165. 
 Wilson V. Chicago (1890), 42 
 
 Fed. 506.. 222. 
 Wilson v. City of Troy (1892). 
 
 135 N. Y. 96. 32 N. E. 44, 31 
 
 Am. St. 817, 18 L. R. A. 449.. 
 
 141. 
 Wilson V. Clark (1892), 110 N. 
 
 C. 364, 14 S. E. 962.. 38. 
 Wilson V. Merry (1868), L. R., 1 
 
 H. L. 326.. 184. 
 Wilson v. Wheeling (1882), 19 
 
 W. Va. 323, 42 Am. St. 780.. 
 
 139, 142. 
 Wilson v. White (1883), 71 Ga. 
 
 506. 51 Am. R. 269.. 66, 90. 
 Wingert v. Krakauer (1904), 87 
 
 N. Y. Supp. 261.. 1 69. 
 Winterbottom v. Wright (1842), 
 
 10 Mees. & W. 109.. 224, 228. 
 Wisconsin, etc., R. v. Ross 
 
 (1892), 142 111. 8. 31 N. E. 412, 
 
 12 R. & Corp. L. J. 81, 34 Am. 
 
 St. 49.. 126. 
 Wiseham v. Rickard (1890). 136 
 
 Pa. St. 109, 20 Atl. 532, 20 Am. 
 
 St. 900, 10 L. R. A. 97.. 9. 
 Wiswall V. Brinson (1849), 10 
 
 Ired. L. (N. C), 554.. 14, 47. 
 Wittenberg v. Friedrich (1896). 
 
 40 N. Y. Supp. 895.. 183, 188. 
 Wolf V. American Tract Society 
 
 (1898), 15 App. Div. 98, 49 N. 
 
 Y. Supp. 236.. 17. 92. 
 Wood V. Cobb (1866), 95 Mass. 
 
 58, 13 Allen, 58.. 7, 31. 
 Wood V. Independent School Dis- 
 trict (1876), 44 Iowa, 27.. 34, 
 
 54. 
 Wood V. Watertown (1890). 58 
 
 Hun, 298. 11 N. Y. Supp. 864.. 
 
 144. 
 Woodbury v. Post (1893), 158 
 
 Mass. 140, 33 N. E. 86.. 229. 
 Woodhill v. Great Western R. 
 
 (1885), 4 U. C. C. P. 449.. 
 
 215.
 
 Ivi 
 
 TABLE OF CASES. 
 [References are to sections.] 
 
 Woodman v. Metropolitan Ry. 
 
 Co. (1889), 149 Mass. 335, 21 
 
 N. E. 482, 4 L. R. A. 213, 14 
 
 Am. St. 427. 6 Rail. & Corp. 
 
 L J. 72. 12 Am. Neg. Cas. 80. . 
 
 67. 69. 79, 91, 98, 110, 115, 125, 
 
 130, 168. 
 Woods V. Trinity Parish (1893), 
 
 21 D. C. 540.. 97. 
 Woodward v. Peto (1862), 3 
 
 Post. & F. 389.. 132. 
 Worthington v. Parker (1885), U 
 
 Daly (N. Y.), 545.. 106, 107, 
 
 108. 
 Wray v. Evans (1876), 80 Pa. 
 
 St. 102. 
 Wright v. Big R.\pids Co. (1900), 
 
 124 Mich. 91, 82 N. W. 829. 50 
 
 L. R. a. 495.. 18, 56. 
 Wright v. Holbrook (1872), 52 
 
 N. H. 120, 13 Am. R. 12.. 24, 
 
 34, 50. 
 Wright V. London, etc., R. 
 
 (1866), L. R., 1 Q. B. 252. .9. 
 Wright V. Muskegon (1905), 140 
 
 Mich 215, 103 N. W. 558.. 53, 
 
 145. 
 Wyllie v. Palmer (1893), 137 
 
 N. Y. 248, 33 N. E. 381, 19 L. 
 
 R. A. 285.. 7, 20. 
 Wyman v. Penobscot, etc., R. 
 
 (1858), 46 Me. 162.. 20. 
 
 Yewens v. Noakes (1880), L. R., 
 
 6 Q. B. D. 532.. 4. 
 York V. Chicago, etc., R. (1896), 
 
 98 Iowa, 544, 67 N. W. 574.. 
 
 38. 
 York, etc., R. v. Winans (1854), 
 
 17 How. (U. S.), 30.. 126. 
 Young v. Fosburg Lumber Co. 
 
 (1908, N. C), 68 S. E. 654, 16 
 
 L. R. A.— N. S. 255.. 26, 27, 28, 
 
 65, 72, 100. 
 Young V. New York, etc., R. 
 
 (1859), 30 Barb. (N. Y.),229.. 
 
 196. 
 Young v. Smith, etc.. Co. (1905), 
 
 124 Ga. 475, 4 Am. & Eng. Ann. 
 
 Cas. 226, 19 Am. Neg. R. 132. . 
 
 228 
 Young V. Trapp (1904), 118 Ky. 
 
 813, 82 S. W. 429.. 92. 
 
 Ziebell v. Eclipse, etc., Co. (1903), 
 
 33 Wash. 591, 74 Pac. 680.. 34. 
 Zieman v. Kieckhefer Elevator 
 
 Co. (1895), 90 Wise. 497, 63 N. 
 
 W. 1021.. 224. 
 Zimmerman v. Bauer (1894), 11 
 
 Ind. App. 607, 39 N. E. 299.. 16, 
 
 92.
 
 Independent Contractors and 
 Xkeir Liability. 
 
 CHAPTER I. 
 
 Who are Independent Contractors. 
 
 SECTION 
 
 1. Representation. 
 
 2. Distinction between agents 18. 
 
 and servants. 
 
 Agent defined. 19. 
 
 Master and servant defined. 20. 
 
 Same — Servants by estoppel. 21. 
 
 Same — Servants of two mas- 22. 
 
 tors. 
 Same — Transfer of service. 23. 
 
 Same — Compulsory service. 24. 
 
 Same — Volunteers as serv- 25. 
 
 ants. 
 Basis of constituent's liability. 26. 
 Same — Of principal's liability. 
 Same — Of master's liability. 27. 
 Distinction — Between servants 
 
 and independent contrac- 28. 
 
 tors. 
 Same — Between agents and 29. 
 
 independent contractors. 
 Doctrine of respondeat su- 30. 
 
 (ycrior. 
 Independent contractor de- 31. 
 
 fined. 
 
 3. 
 4. 
 5. 
 6. 
 
 7. 
 8. 
 9. 
 
 10. 
 11. 
 12. 
 13. 
 
 14. 
 
 15. 
 
 16. 
 
 SECTION 
 
 17. Relation of subcontractor. 
 
 Tests of relation of indepen- 
 dent contractor. 
 
 Same — Retaining control. 
 
 Same- — How far retained. 
 
 Same — Right of dismissal. 
 
 Same — Supervision or ap- 
 proval by employer. 
 
 Same — Same — By architect. 
 
 Same — Same — By engineer. 
 
 Same — Purpose of retaining 
 control. 
 
 Same — Surrendering or re- 
 taining control of premises. 
 
 Same — Construction of con- 
 tract of employment. 
 
 Same — Same — Question for 
 court. 
 
 Same — Same — Question for 
 jury. 
 
 Same — Identity of employer 
 and independent contractor. 
 
 Same — Whose servant the 
 wrongdoer is.
 
 INDEPENDENT CONTRACTORS AND THEIR LLVBILITY. 
 
 SECTION SECTION 
 
 32. Same— Burden of proof, on 36. Same— Relation determined 
 
 whom. by statute. 
 
 33. Same — Obligation of personal 2)7. Pleading the relation. 
 
 performance as test. 38. Particular instances of inde- 
 
 34. Same — Compensation as test. pendent contractors. 
 
 35. Same— Character of work as 39. Effect of death as test. 
 
 test. 
 
 Sec. 1. Representation. 
 
 "Legal obligations are either primary antecedent obliga- 
 tions (imposed either by one's voluntary undertaking or 
 by the law, irrespective of one's volition, upon grounds of 
 public policy or utility) or secondary substituted obligations 
 (arising from an act or omission resulting in a breach of 
 a primary obligation). . . . Most of the things which a 
 man may do in person he may do through a representative ; 
 accordingly, through a representative he may create a volun- 
 tary primary obligation, or he may commit a breach of a pri- 
 mary obligation and thus impose on himself a secondary sub- 
 stituted obligation. Representation, therefore, is of great 
 importance in the law of obligation. It creates a subsidiary 
 range of obligation differing from the main range only in 
 the fact that the one obliged acts mediately through a repre- 
 sentative instead of immediately in person." ^ "The 
 Statute of Westminster II, Ch. 35, as if voicing a principle 
 of universal law, recites that one person shall not be pun- 
 ished for the act of another. . . . Henceforth no one was 
 to be held answerable for an act unless he himself could be 
 brought into some sort of connection with tlie wrong." ^ 
 "The vicarious principle by which the master was in early 
 times held absolutely responsible for the tortious acts of his 
 servant having passed away, there followed a period of 
 
 ^Huff. Agcy., 2nd ed., Sec. "2 Street Legal Liab., 440. 
 
 1-3, abridged.
 
 WHO ARE INDEPENDENT CONTRACTORS. 6 
 
 some hundreds of years during which the accepted doc- 
 trine was that tlie master could not be held responsible 
 unless he had consented to the wrongful act or had actually 
 commanded it." ^ 
 
 Sec. 2. Distinction between Agents and Servants. 
 
 "Agency is a term signifying the legal relations estab- 
 lished when one man is authorized to and does represent 
 and act for another. The one represented may be com- 
 prehensively termed the constituent (specifically, either a 
 principal or master) and the one representing him may be 
 termed the representative (called either an agent or 
 servant). . . . One person may act in the interest of 
 another without being technically his agent or servant. In 
 order, therefore, to delimit our subject, we must first set 
 aside and distinguish these analogous legal relations." ^ 
 The fundamental distinctions between the two are to be 
 sought in the nature of (1) the act authorized, (2) the 
 obligation resulting from the performance of the act, (3) 
 the legal test fixing the constituent's liability for an act 
 in excess of authority. ^' "There is no substantial difference 
 between the test as formulated in contract and tort. When 
 speaking in the language of the books on master and serv- 
 ant, we say that the master is liable for any act of the 
 servant done in the course of his employment and in 
 furtherance of it. When speaking in accepted terms of the 
 law of principal and agent we say the principal is bound 
 by any contract which the agent makes while acting in the 
 scope of his apparent authority. Both statements amount 
 to the same. In every case the first and fundamental question 
 is, What has the principal (constituent) set his repre- 
 
 3 
 
 Id. 442. ° Id. Sec. 4. abridged. 
 
 * Huff. Agcy., 2nd ed., Sec. 
 1-3, abridged.
 
 4 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 sentative to doing? What end does he intend for him to 
 accomplish? What means are proper to be used in exe- 
 cuting- the purpose?" ^ "The two branches of the law are 
 intimately connected, and there never has been a time when 
 cases on master and servant were not cited as authority in 
 the law of principal and agent, and vice versa." "' "It must 
 always be borne in mind that the law of principal and agent 
 is merely a branch of the broader doctrine of master and 
 servant and a common principle underlies both." ^ 
 
 Sec. 3. Agent Defined. 
 
 "In the common language of life, he who being com- 
 petent and sui juris to do any act for his own benefit or 
 on his own account, employs another person to do it, is 
 called the principal, constituent or employer; and he who 
 is thus employed, is called the agent, attorney, proxy or 
 delegate of the principal, constituent or employer. The re- 
 lation thus created between the parties is termed an 
 agency." ^ An agent is a representative vested with author- 
 ity, real or ostensible, to create voluntary primary obligations 
 for his principal, by making contracts with third persons, 
 or by making promises or representations to third persons 
 calculated to induce them to change their legal relations. ^"^ 
 
 Sec. 4. Master and Servant Defined. 
 
 A master is one who stands to another in such a rela- 
 tion that he not only controls the result of the work of that 
 other, but also may direct the manner in which such work 
 shall be done. ^^ A servant is a representative vested with 
 
 •2 Street Legal Liab., 453. "2 Street Legal Liab. 486, criti- 
 
 ' Id. 454. citing article on cising "Estoppel Theory." 
 
 "Agents and Servants Essentially " Story Agcy., 9th ed., Sec. 3. 
 
 Identical," by C. C. Allen, 28 ^" Huff. Agcy., 2nd ed., Sec. 6. 
 
 Amer. Law Rev. 9. " 20 Amcr. & Eng. Enc. of Law, 
 
 2nd ed., 10.
 
 WHO ABE INDEPENDENT CONTRACTORS. O 
 
 authority to perform operative acts for liis master not 
 creating- new primary obligations, or bringing third persons 
 into contractual relations with the master or otherwise 
 causing them to change their legal position. A master 
 comes under obligations to third persons by the act of his 
 servant only when the servant commits a breach of the 
 master's primary obligations and thus creates secondary 
 substituted obligations.^^ "There is high authority for the 
 doctrine that the possession or non-possession of the right of 
 control may, in some instances, determine whether the person 
 employed was a servant or an agent." ^^ "A servant is 
 one who is employed to render personal services to his 
 employer otherwise than in the pursuit of an independent 
 calling." ^"^ The legal term "servant" is sometimes ex- 
 pressly defined by statute. ^^ The case of an apprentice 
 may be embraced under this head; for although he does 
 not always bargain in respect to the services on his own 
 
 '^'Huff. Agcy., 2nd ed., Sec. 6. of control?" Regina v. May 
 
 "Note to Richmond v. Sitter- (1861), Leigh & C, C. C, 13. In 
 
 DING, (1903, 101 Va. 354; 43 S. a prosecution for embezzlement, 
 
 E. 562; 99 Am. St. Rep. 879; 16 Lord Blackburn said: "The test 
 
 Am. Neg. Rep. 609, n.) ; in 65 L. is very much like this, viz.: 
 
 R. A. at p. 447. Bramwell, B., is whether the person charged is 
 
 reported as having said : "It under the control and bound to 
 
 seems to me that the difference obey the orders of another.'' 
 
 between the relations of master Regina v. Negus (1873), L. R. 2 
 
 and servant and principal and N. C. 37. "A servant is a person 
 
 agent is this: a principal has the subject to the command of his 
 
 right to direct what the agent has master, as to the manner in which 
 
 to do ; but a master has not only he shall do the work." Bram- 
 
 that right, but also the right to well, L. J., in Yewens v. Noakes 
 
 say how it is to be done." Regina (1880), L. R. 6 Q. B. Div., 532. 
 
 V. Walker (1858), as reported in " Murr.w v. Dvvight (1900), 
 
 27 L. J. Mag. Cas. (N. S.) 208. 161 N. Y. 301, 55 N. E. 901 ; 48 
 
 Chief Justice Cockburn pertinent- L. R. A., 673. 
 
 ly asked: "Does not the word "'Calif. Civil Code, Sec. 2009; 
 
 'clerk' or 'servant' imply the exis- Dak. Civil Code Sec. 1157; New 
 
 tence in some one of a power York Code, Sec. 1034.
 
 6 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 behalf, some one whom the law authorizes to speak for him 
 does so, and the relation established is strictly one resting 
 on an agreement for services in return for a consideration 
 of some sort which the master is to render. ^^ 
 
 Sec. 5. Servants by Estoppel. 
 
 However, the employer may estop himself from showing 
 that a mechanic in his employ is an independent contrac- 
 tor, when he holds himself out as master. Thus where the 
 defendant held itself out as practicing dentistry in one of 
 the departments of its store, it was declared liable for the 
 malpractice of the dentists, although they were in fact 
 practicing on their own account. ^'^ "But this is estoppel 
 to deny the existence of the relation merely. The liability 
 for a tort committed by such ostensible servant is fixed by 
 the ordinary rule applicable to master and servant. Es- 
 toppel to deny the existence of the relation could not be 
 invoked where the third person is not thereby induced to 
 change his legal relations or position. . . . Yet one may 
 be estopped to deny that another is his servant where by 
 so representing him third persons have been induced lo 
 entrust their person or property to his care or treatment." ^^ 
 A father was employed by the defendant company to 
 mine coal at a specified price per ton, and had his boy to 
 assist in the work, with the knowledge and consent of the 
 company. The boy was held to be a servant of the company 
 as respects the duty owed him by the company. ^^ 
 
 ^'Cooley on Torts (Students' ^"^ Huff. Agcy., 2nd ed, 196, 296, 
 
 ed., 1907), p. 471. citing Hannon v. Siegel-Cooper 
 
 " Hannon v. Siegel-Cooper Co. Co., supra. 
 
 ri901), 167 N. Y. 244, 60 N. E. " Ringue v. Oregon, etc., Co. 
 
 597; 52 L. R. A. 429. Cf. Sec. 1. (1904), 44 Ore. 407; 75 Pac. 703. 
 n. S.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 Sec. 6. Servart of Two Masters. 
 
 "It often happens that there is a sort of duality of 
 service." ~" "Doubtless, no man can serve two masters, 
 yet the law recognizes a sort of duality of service. A gen- 
 eral servant of one person may, for a particular work, be- 
 come pro Iiac vice, the servant of another person." ^^ Of 
 course, the same person may be acting in a particular trans- 
 action as the servant of two masters, as when the afifairs 
 of two corporations are carried on at the same place and 
 by the same employees. If it is found as a matter of fact 
 that the tort was committed by one while rendering serv- 
 ice to both corporations, both will be liable. ^^ Thus, plain- 
 tiff was injured at a railroad crossing by reason of the 
 negligence of the flagman stationed there. There were two 
 sets of tracks at the crossing, one belonging to defendant 
 and one to another company, which latter employed and 
 paid the flagman. He had been employed at this crossing 
 ten years, during which time he had flagged defendant's 
 train. The court held the facts justified a finding that the 
 flagman was a servant of the defendant company. ^^ In 
 another case one S. for a long time previous to a given date 
 had acted as agent for both an express company and de- 
 fendant telegraph company, and was well informed of plain- 
 tiff's method of doing business with his correspondent 
 D. S. sent D. a forged telegram, purporting to be from 
 
 ="Bu!-d. Torts, p. 137, citing 
 and quoting from Delaware, etc., 
 Railroad Co. v. Hardy (1896), 
 59 N. J. Law 35, 37; 16 Am. Neg. 
 Cas. 658. n., 34 Atl. 986; Atwood 
 V. Chicago, etc., Railroad Co. 
 (1896), 72 Fed. 447, 454. 
 
 ^ Delaware, etc.. Railroad Co. v. 
 Hardy, supra. 
 
 ^ Dietliers v. St. Paul, etc., Co. 
 (1902), 86 Minn. 474: 91 N. W. 
 
 15. Cf. McCoRD V. Western 
 Union Tel. Co. (1888), 39 Minn. 
 181; 39 N. W. 315; 1 L. R. A. 
 143; 12 Amer. St. Rep. 636; Huff. 
 Cas. Agcy. 306. 
 
 ^ Denver, etc., Railroad Co. v. 
 Gustafson (1895), 21 Colo. 393; 
 41 Pac. 505. Cf. Brow v. Boston, 
 etc.. Railroad Co. (1892). 157 
 Mass. 399; 32 N. E. 362.
 
 8 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the plaintift and requesting the remittance of a large sum 
 of money. The money was duly sent by express and was 
 intercepted and abstracted by 'S., who converted it to his 
 own use. The defendant telegraph company was held 
 liable. 2-1 
 
 Sec. 7. Transfer of Service. 25 
 
 When the servants of one person are hired or loaned to 
 another, they become the servants of the latter for the time 
 beine. -'^ If the servants of a master are sent to do work 
 upon the property or premises of another, they will be- 
 come the servants of the latter if they work under his 
 directions and control. ^^ If A. leases or lends his servant 
 
 -*McCoRD V. Western Union 
 Tel. Co., supra. "The acts of S. 
 as agent of the defendant and of 
 the express company were the ex- 
 ecution of the different parts of 
 one entire plan or scheme. That 
 his subsequent acts aided and con- 
 curred in producing the result 
 aimed at, did not make the forged 
 despatch any the less operative as 
 the procuring or proximate cause 
 of plaintiff's loss." (Per Vander- 
 burgh, J.) 
 
 ^ See, generally, Huff. Agcy., 
 2d ed., chap. 18. 
 
 * Cotton v. Lindgren (1895), 
 106 Cal. 602; 39 Pac. 939; 46 
 Amer. St. Rep. 255; Brown v. 
 Smith (1890), 86 Ga. 274; 12 S. 
 E. 411; 14 Am. Neg. Cas. 80, n. ; 
 22 Amer. St. Rep. 456; Kimball 
 V. CusHMAN (1869), 102 Mass. 
 194; 4 Amer. Rep. 528; Hasty v. 
 Se.-^rs (1892), 157 Mass. 123; 31 
 N. E. 759 ; 34 Amer. St. Rep. 267 ; 
 Driscoll V. Towle (1902), 181 
 
 Mass. 416; 63 N. E. 922; Dela- 
 ware, etc.. Railroad Co. v. Hardy 
 (1896), 59 N. J. Law, 35; 34 Atl. 
 986; 16 Am. Neg. Cas. 658, n. ; 
 HiGGiNs V. Western Union Tel. 
 Co. (1898), 156 N. Y. 75; 50 N. 
 E. 500; 66 Amer. St. Rep. 537; 
 Burd. Cas. Torts, 413, note; 
 Powell v. Construction Co. 
 (1890), 88 Tenn. 692; 13 S. W. 
 691 ; 17 Amer. St. Rep. 925. 
 
 =" Green v. Sansom (1899), 41 
 Fla. 94; 25 So. 332; Wood v. Cobb 
 (1866), 13 Allen (Mass.), 58; 
 Ward V. New England, etc., Co. 
 (1891), 154 Mass. 419; 28 N. E. 
 219; Hastey v. Sears (1892), 157 
 Mass. 123 ; 31 N. E. 759 ; 34 Amer. 
 St. Rep. 267; Delory v. Blodgett 
 (1904), 185 Mass. 126; 69 N. E. 
 1078; 64 L. R. A. 114; Roe v. 
 Winston (1902), 86 Minn. 77; 90 
 N. W. 122; Mclnerny v. Dela- 
 ware, etc., Co. (1897), 151 N. Y. 
 411; 45 N. E. 348; Wiest v. Coal 
 Creek Railroad (1906), 42 Wash.
 
 WHO .VBE INDEPENDENT CONTRACTORS. ^ 
 
 to B. pursuant to an arrangement by whicli B. is to have 
 the right to direct the acts or control the conduct of the 
 servant, B. must respond for the torts of the servant while 
 thus engaged. ^^ With respect to certain acts of servants 
 in general, A. may retain the right of control while with 
 respect to others, the right of control may be vested in B. 
 In such case A. or B. will be liable according as the negli- 
 gent act belongs to the one or the other class. For ex- 
 ample, if A. lets his horses, wagon and driver to a city, 
 which is engaged in paving a street, and through the neg- 
 ligence of the driver, in looking after the shoeing of the 
 horses and driving them, a horse kicks a loose shoe through 
 the plaintiff's plate glass window, A. and not the city is 
 liable. ^^ But if A. lets his horses, etc., to a city, which 
 is engaged in paving a street, or the like, and the plaintiff 
 is injured by the negligent manner in which the servant 
 carried out an order which the city had a right to give him 
 the city would be liable. ^" When one furnishes a carriage 
 and driver for the use of another, the presumption is that 
 
 176; 84 Pac. 725; Atlantic, etc., 
 Co. V. Coneys (1897), 82 Fed. 
 177; 28 C. C. A. 388; Burd. Cas. 
 Torts. 403, note; Brady v. Chi- 
 cago, ETC., Railroad (1902). 114 
 Fed. 100; 52 C. C. A. 48; 57 L. R. 
 A. 712. Otherwise not: Wylie v. 
 Palmer (1893), 137 N. Y. 248; 
 33 N. n:. 381; 19 L. R. A. 285: 
 Connelly v. Faith (1899), 190 Pa. 
 St. 553; 42 Atl. 1024; Burton v. 
 Galveston, etc.. Railroad (1884), 
 61 Te.x. 526; 21 Am. & Eng. Ry. 
 Cas. 218. 
 
 =^ Donovan v. Long (1893). 1 
 Q. B. 629; 63 L. J. Q. B. 25; 
 Burd. Cas. on Torts, 409; Delory 
 V. Blodgett, supra; Roe v. Win- 
 ston, supra: Mclnerny v. Dela- 
 
 ware, etc., Railroad, supra; Hig- 
 GiNs V. Western Union Tel. Co., 
 supra; Rourke v. White Moun- 
 tain, etc., Co. (1877), 2 C. P. D. 
 205; 46 L. J. C. P. 283; Grace v. 
 Hyde, etc., Co. (1904), 208 Ills. 
 147; 70 N. E. 12. 
 
 ^HuFF V. Ford (1878), 126 
 Mass. 24; 30 Amer. Rep. 645; 
 Delory v. Blodgett, supra; Con- 
 solidated, etc., Co. V. Kiehl (1901), 
 190 Ills. 145; 60 N. E. 87; 16 Am. 
 Neg. Rep. 613. n. 
 
 ^Donovan v. Long, sup>\t; 
 Driscoll v. Towle (1902). 181 
 Mass. 416; 63 N. E. 922; Roe v. 
 Winston (1902). 86 Minn. 77, 86; 
 90 N. W. 122.
 
 10 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the driver is the servant of the owner. '"^^ In all such cases 
 the test is, whether, in the particular service which the 
 servant is engaged to perform, he continues liable to the 
 direction and control of his general master or becomes sub- 
 ject to that of the party to whom he is lent or hired. ^^ 
 
 *^Sacker v. Waddell (1903), 
 98 Md. 43; 56 Atl. 399; 103 Amer. 
 St. Rep. 374; Fenner v. Crips 
 Brothers (1899), 109 Iowa, 155; 
 80 N. W. 526; Huff v. Ford, 
 supra; Joslin v. Grand Rapids 
 Ice Co. (1883), 50 Mich. 516; 45 
 Amer. Rep. 54; McColUgan v. 
 Pennsylvania Railroad Co. (1906), 
 214 Pa. St. 229; 53 Atl. 792; 6 L. 
 R. A. (N. S.), 544; 112 Am. St. 
 739. 
 
 ^Coughlin V. Cambridge (1896), 
 166 Mass. 268; 44 N. E. 218; 
 Delory v. Blodgett, supra; Con- 
 solidated, etc., Co. V. Kiehl, supra; 
 Grace, etc., Co. v. Probst (1904), 
 208 Ills. 147, 76 N. E. 12. Cf. 
 Sacker v. Waddell, supra. "It 
 often happens that a man is hired 
 and paid by A., and thus becomes 
 his servant, but for certain trans- 
 actions is transferred by A. to the 
 service of B. While thus engaged 
 about B.'s affairs, he tortiously in- 
 jures a third person. Is A. or B. 
 to respond as master for the dam- 
 age? Upon principle, the answer 
 would seem not to be difficult and 
 that A. or B. should be liable, ac- 
 cording as the one or the other 
 had the right to control the act 
 or omission which caused the 
 harm. And such seems to be the 
 answer given by the best con- 
 sidered cases." Burdick on Torts, 
 136. There are numerous in- 
 
 stances wherein the existence of 
 a general relation of master and 
 servant between two persons does 
 not exclude the like relation be- 
 tween such servant and a third 
 party, to the extent of a special 
 service wherein he is actually en- 
 gaged ; accordingly servants in the 
 general employ of a contractor 
 or of his employer may be the 
 servants of the other for some 
 special purpose. Johnson v. Bos- 
 ton (1875), 118 Mass. 114; Hardy 
 v. Shedden Co. (1897), 47 U. S. 
 App. 362; 78 Fed. 672; 37 L. R. 
 A. 33, per Taft, J.; The Cole- 
 ridge (1896), 72 Fed. 676; Killea 
 V. Faxon (1877), 125 Mass. 485; 
 Breslin v. Sparks (1904), 97 App. 
 Div. 69; 89 N. Y. Supp. 627; Cun- 
 ningham v. Syracuse, etc., Co. 
 (1897), 20 App. Div. 171; 46 N. 
 Y. Supp. 954; Pioneer, etc., Co. 
 V. Clifford (1906), 125 Ills. App. 
 352, question for jury; Otis, etc., 
 Co. V. Wingle (1907), 82 C. C. A. 
 62; 152 Fed. 914; Illinois, etc., 
 Co. V. Cox (1858), 21 Ills. 20; 71 
 Amer. Dec. 298, contra; Coggin 
 V. Central Railroad (1879), 62 
 Ga. 685; 35 Amer. Rep. 132; 
 Mills V. Thomas, etc., Co. (1900), 
 54 App. Div. 124; 66 N. Y. Supp. 
 398; 172 N. Y. 660; 65 N. E. 1119; 
 Moran v. Carlson (1904), 95 App. 
 Div. 116; 88 N. Y. Supp. 520; 
 McDonough v. Pelham, etc., Co.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 11 
 
 Sec. 8. Compulsory Service. 
 
 "If one is compelled by law to accept another's services, 
 he ought not to be answerable for injuries caused by the 
 latter. So, if one is compelled by law to serve another, he 
 should not be considered a fellow-servant of other em- 
 ployees so as to preclude recovery for their negligence. 
 Whether such former employment is compulsory may de- 
 pend upon the range or power of selecting employees." ^^ 
 "Those who, under a public license, exercise a certain em- 
 ployment on behalf of any member of the public who may 
 hire them (such as licensed public carmen, drovers, pilots, 
 draymen) do not stand in the relation of servant to any one 
 who may hire them to do a particular job, such as they are 
 licensed to do, but are deemed independent contractors ; but 
 this rule has its limitations, for the fact that a man is 
 obliged by law to select servants to carry on a particular 
 employment from a particular class of men skilled in such 
 employment and licensed to follow it, does not exclude the 
 possibility of relation of master and servant existing be- 
 tween them." ^^ A pilot, whom the master of a vessel is 
 compelled by law to accept, is not his servant. ^^ One who 
 
 (1906), 111 App. Div. 585; 98 N. 
 Y. Supp. 90; Gerlach v. Edel- 
 meyer (1881), 15 Jones & S. 392; 
 88 N. Y. 645. As to winch men 
 and stevedores' servants, see The 
 Harold (1884), 21 Fed. 428; The 
 Joseph John (1898), 86 Fed. 471; 
 30 C. C. A. 199; The Anaces 
 (1898), 87 Fed. 565; The Elton 
 (1906), 142 Fed. 367; 73 C. C. A. 
 467; The Victoria (1895), 69 Fed. 
 160; The Lisnacrieve (1898), 135 
 Fed. 879, (1906) 143 Fed. 955; 
 Standard Oil Co.- v. Anderson 
 (1907), 152 Fed. 166; 81 C. C. A. 
 399; The Slingsley (1902), 120 
 
 Fed. 748; The Gladestry (1904), 
 128 Fed. 591. Cf. S.anford v. 
 St.\nd.\rd Oil Co. (1890), 118 N. 
 Y. 576; 24 N. E. 313; 16 Amer. St. 
 Rep. 787; Laitro v. Standard Oil 
 Co. (1902). 74 App. Div. 4; 76 N. 
 Y. Supp. 800; Johnson v. Nether- 
 lands, etc., Co. (1892), 132 N. Y. 
 576; 30 N. E. 505. 
 
 ^ See. generally, Huff. Agcy., 
 2d ed., Sec. 235. 
 
 '' Thompson Negligence, Sec. 
 638. 
 
 "" Steam Navigation Co. v. Brit- 
 ish, etc.. Navigation Co. (1S6S), 
 L. R. 3 Exch. 330. Contra, se-
 
 12 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 hires convict labor is liable as master to a convict "in respect 
 to those incidents of the employment over which he has the 
 same measure of control that a master ordinarily has, but 
 not as to those features of the employment over which he 
 is essentially deprived of such control." ^" Under such cir- 
 cumstances the mere presence of the government employee, 
 who has charge of the convicts, does not relieve the hirer 
 of the convicts from his liability for the tortious conduct 
 of his own agent. ^"^ 
 
 Sec. 8. Volunteers as Servants. 
 
 One who voluntarily assists a servant at the latter's re- 
 quest does not, as a general rule, become a servant of the 
 • master, so as to impose upon the latter the duties and liabili- 
 ties of a master towards such volunteer, or so as to render 
 the master liable to third persons injured by such volun- 
 teer's acts or negligence, while rendering such assistance. ^^ 
 A volunteer is one who, without the request or consent of 
 
 lecting one out of six thousand 
 bargemen. Martin v. Temperly 
 (1843), 4 Q. B. 298. Cf. Story 
 Agcy., 9th ed, 456o. 
 
 ** Baltimore, etc., Co. v. Jamar 
 (1901), 93 Md. 404; 49 Atl. 847; 
 86 Amer. St. Rep. 428; Hartwig 
 V. Bay State, etc., Co. (1887), 43 
 Hun (N. Y.), 425. 
 
 ^ Chattahoochee, etc., Co. v. 
 Braswell (1893), 92 Ga. 631; 18 
 S. E. 1015 ; see, generally. Huff. 
 Agcy., 2d ed.. Chap. 19. 
 
 ^ Georgia, etc.. Railroad v. 
 Propst (1888), 85 Ga. 203; 4 So. 
 711; Atlanta, etc.. Railroad v. 
 West (1905), 121 Ga. 641; 49 S. 
 E. 711; 104 Amer. St. Rep. 179; 
 67 L. R. A. 701; Church v. 
 Chicago, etc., Railroad (1892), 
 
 50 Minn. 218; 52 N. W. 647; 16 
 L. R. A. 361 ; Evarts v. St. Paul, 
 etc., Railroad (1894), 56 Minn. 
 141; 57 N. W. 459; 45 Amer. St. 
 Rep. 460; 22 L. R. A. 663; Longa 
 V. Stanley, etc., Co. (1903), 69 N. 
 J. Law, 31; 54 Atl. 251; Wise- 
 ham V. RicKARD (1890), 136 Pa. 
 St. 109; 20 Atl. 532; 20 Amer. St. 
 Rep. 900; 10 L. R. A. 97; Langan 
 V. Tyler (1902), 114 Fed. 716; 
 
 51 C. C. A. 503; Cincinnati, 
 ETC., Railroad v. Finnell (1900), 
 108 Ky. 135; 55 S. W. 902; 57 L. 
 R. A. 266. (Such a volunteer 
 assumes all the risks of the serv- 
 ice upon which he enters and is 
 only entitled to the protection due 
 a trespasser.)
 
 WHO ABE INDEPENDENT CONTRACTORS. 
 
 13 
 
 the master of his authorized representative, undertakes to 
 perfonn a service for the master, either as a mere interloper 
 or in order to advance some interest of tlie voUmteer or 
 of the master. -^^ But if the servant has authority, express 
 or imphed, to employ assistants, a volunteer assisting is a 
 sub-servant, both in his relation to the master and in the 
 latter's relation to third persons. '^^' When a passenger is 
 injured by the negligence of a volunteer called in by a 
 servant, even though without the knowledge or authority 
 of the master, the master has been held liable. ^^ "There 
 is an increasing class of cases in which the exercise of pro- 
 portionate care is held to be due to servants of different 
 masters who assist in the performance of a service mutually 
 beneficial to such employers," and such assisting servants are 
 not as a matter of law to be treated as mere volunteers. ^- 
 
 Sec. 10. Basis of Constituents' Liability. 
 
 Representation is only an extension of the fundamental 
 conception of responsibility for one's own acts. Both in 
 
 ="See Sec. 240, Huff. Agcy., 2d 
 ed. 
 
 ^"Haluptzok v. Great North- 
 ern Railroad (1893), 55 Minn. 
 446; 57 N. W. 144; 26 L. R. A. 
 739; and compare Johnson v. 
 Ashland, etc., Co. (1888), 71 
 Wis. 553 ; 37 N. W. 823 ; 5 Amer. 
 St. Rep. 243. 
 
 *^Lakin v. Oregon, etc., Rail- 
 road (1887), 15 Ore. 220; 15 Pac. 
 355. To the same effect, Althorf 
 V. Wolfe (1860), 22 N. Y. 355; 
 master held liable for injuries 
 caused by servant's volunteer as- 
 sistant negligently throwing ice 
 from defendant's roof, the master 
 being bound to see that his prem- 
 
 ises were so used as not to in- 
 jure others. 
 
 ^^ Kelly v. Tyra (1908), 103 
 iMinn. 176; 114 N. W. 750; 17 L. 
 R. A. (N. S.), 343, per Jaggard, 
 J., citing inter alia, Wright v. Lon- 
 don, etc., R. (1866), L. R., 1 Q. 
 B. 252; Hannigan v. Union, etc., 
 Co. (1896), 3 App. Div. 618; 38 
 N. Y. Supp. 272; Connors v. 
 Great Northern, etc.. Co. (1904), 
 90 App. Div. 311; 85 N. Y. Supp. 
 644: Meyer v. Kenyon, etc., Co. 
 (1905), 95 Minn. 329; 104 N. W. 
 132; Welch v. Maine, etc., R. 
 (1894), 86 Md. 552; 30 Atl. 116; 
 25 L. R. A. 661.
 
 14 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 morals and in law one is responsible for the things which he 
 brings to pass, whether he employs an inanimate object to 
 effectuate his purpose or sets in operation the infinitely more 
 complicated chain of causation which results from the em- 
 ployment of another moral agent.^"** "Michael v. Alestree 
 (1677, 2 Lev. 172, 3 Keb. 650), is generally looked upon 
 as marking the beginning of the modern conception of the 
 liability of masters for their servants' torts." A servant 
 undertaking to train horses in a public place injured a by- 
 stander, and the master, though absent, was held liable, 
 on the theory of presumptive command. The master and 
 servant were joined as defendants, and both were held 
 liable. "Thereafter the idea that only the master and not 
 the servant is liable for damages occasioned by the latter's 
 negligence found no recognition." '*^ "It has been con- 
 tended that we must seek the basis of liability in cases where 
 the representative's acts are neither commanded nor rati- 
 fied, and are in excess of any actual authority conferred, 
 (1) in the fiction of identity, (2) in the voluntary act of 
 the employer in setting the representative in motion, or 
 that one must answer, within reasonable limits, for an in- 
 strumentality operating for his benefit, or (3) mainly by 
 the practical consideration that the employer is usually 
 better able to pay than the representative." ^^ 
 
 Sec. 11. Basis of Principal's Liability. 
 
 "The responsibility of the principal to third persons is 
 not confined to cases where the contract has been actually 
 made under his express or implied authority. It extends 
 further and binds the principal in all cases where the agent 
 is acting within the scope of his usual employment or has 
 been held out to the public or to the other party as having 
 
 "2 Street Legal Liab., 429. **Huflf. Agcy., 2d ed., Sec. 5, 
 
 "Id., 451. abridged.
 
 WHO ARE INDEPENDENT CONTRACTORS. 15 
 
 competent authority, although, in fact, he has in the par- 
 ticular instance exceeded or violated his instructions and 
 acted without authority. For in all such cases, where one 
 of two innocent persons is to suffer, he ought to suffer who 
 misled the other into the contract by holding out the agent 
 as competent to act and as enjoying his confidence." *'' 
 "As to the liability of principals to third persons for the 
 acts of their agents. This topic may be dismissed in a 
 few words; for the whole doctrine turns upon the obvious 
 maxim, that he, who acts by another, acts by himself. . . . 
 In the next place, as to the liability of the principal to 
 third persons for the misfeasances, negligences and torts of 
 his agent. ... In all such cases the rule applies, re- 
 spondcat superior; and it is founded upon public policy and 
 convenience ; for in no other way could there be any safety 
 to third persons in their dealings either directly with the 
 principal or indirectly with him through the instrumentality 
 of agents." "*" "Alost, if not all, the liabilities of the prin- 
 cipal for the acts of his agent grow out of the fiction of 
 unity or identity; the contract in contemplation of law, is 
 entered into by the principal himself, for he and the agent 
 are identical." "^^ 
 
 Sec. 12. Basis of Master's Liability. 
 
 "Many reasons have been assigned by different writers 
 for holding a master liable for damage resulting from his 
 servant's negligent act. Nearly all of them have been criti- 
 cised and declared inadequate. . . . The most hoary 
 reason is that long ago advanced by civilians, namely, that 
 the master is liable because, as the event shows, he has 
 employed an incompetent servant. Now it may well be 
 conceded that the master should be liable if he employs a 
 
 '•Story Agcy., 9th ed., Sec. 443. **Reinhard Agcy.. Sec. 321. 
 
 "Id.. Sees. 451. 452.
 
 16 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 person, of known incompetency ; or, in case of a special 
 hazard, if he employs one of doubtful skill. But as is well 
 known, no amount of care in choosing a servant will re- 
 lieve the master. ... In dealing with (this subject) 
 Pollock and Maitland suggest that the desire of reaching a 
 person financially responsible has perhaps unconsciously 
 caused the courts to hold the master liable for the servant's 
 torts done in the course of employment. . . . Still an- 
 other theory was advanced a number of years ago by Judge 
 O. W. Holmes. He endeavored to show that the master's 
 liability for the negligent tort of liis servant results from 
 the application of the ancient fiction of identity of persons 
 as between master and servant. . . . None of these sev- 
 eral theories are adequate fully to explain the principle. 
 . . . Writers on legal theory have been trying to explain 
 a principle which the law accepts as axiomatic. Axiomatic 
 truth in law as elsewhere must be accepted as fundamental 
 and unexplainabie. The axiom with which we have to 
 deal is embodied in the statement reiterated by our courts 
 time and again, that the act of the servant is the act ,of 
 the master. This is a true legal axiom, because the common 
 law proceeds upon it and treats it as a fundamental princi- 
 ple. Qui facit per aliuui, facit per se. ... If we say 
 that where the master sets in motion a chain of causes, 
 using for that purpose the hands and mind of another free 
 agent, he is responsible for all the acts done by his repre- 
 sentative in the conduct of the principal's business, we are 
 merely stating the axiom in another form. All attempts 
 to get nearer to the ultimate legal truth or to resolve the 
 axiom into simpler elements ^vi]l prove futile." ^^ 
 
 "During the nineteenth century the wording of the test 
 by which the master's liability is to be determined under- 
 went a change. The expression 'command and consent, 
 
 "2 Street Legal Liab., p. 458, ct seq.
 
 WHO ARE INDEPENDENT CONTRACTORS. 17 
 
 express or implied,' was completely supplanted by the 'scope 
 or course of employment.' This change in the phraseology 
 of the test marked the ripening of the previous presumption 
 of fact into the positive rule of law. The master now be- 
 comes absolutely liable for all acts done in the course of 
 employment even though there be contrary private instruc- 
 tions and the act itself be plainly against the master's in- 
 terest." ^^* As a general proposition, it may be said that 
 the liability of the master for torts committed by his servant 
 is based on the theory of selection and control, either actual 
 or implied ; that he may choose who shall do his work, di- 
 rect how it shall be accomplished, and retain or discharge 
 the \vorkmen at his option; and if these essential principles 
 of representation are lacking the doctrine of respondeat 
 superior does not apply. If I send my horse to the smith 
 to be shod, although he and his helpers do my work, it is 
 evident that they are not my "servants" within the accepted 
 legal sense of the word, and that I am not responsible for 
 any injury that may come to others through their negli- 
 gent manner of doing my work: and if I engaged a car- 
 penter to make and deliver to me a box of certain dimen- 
 sions, it is still quite clear that I can not be compelled to 
 respond in damages for his carelessness in executing my 
 order. In each of these cases the contract is for a specific 
 thing. If the horse is returned properly shod, or the box 
 finished acording to specifications, it is immaterial where, 
 hoW', or by whom the actual work is done. These are in- 
 termediate considerations over which the employer exer- 
 cises neither volition nor control. In such conditions the 
 person so undertaking to achieve a certain result, free 
 from dictation or interference, is called, for purposes of 
 convenience, an independent contractor. ^^ 
 
 "* Id., 456. " Barrows' Neg., p. 160, citing 
 
 manv c^ses.
 
 18 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 13. Distinction between Servants and Independent 
 Contractors. 
 
 We have already noted the distinction between a servant 
 and an agent. We have now to inquire whether one who 
 is performing operative or ministerial acts for another is 
 in the conventional relation of a servant to the master or 
 whether he is an independent contractor. There is a wide 
 difference between a servant and an independent contractor. 
 It may be stated generally that if a person contracts with 
 another who is engaged in an independent employment, 
 for the doing of certain work by the latter, but does not 
 personally interfere or give directions respecting the man- 
 ner of the work, the relationship of master and servant 
 does not exist, but the party employed is an independent 
 contractor. "When a person desires a particular act done 
 he may either hire a workman to do it, retaining control 
 of the servant and directing his work, or he may let the 
 job by contract simply stipulating that it shall be done in 
 accordance with certain specifications, but retaining no con- 
 trol over the contractor or his methods of work. In the 
 first case the workman is a servant ; in the second he is an 
 independent contractor." ^^ Bramwell, L. J., remarked in 
 a letter to Sir H. Jackson regarding the English Employers' 
 Liability Act of 1880: "The relation of master and servant 
 exists where the master can not only order the w^ork, but 
 how it shall be done. When the person to do the work 
 may do it as he pleases, then such person is not a servant." 
 
 A recent Minnesota case recites : " The terms 'indepen- 
 dent contractor' and 'servant,' as applied to the subject in 
 hand, are somewhat unsatisfactory, but are used for want 
 of better ones. The word 'servant' as used in this connec- 
 tion is applicable to any relation in which, with reference 
 to the matter out of which the alleged wrong has sprung, 
 
 "Huff. Agcy., 2d cd., Sec. 218.
 
 WHO ARE INDEPENDENT CONTRACTORS. 19 
 
 the person sought to be charged had the right under the 
 contract of employment to control, in the given particular 
 complained of, the action of the person doing the alleged 
 wrong. In every case the decisive question in determining 
 whether the doctrine of respondeat superior applies is, had 
 the defendant the right to control in the given particular 
 the conduct of the person doing the wrong. If he had, he 
 is liable. On this question the contract under which the 
 work was done must speak conclusively — in every case 
 reference being had, of course, to surrounding circum- 
 stances. If defendant had such control, the mere fact that 
 the agent who did the injury carried on a separate and in- 
 dependent employment will not absolve his principal from 
 liability. If this control existed, it makes no difference 
 whether the person doing the injury was the 'servant' of 
 the defendant in the popular sense of that word, or a 
 person merely employed to do a specihed job or piece of 
 work." ^^ "The true distinction between cases of master 
 
 03 r. , 
 
 Rait V. New England, etc., "The relation of master and serv- 
 Co. (1896), 66 Minn. 76; 68 N. ant is often confused with some 
 W. 729. An early leading Mas- other relation. The mere fact 
 sachusetts case decides that 'if that some person renders some 
 the person employed to dp the service to another for compensa- 
 work carries on an independent tion, expressed or implied, does 
 employment, and acts in pursu- not necessarily create the legal 
 ance of a contract with his em- relation of master and servant, 
 ployer, by which he has agreed to There are many kinds of employ- 
 do the work on certain specified ment which are peculiar and 
 terms in a particular manner and special, where one person may 
 for a stipulated price, then the render service to another without 
 employer is not liable. The rela- becoming his servant in the legal 
 tion of master and servant does sense. A servant is one who is 
 not subsist between the parties. employed to render personal serv- 
 bul only that of contractor and ices to his employer otherwise 
 contractee." Bigelow, C. J., in than in the pursuit of an inde- 
 Brackett v. LuBKE (1862), 4 pendent calling. The truckman 
 Allen. 138; 81 Amer. Dec. 694. who transports the traveler's bag- 
 In another leading case it is said : gage or the merchant's goods to
 
 20 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 and servant and cases of employer and independent con- 
 tractor seems to be this, that when the person actually doing 
 the work does something for which he would himself be 
 liable, the master is, whilst the employer is not, liable for 
 what is conveniently called 'collateral negligence,' meaning 
 thereby negligence other than the imperfect or improper 
 performance of the work which the contractor is employed 
 to do.'' ^^ "In all ordinary transactions the existence of the 
 relation of contractor as between two given persons ex- 
 cludes that of principal and agent, and master and servant. 
 But there is not necessarily such a repugnance between 
 them that they can not exist together. . . . Hence, the 
 fact that an employee was a servant as respects one part 
 of the functions discharged by him will not involve the 
 consequences that the employer must answer for injuries 
 caused by an act of negligence, while he was engaged in 
 
 the railroad station, though hired 
 and paid for the service by the 
 owner of the baggage or the 
 goods, is not the servant of the 
 person who thus employs him. 
 He is exercising an independent 
 and quasi-public employment in 
 the nature of a common carrier 
 and his customers, whether few 
 or many, are not generally re- 
 sponsible for his negligent or 
 wrongful acts, as they may be for 
 those of other persons in their 
 regular employment as servants. 
 A contract, whether express or 
 implied, under which such special 
 jobs are done or such special 
 services rendered, is not that of 
 master and servant within the 
 law of negligence." Prevailing 
 opinion in Murray v. Dwight 
 (1900). 161 N. Y. 301; 55 N. E. 
 901; 48 L. R. A. 673. 
 
 "Hardaker v. Idle District 
 Council, etc. (1891), 1 Q. B. 352, 
 per Lord Justice Rigby. "Lia- 
 bility for the collateral negligence 
 depends entirely upon the exist- 
 ence of the relation of master 
 and servant between the employer 
 and the person actually in de- 
 fault." Blackburn, J., in Mersey, 
 etc., Co. v. Gibbs (1864), L. R., 1 
 H. L. 93. So, also, generally, if 
 A. places his servants on B.'s 
 premises pursuant to an arrange- 
 ment by which B. is to have the 
 right to direct the acts or control 
 the conduct of the servant, B. 
 must respond for the torts of 
 the servant while thus engaged. 
 Brady v. Chicago, etc., Railroad 
 (1902), 114 Fed. 100; 52 C. C. A. 
 48; 57 L. R. A. 712; Atwood v. 
 Chicago, etc., Railroad (1896), 
 72 Fed. 447. Ante, Sec. 7.
 
 WPIO .VRE INDEPENDENT CONTRACTORS. 
 
 21 
 
 work which he had undertaken as an independent con- 
 tractor." -'^ 
 
 Sec. 14. Distinction between Agents and Independent 
 Contractors. 
 
 It has been said that "the difference between an agent 
 and an independent contractor is, that the agent undertakes 
 to act in the matter of the agency, subject to the directions 
 and control of his employer, whereas an independent con- 
 tractor does not, but contracts to perform certain specified 
 work or produce a certain specified result, the manner and 
 means of performance or production being left to his dis- 
 cretion, except so far as they are specified by the con- 
 tract." ''*^ The non-liability of an employer for the torts 
 
 '^ Note to Richmond v. Sitter- 
 ding (1903, Va.), 65 L. R. A. 
 449, citing Detroit v. Cory 
 (1861), 9 Mich. 165; 80 Amer. 
 Dec. 78. One employed to do 
 editorial work, agreeing to devote 
 his whole time during his em- 
 ployer's regular office hours to 
 work for compensation based on 
 the number of pages of his contri- 
 bution accepted by the employer, 
 who furnished him all materials 
 and all the assistance for per- 
 forming his work, and who was 
 to be the sole owner of the copy- 
 rights thereon, although not a 
 servant, in the ordinary sense of 
 the term, was not an independent 
 contractor. Edw. Thompson Co. v. 
 Clark (1904), 109 N. Y. Supp. 
 700. In Berg v. Bousfield (1896), 
 65 Minn. 355. 16 Amer. Neg. Cas. 
 188. the rule was applied that 
 where one who performs work 
 for another represents the will of 
 such other not only as to the re- 
 
 sult but also as to the means by 
 which it is accomplished, he is 
 not an independent contractor l)ut 
 the agent of that other who is 
 responsible for his acts and omis- 
 sions within the scope of his au- 
 thorit}-. Defendant railroad com- 
 pany shipped coal in cars to its 
 agent G., who in turn contracted 
 with S. to unload the cars at so 
 much per car, S. not being con- 
 trolled in unloading. In unload- 
 ing a car, S. threw a heavy 
 plank from the top of the car and 
 struck plaintiff, passing by. Held : 
 That S. was a servant acting 
 within the course of his employ- 
 ment and not an independent con- 
 tractor. Holmes v. Tennessee, 
 etc., Co. (1897). 49 La. Ann. 
 1465; 22 So. 401; 1 Amer. Neg. 
 Rep. 174. citing Shea v. Reems 
 (1884). 36 La. Ann. 969. 
 
 "Bowstead, Law of Agcy., 3, 
 note.
 
 22 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 of an independent contractor was held in an early English 
 case to constitute "an exception to the generality of the 
 rule qui facit per alium facit per se, made necessary by 
 public convenience and general usage, and when the reason 
 of the rule does not so fully apply." ^'^ "Assuming that the 
 right of control be unimpeachable, it is clear that the exer- 
 cise or non-exercise of that right by the employer is not 
 an available element for the purposes of differentiating 
 where it is a question of distinguishing between agents and 
 independent contractors." "** The allegation that "G. and 
 
 ''Wiswall V. Brinson (1849), 
 32 N. C. (10 Ired. L.) 554. Com- 
 pare Quarman v. Burnett (1840), 
 6 Mees. & W. 509; 4 Am. Neg. 
 Rep. 437, n. 
 
 "■■^Note to Richmond v. Sitter- 
 ding (1903, Va.), in 65 L. R. A., 
 at p. 448, by Mr. C. B. Labatt, in 
 which the learned writer says 
 further: "In the absence of any 
 judicial discussion bearing direct- 
 ly upon the problem thus indi- 
 cated (i. e., the difference between 
 agents and independent con- 
 tractors), it is with much diffi- 
 dence that the writer ventures to 
 suggest that these two classes of 
 employees can be discriminated, 
 if at all, only by considering their 
 position with reference to the 
 character of the work which is 
 ordinarily intrusted to them. An 
 agent is ordinarily appointed to 
 represent his principal in some 
 transaction or transactions ari-sing 
 out of business, trade or com- 
 merce. — Not infrequently the dis- 
 charge of such functions by an 
 agent may also involve the 
 performance of a considerable 
 amount of manual labor by him- 
 
 self or others, in dealing with 
 various material substances ; but 
 such operations are merely an in- 
 cidental result of the execution of 
 his agreement. Such situations 
 may, and often do, occur in con- 
 nection with the transactions of 
 auctioneers and factors. — On the 
 other hand, it is clear that opera- 
 tions of this character have 
 formed the subject of the under- 
 taking in the great majority of 
 the cases in which the rights and 
 liabiHties arising out of the em- 
 plo3aTient of independent contrac- 
 tors have been discussed. If, 
 therefore, the terms 'agent' and 
 'independent contractor' are to be 
 considered as having relation to 
 two entirely separate regions of 
 fact, this circumstance may pos- 
 sibly be taken as the distinctive 
 factor which in any given case 
 will determine the class to which 
 the employee should be assigned. 
 — So far as civil actions are con- 
 cerned, there would seem to be 
 no logical objection to taking, a?, 
 the element which fixes the char- 
 acter of the emplo3'ment, that 
 aspect of an independent con-
 
 WHO ARK INDEPENDENT CONTRACTORS. 
 
 23 
 
 McK. were employees of, or contractors for, the defendant" 
 did not necessarily mean that they were independent con- 
 tractors. If they were contractors for the defendant, their 
 work may have been such as to constitute them agents of 
 the defendant. ^^ 
 
 Sec. 15. Doctrine of Respondeat Superior. 
 
 The liability of the constituent for the misfeasances, 
 negligences and torts of his agents and servants, discussed 
 in a previous section, extends not only to the injuries and 
 wrongs of the representative who is immediately employed 
 by the constituent in a particular business, but also to the 
 injuries and wrongs by others who are employed by that 
 representative under him, or with whom he contracts for 
 the performance of the business; for the liability reaches 
 through all the stages of the service so long as the relation 
 of master and servant continues. ^^ Whether the relation 
 
 tractor's position which exhibits 
 him as a substitute or deputy of 
 the contractce (employer) in re- 
 spect to the performance of the 
 stipulated work. — In this point of 
 view an independent contractor 
 will be simply an agent whose 
 employment does not carry with 
 it certain incidents by which it is 
 ordinarily attended, and he may 
 be conceived as being distin- 
 guished from other kinds of 
 agents by the diagnostic mark 
 which is referred to in the last 
 paragraph. — It is impossible, how- 
 ever, to affirm that the very vague 
 criterion thus suggested for pur- 
 poses of differentiating is one of 
 universal applicability, or that it 
 is habitually recognized or taken 
 into account by the courts. In- 
 deed, cases are not wanting in 
 
 which employers have been held 
 liable on the specific ground that 
 the tort-feasor was a servant, and 
 not an independent contractor, 
 although, so far as can be seen, 
 the facts involved were such that 
 this conclusion might equally well 
 have been reached through the 
 application of the principles of the 
 law of agency." 
 
 "* Bessemer, etc., Co. v. Do.\k 
 (1907), 151 Ala. 670; 44 So. 627; 
 12 L. R. A. (N. S.), 389, 391. 
 
 "" Story Agcy., 9th ed.. Sec. 454, 
 citing Reeves v. State Bank, 8 
 Ohio St. 476; Bush v. Steinman 
 (1799), 1 Bos. & P. 409. with 
 exhaustive note ; Nicholson v. 
 Mounsey. 15 East, 384; Weyland 
 V. Elkin?. Holt's N. P. 227; 1 
 Starkie. 272.
 
 24 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 between an employer and employee is that of master and 
 servant or not is, as already shown, a matter of considerable 
 importance. The importance is not so much, however, 
 in tracing the distinction between a servant and an agent 
 as it is in ascertaining the distinction between a servant 
 and a contractor. The doctrine of respondeat superior 
 renders the master liable for those acts of his servants 
 which have been committed in the course of the service he 
 was employed to render; and the same liability obtains on 
 the part of the principal for the acts of his agent done in 
 the line of such agent's employment. But a contractor, 
 being neither a' servant nor an agent, sustains no such rela- 
 tion to his employer as will render the latter liable for his 
 acts, whether they be performed in or out of the scope of 
 the employment. The rule respondeat superior has no ap- 
 plication to an independent contractor who is employed, 
 for instance, to do a piece of work for the employer, during 
 the performance of which a third person is injured. ^^ The 
 maxim of respondeat superior "is only applicable in cases 
 where the party sought to be charged stands in the rela- 
 tion of superior to the person whose wrongful act is the 
 ground of complaint." *'^ 
 
 •^ Reinhard Agcy., Sec. 474, 
 citing Robinson v. Webb (1875), 
 11 Bush (Ky.), 464; Bailey v. 
 Troy, etc., Railroad (1883), 57 
 Vt. 252; 52 Amer. Rep. 129. 
 Under either theory {i. e., of 
 liabiUty or exemption), the inter- 
 mediate agents of a municipal 
 corporation who make the con- 
 tract or direct the work to be 
 done, will not become liable for 
 any negligence or other wrong by 
 the contractor or his employees 
 in executing it on the ground of 
 respondeat superior, the work not 
 
 being wrongful per se. In such 
 case, if there is any liability on 
 the part of a superior of the im- 
 mediate actor, it is the liability 
 of the municipal corporation. 
 McKenna v. Kimball (1888), 145 
 Mass. 555; 14 N. E. 789. 
 
 "'Blackwell v. Wiswall (1855), 
 24Barb. (N. Y.).355. Cf. Bibb v. 
 Norfolk, etc., Railroad (1891), 
 87 Va. 711; 14 S. E. 163; 47 Am. 
 & Eng. Rail. Cas. 651 ; Cincin- 
 nati V. Stone (1855), 5 Ohio St. 
 38; DuPratt v. Lick (1869), 38 
 Cal. 691 ; Hilsdorf v. St. Louis
 
 WHO ABE INDEPENDENT CONTRACTORS. 
 
 25 
 
 On the other hand it is obvious that the control stipulated 
 for in the contract may be so absolute as to make the dis- 
 cretion of the contractor wholly subordinate to that of the 
 employer, or to that of his engineer, architect, or other 
 superintendent; in which case the relation of master and 
 servant is deemed to arise and the maxim of respondeat 
 superior applies."^ The early case of Bush v. Stein- 
 
 (1869), 45 AIo. 94; 100 Amer. 
 Dec. 352; Deford v. State (1868), 
 30 Md. 179. 'The modern deci- 
 sions have placed two limitations 
 upon the liability of the master 
 which deserve notice. The fel- 
 low-servant doctrine relieves the 
 master from liability where the 
 person injured is a fellow-servant 
 of the tort-feasor. Some diffi- 
 culty has been encountered in 
 finding the proper basis for the 
 rule. — The other limitation on 
 the master's liability is found in 
 those cases where an independent 
 contractor is employed. Here the 
 person who lets the contract is 
 not liable for the torts of the 
 servants employed by the con- 
 tractor. The reason is obvious. 
 The conductor, or one who lets 
 the contract, has no control over 
 employees of the contractor, and 
 hence is not treated as their 
 master. He is only concerned 
 with the finished product of their 
 labor, and the contractor, both in 
 fact and in theory, is the master 
 of those whom he employs. Sim- 
 ple as this appears, the principle 
 in question was violated in prob- 
 ably the first case presenting facts 
 of this kind." 2 Street Legal 
 Liab.. 470, citing Bush v. Stein- 
 MAx (1799). 1 B. & P. 404. "It 
 
 is a doctrine as old as the Bible 
 itself, and the common law of the 
 land follows it, that a man cannot 
 serve two masters at the same 
 time; he will obey the one and 
 betraj' the other. He cannot be 
 subject to two controlling forces 
 which may at any time be di- 
 vergent. So the English courts, 
 which are generally apt to hit the 
 blot in the application of funda- 
 mental rules, hold that there can 
 be no application of the doctrine 
 of respondeat superior in its ap- 
 plication to two distinct masters ; 
 that the servant must be subject 
 to the jurisdiction of one master 
 at one time." Philips, J., in At- 
 wood v. Chicago, etc.. Railroad 
 (1896), 72 Fed. 447, 454. 
 
 ■« Newton v. Ellis (1885), 5 El. 
 & Bl. 115; Blake v. Thirst (1863), 
 2 Hurl. & C. 20. Cf. Burgess 
 V. Gray (1845), 1 C. B. 578; 
 Pearson v. Co.x (1877), 2 C. P. 
 Div. 369. "It follows, therefore, 
 that the mere fact that a person 
 exercises generally an independent 
 employment, in which he is 
 skilled, does not exclude the con- 
 clusion that he may be tlie serv- 
 ant of one who hires him to do 
 a particular job." Thomps. Neg., 
 Sec. 638.
 
 26 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 MAN, to which reference will, from time to time, be made, 
 was soon discredited and the law is now well settled that 
 the man who has immediate control or the right of control 
 over the work is the master, and will be governed by the rule 
 of respondeat superior. ^'^ 
 
 Sec. 16. Independent Contractor Defined. 
 
 "\\^hen the person employed is in the exercise of a dis- 
 tinct and independent employment and not under the imme- 
 diate supervision and control of the employer, the relation 
 of master and servant does not exist and the liability of a 
 master for his servant does not exist." *^^ An independent 
 contractor, within the meaning used in this work, has been 
 defined as "one who renders service in the course of an 
 occupation, representing the will of his employer only as 
 to the result of his work, and not as to the means by which 
 it is accomplished." ^^ "We recognize the rule that where 
 one person contracts with another to do and perform cer- 
 tain work or labor, and the person for whom the work is 
 done has no control or management thereof, the one who 
 undertakes the work becomes an independent contractor." ^'^ 
 An independent contractor has also been defined to be "one 
 who, exercising an independent employment, contracts to 
 
 •»Cf. 2 Street Legal Liab., 472, 
 citing Reedie v. London, etc.. 
 Railroad (1849). 4 Exch. 255; 6 
 Eng. Rail. & Corp. Cas. 184; 4 
 Am. Neg. Rep. 438. n; 9 Id.. 122, 
 n; Milliard v. Richardson (1855), 
 3 Gray (Mass.), 349; 63 Amer. 
 Dec. 743; Pendleton v. Green- 
 lagh (1875), 1 Q. B. Div. 36. 
 
 «= Linton v. Smith (1857), 8 
 Gray (Mass.), 147. See, generally, 
 ante. Sec. 13, et seq. 
 
 "Harrison v. Collins (1878), 
 
 86 Pa. St. 153 ; 27 Amer. Rep. 699, 
 quoted and adopted in Thompson 
 on Negligence, Sec. 622, and Tif- 
 fany on Dom. Rels., p. 508. "An 
 independent contractor is one 
 who. exercising his own volition 
 and judgment as to means and 
 methods, undertakes to achieve a 
 definite result." Barrows on 
 Neg., Sec. 59, black letter text. 
 
 ^' Wiley, P. J., in Falender v. 
 Blackwell (1906), 39 Ind. App. 
 121, 126; 79 N. E. 393.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 27 
 
 do a piece of work according to his own methods and 
 without being subject to the control of his employer, except 
 as to the result of his work." ^'^ 
 
 In a recent New York case it is said that "where a person 
 is employed to perform work which requires the exercise 
 of skill and judgment, and the execution of it is left entirely 
 to his discretion, with no restriction as to its exercise, and 
 no limitation as to the authority conferred, and the compen- 
 sation is dependent on the value of the services, such a 
 person does not occupy the relation of a servant under the 
 control of a master but is an independent contractor and the 
 owner is not liable for his acts or the acts of his workmen, 
 who are negligent and cause injury to another." "^ When 
 
 "" Lurtoii, J., in Powell v. Con- 
 struction Co. (1890), 88 Tenn. 
 692; 13 S. W. 691; 17 Amer. St. 
 Rep. 925. This definition is 
 quoted in Humpton v. Unter- 
 kircher (1896), 97 Iowa, 509; 66 
 N. W. 776; 14 Am. Neg. Cas. 
 592, n., and declared to be the 
 best found bj- the court ; and it 
 is also quoted with approval in 
 Goon V. Johnson (1907). 38 Colo. 
 440; 88 Pac. 439; 8 L. R. A. (N. 
 S.), 900. "One is an independent 
 contractor who, for what the job 
 is reasonably worth, undertakes 
 to overhaul the awnings on an- 
 other's building, the latter ex- 
 pressing no direction, judgment 
 or discretion in the matter." 
 McHarge v. Newcomer (1907), 
 117 Tenn. 595; 100 S. W. 700; 
 9 L. R. A. (N. S.). 298, citing 
 Powell v. Virginia, etc.. Con- 
 struction Co., supra; Knoxville, 
 etc., Co. v. Dodson. 7 Lea (Tenn.), 
 367; Bennett v. Truebody (1885), 
 66 Cal. 509; 6 Pac. 329; 56 Amer. 
 Rep. 117; 13 Am. Neg. Cas. 517, n. 
 
 An independent contractor is 
 one who undertakes to produce a 
 given result, but so that, in the 
 actual execution of the work, he 
 is not under the order or control 
 of the person for whom he does 
 it and may use his own dis- 
 cretion in things not specified. 
 Gay V. Roanoke, etc., Co. (1908, 
 N. C), 62 S. E. 436. An inde- 
 pendent contractor is one who in 
 rendering services, exercises an 
 independent employment or occu- 
 pation and represents his em- 
 ployer only as to the results of 
 the work and not as to the means 
 by which it is to be accomplished. 
 Texas, etc.. R. v. Parsons (1908, 
 Tex. Civ. App.), 109 S. W. 240. 
 Cf. Drennon v. Patton. etc., Co. 
 (1908, Tex. Civ. App.), 109 S. W. 
 218. 
 
 "Kueckel v. Ryder (1900), 170 
 N. Y. 562; 62 N. E. 1096. affirm- 
 ing 66 N. Y. Supp. 522. An in- 
 dependent contractor is one who 
 carries on an independent busi-
 
 28 
 
 INDEPENDENT CONTRACTORS AND THEIR LLVBILITY. 
 
 one contracts to do and deliver certain specific work which 
 is not unlawful, and the manner of the doing of which, in- 
 cluding the employment, payment and control of the labor 
 is left entirely to him, he is an independent contractor for 
 whose acts and omissions, in the execution of such contract, 
 the other contracting party is not liable, since the doctrine 
 of respondeat superior has no application where the em- 
 ployee represents the employer only as to the lawful purpose 
 of the contract, but does not represent him in the means by 
 which that purpose is to be accomplished. '" Independent 
 
 ness, and in the line of this 
 business is employed to perform 
 a piece of work, and in doing it 
 determines for himself in what 
 manner the work shall be done, 
 and represents the will of his 
 employer only as to the result of 
 the work. Zimmerman v. Bauer 
 (1894), 11 Ind. App. 607; 39 N. 
 E. 299; Keys v. Second Baptist 
 Church (1904), 99 Me. 308; 59 
 Atl. 446; 17 Am. Neg. Rep. 526. 
 Cf. Bjornsen v. Sacone (1899), 
 88 Ills. App. 6; Knowlton v. 
 Hoit (1891), 67 N. H. 155; 30 Atl. 
 346. 
 
 A Missouri case declares: "We 
 find no countenance for the 
 proposition that a person not 
 especially qualified for a par- 
 ticular service, but ready to un- 
 dertake any job which may be 
 offered to him that he thinks 
 himself able to perform, becomes, 
 when hired for some job, an in- 
 dependent contractor simply be- 
 cause the employer relinquishes 
 control over the work and trusts 
 to the employee's discretion. It 
 looks like the employee must have 
 a calling in which it is fair to 
 presume he has developed skill. 
 
 before he will be regarded other- 
 wise than as a servant. We do 
 not say he must have a trade or 
 profession, be a skilled mechanic, 
 doctor or lawyer; but he must 
 hold himself out as having an 
 occupation with which he is fa- 
 miliar." MuUich V. Brocker (1905), 
 119 Mo. App. 332, 97 S. W. 551, 
 in which an employee having no 
 regular vocation agreed to break 
 in a pony, for a stated sum, 
 taking it out in the morning and 
 returning it to the employer's 
 barn in the evening, was held not 
 to be an independent contractor. 
 ™Robideaux v. Hebert (1907), 
 118 La. 1089; 43 So. 887; 12 L. 
 R. A. (N. S.), 632, head note by 
 Monroe, J., citing Peyton v. 
 Richards (1856), 11 La. Ann. 63; 
 Gallagher v. Southwestern, etc., 
 Co. (1876), 28 La. Ann. 943; 
 Riley v. State Line, etc., Co. 
 (1877), 29 La. Ann. 791; 29 Am. 
 Rep. .349; Sweeny v. Murphy 
 (1880), 32 La. Ann. 628; MofiFatt 
 v. Koch (1901), 106 La. 371; 31 
 So. 40; Casement v. Brown 
 (1893), 148 U. S. 615; 16 Amer. 
 & Eng. Enc. of Law, 2d ed., 187.
 
 WHO ABE INDEPENDENT CONTRACTORS. 
 
 29 
 
 contractors are sometimes spoken of as persons who are 
 exercising or carrying on an "independent employment," '^^ 
 or an "independent business," '^ or as being "in the exer- 
 cise of an independent and distinct employment." "''^ Sev- 
 eral early Scotch cases in which the employer was held 
 liable seem to be inconsistent with the general trend of 
 American and English authorities.^'* 
 
 '^Pickens v. Diecker (1871), 
 21 Ohio St., 212 ; 8 Arner. Rep. 55. 
 
 ■'Allen v. Hayw.'>lRd (1845), 
 7 Q. B. 960; 4 Eng. Rail. & Corp. 
 Cas., 104. 
 
 "Linton v. Smith (1857), 8 
 Gray (Mass.), 147. "An analysis 
 of the elements embraced in the 
 statements above quoted indicates 
 that the judical conception of 
 an independent contractor is sim- 
 ply that of a person who, being 
 in the exercise of a distinct and 
 recognized trade, craft or busi- 
 ness, undertakes to do a certain 
 work, without submitting himself 
 to the control of the employer in 
 respect of the details of that 
 work. Considered from one point 
 of view, the situation contem- 
 plated when such a person is 
 engaged implies that the em- 
 ployer has nothing to do in 
 respect to the work, except to see 
 that it is done according to the 
 terms of the contract ; or that he 
 has merely a right to see that 
 the contract is performed in pur- 
 suance of its terms, conditions 
 and specifications. Considered 
 from another point of view, that 
 situation implies that he is to 
 have the independent use of his 
 own skill, judgment, means and 
 
 servants in the execution of the 
 work, or that he is to have the 
 exclusive direction and control of 
 the manner in w'hich the work is 
 to be done, or that he is to have 
 full control of the work and 
 workmen, or that the execution 
 of the work is to be left entirely 
 to his discretion, or that he is to 
 be free to exercise his own judg- 
 ment and discretion as to the 
 means and assistants that he may 
 think proper to employ about the 
 work, or that he is to be left en- 
 tirely free to do the work as he 
 pleases, or that the work is to 
 be done according to his own 
 methods, or that he is to procure 
 labor and materials in his own 
 way, provided they are such as 
 the contract demands, and use 
 such machinery and appliances 
 as he deems proper, provided 
 they do not unnecessarily injure 
 the subject-matter of the con- 
 tract or interfere with work done 
 by others." Note to Richmond 
 V. Sitterding (1903. Va.), in 65 
 L. R. A. 447. 
 
 "* Rankin v. Dixon (1847), 9 
 Scotch Sess. Cas., 2d. series, 1048; 
 Nisbett V. Dixon (1852), 14 Id., 
 973; Cleghorn v. Taylor (1856), 
 18 Id.. 664.
 
 30 INDEPENDENT CONTRACTORS AND THEIR LIABILFrY. 
 
 Sec. 17. Relation of Sub-contractor. 
 
 A sub-contractor with whom a railway construction com- 
 pany contracts for the construction of a part of its road, 
 as determined by the construction company's engineer as 
 to distance, such sub-contractor to be furnished by the con- 
 struction company with a locomotive, train and crew, is 
 an independent contractor for whose neghgence in running 
 the train the construction company was held not liable. "'^ 
 In a New York case it was laid down that even if it should 
 be regarded as a legitimate inference from the testimony, 
 that the principal contractor was acting as the employer's 
 agent in negotiating certain sub-contracts, including that 
 which was made with the one whose negligence caused the 
 injury, the mere fact that the principal contractor undertook 
 such functions would not enlarge the employer's liability 
 for the sub-contractor's negligence since it also appeared 
 that in making the sub-contracts, the employer dealt di- 
 rectly with the sub-contractors themselves. 
 
 7(3 
 
 Seo. 18. Tests of Eelation of Independent Contractor, 
 
 The test generally applied in answering the question, 
 Who are independent contractors? is "independence of con- 
 trol in employing workmen and in selecting the means of 
 doing the work." "'"' "The proper criterion by which to de- 
 termine whether in a given case the relation of master and 
 servant exists is found in the right of the master to order 
 and control the other in the performance of the work. A 
 
 '"Powell v. Virginia, etc., " Burd. Torts, p. 133, citing 
 
 Construction Co. (1890), 88 Uppington v. City of New York 
 
 Tenn. 692; 13 S. W. 691; 17 (1901), 165 N. Y. 222; 59 N. E. 
 
 Amer. St. Rep. 925. 91; 6 Am. Neg. Rep. 366; 53 L. 
 
 '"Wolf V. American Tract So- R. A. 550; Wright v. Big Rap- 
 
 ciety (1898), 25 App. Div. (N. ids Co. (1900). 124 Mich. 91; 82 
 
 Y.), 93; 49 N. Y. Supp. 236. N. W. 829; 50 L. R. A. 495.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 31 
 
 master is one who not only prescribes to the workman the 
 end of his work, but directs, or at any moment may direct, 
 the means also; or as it has been put 'retained the power 
 of controlling the work.' "''^ Again it is said the true test 
 by which to determine whether one who renders service 
 for another, does so as a contractor or as a servant, is to 
 ascertain whether he renders service in the course of an 
 independent occupation in which he represents the will of 
 his employer only as to the result of the work and not as to 
 the means by which it is accomplished. '''•* "The accepted 
 doctrine is that in cases where the essential object of an 
 agreement is the performance of work, the relation of 
 master and servant will not be predicated, as between the 
 party for whose benefit the work is to be done and the party 
 who is to do the work, unless the former has retained the 
 right to exercise control over the latter in respect to the 
 manner in which the work is to be executed. . . . This 
 attribute of the relation (/. e., control), supplies . . . the 
 single and universally applicable test by which the servants 
 are distinguished from independent contractors." ^'^ Of 
 course, the proprietor or emplo}er is clearly liable where 
 he interferes with and supervises the work of the contractor 
 
 '•^2 Street Legal Liab. 468, cit- 
 ing Pollock on Torts, 6th ed., 78; 
 Sadler v. Henlock (1855). 4 El. 
 & Bl. 570, 578. But the retention 
 by an employer, of general super- 
 vision of the work to be per- 
 formed by an independent con- 
 tractor will not change the con- 
 tractor's relationship to the work ; 
 Miller v. Moran, etc., Co. (1905), 
 39 Wash. 631; 81 Pac. 1089; 1 L. 
 R. A. (N. S.), 283. 
 
 "Cunningham v. Interna- 
 tional Railroad Co. (1879), 51 
 Tex. 503; 32 Amer. Rep. 632. 
 
 "The test to be applied is whether 
 the employee represents his em- 
 ployer as to the result of the 
 work, or as to the means. If the 
 former, he is to be regarded as 
 an independent cor.tractor ; but if 
 the latter, merely an agent or 
 servant." Parrott v. Chicago, 
 etc.. Railroad (1905), 127 Iowa 
 419; 103 N. W. 352. 
 
 *" Note to Richmond v. Sitter- 
 ding (1903). 101 Va. 354; 43 S. 
 E. 562; 99 Amer. St. Rep. 879: 
 16 Am. Neg. Rep. 609, n.; 65 L. 
 R. A. 445. at p. 447.
 
 32 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 with reference to its methods and results. ^^ But, as will 
 appear in the following sections, the question if retaining 
 control or retaining the right to control is not the sole con- 
 sideration in determining whether the relation is that of 
 master and servant or of employer and independent 
 contractor. ^^ 
 
 Sec. 19. Retaining' Control. • 
 
 In the leading case on this branch of the subject the 
 trial court instructed the jury, inter alia: "The absolute 
 test is not the exercise of power of control, but the right 
 to exercise power of control. . . . Although the de- 
 fendants should be across the Atlantic, nevertheless . . . 
 if they retained the power to control and direct the work, 
 they would be liable; because it is the possession of the 
 right of interference, the right of control, that puts upon 
 
 ^ Salliotte v. King, etc., Co. 
 (1903), 122 Fed. 378; 58 C. C. A. 
 466; 16 Am. Neg. Rep. 615, n. ; 
 
 65 L. R. A. 620; Louisville, etc., 
 Railro.\d v. Tow (1901), 23 Ky. 
 Law Rev. 408; 63 S. W. 27; 21 
 Am. & Eng. Ry. Cas. (N. S.), 441 ; 
 
 66 L. R. A. 941 ; Watson Lodge v. 
 Drake (1895), 29 S. W. 632; 16 
 Ky. Law Rev. 669; Corrigan v. 
 Elsinger (1900), 81 Minn. 42; 83 
 N. W. 492; Klages v. Gillette, 
 etc., Co. (1902), 86 Minn. 458; 
 90 N. W. 1116; Appel v. Eaton, 
 etc., Co. (1902), 97 Mo. App. 
 428; 71 S. W. 741; James Mc- 
 Neil & Co. V. Crucible, etc., Co. 
 (1904), 207 Pa. St. 493; 56 Atl. 
 1067; Southern, etc., Co. v. Wal- 
 lace (1899), 23 Tex. Civ. App. 
 12; 54 S. W. 638. "The question 
 of control over the work, while 
 
 not conclusive in all cases upon 
 the question of service, is to be 
 regarded as a test of the greatest 
 importance;" State v. Swayzee 
 (1889). 52 N. J. Law 129; 18 Atl. 
 697. • 
 
 *" "When a question arises as 
 to whether a person performing 
 work or doing business for an- 
 other is a contractor for whose 
 negligence the employer is not 
 liable, or a servant for whose 
 acts the employer is responsible, 
 the character of the contract of 
 employment, the nature of the 
 business, and all the circumstances 
 are to be considered in determin- 
 ing it." Knicely v. West Vir- 
 ginia, etc., R. (1908, W. Va.), 61 
 S. E. 811; 17 L. R. A. (N. S.), 
 syllabus by the court, citing Clapp 
 v. Kemp (1877), 122 Mass. 481.
 
 WHO ABE INDEPENDENT CONTRACTORS. 
 
 33 
 
 a party the duty of seeing that the person who stands in 
 that relation does his duty properly. If they have retained 
 to themselves the right of directing the mode of doing the 
 work, then if the work is done wrong the simple principle 
 is that they are responsible." On appeal, a verdict for 
 $5,500, under these instructions was upheld.*'^ It is some- 
 times broadly stated that in every case the decisive ques- 
 tion is, Had the defendant the right to control, in the given 
 particular, the conduct of the wrong-doing party? Does 
 he reserve the essential powers of a master?**"* 
 
 But the general doctrine is more or less subject to quali- 
 fications. "The existence of actual present control and 
 supervision on the part of the employer ... is only a 
 circumstance to be considered, though one of much weight. 
 ... To get at the truth we must look further and see if 
 the person said to be a hired servant and agent is acting 
 
 ^LiNNEHAN V. Roberts (1884), 
 137 Mass. 123; 50 Amer. Rep. 
 287; 15 Am. Neg. Cas. 666, n. ; 
 Burd. Cas. Torts, 406. Such "em- 
 ployer is substantially a master 
 and remains liable under the usu- 
 al doctrines of master and ser- 
 vant." HufT. Agcy. 2d ed., sec. 
 226. 
 
 *' Thomps. Neg. sec. 622, citing 
 Morgan v. Smith (1893), 159 
 Mass. 570; 35 N. E. 101; 15 Am. 
 Neg. Cas. 667, n. ; Charlock v. 
 Freel (1891). 125 N. Y. 357; 26 
 N. E. 262; Stephens v. Commis- 
 sioners (1876), 3 Scotch Sess. 
 Cas., 4th series, 535; Linnehan 
 V. Rollins, supra; Hex amer v. 
 Webb (1896), 101 N. Y. 377; 4 
 N. E. 755; 54 Amer. Rep. 703; 
 Chase Cas. Torts 240; Carlson v. 
 Stocking (1895), 91 Wise. 432; 
 65 N. W. 58; Holmes v. Tennes- 
 
 see, etc., Railroad (1897), 49 La. 
 Ann. 1465 ; 22 So. 403 ; 1 Am. Neg. 
 Rep. 174; Burton v. Galveston, 
 etc.. Railroad (1884), 61 Tex. 
 526; 21 Am. & Eng. Ry. Cas. 218. 
 Other authorities in effect like- 
 wise declare thus: In determin- 
 ing whether the relation is one 
 of master and servant or of inde- 
 pendent contractor, the decisive 
 question is, had the defendant the 
 right to control in the given par- 
 ticular the conduct of the person 
 doing the wrong. Rait v. New 
 England, etc., Co. (1896), 66 
 Minn. 76; 68 N. W. 729; the 
 ultimate test whether the relation 
 of master and servant exists is 
 whether the right or duty to con- 
 trol exists, Roe v. Winston 
 (1902). 86 Minn. 77; 90 N. W. 
 122.
 
 u 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 at the time and in the place of his master in accordance with 
 and representing his master's will, and not his own. It 
 must be strictly his employer's business that he is doing 
 and not in any respect his own. If we find this to be the 
 case, we may safely conclude, as a general rule, that the 
 relation of master and servant exists, so as to render appli- 
 cable the rule of law that the employer must indemnify and 
 protect the agent he employs." ^^ 
 
 "^ CoRBiN V. American Mills 
 (1858), 27 Conn. 275; 71 Amer. 
 Dec. 63. In a note commenting 
 on this case in 65 L. R. A., it is 
 said : "The doctrinal position of 
 the court is not very clearly indi- 
 cated. If it is intended to den}! 
 the crucial character of the test 
 supplied by the existence or ab- 
 sence of coritrol, the case is mani- 
 festly opposed to the general cur- 
 rent of the authorities. The lattei 
 part of the quotation seems to 
 suggest that an employee must 
 always be pronounced to be a 
 servant, if it is found that he 
 represents the will of the em- 
 ploj'er. But, according to the 
 generally received view, this in- 
 ference should be drawn only 
 when the employer's will is rep- 
 resented as to the means used in 
 performing the stipulated work." 
 Other authorities bear out the 
 text. "Whether a person employed 
 to do certain work is to be re- 
 garded as a servant or as an 
 independent contractor depends 
 mainly upon whether, under the 
 contract, the employer retains the 
 pov/er of directing and control- 
 ling the work. Where the em- 
 ploye is put in exclusive posses- 
 
 sion, and has exclusive control, 
 furnishing his own assistants, and 
 executing the work in detail, 
 clear of any supervision, he is an 
 independent contractor. It is 
 otherwise if the employer retains 
 the direction and control of the 
 work. See the cases above cited.'' 
 Tifif. Dom. Rels. p. 508, note 221. 
 "Except in cases which involve 
 the liabilities arising out of the 
 torts of certain classes of agents, 
 the existence or absence of a 
 right to control over the details 
 of the work in question must be 
 the appropriate test by which it 
 is to be determined whether the 
 person employed to do that work 
 is or is not an independent con- 
 tractor." Note to Richmond v. 
 SiTTERDiNG (1903, Va.), in 65 L. 
 R. A. 453. "A test which has 
 been proposed and generally an 
 adequate one, or as good a test 
 put in a few words as can be 
 suggested is. Had the defendant 
 the right to control, in the given 
 particular, the conduct of the 
 person doing the wrong? If he 
 had, the employer is liable; if 
 not, he is not liable, for the reason 
 that the one doing the act is an 
 independent contractor." Carrico
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 35 
 
 In his Commentaries on Nej^ligence, Judge Thompson 
 states the rule thus: If the proprietor retains for himself 
 or for his agent (e. g., architect and superintendent) a 
 general control over the work, not only with reference to 
 results, but also with reference to methods of procedure, 
 then the contractor is not deemed an independent contractor 
 within the meaning of the rule under consideration, but he 
 is deemed the mere agent or servant of the proprietor and 
 the rule of respondeat superior operates to make the pro- 
 prietor liable for his wrongful acts or those of his servants, 
 whether the proprietor directly interfered with the work, 
 and authorized and commanded the doing of such acts, or 
 not. ^" It is not necessary in such a case, that the employer 
 should actually guide and control the contractor. It is 
 enough that the contract vests him with the right of 
 
 V. West Virginia, etc., Railboad 
 Co. (1894), 39 W. Va. 86; 19 S. 
 E. 571 ; 24 L. R. A. 50. This has 
 been criticised as "guarded lan- 
 guage that is to be ascribed merel}' 
 to an exercise of judicial caution." 
 Note in 65 L. R. A. 454. 
 
 ''Thomps. Neg. sec. 659, citing 
 Mumby v. Bowden (1889), 25 Fla. 
 454; 6 So. 453; Linnehan v. Rol- 
 lins (1884), 137 Mass. 123; 50 
 Amer. Rep. 287; 15 Am. Neg. 
 Cas. 666, n.; Burd. Cas. Torts 400; 
 St. Johns, etc.. Railroad v. Shalley 
 (1894), 33 Fla. 397; 14 So. 890; 
 compare. Larsen v. Metropolitan 
 Street Railroad (1892), 110 IMo. 
 234; 19 S. W. 416; 16 L. R. A. 
 330; 33 Amer. St. Rep. 439; 45 
 Alb. Law J. 514; 34 Cent. Law J. 
 513. "The test by which to de- 
 termine whether the person who 
 negligently caused injury to an- 
 
 other was acting as an agent or 
 employe of the person sought to 
 be charged, or as an independent 
 contractor is. did the person so 
 sought to be charged have the 
 right to control the conduct of 
 the wrongdoer in the manner of 
 doing the act resulting in such 
 injury."' Gahagen v. Aermotor 
 Co. '(1897), 67 Minn. 252; 69 
 Minn. 914; Corrigan v. Elsinger 
 (1900), 81 Minn. 42; 83 Minn. 492. 
 In a recent Canadian case the 
 legal criterion as to reserving con- 
 trol is said to be whether the 
 alleged master had a power of 
 controlling the work which the 
 alleged servant was doing for him 
 "in respect to an}i:hing not neces- 
 sarily involved in the proper doing 
 of the work." Saunders v. To- 
 ronto (1899), 26 Ont. App. Rep. 
 265.
 
 36 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 guidance and control. ^^ If a city, through its officers, re- 
 serve a general control over the contractor in respect of 
 the mode and manner of doing the work, the city will be 
 liable for the contractor's acts and omissions. ^^ The doc- 
 trine has explicitly been recognized that unless the employer 
 relinquishes his control over the work, the person employed 
 to do the work is his agent or servant. ^® An instruction 
 that, if the defendant employed an experienced contractor 
 to perform a service, the defendant was not liable, was held 
 erroneous, since it did not require the jury to find the work 
 was being performed under an independent contract giving 
 the contractor exclusive control over the work. ^^ As in 
 
 "LiNNEHAN V. Rollins (1884), 
 137 Mass. 123; 50 Amer. Rep. 287; 
 Burd. Cas. Torts 400; 15 Am. 
 Xeg. Cas. 666, n. ; Barg v. Bons- 
 field (1896), 65 Minn. 355; 68 
 N. W. 45 ; Congregation v. Smith 
 (1894), 163 Pa. 561; 30 Atl. 279; 
 43 Amer. St. Rep. 808; 26 L. R 
 A. 504; 39 Amer. Cent. Law J. 
 452. 
 
 "^ Denver v. Rhodes (1886), 9 
 Colo. 554; 13 Pac. 729; Schwartz 
 V. GiLMORE (1867), 45 Ills. 455; 
 92 Amer. Dec. 227 ; Chicago, etc., 
 Railroad v. McCarthy (1858), 
 20 Ills. 385; 71 Amer. Dec. 285; 
 City of Chicago v. Joney (1871), 
 60 Ills. 387; 14 Am. Neg. Cas. 
 418, n. ; Chicago v. Dermody 
 (1871), 61 Ills. 431; 14 Am. Neg. 
 Cas. 418, n. ; Harper v. Milwau- 
 kee (1872), 30 Wise. 365, 374; 
 Hannon v. St. Louis Co. (1876), 
 62 Mo. 313; Cincinnati v. Stone 
 (1855), 5 Ohio St. 38. It has 
 been held that a general control 
 by a city has the effect of render- 
 ing the city liable for the negli- 
 gence of the contractor under the 
 
 rule of respondeat superior, even 
 though the contract provides that 
 the contractor shall save the city 
 harmless from such liability; 
 Cooper v. Seattle (1897), 16 
 Wash. 462; 47 Pac. 887; 58 Amer. 
 St. Rep. 46; a decision which 
 Judge Thompson declares is "op- 
 posed to the most rudimentary 
 conceptions of justice." Thonip. 
 Neg. p. 603. But a landowner 
 who continues to manage and 
 control the work of excavating 
 under the wall of an adjoining 
 building is liable, notwithstanding 
 a contract with a third person for 
 its performance, for damages re- 
 sulting from the work; Dunton 
 V. Niles (1892), 95 Cal. 494; 30 
 Pac. 762; Watson Lodge, etc., v. 
 Drake (1895), 16 Ky. Law Rep. 
 669; 29 S. W. 632. 
 
 ™ Veazie v. Penobscot Railroad 
 (1860), 49 Me. 119. The sound- 
 ness of the rule as thus broadly 
 asserted, is not unquestionable. 
 See post, Sec. 24. 
 
 •"Hearn v. Quillen (1901), 94 
 Md. 39 ; 50 Atl. 402.
 
 WHO ARE INDEPENDENT CONTRACTOltS. 
 
 37 
 
 the case of a proprietor employing an independent con- 
 tractor, the contractor may make himself liable for the 
 negligence of an independent subcontractor by having the 
 work, during its progress, under a quasi supervision, as 
 in a case where the principal contractor does work on 
 other parts of the building, or accepts the work and pays 
 for it by installments as it progresses. '^^ On the other hand 
 it is always essential that the contractor or subcontractor 
 should in fact be free from the control of the person em- 
 ploying him. ^^ 
 
 Sec. 20. How Far Retained. 
 
 A true test is said to be to ascertain whether the one 
 rendering service to another does so in the course of an 
 independent occupation, representing the employer's will 
 only as to the result and not as to the means. ^^ In a recent 
 
 •'Bast V. Leonard (1870), 15 
 Minn. 304. 
 
 "" Ridgway v. Downing Co. 
 (1900), 109 Ga. 591; 34 S. E. 
 1028; 7 Am. Neg. Rep. 218; Berg 
 V. Parsons (1898), 156 N. Y. 109; 
 50 N. E. 957; 41 L. R. A. 391; 
 66 Amer. St. Rep. 542; 47 Cent. 
 Law J. 237; 4 Am. Neg. Rep. 432. 
 
 "* Rome, etc.. Railroad v. Chas- 
 TEEN (1889), 88 Ala. 591; 7 So. 
 94; 40 Amer. & Eng. Railroad 
 Cas. 559; Powell v. Virginia 
 Construction Co. (1890), 88 
 Tenn. 692; 13 S. W. 691; 17 
 Amer. St. Rep. 925; Bibb v. Nor- 
 folk, etc.. Railroad (1891), 87 
 Va. 711; 14 S. E. 163; 47 Amer. 
 & Eng. R. Cas. 651. For the 
 meaning of result in the test com- 
 monly adopted declaring one to 
 be an independent contractor who 
 
 is answerable to his employer only 
 as to results, and not as to means, 
 see Jensen v. Barbour (1895), 15 
 Mont. 582; 39 Pac. 906. As to 
 what reservation of control is 
 necessary, compare generally : 
 Blake V. Ferris (1851), 5 N. Y. 
 48; 55 Amer. Dec. 304; Leader v. 
 Moxon (1773), 3 Wils. 461; 2 
 W. Bl. 924; Detroit v. Corey 
 (1861), 9 Mich. 165; 80 Amer. 
 Dec. 78, in which last case one 
 judge dissents. "As to the right 
 of supervision which will render 
 the employer liable as master 
 of the contractor," compare the 
 cases cited in Cooley on Torts, 
 Students' ed., 484, n. 51. That 
 one doing the work without su- 
 pervision on the part of the em- 
 ploj^er is an independent con- 
 tractor; see Kampmann v. Roth-
 
 38 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Massachusetts case '•'•* it is said : "In such cases the party 
 who employs the contractor indicates the work to be done 
 and in that sense controls the servant, as he would control 
 the contractor if he were present. But the person who 
 receives such orders is not subject to the general orders 
 of the party who gives them. He does his own business in 
 his own way, and the orders which he receives simply point 
 out to him the work which he or his master has under- 
 taken to do. There is not that degree of intimacy and 
 generality in the subjection of one to the other which is 
 necessary in order to identify the two and to make the 
 employer liable under the fiction that the act of the em- 
 ployed is his act. Of course, the chances are that some 
 orders will be given which are not strictly within the con- 
 tract of the master. That is to be expected from the rela- 
 tive positions of the servant and the other party. If the 
 latter has something that he wants done and sees a working 
 man at hand, he is likely to ask him to do it, and if it is 
 within the penumbra of his business the servant is likely 
 to obey. While he thus goes outside his master's under- 
 taking and his own contract with his master, he ceases to 
 represent him; ^^ and he may make the other liable for his 
 acts,''^ but he does not on that account become the servant 
 of his master's contractee for all purposes, or when he 
 
 WELL (1908, Tex.), 109 S. W. 
 1089; 17 L. R. A. (N. S.), 758. 
 
 "Driscoll V. Towle (1902), 181 
 Mass. 416; 63 N. E. 922. 
 
 *" Citing : Brown v. Engineer- 
 ing Co. (1895), 166 Mass. 75; 43 
 N. E. 1118; 32 L. R. A. 605; 55 
 Amcr. St. Rep. 382; Wyllie v. 
 Palmer (1893), 137 N. Y. 248; 
 33 N. E. 381 ; 19 L. R. A. 285. 
 
 "Citing: Kimball v. Cushm an 
 
 (1869), 103 Mass. 194; 4 Amer. 
 Rep. 528. In a United States 
 case it was said to be "an im- 
 portant test of liability that the 
 employer reserves the power, not 
 only to direct what shall be done, 
 but how it shall be done." New 
 Orleans, etc., Railroad v. Hanning 
 (1872), 15 Wall (U. S.), 649, 657; 
 7 Am. Neg. Cas. 309. Plainly 
 this is a conclusive test.
 
 WHO ARE INDEPENDENT CONTRACTORS. 39 
 
 returns to tlie work which the -master agreed to perform." 
 "It seems impossible to avoid the conclusion that there is, 
 in not a few instances, an essential conflict of judicial 
 opinion respecting the extent to which an employer is en- 
 titled to retain the power of directing the work without 
 subjecting himself to the duties and liabilities of a 
 master." ^"^ 
 
 (a) Employer Liable. 
 
 If the employer retains the right to determine and direct 
 the manner in which the work is to be done, to point out the 
 dangers to be avoided, and to fix the extent to which the 
 work shall be carried on, it does not matter that the work 
 is let out by the job to one who supplies laborers and ma- 
 terials. The principal is the employer and not the contrac- 
 tor, and the latter and his laborers are the servants of the 
 former. ^^ Where a city charter gave the street commis- 
 sioners authority to 'direct and control the persons em- 
 ployed' on the streets, and it was stipulated in the contract 
 that the work was to be done 'under the direction of the 
 street commissioners,' the city was held responsible for 
 an injury to a traveler by the negligence of the con- 
 tractor. ^^ Where a city contracted for the erection of a 
 building, and the contract provided that the work was to 
 be done 'under the direction of the committees of the fire 
 department and public buildings, representing the city 
 council of said city, who shall have entire control over the 
 manner of doing or shaping all and every part of said 
 work,' this clause was held to reserve such control to tlie 
 
 "'Note to Richmond v. Sitter- 51 U. S. App. 570; Burd. Cas. 
 
 DING (1903, Va.), in 65 L. R. A Torts 403, note; Railroad Co. v 
 
 485, citing authorities. Manning, supra. 
 
 •^Atlantic Transportation Co "* St. Paul v. Seitz (1859), 3 
 
 V. Coneis (1897), 82 Fed. 177; Minn. 297; 73 Amer. Dec. 753.
 
 40 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 city as to make it liable for the negligence of the contractor 
 and his servants. ^^^ Negligence in not shoring up the 
 foundation of the plaintiff's house, where a subway was 
 being constructed adjacent to it for the city by a contractor, 
 was held to be that of the city, it appearing that the city 
 retained the right to determine when any shoring up of 
 foundations should be done, the contractor to receive extra 
 pay therefor, and the city refused or neglected to authorize 
 the shoring up of the house when the excavation was 
 made. ^°^ 
 
 It is intimated in a Kentucky case that a contract whereby 
 a railroad company employed a contracting company to do 
 certain blasting at the top of a cut at the end of a tunnel 
 did not of itself show that the contracting company was 
 an independent conti actor, as the terms of the contract (not 
 reported) showed that the railroad company reserved the 
 risfht to determine the extent of the excavation to be made 
 and undertook to furnish a locomotive and train crew to 
 transport the material removed. ^°" Where, in an agree- 
 ment between a railroad company and a contractor it was 
 stipulated that certain passenger trains were to be run under 
 the direction of the company and under its control, the 
 company was held liable for the value of a horse run over 
 by such train. ^^'^ 
 
 The wrong-doing employee may have been a servant in 
 one capacity and not in another. Thus, an owner will not 
 be held to have abandoned or properly transferred the 
 
 ^»» Covington v. Geyler (1891), 
 93 Ky. 275; 19 S. W. 741. 
 
 "^ Stork v. Philadelphia 
 (1900), 195 Pa. St. 101; 45 Atl. 
 678; 49 L. R. A. 600; (1901) 199 
 Pa. St. 462; 49 Atl. 236. 
 
 "" Louisville, etc., Railroad 
 Co. V. Tow (1901), 23 Ky. Law 
 Rep. 408; 63 S. W. 27; 66 L. R. A. 
 
 941; 21 Amer. & Eng. Ry. Cas. 
 (N. S.), 4411; see, also, Speed v. 
 Atlantic, etc., Railroad (1879), 71 
 Mo. 303 ; 2 Amer. & Eng. R. Cas. 
 77; Veazie v. Penobscot Railroad 
 (1860), 49 Me. 119. 
 
 *"^ Wyman v. Penobscot, etc.. 
 Railroad (1858), 46 Me. 162.
 
 WHO ARE INDEPENDENT CONTRACTORS. 41 
 
 possession, management and control of a wrecked vessel by 
 employing an independent contractor to raise it, although 
 the person so employed be placed in the actual physical 
 custody of the wreck. ^"-^ In an early Ohio case it was 
 held that the employee in question was a contractor for the 
 carpenter work only on a building, and that as to the residue 
 of the work he was merely the superintendent or agent of the 
 defendant, where it appeared that the defendant engaged 
 him to put up the entire building, employ all the men and 
 endorse all their bills, that he engaged to do the carpenter 
 work at a certain per cent, of the bill, and employ all the 
 mechanics, etc. ; that the defendant employed no one about 
 the building, and gave the employee in question possession 
 of the premises which he was to keep until the contract was 
 executed ; that the defendant was at the place of work once or 
 twice a day, and directed him to keep everything safe ; and 
 that he had nothing to do with the mechanics. ^'^^ 
 
 Reserving, but not exercising, control seems to be im- 
 material. It was remarked in a New York case that while 
 defendants might not have exercised power of control over 
 the work of S. (alleged contractor), yet if they retained the 
 right to exercise such power during the progress of the 
 work, then within the authorities he was their servant and 
 not their contractor. ^^_^ So, where control is not reserved 
 but is, nevertheless, exercised the independent character 
 may be destroyed. "Since the rationale of the doctrine by 
 which an employer is exempted from liability for the torts 
 of an independent contractor is that, e.v Jiypothesi, the lat- 
 ter is not under the control of the former with respect to 
 the execution of the details of the stipulated work, it is 
 clear that this doctrine is not applicable in cases where, as 
 
 ""The Snark (1899),68 LawT. '"* Goldman v. Mason (1888), 
 
 (N. S.), 25. 18 N. Y. Super. R. 376; 2 N. Y. 
 
 ^"'Samyn v. McCloskey (1853), Supp. 337. 
 2 Ohio St. 536.
 
 42 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 a matter of fact, the situation thus supposed does not exist. 
 If the employer has reserved the right of exercising con- 
 trol, the person employed is in law regarded as a servant 
 even though his calling may for some purposes be indepen- 
 dent." ^^"^ On clearer grounds, the employer will be liable 
 where his own agent, by and to whom he retains the super- 
 vision of the work, directs the doing of the particular act 
 which causes the damage. ^"^ So, also, it is immaterial 
 that the right is reserved to make alterations, deviations 
 and omissions. ^^^ Where, under an arrangement with a 
 master ore digger, a mineov/ner furnishes the appliances 
 which are to be used by the digger's servants, the owner 
 stands under the same duty to them that he would if they 
 
 ^°' Note to Richmond v. Sitter- 
 ding (1903, Va.), in 65 L. R. A. 
 484, citing cases. There are cases 
 in which the circumstances that 
 the employer did, in point of fact, 
 interfere and control the employes 
 in the course of their work, has 
 been mentioned as a cumulative 
 element supporting the conclusion 
 that they were mere servants; 
 Serandat v. Saisse (1866), L. R. 
 1 P. C. 152; Wallace v. Southern, 
 etc., Co. (1897), 91 Tex. 18; 40 
 S. W. 399. The independence of 
 the contract is negatived where 
 the evidence is that a person 
 agreed to clear a piece of land at 
 a certain price per acre, but that 
 the employer watched the progress 
 of the work, gave advice as to 
 the setting of the fire to burn the 
 timber and brushwood, and when 
 he was told that a certain fence 
 which extended to the plaintiff's 
 land might take fire, said that it 
 made no difference. Johnston v. 
 Hastie (1870), 30 U. C, Q. B. 
 
 232. The inference that a man 
 employed to make an excavation 
 for a cellar, at a specified price 
 per diem, and commissions on the 
 outlay, was a contractor and not 
 a servant, can not properly be 
 drawn, where the employer's own 
 evidence shows he was exercising 
 control over him in respect to 
 the manner in which the earth 
 should be removed, so as to se- 
 cure the safety of a house on the 
 adjacent lot. Moimd City, etc., 
 Co. V. Conlon (1887), 92 Mo. 221 ; 
 4 S. W. 922. 
 
 "* L A R s N V. Metropolitan 
 Street Railroad Co. (1892), 110 
 Mo. 234; 19 S. W. 416; 16 L. R. 
 A. 330; 33 Amer. St. Rep. 439; 
 Butts V. Mackey (1883), 72 Hun 
 (N. Y.), 562; 25 N. Y. Supp. 531; 
 (1895), 147 N. Y. 715; 42 N. E 
 722. 
 
 ^"^ Green v. Soule (1904), 145 
 Cal. 96; 78 Pac. 337; 17 Am. Neg. 
 Rep. 8.
 
 WHO ABE INDEPENDENT CONTRACTOKS. 
 
 43 
 
 were his own servants. "The relation of master and serv- 
 ant does not cease to exist so long as the master reserves 
 any control, or right of control, over the method and man- 
 ner of doing the work, or the agencies by which it is to 
 be effected." ^^« 
 
 (b) Employer not Liable. 
 
 The fact that the employer retains a general supervision 
 over the place where the work is done and the right to in- 
 spect the work to see if it conforms with the contract, does 
 not make him responsible for the contractor's negli- 
 gence. ^^^ Where one person lets a contract to another to 
 
 ""Fell V. Rich Hill, etc., Co. 
 (1886), 23 Mo. App. 216; Speed 
 V. Atlantic, etc., Railroad (1879), 
 71 Mo. 303, 308; 2 Amer. & Eng. 
 R. Cas. 77. 
 
 Plaintiff was injured while op- 
 erating defendant's unguarded 
 lath mill. Defendant had a con- 
 tract with T. whereby T. was to 
 emplo}' the men and defendant 
 was to pay them out of the con- 
 tract price, and T. was to receive 
 the balance of the contract price. 
 Defendant contended T. was an 
 independent contractor. "But we 
 can not concede that this result 
 followed from the facts pleaded. 
 T.'s relation to the defendant was 
 rather that of agent than of inde- 
 pendent contractor. Defendant 
 did not lease or surrender to him 
 the management or control of this 
 department of its mill. It surren- 
 dered only the right to employ 
 the persons needed to carry on 
 the work. Tt still retained con- 
 trol as to the manner and mode 
 
 of doing the work, and control 
 over the workmen employed by 
 T. This, as we sajs did not make 
 T. an independent contractor. He 
 was but the agent of defendant 
 acting in this regard for and on 
 its behalf." Barclay v. Puget 
 Sound, etc., Co. (1908), 48 Wash. 
 241 ; 93 Pac. 430; 16 L. R. A. (N. 
 S.), 140, citing Johnson v. Spe.\r 
 (1889), 76 Mich. 139; 15 Amer. 
 St. Rep. 298; 42 N. W. 1092. 
 
 '" Kelleher v. Schmitt, etc., Co. 
 (1904), 122 Iowa 635; 98 N. W. 
 482; 16 Am. Neg. Rep. 609, n. ; 
 Boomer v. Wilbur (1899), 176 
 Mass. 482; 57 N. E. 1004; 53 L. 
 R. A. 172; 8 Am. Neg. Rep. 246; 
 Vosbeck v. Kellogg (1899), 78 
 Minn. 176; 80 N. W. 957; Gayle 
 V. Missouri, etc., Co. (1903), 177 
 Mo. 427; 76 S. W. 987; Cullom 
 V. McKelvey (1898), 49 N. Y. 
 Supp. 669; Hawke v. Brown 
 (1898), 50 N. Y. Supp. 1032; 
 Omaha, etc.. Co. v. Hargadine 
 (1904, Nebr.), 98 N. W. 1071; 36
 
 44 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY 
 
 do a particular work reserving to himself no control over 
 the manner in which the work shall be performed, except 
 that it shall conform to a particular standard when com- 
 pleted, he is not liable for any injury which may occur to 
 others by reason of any negligence of the person to whom 
 the contract is let." ^^^ "If the employer has no such per- 
 sonal control, but has merely the right to reject work that 
 is ill done, or to stop work that is not properly being done, 
 but has no power over the person or time of the workman 
 or artisans employed, then he will not be their superior in 
 the sense of the maxim I'espondeat superior, and not an- 
 swerable for their fault or negligence." ^^^ It is said that 
 a contractor is not deemed to have full control of the work 
 of excavating a trench for a pipe line across a highway 
 where the agreement provides that if the work is not done 
 in a manner satisfactory to the superintendent of the con- 
 tractee, he may put men in the trench at the contractor's 
 
 Am. & Eng. Ry. Cas. (N. S.), 827; 
 16 Amer. Neg. Rep. 610, n. ; Jas- 
 koey V. Consolidated Gas Co. 
 (1901), 67 N. Y. Supp. 976; Si- 
 monton v. Perry (1901, Tex. Civ. 
 App.), 62 S. W. 1090. 
 
 Reserving the general control 
 as to the location and character 
 of the work to be performed by 
 another and his servants does not 
 make the employer liable; Teller 
 V. Bay, etc.. Dredging Co. (1907, 
 Cal.), 90 Pac. 942; 12 L. R. A. (N. 
 S.), 267. In a Kansas case it is 
 held that it is not essential that 
 one engaging a contractor to pro- 
 duce a given result should reserve, 
 or should interfere and take, 
 complete or exclusive control over 
 all features of the work, to render 
 him liable as master of the con- 
 tractor's servants ; but the fact 
 
 that he possesses a limited or 
 partial control to the extent of 
 conditioning the work in many 
 respects will not entail such lia- 
 bility if the contractor is left free 
 to exercise his own will generally 
 respecting methods and means. 
 Kansas City, etc., R. v. Loosley 
 (1907), 76"Kans. 103; 90 Pac. 
 990: Cf. Northrup v. Hayward 
 (1906), 99 Minn. 299; 109 N. W. 
 241 ; Wm. Cameron Co. v. Real- 
 muto (1907, Tex. Civ. App.), 100 
 S. W. 194. 
 
 "^Vincennes, etc., Co. v. White 
 (1890), 124 Ind. 376; 24 N. E. 
 747. 
 
 "* Stephens v. Commissioners 
 (1876), 3 Sc. Sess. Cas., 4th 
 series, 542; approved in Saunders 
 v. Toronto (1889), 26 Ont. App. 
 Rep. 265.
 
 WHO ABE INDEPENDENT CONTRACTORS. 45 
 
 expense to make the necessary change, and also that if the 
 contractor fails to prosecute the work with due diligence, 
 the contractee may finish the same and charge it to the con- 
 tractor. ^'^ A partial control over the work on the part of 
 a municipal corporation, with a view of seeing to the ac- 
 complishment of certain results, does not establish the re- 
 lation of master and servant between the corporation and 
 the contractor where the general control in respect of its 
 manner and method of execution, and the oversight and 
 direction of the performance of the actual labor, remain in 
 the contractor. ^^^ A mere reservation of power to direct 
 changes in the work being done by a contractor for a city 
 does not render the city liable. ^^^ A stipulation in a rail- 
 way contract that the work was to be done in accordance 
 v^ath the plans, specifications and instructions furnished 
 by the company was held not to take the case out of the 
 general rule. ^^' The mere taking of a bond of indemnity 
 from a contractor does not constitute such control as to 
 render a city or other employer liable per se.'^^^ Where the 
 superintendent of a building, used for storing cotton, directs 
 an employee of a contractor, engaged to paint the building, 
 to leave only one window open at a time on going through 
 upon a scaffold used by him in painting, because of the 
 danger from fire by the entrance of sparks, it is not such 
 
 '"Washington, etc., Co. v. Wil- York (1853), 8 N. Y. 222; Nevins 
 
 kinson (1885, Pa.), 1 Cent. Rep. v. Peoria (1866), 41 Ills. 502; 89 
 
 637; 2 Atl. 338. Am. Dec. 392. Contra, Harper v. 
 
 "'Norwalk, etc.. Co. v. Norwalk Milwaukee (1872), 30 Wise. 365. 
 
 (1893), 63 Conn. 495; 28 Atl. 32; "'Hunt v. Pennsylvania Rail- 
 
 Beatt)' V. Thielman (1890). 29 N. road Co. (1866), 51 Pa. St. 475. 
 
 Y. St. Rfep. 498; 8 N. Y. Supp. "^ Erie v. Caulkins, supra; 
 
 645; Cary v. Chicago (1895), 60 Staldter v. Huntington (1899), 
 
 Ills. App. 341. 153 Ind. 354; 53 N. E. 88; con- 
 
 "'Erie v. C.\ulkins (1877), 85 tractors had entered into an obli- 
 
 Pa. St. 247; 27 Amer. Rep. 642; gation with the city to save it 
 
 Reed v. Allegheny City (1875), harmless from damages arising 
 
 79 Pa. St. 330; Pack v. New out of their negligence.
 
 46 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 retention of control as makes the proprietor liable. ^^^ Pro- 
 visions in a contract subletting construction work which 
 a contractor has undertaken to perform for the construc- 
 tion company (the principal contractor) placing the work 
 under the supervision of the construction company's engi- 
 neer, who has the power to discharge employees as the in- 
 terests of the construction company demand, and to require 
 the increase of the working force and direct its application ; 
 and requiring the contractor to furnish tools ; and empower- 
 ing him to suspend work and pay the employees as a pro- 
 tection against liens; and requiring the subcontractor to 
 save the contractor harmless from the claims of third per- 
 sons, do not create the relation of master and servant be- 
 tween the contractor and the subcontractor as distinguished 
 from that of independent contractor. ^^^ It has been held 
 that a municipal corporation by reserving the right to super- 
 vise the work of a contractor and requiring him to employ 
 only its own citizens, does not thereby exercise such control 
 of the work as to render it liable for the acts of his em- 
 
 ""Wendler v. Equitable, etc., 
 Society (1897), 19 App. Div. 50; 
 45 N. Y. Supp. 86. 
 
 ^=»GooD V. Johnson (1907), 38 
 Colo. 440; 88 Pac. 439; 8 L. R. 
 A. (N. S.), 896, citing Rogers v. 
 Florence Railroad Co. (1899), 
 31 S. C. 378; 9 S. E. 1059; 39 
 Amer. & Eng. R. Cas. 348; Pio- 
 neer, etc., Co. V. Hansen (1898), 
 176 Ills. 100; 52 N. E. 17; 3 Am. 
 Neg. Rep. 16; Foster v. Chicago 
 (1902), 197 Ills. 264; 64 N. E. 
 322 ; Mayhew v. Sullivan, etc., Co. 
 (1884), 76 Me. 100; 15 Am. Neg. 
 Cas. 296. n.; Morgan v. Smith 
 (1893), 159 Mass. 570; 35 N. E. 
 101; 15 Am. Neg. Cas. 667, n.; 
 
 Corrigan v. Elsinger (1900), 81 
 Minn. 42; 83 N. W. 492; Upping- 
 TON V. New York (1901), 165 N. 
 Y. 222; 59 N. E. 91; 53 L. R. A. 
 550; 8 Am. Neg. Rep. 366; Hard- 
 ing V. Boston (1895), 163 Mass. 
 14; 39 N. E. 411; Hughes v. 
 Cincinnati, etc., Railroad (1883), 
 39 Ohio St. 461 ; 15 Amer. & Eng. 
 R. Cas. 100; Thomas v. Altoona, 
 etc., Ralroad Co. (1899), 191 Pa. 
 St. 361 ; 43 Atl. 215 ; 6 Am. Neg. 
 Rep. 383; Callan v. Bull (1896), 
 113 Cal. 593; 45 Pac. 1017; Blumb 
 V. Kansas City (1884), 84 Mo. 
 112; 54 Amer. Rep. 87; Erie v. 
 Caulkins (1877), 85 Pa. 247; 
 27 Amer. Rep. 642.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 47 
 
 ployees. ^^^ The proprietor will not be responsible where 
 he retains the general superintendence of the work, where 
 the contractor engages to discharge any servant at his re- 
 quest, and where he reserves the right to terminate the 
 contract. ^-^ 
 
 Sec. 21. Right of Dismissal. 
 
 If the employer reserves the right of dismissing the 
 contractor, such reservation is merely an element to be con- 
 sidered in determining whether, viewing the contract as 
 a whole, the relation of independent contractor existed. ^^^ 
 It is well settled that if the remaining provisions of a con- 
 tract show it to be an independent one, the mere fact that 
 the employer has reserved the right to cancel, annul or 
 revoke it, or to suspend or re-let the work, if there is some 
 specific ground for dissatisfaction, will not cast on him a 
 master's responsibilities. ^-^ Even though the stipulations 
 give the employer the right to insist upon the dismissal of 
 incompetent workmen, the relation may remain that of 
 employer and contractor. ^-^ It has been laid down that 
 the relation of master and servant will not be inferred in a 
 
 '=^ Harding v. Boston (1895), 
 163 Mass. 14; 39 N. E. 411. Thi^ 
 has been declared to be "difficult 
 to reconcile with" the general 
 principles governing such cases ; 
 7 Thomps. Neg. p. 100. 
 
 '■■ Schular v. Hudson River 
 Railroad Co. (1862), 38 Barb., N. 
 Y. 653. 
 
 '-* Morgan v. Bowman (1856), 
 22 Mo. 538; City of Chicago v. 
 Joney (1871), 60 Ills. 383; 14 
 Am. Neg. Cas. 418. n. ; New Al- 
 bany, etc., Mill v. Cooper (1892), 
 131 Ind. 363; 30 N. E. 294; 14 
 
 Amer. Neg. Cas. 456; Bayer v. 
 Railroad Co. (1896), 68 Ills. App. 
 219. 
 
 "* See cases cited in note to 
 Richmond v. Sitterding (1903, 
 Va.), in 65 L. R. A. p. 502. 
 
 '^Uppington v. City of New 
 York (1901), 165 N. Y. 222; 59 
 N. E. 91; 6 Am. Neg. Rep. 366; 
 53 L. R. A. 550 ; Reedie v. London, 
 ETC.. R.\ilro.\d Co. (1849), 4 
 Exch., W. H. & G., 244; 6 Eng. 
 Rail. & Corp. Cas. 184; 4 Amer. 
 Neg. Rep. 438, n. ; 9 Id. 122. n. ; 
 in which the company was given
 
 48 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 case where it appears that the power of discharge was not 
 an incident of the contract of employment.^-" Some courts 
 in determining whether a given employee is a servant or 
 an independent contractor take into consideration the man- 
 ner of payment, whether by the day, etc., with power to dis- 
 charge reserved, or by the piece or entire job. '^^'^ Where 
 a raih'oad company stipulates with the contractor for the 
 construction of its road and its bridges that any foreman or 
 laborer employed by the contractor, who shall execute his 
 work in a faulty or unskillful manner, or be disrespectful 
 or riotous in his conduct, shall be forthwith dismissed by 
 the direction of the engineer of the railroad company, the 
 latter does not so retain control of the independent con- 
 tractor as to be liable thereby. ^^^ 
 
 According to certain authorities, the conclusion that the 
 employee was not an independent contractor is evident if 
 he was liable to dismissal at any time, and the case is for 
 the jury whenever there is such evidence, and when the 
 remaining testimony is either ambiguous or tends to estab- 
 lish the same conclusion. ^-'^ Where a house owner em- 
 ployed a blacksmith to adjust and secure a coal hole cover, 
 he being subject to the employer's direction and control 
 and liable to be dismissed at any time, such blacksmith is 
 not an independent contractor for whose negligence the 
 owner would not be liable. ^•*-' It is said that the liability 
 
 the power to watch the general 
 progress of the work and to dis- 
 miss incompetent workmen. 
 
 '^ Pioneer, etc., Co. v. Hansen 
 (1898), 176 Ills. 100; 52 N. E. 17; 
 3 Am. Neg. Rep. 16. 
 
 '^ Schular v. Hudson River 
 Railroad Co. (1862), 38 Barb., N. 
 Y. 653. 
 
 '^ Bayer v. Chicago, etc., Rail- 
 road (1896), 68 Ills. App. 219. 
 
 ^''Oldfield V. Furness (1893), 
 C. A. 58 J. P. 102; 9 Times L. R. 
 513; Speed v. Atlantic, etc., Rail- 
 road (1879), 71 Mo. 303; 3 Am. 
 & Eng. R. Cas. 77; Bernaur v. 
 Hartman, etc., Co. (1889), 33 Ills. 
 App. 491 ; Blake v. Thirst (1863), 2 
 Hurls. & C. 20; 32 L.J. Exch. 189. 
 
 ^'"Dickson v. Hollister (1889). 
 123 Pa. 421 ; 16 Atl. 484; 10 Amer. 
 St. Rep. 533.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 49 
 
 of a city is especially marked where the contract not only 
 allows it to supervise the work, but gives the city ofhcial 
 the power to discharge incompetent and disobedient em- 
 ployees. ^-'^ Where laborers are employed and paid di- 
 rectly by a railroad company for grading under directions 
 of the company's chief engineer, and the laborers are sub- 
 ject to discharge when the work is delayed or improperly 
 done, they are servants of the railroad company. ^^^ 
 
 Sec. 22. Supervision or Approval by Employer. 
 
 On the other hand, an independent contractor is not 
 converted into a servant by provisions in the contract which 
 reserve to the employer certain rights of supervision and 
 approval, during the progress of the work. ^"^ That the 
 
 ''" Scott V. Springfield (1899), 
 81 Mo. App. 312. 
 
 "■'■ St. Johns, etc., Railroad v. 
 Shalley (1894), 33 Fla. 397; 14 
 So. 890. "Of all the tests which 
 have been suggested, and the au- 
 tliorities are far from uniform, it 
 would seem that this, the power 
 of substitution of one man for 
 another, is most satisfactory. It 
 may not in all cases be as appar- 
 ent as it is in this one that B. 
 has no power to remove or differ- 
 ently employ the individual whom 
 A. has selected and assigned to 
 a special line of work, but when 
 it does appear, the amount of 
 control which B. exercises over 
 the individual is surely insuffi- 
 cient to establish, even pro hac 
 vice, the relation of master and 
 servant." The Slingsley (1903), 
 120 Fed. 748. "In some cases, the 
 test of lialiility for the servant's 
 torts, in such cases as we have 
 
 been considering, has been de- 
 clared to be, who has the right of 
 selecting and discharging him? If 
 this test is applied, the liability 
 will be thrown in almost every 
 case upon the general master." 
 Burd. Torts, 139, citing New Or- 
 leans. ETC., Railro.ad v. Norwood 
 (1885), 62 Miss. 565; 52 Amer. 
 Rep. 191 ; Alichael v. Stanton 
 (1875), 3 Hun (N. Y.), 462; Bur- 
 ton v. Galveston, etc., Railroad 
 (1884), 61 Tex. 526; 21 Am. & 
 Eng. Ry. Cas. 218; The Slingsley, 
 supra. 
 
 ^ Steel v. Southeastern Rail- 
 road Co. (1855). 16 C. B. 550; 
 Casement v. Brown (1893), 148 
 U. S. 615; 13 Sup. Ct. Rep. 672: 
 Thomas v. Altoona, etc.. Railroad 
 (1899), 191 Pa. 361; 43 Atl. 215; 
 6 Am. Neg. Rep. 383. Thus, 
 where a superintendent chosen by 
 a school district to superintend 
 certain improvements in a school
 
 50 INDEPENDENT CONTRACTORS AND THEIR LIABILITy. 
 
 employer's agent has the right to supervise, inspect or super- 
 intend the work for the purpose of seeing that it is done 
 according to specifications is, in effect, held in several cases 
 not to amount to such reservation of control as to trans- 
 form an (otherwise) independent contractor into a serv- 
 ant. ^^^ The independent nature of the contract is not 
 overcome by simply providing that the work shall be 'under 
 the supervision and subject to the approval' of the employer 
 or his agent, ^^^ or 'done to the satisfaction' of the em- 
 ployer's representative. ^^^ If a municipality in letting the 
 contract retains no control over the contractor except 
 through an official, whose duty it is to see that the work is 
 conducted according to contract, the city will not be liable 
 for the contractor's negligence. ^2' In general, where the 
 
 house is onl)' authorized to direct 
 the person employed in respect to 
 the manner in which the work is 
 to be executed, the latter is an 
 independent contractor ; School 
 District v. Fuess (1881), 98 Pa. 
 600; 42 Amer. Rep. 627. 
 
 '** Murphy v. Ottawa (1887), 13 
 Ont. R. 334; Nevins v. Peoria 
 (1866), 41 Ills. 502; 89 Amer. 
 Dec. 392; Bayer v. Chicago, etc., 
 Railroad (1896), 68 Ills. App. 219; 
 New Albany, etc., Co. v. Cooper 
 (1891), 131 Ind. 363; 30 N. E. 
 294; 14 Am. Neg. Cas. 456; Jas- 
 koey V. Consolidated, etc., Co. 
 (1901), 33 Misc. (N. Y.), 790; 67 
 N. Y. Supp. 976 ; Clare v. Nation- 
 al, etc.. Bank (1875), 8 Jones & 
 S. (N. Y.), 104; Welsh v. Parrish 
 (1892), 148 Pa. 599; 24 Atl. 86. 
 The mere fact that the proprietor 
 requires the work to be done 
 under the supervision and to the 
 satisfaction of his representative 
 
 does not render him liable for 
 the negligence of his contractor; 
 Indiana, etc., Co. v. Cray (1897), 
 19 Ind. App. 565; 48 N. E. 803; 
 Thomas v. Altoona, etc.. Railroad 
 (1899), 191 Pa. St. 361; 43 Atl. 
 215; 6 Am. Neg. Rep. 383. 
 
 "'Callan v. Bull (1896), 113 
 Cal. 593; 45 Pac. 1017. 
 
 ^"Eldred v. Mackie (1901), 
 178 Mass. 1 ; 59 N. E. 673; Smith 
 V. Milwaukee, etc., Exch.\nge 
 (1895), 91 Wise. 360; 64 N. W. 
 1041, 30 L. R. A. 504; 51 Amer. 
 St. Rep. 912. 
 
 "'Lenderink v. Rockford (1904), 
 135 Mich. 531; 98 N. W. 4; 
 6 Am. Neg. Rep. 614, n. ; and 
 see, McMullen v. New York 
 (1905), 93 N. Y. Supp. 772. 
 Where the work was to be done 
 "to the satisfaction and accept- 
 ance of the superintendent of 
 sewers, and subject to his inspec- 
 tion and direction at all times,"
 
 WHO ARE INDEPENDENT CONTRACTORS, 
 
 51 
 
 only control reserved is to require the work to be performed 
 to conform to the contract, or to some prescribed standard, 
 or to be done to the satisfaction of the employer's engineer 
 or architect, the doctrine of independent contractor ap- 
 plies. ^'-^^ The United States Supreme Court has held that 
 the independent nature of the contract is not destroyed by 
 a provision that suitable material is to be furnished 
 and a specified structure erected, subject to the daily 
 approval of the employer's engineer. ■^^'^ For cases more 
 
 the city was held not responsible; 
 Harding v. Boston (1895), 163 
 Mass. 14; 39 N. E. 411. 
 
 ^^ Vincennes, etc., Co. v. White 
 .(1890), 124 Ind. 376; 24 N. E. 
 747; Hughbanks v. Boston, etc., 
 Co. (1894), 90 Iowa 267; 60 N. 
 W. 640; 14 Am. Neg. Cas. 592, n.; 
 Humpton v. Unterkircher (1896), 
 97 Iowa 509; 66 N. VV. 776; 14 
 Am. Neg. Cas. 595; Powell v. 
 Construction Co. (1890), 88 
 Tenn. 692; 13 S. W. 691; 17 
 Amer. St. Rep. 925 ; Green v. 
 Soule, (1904), 145 Cal. 96; 78 
 Pac. 337; 17 Am. Neg. Rep. 8; 
 Pioneer, etc., Co. v. Hansen 
 (1898), 176 Ills. 100; 52 N. E. 17; 
 3 Am. Neg. R. 16. But where the 
 contract provided : "The work to 
 be done under the direction of 
 the city civil engineer, or agent 
 appointed by the city council for 
 the same, who shall have entire 
 control over the manner of doing 
 and shaping all or any part of the 
 same, and whose directions must 
 be strictly obeyed," the defendant 
 city was held liable for the negli- 
 gence of the contractor in depos- 
 iting a pile of stones so as to 
 obstruct the flow of surface water 
 
 and flood the premises of an 
 adjacent owner, partly on the 
 principle of respondeat superior 
 and partly on the ground that the 
 city owed a public duty to pre- 
 vent or remove nuisances in its 
 streets; Cincinnati v. Stone, 
 (1855), 5 Ohio St. 38. A railroad 
 company is liable for injuries in 
 blasting for a tunnel where it 
 in fact controls the work which 
 results in the injury; Louisville, 
 ETC., Railroad v. Tow (1901), 23 
 Ky. L. Rep. 408; 63 S. W. 27; 66 
 L. R. A. 941 ; 21 Am. & Eng. Ry. 
 Cas. (N. S.), 441. 
 
 ""' Casement v. Brown (1893), 
 148 U. S. 615. But an instruction 
 was approved which stated that 
 where the work is split up in 
 diff'erent contracts and the owner 
 undertakes to supply one of the 
 contractors with materials to be 
 used in the execution of his con- 
 tract, and no provision is made for 
 supervising the work or erecting 
 or maintaining guards around it, 
 it is justifiable to infer that the 
 owner reserved supervision and 
 that his duty to protect the public 
 had not been devolved on others ; 
 HoMAN v. -Stanley (1870). 66
 
 52 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 or less to the contrary, see those referred to in the 
 note below. ^^'^ 
 
 Sec. 23. Supervision or Approval by Architect. 
 
 When one contracts with a builder to erect a building or 
 other structure on his land, according to certain plans and 
 specifications, the contractor to furnish all materials and 
 labor, and to be answerable to the owner only for certain 
 results, he will be considered an independent contractor 
 and not a servant, even though the work is supervised by 
 an architect of the owner's selection. ^■'^ The mere fact 
 that the proprietor of a building undergoing erection or 
 repairs employs an architect to inspect the work, and see 
 that it is constructed according to contract, does not render 
 the owner liable for the negligence of the contractor or his 
 servants in the prosecution of the work. ^^^ But this pro- 
 vision in a contract for wrecking a building was held to 
 reserve such control as to render the owner liable: "The 
 whole of the work of demolition to be carried out according 
 to the directions of the supervising architect, whose direc- 
 tions upoli all points in dispute I agree to accept as final." ^^^ 
 
 Pa. 464; 5 Amer. Rep. 389. Com- 487; 172 Ills. 177; 50 N. E. 242. 
 
 pare, McCleary v. Kent (1854), The contractors are regarded as 
 
 3 Duer (N. Y. Super. Ct), 27. independent, though the owner's 
 
 "" Treadwell v. New York superintendent is charged with 
 
 (1861), 1 Daly (N. Y. Com. P.), the duty to see whether the con- 
 
 128; Martin v. Tribune Associa- tractors are carrying out their 
 
 tion (1883), 30 Hun (N. Y.), 391; agreement; Miller v. Merritt, etc., 
 
 Potter V. Seymour (1859), 4 Co. (1905), 211 Pa. 127; 60 Atl. 
 
 Bosw. (N. Y. Super. Ct), 140. 508. 
 
 '" Jefferson V. Jameson, etc., Co. "'Geist v. Rothschild (1900), 
 
 (1897), 165 Ills. 138; 46 N. E. 90 Ills. App. 324; Frassi v. 
 
 272; Casement v. Brown (1893), McDonald (1898), 122 Cal. 400; 
 
 148 U. S. 615; 37 Law ed., 582; 13 55 Pac. 139. 
 
 Sup. Ct. R. 672; Alexander v. "' Faren v. Sellars (1887), 39 
 
 Mandeville (1889), 33 Ills. App. La. Ann. 1011 ; 3 So. 363; 4 Amer. 
 
 589; Whitney, etc., Co. v. St. Rep. 256. 
 O'Rourke (1898), 68 Ills. App.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 53 
 
 And in a case under the Louisiana Code, a contractor en- 
 gaged with a rehgious corporation to rebuild a cathedral, 
 under the direction and superintendence of the architect 
 appointed by the wardens ; while the work was progressing, 
 a tower fell, in consequence of defective materials or con- 
 struction, injuring the contractor's servant. This servant 
 recovered damages in solido against the contractor and the 
 wardens. ^"^^ 
 
 Sec. 24. Supervision or Approval of Engineer. 
 
 As in many other subdivisions of the general rules per- 
 taining to the employment of servants and independent 
 contractors, there is a conflict of judicial opinion as to when 
 the reservation of supervision and approval by the em- 
 ployer's engineer, of the work being performed by an em- 
 ployee, will render the latter a mere servant. Thus, it is 
 held that a stipulation in a contract for constructing or re- 
 pairing a railway, that the work is to be subject to the rail- 
 way company's engineer's approval does not make the rail- 
 way company a master over the contractor. ^^^ So, where 
 a person contracted with a railroad company to grade a 
 section of its road, the entire work to be done by his serv- 
 ants and laborers, but subject to the approval of the com- 
 pany's chief engineer, and under the direction of its 
 assistant engineer, such person was considered an indepen- 
 
 *" Camp V. Church Wardens 
 (1852), 7 La. Ann. 321. This case 
 was distinguished in a subsequent 
 case on the ground that the 
 church wardens were hable by 
 reason of having reserved control 
 of their architect's work. Peyton 
 V. Richards (1856), 11 La. Ann. 
 62. "But if this raised the re- 
 lation of master and servant 
 
 between the proprietor and con- 
 tractor, then how could a judg- 
 ment be rendered against the 
 contractors who had done no 
 more than obey orders, the work 
 not being wrongful per sef" 
 Thomp. Neg., Sec. 662, note 62. 
 
 "' Alabama, etc.. Railroad v. 
 Martin (1893). 100 Ala. 511; 14 
 So. 401.
 
 54 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 dent contractor.^^^ Where a railroad company employs 
 a professional and practical bridge builder of large experi- 
 ence, to build a railway bridge across a river, reserving to 
 its chief engineer the right to criticise both the methods of 
 erection and the workmanship, but not to direct the methods 
 by which the contractor should proceed, the railroad com- 
 pany is not liable for the acts of the contractor, i'^' In an 
 early English case, it was laid down that "the proprietor 
 will not be responsible, even where he reserves the power, 
 by his engineer, to direct generally tvhat shall be done, if 
 the injury springs from the manner of doing it." ^'^^ On 
 the other hand, in a recent Federal decision the employer of 
 a contractor for the erection of a bridge was held liable 
 where the work was done under the direct supervision of 
 an engineer in his employ. ^^^ 
 
 A contract between a municipal corporation and a con- 
 tractor for the construction of a sewer, containing the pro- 
 vision : "All work to be commenced and carried on at such 
 times and in 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, was 
 
 "•'Rogers v. Florence Railroad (1903), 122 Fed. 378; 58 C. C. A. 
 
 (1889), 31 S. C. 378; 9 S. E. 466; 65 L. R. A. 620; 16 Am. 
 
 1059; 39 Amer. & Eng. Rail. Cas. Neg. Rep. 615, n. In an Iowa 
 
 348. That the chief engineer is case, it was concluded that a 
 
 conclusively presumed to have grading contractor was a servant 
 
 control of the work of grading a of a railroad company and not an 
 
 railway, see Alabama, etc., Rail- independent contractor where he 
 
 road V.' Coskry (1890), 92 Ala. furnished his own tools, but per- 
 
 254; 9 So. 202. formed the work under the di- 
 
 "' Bibb v. Norfolk, etc., Rail- rection and to the satisfaction of 
 
 ROAD (1891), 87 Va. 711; 14 S. E. an engineer having power to ter- 
 
 163; 47 Amer. & Eng. Rail. Cas. minate the contract whenever he 
 
 551_' deemed it for the best interest 
 
 "* Steele v. Southeastern of the railroad company. Parrott 
 
 Railroad Co. (1855), 16 C. B. v. Chicago, etc., Railroad (1905), 
 
 550. 
 '** Salliotte v. King, etc., Co. 
 
 127 Iowa, 419; 103 N. W. 352.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 55 
 
 held not to reduce the contractor to the grade of a servant 
 of the city so as to make it answerable for his negli- 
 gence. ^^^ In an Indiana case where a city was constructing 
 a water pipe trench and a laborer employed under the di- 
 rection of the city's inspector and superintendent was as- 
 signed to the excavation of a section of the trench, but he 
 had no authority or discretion as to his work, he was held 
 to be a servant and not an independent contractor.^^^ A 
 subcontractor of an improvement company, which has con- 
 tracted with a railroad company to build and equip its line 
 of road, the work to be done subject to the approval of 
 the railroad company's chief engineer is an independent 
 contractor. ^°^ 
 
 '"Erie v. Caulkins (1877), 85 
 Pa. St. 247; 27 Am. Dec. 642. In 
 a late Illinois case where a city's 
 contract for the construction of a 
 tunnel provided that all labor per- 
 formed should be subject to the 
 inspection of the commissioners 
 of public works, it was held that 
 the city was liable for the negli- 
 gence of an independent con- 
 tractor in doing the work. Chi- 
 cago V. MuRDOCK (1904), 212 Ills. 
 9; 72 N. E. 46; 103 Amer. St. 
 Rep. 221. See. post. Chap. V., 
 Sees. 139-146. One whose bid for 
 a street improvement has been ac- 
 cepted and who has in part per- 
 formed the work under the 
 direction of the city's engineer 
 and street committee, does not be- 
 come an independent contractor 
 so as to exempt the city from lia- 
 bility for an accident sustained 
 because of a road obstruction, 
 although thereafter a formal in- 
 dependent contract is tendered to 
 
 him for signature. Hookey v. 
 Oakdale (1895), 29 Pitts. L. J. 
 (N. S.), 453. 
 
 "^ Fort Wayne v. Christie 
 (1901), 156 Ind. 172; 59 N. E. 
 385. 
 
 ""Alabama, etc., Railroad v. 
 Martin (1893), 100 Ala. 511; 14 
 So. 401. Where such a contract 
 specified that the grounds should 
 be cleared of all perishable ma- 
 terials, which should be removed 
 or burned, as the engineer of the 
 company might direct, and the 
 engineer directed the burning of 
 a pile of brush, but it was so neg- 
 ligently done by a subcontractor 
 of the principal contractor that 
 damage ensued to an adjacent 
 owner, the company was held not 
 liable. Callahan v. Burlington, 
 etc.. Railroad (1876), 23 Iowa, 
 562. Cf. Wright v. Holbrook 
 (1872). 52 N. H. 120; 13 Amer. 
 Rep. 12.
 
 56 
 
 INDEPENDENT CONTRxVCTORS AND THEIR LIABILITY. 
 
 Sec. 25. Purpose of Retaining Control. 
 
 If these provisions (reserving right of supervision and 
 approval) are for the purpose of securing faithful com- 
 pliance with the specifications on the part of the contractor, 
 the relation remains that of employer and independent con- 
 tractor, though the stipulations give the employer the right 
 to reject work or material which does not conform to the 
 specifications, or to stop the work. ^^'^ The proprietor is 
 not liable merely because he retains a supervision of the 
 work simply for the purpose of securing certain results. ^^^ 
 A learned annotator has lately said : "Where the substan- 
 tial effect of the evidence is that the person employed was 
 engaged in some occupation which might, in a reasonable 
 sense, he described as distinct, and that he undertook to 
 execute a particular piece of work for a specified price, 
 calculated with reference to the quantity of work actually 
 performed, it is, as a general rule, an inference, in point 
 of law, that the employer did not intend to exercise any 
 control over the work while it was in progress but merely 
 reserved the right to reject the results produced thereby."^^-^ 
 
 ^^ Stephen v. Commissioners 
 (1876), 3 Sc. Sess. Cases, 4th 
 series, 535, 542; Vosbeck v. Kel- 
 logg (1899), 78 Minn. 176; 80 N. 
 W.' 957; Blumb v. City of Kansas 
 (1884), 84 Mo. 112; 54 Amer. 
 Rep. 87. 
 
 '" Bibb v. Norfolk, etc., R.ml- 
 ROAD (1891), 87 Va. 711; 14 S. E. 
 163; 47 Amer. & Eng. Rail. Cas. 
 651. "The mere fact that the pro- 
 prietor retains a general super- 
 vision over the 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." 
 Thomp. Neg., Sec. 660. A city 
 is not liable where the provisions 
 of the contract with the contractor 
 relate to results and not to the 
 methods employed. Foster v. Chi- 
 cago (1902), 197 Ills. 264; 64 N. 
 E. 322. 
 
 "^Mr. C. B. Labatt, in note to 
 Richmond v. Sitterding (1903, 
 Va.), 65 L. R. A. 461.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 57 
 
 Sec. 26. Surrendering or Retaining Control of Premises. 
 
 The authority last quoted adds: "With respect to that 
 large class of cases in which the stipulated work is to be 
 done on the premises of the contractor (contractee?) it 
 may be laid down as a general rule that, whenever it is 
 understood or expressly provided, that the possession and 
 control of those premises are to be surrendered to the 
 contractor while the work is in progress, the independence 
 of the contract should be inferred, as a matter of law, 
 unless there is some specific evidence which points to the 
 opposite conclusion." ^''"^ Thus, testimony to the effect that 
 one employed to erect a building was given possession of 
 the premises in question will be disregarded if it appears 
 from other facts that he was acting as the employer's super- 
 intendent, and merely occupied the premises as mechanics 
 usually do when making improvements. ^"' Further, it is 
 clear that an employee's torts "can not be imputed to the 
 employer on the mere ground that, while the work was in 
 progress, the latter retained, with respect to his premises, 
 that ultimate right of control which is an inseparable inci- 
 dent of proprietorship." ^^^ 
 
 ^ Note to Richmond v. Sitter- 
 ding (1903, Va.), 65 L. R. A. 502, 
 citing cases, inter alia Byrnes v. 
 Western (1896), 17 New South 
 Wales, L. R., 80; Hawver v. 
 Whalen (1892), 49 Ohio St. 69; 
 29 N. E. 1049; 14 L. R. A. 828. 
 In order that the employer may 
 escape liability on the ground of 
 his having surrendered possession 
 of his premises, it is merely nec- 
 essary to show that the possession 
 given was such as would enable 
 the contractor to carry out the 
 contract; such possession need not 
 be exclusive. Id., citing cases. 
 
 '-•Samyn v. McClosky (1853), 
 2 Ohio St. 536. 
 
 ^^ .Note to Richmond v. Sitter- 
 ding, supra, at p. 504. "In Illi- 
 nois the doctrine seems to have 
 been adopted that this situation is 
 incompatible with any other con- 
 clusion than that the person em- 
 ployed was a servant." Id., 
 citing Glickauf v. Maurer 
 (1874), 75 Ills. 289; 20 Amer. 
 Rep. 238; Bernaur v. Hartman, 
 etc., Co. (1889), 33 Ills. App. 491. 
 "The more correct theory, how- 
 ever, would seem to be that juch 
 evidence constitutes at the very
 
 58 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 27. Construction of Contract of Employment. 
 
 Whether the employer retains such control over the 
 work to be done, and the manner of doing it, as to render 
 himself responsible for injuries occasioned by the negli- 
 gence of the employee (or contractor) in the performance 
 of the work depends upon the construction to be given to 
 the contract. ^"^ "It is apparent from what has been said, 
 that whether the relation in a particular case is that of 
 
 most an element to be considored 
 by the jury. There is no such in- 
 timate or invariable connection 
 between the power of controlling 
 the details of the work and the 
 power of controlling the premises 
 on which the work is done, that 
 the exercise of the latter power 
 necessarily implies the exercise of 
 the former power as well. It 
 seems certain at all events that, 
 in cases where only a porrion of 
 the premises is affected by the 
 performance of the work, the fact 
 that the employer retained cDntrol 
 over them is inconclusive, if not 
 wholly immaterial." Note to 
 Richmond v. Sitterding, supra, 
 p. 504, citing Boomer v. Wilbur 
 (1900), 176 Mass. 482; 57 N. E. 
 1004; 53 L. R. A. 172; 8 Am. Neg. 
 Rep. 246; Mumby v. Bowden 
 0889), 25 Fla. 454; 6 So. 453; 
 Louthan v. Hewes (1902). 138 
 Cal. 116; 70 Pac. 1065; 16 Am. 
 Neg. Rep. 613, n. Defendant com- 
 pany owning standing timber con- 
 tracted with F. to cut and remove 
 same, and agreed to furnish him 
 a locomotive, cars, horses, etc., 
 ■ and to pay him at certain rates 
 for all timber logged. F. was to 
 have full control over the cutting 
 
 and hauling and defendant was to 
 have no control, and F. was to 
 "do said work in a good, work- 
 manlike manner as an independent 
 contractor." F. shortly began cut- 
 ting the timber. Plaintifif, aged 
 nine, and his father lived on land 
 whereon trees were being cut. 
 The father sent plaintiff along a 
 path to a spring to get water and 
 while on the way she was struck 
 by a tree felled by the hands 
 sawing trees. "Assuming that the 
 contract was made in good faith 
 and was not a mere colorable de- 
 vice, resorted to for the purpose 
 of avoiding responsibility for F.'s 
 acts, we are of the opinion that it 
 constituted F. an independent con- 
 tractor." Young v. Fosburgh 
 LuMRER Co. (1908). 147 N. C. 26; 
 60 S. E. 654; 16 L. R. A. (N. S.), 
 255, citing Craft v. Albemarle, etc., 
 Co. (1903), 132 N. C. 151 ; 43 S. E. 
 597; 30 Am. & Eng. Ry. Cas. (N. 
 S.). 84; 16 Amer. Neg. Rep. 
 615, n. 
 
 "«HufT. Agcy., 2d ed.. Sec. 218, 
 citing LiNNEHAN V. Rollins 
 (1884), 137 Mass. 123; 50 Amer. 
 Rep. 287; Burd. Cas. Torts, 400; 
 15 Am. Neg. Cas. 666, n.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 59 
 
 employer and independent contractor, or of master and 
 servant, depends on the terms of the contract, in the absence 
 of legislation." ^^^ Whether such full control is reserved 
 as will constitute the employer a master, it has been held, 
 must depend in each case upon a just interpretation of the 
 contract itself, as shown in the decisions cited herein. ^"^ 
 
 The judges themselves do not always agree inter se. 
 Thus, in a contract for laying gas pipe, two judges held 
 there was nothing from which the relation of master and 
 servant could be gathered, while a third judge dissented 
 on the ground that certain provisions made it plain that 
 the defendant's inspector was to have full control over the 
 means adopted for the protection of the gas and water 
 pipes out of which the accident occurred. ^"- A provision 
 
 ^■"Burd. Torts, p. 134, citing 
 Cargill V. Duflfy (1903), 123 Fed. 
 721. 
 
 "'See Erie v. Caulkins (1877;, 
 85 Pa. St. 250; 27 Amer. Rep. 
 642, per Gordon, J. Contra, q. v., 
 Railroad Co. v. Hanning (1872). 
 15 Wall. 649; 7 Am. Neg. Cas. 
 309. Where an extension of the 
 work is ordered bj^ the city engi- 
 neer, under the terms of a con- 
 tract, the contractor in executing 
 such extension will be deemed an 
 independent contractor, if the 
 terms of the original contract 
 make him so. Charlock v. Freel 
 (1891). 125 N. Y. 357; 34 N. Y 
 St. R. 971: 26 N. E. 262. A 
 mine owner is not relieved of lia- 
 bility for injuries to employees 
 through the incompetency of the 
 engineer, by a lease of the mine, 
 which is shown to be nothing but 
 a form adopted by the owner to 
 carry on its business in the name 
 
 of another, the owner still having 
 full control and charge of the 
 mine and work therein. Consoli- 
 dated, etc., Co. V. Seniger (1899), 
 179 Ills. 370; 53 N. E. 733. It is 
 also immaterial whether the work 
 contracted for be done by the 
 contractor himself, his servants 
 or a subcontractor and his em- 
 ployees ; the terms of the contract 
 are decisive of the question 
 whether the relation of contractor 
 or servant is created. ]\1cH.\rge 
 V. Newcomer (1907), 117 Tenn. 
 595; 100 S. W. 700; 9 L. R. A. 
 (N. S.), 298. 
 
 "" Hardaker v. Idle District, etc. 
 (1896). 1 Q. B. 335. Compare 
 Norwalk, etc., Co. v. Norwalk 
 (1893), 63 Conn. 495; 28 Atl. 32; 
 Harding v. Boston (1895), 163 
 Mass. 14; 39 N. E. 411. "The 
 rationale of the cases" — holding 
 that the provision that the work 
 or certain parts of it shall be
 
 60 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 in the employee's contract "that he shall not use the em- 
 ployer's name in any manner whereby any one may be led 
 to believe that the employer is responsible for his acts," 
 was held by the United States Supreme Court not to relieve 
 the employer at all of liability for his negligence if in fact 
 the employee was a servant. ^*^^ 
 
 Though payment for work "by the job" and the right and 
 power of the person doing the work to employ assistants, 
 to be paid by himself, are circumstances tending to prove 
 the relation of contractor and contractee, and so make him 
 an independent contractor, they are not conclusive and must 
 yield, if it appears that he is merely working under a gen- 
 eral employment, having no dominion or control over the 
 premises, subject at all times to the employer's orders as 
 to when and how he shall work and the results to be accom- 
 plished and may be discharged at any time. Under such 
 circumstances the relation of master and servant exists. ^^^ 
 It is clear that "one does not become an independent contrac- 
 tor simply because the writing so styles him. Whether he is 
 one depends upon the terms upon which he, in truth, enters 
 upon (the work he is to perform). If as a fact, notwith- 
 standing the language of the writing, the defendant (em- 
 ployer) exercises a control over him in the selection and 
 
 done under the direction of the 
 emplojer or his agent does not 
 alone destroy the independent na- 
 ture of the contract — ''is that the 
 question whether the person em- 
 ployed was an independent con- 
 tractor or a mere servant is not 
 to be determined by the retention 
 of a certain kind or degree of 
 supervision by the employer, but 
 by the contract as a whole, by its 
 spirit and essence, and not by the 
 phraseology of a single sentence 
 or paragraph. If the result of ap- 
 
 plying this test is to render it 
 reasonably certain that the inten- 
 tion of the parties was to enter 
 into an independent contract, the 
 words above specified will be con- 
 strued as being (such as relate) 
 to the results contemplated and 
 not to the methods employed." 
 Exhaustive note to Richmond v. 
 SiTTERDiNG, supra, p. 480. 
 
 ^"■' Singer Manufacturing Co. 
 V. Rahn (1889), 132 U. S. 518; 
 Hufif. Cas. Agcy., 9. 
 
 "*Knicely v. West Virginia,
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 61 
 
 employment of the laborers, if defendant pays them and 
 directs the manner in which they perform the service ; in 
 other words, if the writing does not truthfully set forth the 
 agreement between the employee and defendant, and the 
 jury should so find, then he is not an independent 
 contractor." ^^^ 
 
 Sec. 28. Construction: Question for Court. 
 
 "What constitutes an independent employment so as to 
 make the person engaged in the employment an independent 
 contractor within the meaning of the rule under considera- 
 tion, is a question of law for the court, and not a question 
 of fact for the jury; but, as in other cases, subject to the 
 rule that the jury are to determine the facts on which the 
 decision of the question of law is to be made." ^^^ The 
 question depends upon the terms of the contract, and when 
 the contract is in writing it is one of law for the court. ^"^^ 
 Thus, the relation created by a written contract for the 
 
 ETC., Co. (1908, W. Va.), 61 S. E. 
 811; 17L.R.A.(N.S.), 370, sylla- 
 bus by court, citing Northern, etc., 
 R. V. Peterson (1896), 162 U. S. 
 346; Jackson v. Norfolk, etc., R. 
 (1897), 43 W. Va. 380; 27 S. E. 
 278; 31 S. E. 258; 46 L. R. A. 
 337. Cf., as to volunteers, Penn- 
 sylvania Co. v. Gallagher 
 (1884), 40 Ohio St. 637; 48 Amer. 
 Rep. 689; Saunders v. Coleridge 
 (1896, D. C), 72 Fed. 676; Ewan 
 v. Lippincott (1885), 47 N. J. L. 
 192; 54 Amer. Rep. 148. "In the 
 law of liability for negligence, in- 
 dependency of contract and serv- 
 ancy l)ear to each the relation of 
 opposition ; they are incompatible ; 
 where one exists the other can 
 
 not." Knicely v. West Virginia, 
 etc., R., supra. 
 
 '""Young v. Fosburgh Lumber 
 Co. (1908, N. C), 60 S. E. 654; 
 16 L. R. A. (N. S.), 255. 
 
 "^ Thomps. Neg., Sec. 640, citing 
 Emmerson v. Fay (1896), 94 Va. 
 60; 26 S. E. 386; also cited in 
 Barrows Neg., 161. 
 
 "' Hughbanks v. Boston, etc., Co. 
 (1894), 94 Iowa, 267; 60 N. W. 
 640; 14 Am. Neg. Cas. 592, n; 
 Vosbeck v. Kellogg (1899), 78 
 Minn. 176, 181; 80 N. W. 957; 
 Allen v. Willard (1868), 57 Pa. 
 St. 374, 382; Singer Manufac- 
 turing Co. V. Rahn (1889), 132 
 U. S. 518; 10 Sup. Ct. 176; Huff. 
 Cas. Agcy., 9. "His Honor left 
 the question whether F. was an
 
 62 
 
 INDEPENDENT CONTRACTORS AND THEIR LLVBILITY. 
 
 construction work on a railroad track, between the parties 
 thereto, is exclusively a question for the court. ^*'^ Not 
 alone if the contract is in writings but even though it is 
 oral, if but one inference can be drawn from the evidence, 
 the question whether the relation is that of employer and 
 independent contractor or that of master and servant is 
 presented for the court. ^"•* But it can not be said, as a 
 matter of law, that a member of a firm of transfer agents, 
 permitted by a railroad company to check baggage on its 
 trains, is its employee under the Kentucky statute relating 
 to recovery of damages in fatal accidents. ^'" 
 
 Sec. 29. Constmction : Question for Jury. 
 
 .It is frequently asserted that whether the relation of 
 master and servant exists in a given case is usually a ques- 
 
 independent contractor to the 
 jury. In one aspect of the ques- 
 tion this was error. The con- 
 struction of the language of the 
 (written) contract being free from 
 ambiguit}', was for the court." 
 Young v. Fosburgh Lumber Co. 
 (1908, N. C), 60 S. E. 654; 16 
 L. R. A. (N. S.), 255. 
 
 "^GooD V. Johnson (1907), 38 
 Colo. 440; 88 Pac. 439; 8 L. R. 
 A. (N. S.), 896, in which the rela- 
 tion in question was between a 
 contractor and a subcontractor. 
 
 "''Sadler v. Henlock (1855), 4 
 El. & Bl. 570 ; Adams Express Co. 
 V. Schofield (1901), 111 Ky. 8; 32 
 S. W. 903; Leavitt v. Bangor, 
 ETC., Railroad (1897). 89 Me. 
 509; 36 Atl. 998; 36 L. R. A. 382; 
 
 7 Am. & Eng. Ry. Cas. 354; 1 
 Am. Neg. Rep. 605; Boomer v. 
 Wilbur (1899), 176 Mass. 482; 
 57 N. E. 1004; 53 L. R. A. 172; 
 
 8 Am. Neg. Rep. 246; Vosbeck 
 
 V. Kellogg, supra; Allen v. Wil- 
 lard, supra; Sanford v. Paw- 
 tucket, ETC., Railroad (1896), 19 
 R. I. 537 ; 35 Atl. 67 ; 33 L. R. A. 
 564; 4 Amer. & Eng. Railroad 
 Cas. (N. S.), 318; Singer Manu- 
 facturing Co. V. Rahn, supra. 
 The relation of employer and in- 
 dependent contractor was held to 
 be inferable as a matter of law. 
 where the defendant had leased 
 to H. certain lands to work on 
 shares and agreed to pay H. so 
 much per acre for clearing what- 
 ever part he chose to clear. Fer- 
 guson V. HuBBELL (1884), 97 N. 
 Y. 507; 49 Amer. Rep. 544; such 
 persons are not the landlord's 
 servants or agents. See, also, 
 Duncan v. x^nderson (1876), 56 
 Ga. 398. 
 
 ""Mefiford v. Louisville, etc.. 
 Railroad (1892), 14 Ky. L. Rep. 
 327; 20 S. W. 263.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 63 
 
 tion of fact. ^'^ Where the contract is oral and the evi- 
 dence is conflicting, or where the written contract has be- 
 come mochfied by the practice under it, the question as to 
 what relation exists is for the jury under proper instruc- 
 tions. ''- If the contract is oral, and if more than one in- 
 
 ^•^ Bernstein v. Roth C1893), 145 
 Ills. 189; 34 N. E. 37; Sacher v. 
 VVaudell (1903), 98 Md. 43; 56 
 Atl. 399; 103 Amer. St. Rep. 374. 
 Retaining control of premises 
 may be a matter of fact for the 
 jury; see ante. Sec. 26. Whether 
 in the case at bar the licensee 
 company had created the alleged 
 nuisance (a defective railway 
 bridge on a track built In' the 
 licensee company to connect its 
 system with defendant's) and had 
 sole possession and use of that 
 track thenceforward until the oc- 
 currence of the injury complained 
 of, was held to be a question of 
 fact for the jury. Gwathney v. 
 Little Miami Railroad (1861), 12 
 Ohio St. 92. Cf. Regina v. Gibbs 
 
 (1855). 6 Cox C. C. .455. So. 
 also, as to whether control was 
 actually exercised over the em- 
 ployee is primarily for the jur>'; 
 see post. Sec. — . 
 
 "- Overhouscr v. American, etc., 
 Co. (1902), 118 Iowa, 417; 92 N. 
 W. 74; Driscoll v. Towle (1902), 
 
 181 Mass. 416; 63 N. E. 922; 
 
 Rait V. New England, etc., Co. 
 
 (1896). 66 Minn. 76; 68 N. W. 
 
 729; Klages v. Gillette, etc., Co. 
 
 (1902). 86 Minn. 458; 90 N. W. 
 
 1116; Gayle v. Missouri, etc., Co. 
 
 (1903). 177 Mo. 427; 76 S. W. 
 
 987; Howard v. Ludwig (1902), 
 
 171 N. Y. 507; 64 S. E. 172; 
 
 Wallace v. Southern, etc., Co. 
 (1897), 91 Tex. 18; 40 S. W. 
 399; Emmerson v. Fay (1896), 94 
 Va. 60 ; 26 S. E. 386. The ques- 
 tion whether the tort-feasor was 
 an independent contractor or a 
 servant, is for the jury where 
 there is testimony on one side 
 that he supplied his own men and 
 horses, and was hired by the 
 hour to do all of defendant's 
 trucking, and on the other that he 
 v.as under their foreman's con- 
 trol, subject to his orders and 
 direction both as to what to do 
 and how to do it, and that the 
 foreman had authority over his 
 men. Brophy v. Bartlett (1888). 
 1 Silv. Ct. App. 475. reversing 37 
 Hun (N. Y.), 642. Whether one 
 who is supervising a department 
 of a factory is a servant of the 
 owner or an independent con- 
 tractor, is a question for the jury 
 where he testifies that he was 
 paid by the gross for articles 
 turned out of his department and 
 paid his subordinates out of the 
 sums thus received, but also 
 states that he was only the fore- 
 man for that department and 
 under the superintendent. Latorre 
 V. Central, etc., Co. (1896). 9 App. 
 Div. (N. Y.). 145; 41 N. Y. Supp. 
 99. Cf.. generally, Wallace v. 
 Southern, etc., Co. (1897). 91 Tex. 
 18: 40 S. W. 399.
 
 64 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 ference can fairly be drawn from the evidence, the question 
 should go to the jury whether the relation is that of em- 
 ployer and independent contractor or that of master and 
 servant. ^^^ If, for example, the evidence does not show 
 clearly that A's servant has been put, for the time being, 
 under the control of B., a question of fact for the jury, as 
 to whether A. or B. is the master, seems to be presented. ^'^* 
 In an English case, the question whether the defendant em- 
 ployer was liable was held properly submitted to the jury 
 in the case of unloading a ship. ^^^ Where the contract, 
 as related by witnesses, is so incomplete as to lead to the 
 
 "^ Burd. Torts, 135, citing cases 
 cited in last preceding note. In 
 Button V. Amesbury National 
 Bank (1902), 181 Mass. 154, 62 
 N. E. 405, the majority of the 
 court thought but one inference 
 was warrantable while one judge 
 thought two could be drawn. See 
 further, cases cited in Sec. 27, 
 note 162, supra. 
 
 ^'* Howard v. Ludwig (1902), 
 171 N. Y. 507, 64 N. E. 172, in 
 which the minority of the court 
 thought the evidence did not 
 warrant the inference that the 
 wrongdoer was the servant of the 
 defendant, but showed clearly that 
 he remained the servant of his 
 general master, the Univ. Express 
 Company. See, also, Ward v. 
 New England Fibre Co. (1891), 
 154 Mass. 419; 28 N. E. 299. In 
 a case in which the removal of 
 lateral support damaged a build- 
 ing, it was held properly refused 
 to hold upon the evidence that 
 the defendants, the principal con- 
 tractors for the erection of the 
 building, were not liable by rea- 
 
 son of their arrangement with one 
 K. as to the excavations, where 
 K. was to be paid by the yard 
 for excavations he made, it be- 
 ing his duty to follow defend- 
 ants' directions from time to time 
 as to where and when to dig, 
 defendants supervising the work 
 and another employee giving di- 
 rections to the men there. Hart 
 V. Ryan (1889), 3 Silv. Sup. Ct. 
 (N. Y.),415;6N. Y. Supp.921. In 
 Pennsylvania the character of the 
 relation between a stevedore and 
 his emplo3'er has been held to be 
 one for the jury in two cases 
 where the question was whether 
 the crew of the ship and the 
 stevedore's workmen were co- 
 servants. MuLLAN V. Philadel- 
 phia, ETC., Co. (1875), 78 Pa. 25; 
 21 Amer. Rep. 2; Hass v. Phila- 
 delphia, etc., Co. (1879), 88 Pa. 
 269; 32 Amcr. Rep. 462. 
 
 ""Ruth V. Surrey Dock Co. 
 (1891), 8 Times L. R. 116. But 
 see Charles v. Taylor (1878), L. 
 R., 3 C. P. D. 492.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 65 
 
 conclusion that it was a mere subterfuge to avoid liability, 
 or an afterthought on the part of the witness, it is properly 
 submitted to the jury. ^"^^ 
 
 Sec. 30. Identity of Employer and Independent Contractor. 
 
 A recent decision in the plaintiff's favor was based partly 
 on the ground that the injury was due to the negligence 
 of a construction company expressly organized to do the 
 work, and it and the. defendant company employing it were 
 controlled and managed by the same persons. ^"" The fact 
 that a boss cartman, under contract to do a firm's trucking, 
 being at the same time engaged in similar work for others, 
 owning his own wagons and teams and employing his own 
 drivers, has a place of business on such firm's premises, 
 does not affect his relationship as an independent 
 contractor. ^~'^ 
 
 Sec. 31. Whose Servant the Wrongdoer Is. 
 
 If in the transaction A. sustains the relation of inde- 
 pendent contractor to B. so that the latter's right of control 
 
 "'Johnson v. Great Northern. 
 etc., Co. CI 908), 48 Wash. 325; 
 93 Pac. 516. Cf. DeCola v. Cowan 
 (1906), 102 Md. 551; 62 Atl. 1026. 
 
 ^" Chicago, etc., Co. v. Myers 
 (1897), 168 Ills. 139; 48 N. E. 66. 
 Commenting on this, one writer 
 says : "There is apparently no 
 other instance of the application 
 of such a doctrine. But its jus- 
 tice and reasonableness are so 
 manifest and it supplies such a 
 simple and direct method of pre- 
 venting the avoidance of liability 
 by the sunterfuge of creating 
 'dummy' corporations that the 
 
 present writer has no hesitation 
 in expressing the hope that it will 
 meet with general acceptance." 
 C. B. Labatt, Esq., in note to 
 Richmond v. Sitterding (1903, 
 Va.), in 65 L. R. A. 508. See, 
 also. Sec. 167, post. 
 
 '•'Moore v. Stainton (1903), 80 
 App. Div. 295; SO N. Y. Supp. 
 214; 177 N. Y. 581; 59 N. E. 
 1127; to the same effect, Chicago, 
 etc., Co. v. Campbell (1904), 116 
 Ills. App. 322; Cole v. Louisiana, 
 etc., Co. (190S), 121 La. 771; 46 
 So. 801.
 
 66 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 is limited to indicating the work to be done and does not 
 extend to directing how it shall be done, then A. and not 
 B. is answerable for the servant's torts. ^''-^ "The true 
 principle of law is that if I lend my servant to a contractor, 
 who is to have the sole control and superintendence of the 
 work contracted for, the independent contractor is alone 
 liable for any wrongful act done by the servant while so 
 employed. The servant is doing, not my work, but the 
 work of the independent contractor." ^'^^ 
 
 '"Jones V. Mayor, etc. (1885j, 
 14 Q. B. D. 890; 54 L. J., Q. B,. 
 345; Cameron v. Nystrom (1893), 
 A. C. 308; 62 L. J., P. C, 85; 
 Ste\v.\rt v. California, etc., Co. 
 (1900), 131 Cal. 125; 63 Pac. 177; 
 Burd. Cas. 412; Wood v. Col)b 
 (1866), 13 Allen, 95 Mass. 58; 
 Murray v. Dwight (1900), 161 
 N. Y. 301 ; 55 N. E. 901 ; 48 L. R, 
 A. 673. The dissenting opinion 
 in the case last cited is based on 
 the view that the servant of the 
 contractor was subject to the con- 
 trol of the defendant. Cf., Quinn 
 V. Complete Electric Co. (1891). 
 46 Fed. 506. "It may be observed, 
 however, that there is a class of 
 cases in which, although it may 
 be apparent that the person em- 
 ployed was himself an indepen- 
 dent contractor, there is still an 
 ulterior question to be settled, 
 viz., whether the men who were 
 engaged in doing the work, which 
 was the immediate cause of the 
 injury, were at the time when 
 the injury was received under his 
 control or under the control of 
 the employer. If the latter should 
 be the situation established by 
 the evidence, the employer is 
 
 plainly liable, and the indepen- 
 dence of the contract ceases to 
 be a dififerentiating factor." Note 
 to Richmond v. Sitterding (1903, 
 Va.), 65 L. R. A. 458, referring 
 to 37 L. R. A. 33, especially p. 69, 
 et seq. Where the plaintiff was 
 injured by the negligent manage- 
 ment of moving railway cars, 
 while he was working for a man 
 who had contracted to discharge 
 coal from cars standing on a sid- 
 ing, the discussion was centered 
 wholly upon the question whether 
 the defendant company exercised 
 such a control over the plaintiff 
 and his fellow-servants as to make 
 them its own servants ad hanc 
 vie em. Turner v. Great Eastern 
 Railroad Co. (1875), 33 L. T. (N. 
 S.), 431. 
 
 "*" Brett, J., in Murray v. Cur- 
 rie (1870), L. R., 6 C. P. 24. 
 Prof. Burdick calls this the true 
 test; Burd. Torts, 139. Where 
 steamboat owners were sued for 
 the negligence of those operating, 
 the trial court was held to have 
 erred in rejecting evidence tend- 
 ing to show a transfer of control 
 by the owner. Gulzoni v. Tyler 
 (1883), 64 Cal. 334; 30 Pac. 981.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 67 
 
 In a recent California case the facts presented were some- 
 what unusual. The defendant's farm superintendent, who 
 was also a member of a hardware firm, directed an em- 
 ployee of the firm to go to the farm and repair a leak in a 
 tank, a farm appliance. This was so negligently done that 
 an explosion occurred and the plaintiff's intestate, the de- 
 fendant's farm servant, w^as killed. The hardware firm 
 was held to be an independent contractor, notwithstanding 
 the connection of the defendant's superintendent there- 
 with. ^^^^ As shown by the citations below, the question is 
 sometimes also presented whether the employer, whose 
 wrongdoing servant caused the injury complained of, 
 was an independent contractor or stood in some other 
 relation. ^^^ 
 
 A person employed and paid by a 
 contractor as driver of a horse 
 and wagon which, together with 
 the driver, the contractor lets by 
 the day to a city to be used in 
 the work of paving a street, and 
 who has the entire management 
 of the horse as to the manner of 
 driving him and whose duty it is 
 to see that he is properly shod, is 
 the servant of the contractor in 
 so driving the horse and having 
 him shod, and from injury to a 
 third person caused by his negli- 
 gence in these respects, the con- 
 tractor is liable. Huff v. Ford 
 (1878), 126 Mass. 24; 30 Amer. 
 Rep. 645. Where in a given case 
 a steam roller used in the im- 
 provement of a road was hired by 
 the proprietor to the city charged 
 with the reparation of the road, 
 it was held that the engineer in 
 charge of the machine remained 
 the servant of the proprietor 
 whose immtdiate employee he was, 
 
 so that it was responsible for his 
 negligence in injuring a traveler 
 on the highway. Stewart v. Cali- 
 fornia Improvement Co. (19u0), 
 131 Cal. 125; 63 Pac. 177, 724; 
 Burd. Cas. Torts, 412; 52 L. R. A. 
 205. 
 
 "^"a Hedge v. Williams (1901). 
 131 Cal. 455 ; 63 Pac. 721 ; 64 Id. 
 106; 82 Amer. St. Rep. 366. 
 
 ^''' By statute, defendant was 
 granted the right for a given time 
 to maintain a certain ferry ; he 
 entered into a contract with one 
 H. who was to keep and manage 
 the ferry at his own expense for 
 labor, repair expenses to be borne 
 equally, and the receipts to be di- 
 vided equally; H. further agreed 
 to allow none but a competent 
 man to attend the ferry and 
 agreed to be answerable for dam- 
 ages due to negligent manage- 
 ment ; while H. was in charge 
 under such coiUract, the boat up- 
 set and the plaintiff was injured ;
 
 68 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 32. Burden of Proof, on Whom. 
 
 "The weight of authority is in favor of the doctrine that, 
 when the inquir}^ is at that initial stage at which nothing 
 more appears than that the actual tort-feasor was, at the 
 time when the injury was inflicted, in the employment of 
 him who is sought to be held, the latter, if he relies on that 
 defence, has the burden of proving that the tort-feasor was 
 an independent contractor." ^^- "Though such a doctrine 
 has apparently not been explicitly formulated, it would seem 
 at least to be a reasonable inference from the decisions, 
 as a whole, that no presumption that the relation of the 
 parties was that of master and servant can be entertained, 
 when the case has been developed to a point at which the 
 nature of the employment (whether general or with a view 
 
 it was held that the contract being 
 such as to vest the occupancy and 
 control of the ferry in H. as ten- 
 ant rather than as servant, the 
 defendant was not liable for his 
 acts. Felton v. Deall (1850), 22 
 Vt. 170; 54 Amer. Dec. 61. In a 
 Massachusetts case the somewhat 
 analogous question whether a 
 master rigger employed to do cer- 
 tain work on a building, who 
 hired his own men and furnished 
 his own tools and received a 
 specified price per diem for the 
 services of his men and the use 
 of his tools, was an independent 
 contractor or a servant, was not 
 specifically determined, as the de- 
 fendant was held not liable under 
 either theory. Harkins v. Stand- 
 ard, etc.. Refinery (1877), 122 
 Mass. 400. 
 
 ^- Note to Richmond v. Sitter- 
 ding (1903, Va.), 65 L. R. A. 459, 
 citing Welfare v. London, etc.. 
 
 Railroad (1869), L. R., 4 Q. B. 
 693. Prima facie, the person at 
 whose instance and for whose use 
 and benefit work is done is liable 
 for all injuries to third persons re- 
 sulting from the negligence or 
 unskillfulness of those executing 
 the work; that, unless some evi- 
 dence is given as to the terms of 
 the contract, "it is no more proper 
 to assume that it gave the con- 
 tractor an independent employ- 
 ment than that it stipulated for 
 the work to be done under the 
 immediate supervision and direc- 
 tion of the defendant ;" if the 
 defense is that the wrongdoer was 
 not a servant the contract must 
 be shown "with sufficient particu- 
 larity to enable the court to de- 
 termine whether the employment 
 was of this independent char- 
 acter." McCamus v. Citizens, etc., 
 Co. (1863), 40 Barb. (N. Y.), 380.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 G9 
 
 to a specific result) the character of the work contracted 
 for and the industrial status of the person engaged have 
 been disclosed by the testimony." ^**^ As between the regu- 
 lar employer and a temporary one, the burden seems to be 
 on the latter of showing that the one who is rendering service 
 to him is not his servant, but the servant of the former. ^'^^ 
 Some cases expressly hold that in some stages of the evi- 
 dence the presumption that the relation of master and serv- 
 ant did not exist will prevail and thus inure to the defen- 
 dant's advantage. ^^^ 
 
 ^■^Note to Richmond v. Sitter- 
 ding (1903, Va.), 65 L. R. A. 460. 
 
 ^* Taylor, etc., Railroad v. War- 
 ren (1895), 88 Tex. 642, 648; 31 
 S. W. 66; 32 S. W. 868. 
 
 wo Welfare v. London, etc.. Rail- 
 road (1869), L. R., 4 Q. B. 693; 
 Boniface v. Relyea (1868), 6 Robt. 
 397; driver of a carriage at a 
 funeral was negligent and it was 
 held that evidence of the employ- 
 er's right to control was neces- 
 sary. In Ev.'\NSViLLE V. Senhenn 
 (1897), 151 Ind. 42, 61; 47 N. E. 
 634; 51 Id. 88; 41 L. R. A. 728, 
 734; 68 Amer. St. Rep. 218, .evi- 
 dence that a city had a contract 
 with the person who piled lumber 
 on a street for the purchaser of 
 such lumber is sufficient to author- 
 ize an instruction regarding the 
 owner's liabiUty to third persons 
 for an independent contractor's 
 negligence although the terms of 
 the contract do not appear, since 
 if there is anything in such con- 
 tract tending to show the relation 
 of master and servant between the 
 city and such person, the one as- 
 serting such relation should ofifer 
 evidence to approve it. An Illi- 
 nois court held it was error to 
 
 permit a jury to assume that a 
 man employed by defendant to 
 take charge of a stable and train 
 defendant's horses was necessarily 
 a servant; in this case the trainer 
 assaulted a man hired by him and 
 the defendant was held not liable. 
 Arasmith v. Temple (1882), 11 
 Ills. App. 39. In Alabama it is 
 held that as the burden is on the 
 plaintiff to prove that the relation 
 of master and servant existed, no 
 presumptions which do not arise 
 from the evidence can be indulged 
 in favor of plaintiff. Harris v. 
 McNamara (1892). 97 Ala. ISl ; 12 
 So. 103. As to what constitutes 
 prima facie case showing such 
 relation, see Rome, etc., R.\ilro.\d 
 v. Chasteen (1889), 88 Ala. 591; 
 7 So. 94; 40 Amer. & Eng. Rail- 
 road Cas. 559. To the contrary, 
 the burden was held to be upon 
 the employing railroad to show 
 that injuries to property were 
 done by an independent contractor 
 for whose conduct it was not re- 
 sponsible, in St. Louis, etc., R. v. 
 Davenport (1906). 80 Ark. 244; 
 96 S. W. 994; 48 Amer. & Eng. 
 Rv. Cas. (N. S.). 516.
 
 70 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 33. Obligation of Personal Performance as Test. 
 
 "If the terms of the contract are such as to indicate that 
 the person employed may, if he so desires, perform the 
 stipulated work by deputy, it will usually be inferred that 
 he is not engaged as a servant. This rule is illustrated by 
 the decisions, which exclude from the scope of statutes 
 specifically applicable to masters and servants, all agree- 
 ments under which the person employed is not obliged to 
 perform the work himself." ^^° A company which agrees 
 to become the general constructor and repairer for another 
 company and to assume all risks in reference thereto, is an 
 independent contractor. ^^'^ 
 
 Sec. 34. Compensation as Test. 
 
 "While the manner in which payment is made is not a 
 decisive test, yet it is undoubtedly an evidentiary fact to 
 be taken into consideration for what it is worth in connec- 
 tion with the other circumstances to determine what the 
 contract really was." ^^^ In an Indiana case it was held 
 
 '*• Note to Richmond v. Sitter- permissible to lay down the doc- 
 DiNG (1903, Va.), in 65 L. R. A., trine that, if it should appear, 
 p. 500, citing, inter alia, Ex parte either from the nature of the em- 
 Rathbone (1892), 13 New South ployment or the terms of the 
 Wales, L. R., 56; McElroy v. agreement, that the person em- 
 Australian, etc., Co. (1899), 24 ployed is expected to do the work 
 Vict. L. Rep. 953; Riley v. War- with his own hands, the appropri- 
 den (1848), 2 Exch. 59; Bowers ate inference will usually be that 
 V. Lovekin (1856), 6 El. & Bl. he is engaged as a servant. But 
 584; Floyd v. Weaver (1852), 21 there is very little judicial author- 
 L. T., Q. B. (N. S.),151; Sharman ity on this specific point." (Same 
 V. Sanders (1853), 13 C. B. 166; note, p. 501.) 
 Labatt on Master & Serv., pp. "'Monroe v. Fred. T. Ley & 
 2063-2064. "On the other hand, Co. (1907), 156 Fed. 468. Cf., 
 as the principle of the maxim, note 132, Sec. 21, ante, 
 delegatus non potest delegare, is *'* Thomps. Neg., Sec. 629, citing 
 understood to apply in its full Morgan v. Bowman (1856), 22 
 force to a servant, it is perhaps Mo. 538.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 71 
 
 that the mode of payment for the work might be considered 
 in determining- whether one was an independent contractor, 
 but that this test was not conclusive. ^^^ "But the mode of 
 payment is not a decisive test by which to determine the 
 question. The test h'es in the question whether the contract 
 reserves to the proprietor the power of control over the 
 employee." '•'*' It is immaterial how the contractor is to 
 be compensated, whether by a lump sum or a commission 
 on the cost or a per diem. ^^^ It was laid down in a Louis- 
 iana case that that State's code ordinarily infers the power 
 of control and discharge from the payment of wages ; and 
 this was declared to be the common law rule as well, but 
 this last is perhaps too broad. ^^^ 
 
 Various methods of payment may be adopted, such as a 
 per diem basis, a sum in gross, a percentage or a quasi- 
 commission basis on the entire work, or so much per qiian- 
 tiiin of work, and the like. The effect of each of these 
 several modes of compensation has been reviewed by the 
 courts, but not uniformly with the same result. ^^^ The 
 
 "" Indiana, etc., Co. v. Gray 
 (1897), 19 Ind. App. 565; 48 N. 
 E. 803; Kueckel v. Ryder (1900), 
 170 N. Y. 562. "Where * * * 
 compensation is dependent on the 
 value of the services." 
 
 »"Thomp. Neg., 629, citing Mor- 
 gan V. Smith (1893). 159 Mass. 
 570; 35 N. E. 101; 15 Am. Neg. 
 Cas. 667, n ; Harris v. McNamara 
 (1892), 97 Ala. 181; 12 So. 103; 
 Waters v. Pioneer, etc., Co. 
 (1892), 52 Minn. 474; 55 N. W. 
 52; 32 Amer. St. Rep. 564; Geer 
 V. Darrow (1891), 61 Conn. 220; 
 23 At!. 1087. 
 
 "' W h i t n e y. etc., Co. v. 
 O'Rourke (1898\ 172 Ills. 177; 
 50 N. E. 242; Grace, etc., Co. v. 
 
 Probst (1904), 208 Ills. 147; 70 
 N. E. 12; Morgan v. Smitli, su- 
 pra; Emmerson v. Fay (1896), 94 
 Va. 60; 26 S. E. 386 (per diem). 
 
 "-Shea v. Reems (1884), 36 
 La. Ann. 966. 
 
 "^ "It is well settled, however, 
 that these different methods of 
 payment, although they are usually 
 the concomitants of the relations 
 thus specified, are not so closely 
 and essentially connected there- 
 with, that tlie character of the 
 contract can be inferred as a mat- 
 ter of law from the adoption of 
 one method or the other in the 
 given instance." Note to RiCH- 
 ^^o^•n v. Sitterpixg (1903, Va.), 
 in 65 L. R. A. 505.
 
 72 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 payment of an employee by the day, though an important 
 consideration, is not per se decisive of the relation of master 
 and servant. There are quite a few cases where one who 
 was working by the day has been held an independent con- 
 tractor. ^^^ For the fact that the contractor is paid by the 
 day does not necessarily destroy the independent character 
 of the employment. ^^^ In a leading case it was said that 
 one employed to do a certain service under a contract pro- 
 viding that the owner should furnish the material and that 
 the contractor should employ the labor and superintend the 
 work according to certain plans and receive a per diem for 
 himself and each of his employees was an independent con- 
 tractor. ^^° In another leading case the owners of a sugar 
 refinery had employed a rigger to remove machinery from 
 a railroad car to their refinery; but though they paid him 
 by the day, they neither interfered with nor directed the 
 
 "^ CoRBiN V. American Mills 
 (1858), 27 Conn. 274; 71 Amer. 
 Dec. 63, blasting rock by the day; 
 Smith v. Simmons (1883), 103 
 Pa. St. 32; 49 Amer. Rep. 113, 
 contractor laying pipe by the day 
 (doubtful, because the work was 
 inherently dangerous at all 
 events) ; Moore v. Sanbourne 
 (1853), 2 Mich. 519; 59 Amer. 
 Dec. 209; Pierrepont v. Loveless 
 (1878), 72 N. Y. 211, driving logs 
 at so much per log; Peachey v. 
 Rowland (1853), 13 C. B. 182; 
 Linton v. Smith (1857), 8 Gray 
 (Mass.), 147, stevedores employed 
 for a gross sum; Wright v. Hol- 
 EROOK (1872), 52 N. H. 120; 13 
 Amer. Rep. 12, employe of muni- 
 cipality; and compare, Kellogg v. 
 Payne (1866), 21 Iowa, 575; 
 Wood v. Independent School Dis- 
 trict (1876), 44 Iowa, 27. 
 
 ''^^ Harrison v. Collins (1878), 
 86 Pa. St. 153; 27 Amer. Rep. 
 699; Forsyth v. Hooper (1855), 
 11 Allen (Mass.), 419; Corbin v. 
 American Mills, supra. 
 
 ""Emmerson v. Fay (1896), 94 
 Va. 60; 26 S. E. 386. One con- 
 tracting with a city to excavate a 
 reservoir and do the preliminary 
 work, using his own men, teams 
 and material, and adopting his 
 own method of doing the work, 
 without interference, or the right 
 to interfere on the city's part, is 
 an independent contractor, for 
 whose negligence the city is not 
 responsible, although his compen- 
 sation is fixed at a specified sum 
 per day and expenses; Groesbeck 
 V. Pinson (1899), 21 Tex. Civ. 
 App. 44; 50 S. W. 620.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 73 
 
 manner of the work; and it was held that the rigger was 
 an independent contractor and not a servant. '•^' 
 
 There are several cases where the person w^orking by the 
 job and paid by the job has been held to be a servant. ^^® 
 Thus, it was held that a laborer engaged for 50 cents to 
 drive an animal was a servant of the owner and not an 
 independent contractor. ^°'* An employee has been held 
 none the less a servant because he was to be paid by the 
 piece or job and not by wages or salary. -"" On the other 
 hand, it was held that testimony that the wrongdoer was 
 employed to do a certain work for $10, that he employed 
 
 "" Harrison v. Collins, supra. 
 The owner of a dredging machine 
 is an independent contractor who 
 is solely liable for injuries done 
 by the negligence of its crew in 
 performing work under a contract 
 by which it is placed at the dis- 
 posal of one who has undertaken 
 the performance of a particular 
 piece of work, the dredge to be 
 paid for at a certain price per 
 day, the contract to be terminated 
 upon dissatisfaction of the one 
 hiring it, and the crew to be effi- 
 cient and diligent, where the entire 
 supervision of the crew is under 
 the control of the owner of the 
 dredge, except as to the mere 
 direction where service is to be 
 performed. Teller v. Bay, etc., 
 Dredging Co. (1907. Cal), 90 
 Pac. 942; 12 L. R. A. (N. S.), 
 267 ; Beatty, Ch. J., dissenting with 
 opinion. 
 
 ■"■^ BRACKET! V. LUBKE (1862), 
 
 4 Allen (Mass.), 138; 81 Am. Dec. 
 694; Sadler v. Henlock (1855), 4 
 El. & Bl. 570; Detroit v. Corey 
 (1861), 9 Mich. 165; 80 Amer. 
 
 Dec. 78; Darmstaetter v. Moyna- 
 han (1873), 27 Mich. 188; Bur- 
 gess v. Gray (1845), 1 Com. B. 
 578. "These last three cases are 
 somewhat out of harmony with 
 the current authority." Thomps. 
 Neg., Sec. 630, note 66. 
 
 '™ O'Neill v. Blase (1902), 94 
 Mo. App. 648; 68 S. W. 764, 
 distinguishing Fink v. Missouri, 
 ETC., Co. (1834), 82 Mo. 276; 52 
 Amer. Rep. 376; Milligan v. 
 Wedge (1840), 12 Ad. & El. 737. 
 
 =*»St. Clair, etc., Co. v. Smith 
 (1890), 43 Ills. App. 105; Whitson 
 v. Ames (1897), 68 Minn. 23; 70 
 N. W. 793; 2 Am. Neg. Rep. 178; 
 (some evidence of exercise of 
 control, hence properly for the 
 jury) ; Rummell v. Dilworth, 
 ETC., Co. (1885), 111 Pa. 343; 2 
 Atl. 363; (1890), 131 Pa. 509; 19 
 Atl. 345; 17 Amer. St. Rep. 827; 
 PIUFF V. W.ATKIiVS (1880), 15 S, 
 C. 85 ; 40 Amer. Rep. 680 ; Richey 
 v. DuPre (1883), 20 S. C. 6; 
 Dagenois v. Houle (1897), Que- 
 bec, U. C. S., 225.
 
 74 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 men to assist who were under his control and were paid 
 by him, did not tend to show that the employer was the 
 master of the wrongdoer. ^"^ A corporation erecting a 
 building for the owner, under a percentage contract, by 
 which it is to furnish materials and labor and be paid 
 its cost with a percentage added, is an independent 
 contractor. ^"^ 
 
 A person employed by a railroad company to clear off 
 and burn brush and rubbish from its right of way, at a cer- 
 tain sum per mile, who hired, paid and controlled his own 
 help, was declared in a leading Arkansas case not to be a 
 servant of the company, but an independent contractor. ^*^^ 
 Where A. undertook to clear the land of B. at a stipulated 
 sum per acre, and by the negligence of A. fire escaped to 
 the land of C, it was held that B. was not liable to C. ^^* 
 
 *'East St. Louis, v. Giblin 
 (1878), 3 Ills. App. 219. A person 
 employed to take charge of a 
 shingle mill, employ and pay all 
 laborers, make all repairs, manu- 
 facture the shingles from lumber 
 furnished by the owner, install at 
 his own expense any new ma- 
 chinery to be furnished on his 
 requisition by the owner, and to 
 receive a stipulated sum for the 
 product of the mill, is an inde- 
 pendent contractor in the employ 
 of the owner of the mill; Ziebcll 
 V. Eclipse, etc., Co., (1903), 33 
 Wash. 591; 74 Pac. 680. 
 
 ""- Whitney, etc., Co. v. O'Rourke 
 (1898), 172 Ills. 177; 50 N. E. 
 242. A person employed by a 
 sewing machine company, under 
 a written contract to sell its wares 
 and to be paid by commissions on 
 sales and collections, the company 
 to furnish a wagon and he fur- 
 nishing horse and harness, to be 
 
 used exclusively in such business, 
 he agreeing to give his whole 
 time and best energy to the busi- 
 ness, and to employ himself under 
 the company's direction and unT 
 der its rules and restrictions, is 
 a servant of such company; 
 Singer Manufacturing Co. v 
 Rahn (1889), 132 U. S. 518; 33 
 Law ed., 440; 10 Sup. Ct. 175; 
 Huff. Cas. Agcy. 9. 
 
 -'" St. Louis, etc.. Railroad v. 
 YoNLEY (1900), 53 Ark. 503; 13 
 S. W. 333; 14 S. W. 800; 45 A. 
 & E. Railroad Cas. 518; 9 L. R. 
 A. 604. 
 
 ^* Ferguson v. Hubbell (1884), 
 97 N. Y. 507; 49 Amer. Rep. 544. 
 One who undertakes to clear a 
 tract of land at so much per acre 
 or for the whole tract is consid- 
 ered an independent contractor; 
 Threlkeld v. White (1890), 8 New 
 Zeal. L. R. 513.
 
 WnO ARE INDEPENDENT CONTRACTORS, 
 
 75 
 
 On the other hand, the mere fact that a teamster was paid 
 at a certain rate per foot for hauHng lumber was consid- 
 ered insufficient to constitute the teamster an independent 
 contractor. -^^ 
 
 Merely because the employer pays the contractor's serv- 
 ants does not conclusively determine that he is to be regard- 
 ed as their master ; 2*'" nor does the fact that a person 
 alleged to be an independent contractor is employed at $2 
 per day and hires other persons at the rate of $1.50 per 
 day take away the independent character of his employ- 
 ment. -'^" One who, having contracted to sink a shaft for 
 the owner of a coal mine also undertakes, at the request of 
 the company's superintendent, to unload certain boilers, 
 using his own men in so doing and receiving no instructions 
 as to the mode of doing the work, charging a lump sum 
 for such services, is an independent contractor, even though 
 no fixed price was agreed upon in advance.^'*** 
 
 Sec. 35, Character of Work as Test. 
 
 The contract under which the work has been done must 
 control, depending on surrounding circumstances; for the 
 
 ="' MacDonald v. O'Reilly (1904), 
 45 Ore. 589; 78 Pac. 753. The 
 mere fact that a coal miner is 
 paid a certain amount for each 
 ton of coal taken out by him does 
 not constitute him an independent 
 contractor, in such sense that he 
 is exempt under the statute in 
 controversy ; Outrine, etc., Co. v. 
 Gregory (1903), 28 Vict. L. Rep. 
 586. 
 
 =^Rourke v. White, etc., Co. 
 (1877), 1 C. P. Div. 556; 2 C. P. 
 Div. 305. 
 
 ^'Karl V. Juniata Co. (1903), 
 206 Pa. St. 633; 56 Atl. 78. No 
 inference that one employed in 
 unloading supplies for a company, 
 hiring his own help, is an inde- 
 pendent contractor, arises from 
 the fact that his compensation is 
 at a fi-xed amount per carload; 
 Foster v. National, etc., Co. 
 (1907), 216 Penn. 279; 65 Atl. 
 618. 
 
 ""^Galatia, etc., Co. v. Harris 
 (1904), 116 Ills. App. 70.
 
 76 
 
 INDEPENDENT CONTRACTORS AND THEIR LLVBILITY. 
 
 mere fact that the wrongdoing representative carried on a 
 separate and independent employment (such as domestic 
 service) will not absolve the constituent.^*'^ Merely because 
 the work being done by an employee at the time he was in- 
 jured was being done by the piece or job, does not deprive 
 him of the character of employee, where he was a mere serv- 
 ant carrying out the employer's will and instructions. ^^^ 
 "The ground upon which some decisions may be said to have 
 proceeded was that, in view of the humble industrial status 
 of the persons employed, and the simple character of the 
 work to be done, the only admissible inference was that 
 the employers intended to retain the right to give directions 
 in regard to the details of the work. In other words, it 
 was considered that, although the persons employed might 
 be exercising an independent calling in the sense that they 
 held themselves out as being prepared to do certain kinds 
 of work for such parties as might engage them, the relation 
 which they bore to those parties, during the progress of 
 such work as might be undertaken by them, was in law that 
 of a servant." ^^^ It is held in Massachusetts that the em- 
 
 ^' Brackett v. Lubke (1862), 
 4 Allen (Mass.), 138; 81 Am. Dec. 
 694; Sadler v. Henlock (1855), 
 4 El. & Bl. 570. 
 
 ^° Tennessee, etc, Co. v. Hayes 
 (1892), 97 Ala. 201; 12 So. 98; 
 Speed V. Atlantic, etc., Railroad 
 (1879), 71 Mo. 303; 2 Am. & Eng. 
 R. Cas. 17; contra, Fink v. Mis- 
 souri, ETC., Co. (1884), 82 Mo. 
 276 ; 52 Amer. Rep. 376, a remark- 
 able case, characterized by Judge 
 Thompson as "a brutal decision." 
 Thomp. Neg. 629; note 59. 
 
 ^ Note to Richmond v. Sitter- 
 ding (1903, Va.), in 65 L. R. A. 
 495. Thus, where a trap was 
 
 capsized by striking against a 
 heap of stones which had been 
 left beside the road by a man who 
 had been employed to repair it, 
 the defendant was held liable on 
 the general ground that "if a 
 person does merely menial work, 
 then he is clearly a servant;" 
 Tucker v. Axbridge, etc.. Board 
 (1889, Q. B. D.), 53 J. P. 87; 
 Cf., Threlkeld v. White (1890, C. 
 A.), 8 New Zeal. L. R. 513; Ser- 
 andat v. Saisse (1866), L. R. 1 
 P. C. 152; McKeon v. Bolton 
 (1851), 1 Irish C. L. Rep. 377, 
 where a man engaged to clean 
 out defendant's ashpit at certain
 
 WHO ARE INDEPENDENT CONTKACT<^RS. 
 
 I I 
 
 ployer's intention to retain the right of exercising control 
 and hence creating the relation of master and servant should 
 always be inferred where it appears that the employment 
 was general and not based on a contract to do a certain 
 piece of work on certain specified terms in a particular 
 manner and for a stipulated price. ^^^ There is consider- 
 able authority against the doctrine that the relation of 
 master and servant may be inferred where the employment 
 was general, in so far as such doctrine is advanced as one, 
 which irrespective of the nature of the stipulated work and 
 the employee's industrial status, furnishes an adequate and 
 decisive test of the character of the contract. ^^^ 
 
 intervals once deposited them 
 in the street temporarily and 
 thereby caused injury to plaintiff, 
 Blackburn, J., remarked that the 
 nature of the employment made 
 a difference, and that the wrong- 
 doer was a mere servant, regard 
 being had to the fact that it was 
 on defendant's own premises and 
 under his wife's directions. 
 
 -'-Bkackett v. Lubke (1862), 
 supta; Dane v. Cochrane, etc., Co. 
 (1895), 164 Mass. 453; 41 N. E. 
 678. Cf., Regina v. Hughes 
 (1846), 2 Cox C. C. 104, under a 
 criminal statute; City of Tiffin 
 V. McCoRMACK (1878), 34 Ohio 
 St. 638; 32 Amer. Rep. 408; Ny- 
 back V. Champagne, etc., Co. 
 (1901). 48 C. C. A. 632; 109 Fed. 
 732; Perry v. Lord (1885), 17 
 Mo. App. 212. 
 
 ^^ Welfare v. London, etc., 
 Railrond (1869), L. R. 4 Q. B. 
 696; Hexamer v. Webb (1886), 
 101 N. Y. 2,77; 4 N. E. 755; 54 
 Amer. Rep. 703. See, also, Button 
 V. Ame.sbury, etc., Bank (1902), 
 
 181 Mass. 154; 63 N. E. 405. The 
 relation of independent contractor 
 exists between the owner of lands 
 and a person he employs to move 
 a building in which service the 
 contractor is to furnish the labor 
 and appliances for a specified sum ; 
 Wilbur V. White (1903), 98 Me. 
 191: 56 Atl. 657; 16 Am. Neg. 
 Rep. 605, n. In a case where one 
 of two adjoining proprietors em- 
 ployed a man to repair a wall in 
 his building nearest plaintiff's 
 structure, and the man so em- 
 ployed dug up the ground in the 
 passageway and left it so piled 
 up that when a storm occurred 
 the water was turned into plaint- 
 iff's cellar, it was held tlie rela- 
 tion of master and servant was 
 not established between the em- 
 ployer and employe and his 
 workmen, and hence defendant 
 was not liable for the resulting 
 injury; Button v. Amesbury, etc.. 
 Bank, supra. One who has en- 
 gaged to do a piece of filling for 
 a railroad company at so much
 
 78 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 36. Relation Determined by Statute. 
 
 (a) Civil Statute. 
 
 An Arkansas statute which provides : "If any hireling 
 shall wilfully set on fire any woods," etc., so as to occasion 
 loss to another, with the employer's consent or demand, the 
 employer shall be liable was held in a leading case to refer 
 to servants but not to include independent contractors. ^^^ 
 A contractor with the minister of railways and canals, as 
 representing the Crown for constructing a branch railroad, 
 is not an "employee" of the Canadian Railway, etc., Depart- 
 ment within the 1881 Government Railway Act (44 Vict, 
 Chap. 25) requiring action against any officer, employee 
 or servant of the department for anything done by virtue 
 of his employment to be brought within three months, etc.^^^ 
 
 (b) Criminal Statute. 
 
 A Maine statute makes the owners or lessees of a mill 
 liable for the acts of "persons in their employ" in throwing 
 
 per yard, is an independent con- 
 tractor, although the company 
 furnished track, trestle, cars, 
 mules and drivers; Central Rail- 
 road V. Grant (1872). 46 Ga. 417; 
 4 Am. Neg. Cas. 212, n. Contra, 
 Stone V. Codman (1834), 15 Pick. 
 (Mass.), 297, per Shaw, Ch. J., 
 whose decision is criticised by 
 Judge Thompson, in his Commen- 
 taries on Negligence, sec. 629, 
 note 61. 
 
 ^* St. Louis, etc., Railro.\d v. 
 YoNLEY (1890), 53 Ark. 503; 13 
 S. W. 333; 14 S. W. 800; 9 L. R. 
 A. 604; 45 Am. & Eng. Ry. Cas. 
 578. 
 
 ==" Kearney v. Oakes (1890), 
 
 18 Can. S. C. 148, Ritchie, Ch. J., 
 and Gwynne, J., dissenting. Cf., 
 E.\T0N V. European, etc.. Rail- 
 road (1871), 59 Me. 520; 8 Amer. 
 Rep. 430. A person who sells 
 and delivers stone for the purpose 
 of repairing a road is a contractor 
 within the Upper Canada statute 
 (16 Vict. Ch. 190), declaring 
 "contractors" to be liable for 
 leaving materials so as to obstruct 
 a road ; Lennox v. Harrison 
 (1858), 7 U. C. C. P. 496. In 
 Quebec and elsewhere liy the 
 code (sec. 1799, French Civ. C), 
 certain workmen who make con- 
 tracts by the job for their own 
 account, are deemed to be con-
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 79 
 
 refuse into the Penobscot River. A person who was oper- 
 ating a shingle machine to manufacture shingles by the 
 thousand for such owners, etc., was declared not to be such 
 "person in their employ" as to render them liable.^^" While 
 there are but few American cases on this subject, the num- 
 ber of English and Canadian cases is quite large. A drover 
 employed, in a single instance, to drive two cows to a pur- 
 chaser was held to be a servant under a statute declaring 
 embezzlement by "a ser\^ant or person employed in the capa- 
 city of a servant," to be a felony.^' ^ One who hires out 
 to work with his own ox-team was held not to be within 
 the English statutes, punishing deserting laborers.^^^ On 
 
 tractors for the kind of work 
 they undertake, and are subject 
 to the rules prescribed with re- 
 gard to that class of employes. 
 
 ^■^ State V. Emmerson (1881), 72 
 Me. 455. To the same effect, State 
 V. Coe (1881), 72 Me. 456. 
 
 "^'Rex V. Hughes (1832), 1 
 Moody C. C. 370; see also, Re- 
 gina V. Goodbody (1838), 8 Car. 
 & P. 665. Where a man employed 
 to drive pigs to a certain place 
 appropriated the proceeds and ab- 
 sconded, he could not be con- 
 victed of larceny on the theory 
 that he had possession of them 
 as the prosecutor's servant, where 
 the evidence was that, while he 
 was paid the expenses of the cat- 
 tle, and the customary mode of 
 paying such employes was by tlie 
 day. he was a drover and, ac- 
 cording to the general usage 
 regarding drovers, had the liberty 
 to drive anv. one's cattle ; Rcgin:i 
 v. Hey (1849), 2 Car. & K. 985, 
 criticising Rex v. McNamee 
 (1832), 1 Moody C. C. 368. To 
 
 the same effect as Regina v. Hey, 
 supra, see Regina v. Siffidge 
 (1853), Legge, New South Wales 
 793. A porter who was occa- 
 sionally employed by a butter 
 factor to leave parcels at pur- 
 chasers' houses and who was paid 
 by those to whom he delivered, 
 was held to be such factor's 
 servant within the embezzlement 
 statute, and not an independent 
 contractor; Regina v. Lynch 
 (1854), 6 Cox C. C. 445. 
 
 ■^nVhelen v. Stevens (1827), 2 
 Taylor, Ont., 439. Fishermen who 
 agree to fish from their homes in 
 their own boats, for lobsters dur- 
 ing the fishing season, are inde- 
 pendent contractors and hence not 
 within the Newfoundland "Master 
 and Servant" act, chap. 109. and 
 can not be prosecuted for aban- 
 doning their contract, by taking 
 up their traps in the middle of 
 the season and refusing to pro- 
 ceed; Ex parte Costigan (1884), 
 Newf. Rep. 414.
 
 80 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the g-roimd that an information laid under a certain statute 
 showed that the plaintiff and the defendant "stood in the 
 situation of contracting parties" for doing certain work, it 
 was held that a charge to the effect that the plaintiff had 
 contracted with B. to do certain work, etc., and having 
 done part of it refused to complete it, was insufficient to 
 sustain conviction. ^^^ 
 
 Sec. 37. Fleiiding the delation. 
 
 In an able and exhaustive .opinion. Judge Wiley of the 
 Indiana Appellate Court stated : "As a matter of pleading w^e 
 are inclined to the view that the . . . complaint does not 
 show that N. was an independent contractor. The contract 
 of employment as disclosed by the complaint, did not 
 merely look to the result to be attained, but also to the 
 means and method by which the work was to be done and 
 which, according to the complaint, were to be determined 
 by the appellant (employers). It very clearly appears that 
 in using dynamite to accomplish the end, N. represented the 
 will of the appellants, and therefore did not act indepen- 
 dently and of his own volition, and in this respect he must 
 be regarded as having acted strictly within the line of his 
 employment and the duty he owed to appellants." ^^'^ An 
 allegation that the wrong-doing person was working "under 
 the superintendence, control, management and direction" of 
 the defendant, wall be construed as proceeding on the 
 theory that such person is a servant, and if the testimony 
 
 ^"Lancaster v. Greaves (1829), road v. Farver (1887), 111 Ind. 
 
 9 Barn. & C 628. Cf, Hardy v. 195; 64 Amer. Rep. 656; 12 N. 
 
 Pvle (1829), 4 Mann. & R. 295; E. 296; 31 Am. & Eng. Ry. Cas. 
 
 Re-rina v Thomas (1853), 6 Cox 134; Powell v. Construction Co. 
 
 Qc. 403. (1890), 88 Tenn. 692; 13 S. W. 
 
 -="Falender v. Blackwell (1906), 691; 17 Am. St. Rep. 925; Jensen 
 
 39 Ind. App. 121, 126; 79 N. E. v. Barbour (1895), 15 Mont. 582: 
 
 393, citing Wabash, etc.. Rail- 39 Pac. 906.
 
 WHO ARE INDEPENDENT CONTRACTORS. 81 
 
 shows he was an independent contractor, there will be such 
 variance as to preclude plaintiff's recovering. ^-^ On the 
 other liand, it is said by at least one court that the intend- 
 ment is that the plaintiff is seeking to recover on the ground 
 of the existence of a contract of service, where he alleges 
 in his declaration that the negligent person was "working 
 under the direction" of the defendant. ^^^ 
 
 Sec. 38. Particular Instances of Independent Contractor. 
 Without attempting to exhaust the list of employments, 
 which have been passed upon and determined to be inde- 
 pendent or merely those of service, a number of specific 
 instances will be enumerated. ]\Iany others will be ob- 
 served in passing, in other portions of this work. It will 
 be noted that by far the greatest number refers to those 
 engaged in constructing and repairing buildings, railroads, 
 public improvements and such enterprises, and in employ- 
 ments more or less closely allied to these undertakings. But 
 at the same time, other callings (commercial and profes- 
 sional) have been before the courts and instances of these 
 latter cases will be cited. 
 
 (a) Building Constructors. 
 
 A mason, a carpenter, or other mechanic, whose business 
 is recognized as a distinct trade, renders services to his 
 employer, ordinarily, as an independent contractor and not 
 as a servant. ^^^ A carpenter employed to repair a house, 
 
 ^ Hunt V. Vanderbilt (1894), tractor employed to erect a build- 
 
 115 N. C. 559; 20 S. E. 168. \v.g. Hilliard v. Richardson (1855), 
 
 ==M/\NN V. 0'SuLLiv.\N (1899), 3 Gray (Mass.), 349. Persons em- 
 
 126 Cal. 61 ; 58 Pac. 375 ; 77 Amer. ployed in the construction of a 
 
 St. Rep. 149. As to allegations church are not ser\-ants of a 
 
 in criminal complaints see, supra, building committee who look after 
 
 Sec. 36b. the work. Wilson v. Clark (1892). 
 
 ==^ Lawrence V. Shipman (1873), 110 N. C. 364; 14 S. E. 962. 
 
 39 Conn. 586; so also, a con- Person in business as roof-slater
 
 82 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 without stipulation as to terms, price or time of doing it, 
 has. however, been held a servant of the owner for whose 
 neelisence the owner is liable. ^~* A corporation contract- 
 ing to place an elevator in running order in a building at 
 a stipulated price, without direction or control of the owner 
 of the building in doing the work, has been held an inde- 
 pendent contractor in an Indiana case. ^-^ Where a car- 
 penter engaged in building a house on his own lot contracts 
 with a firm of brickmasons to do all the brick work, such 
 firm employing the necessary labor, the brickmasons are 
 independent contractors. ^26 A master plumber employed 
 to repair water pipes in a building, in his own way, is an 
 independent contractor.^^* One who undertakes to do 
 brick and stone work on a building at an agreed price per 
 cubic foot to be paid on estimates as the work progresses, 
 
 is an independent contractor for 
 whose acts in roofing, to plaintiff's 
 injury, the owner of the building 
 is not liable; McCarthy v. Port- 
 land, ETC., Parrish (1871), 71 
 Me. 318 ; 36 Amer. Rep. 320. 
 
 ^^Brackett v. Lubke (1862), 
 4 Allen (Mass.), 138; 81 Amer. 
 Dec. 694. 
 
 ^^Parkhurst v. Swift (1903), 
 31 Ind. App. 521; 68 N. E. 620; 
 16 Am. Neg. R. 613, n. One em- 
 ployed to do work on a build- 
 ing under contract authorizing 
 him to procure labor and material 
 in his own way, provided it be 
 such as the contract demands, and 
 to use such machinery and appli- 
 ances as he deems proper, if he 
 does not injure the building or 
 interfere with work done by 
 others, is an independent con- 
 tractor; Hu^hbanks v. Boston, 
 etc., Co. (1894), 92 Iowa 267; 
 
 60 S. W. 640; 14 Am. Neg. Cas. 
 592, n. 
 
 --" Richmond v. Sitterding 
 (1903), 101 Va. 354; 43 S. E. 
 562; 99 Am. St. Rep. 879; 65 L. 
 R. A. 445 ; 16 Am. Neg. R. 609, n.' 
 One under contract with the 
 owner of premises to erect a wall 
 thereon at a specified price per 
 1,000 brick, is not a servant of 
 a corporation of which the owner 
 is an ofificer, and which is in pos- 
 session of the premises and also 
 of the adjoining premises, so as 
 to impose the duty of a master 
 upon it in respect to protecting 
 him from injury from its ma- 
 chinery; Horton v. Vulcan, etc., 
 Co. (1897), 13 App. Div., 508; 
 43 N. Y. Supp. 669. 
 
 =^ Bennett v. Truebody (1885), 
 66 Cal. 509; 6 Pac. 329; 56 Amer. 
 Rep. 117; 16 Am. Neg. R. 612, n.
 
 WHO AEE INDEPENDENT CONTRACTORS, 
 
 83 
 
 the owner furnishing all the material, but having nothing 
 to do with the work except to see that it is completed in 
 accordance with the plans and specifications, having no 
 control over the workmen employed, is an independent 
 contractor. ^^^ 
 
 (b) Railroad Constructors. 
 
 Contractors employed by a railroad company to build a 
 road, or to grade it, have been held independent contractors 
 in a number of cases. "'•* Where a railroad company em- 
 ployed a man to furnish and superintend a portable engine 
 to pump water out of the way, so as to admit of prosecuting 
 the work, neither the company nor its employees having the 
 right to interfere in the manner of nmning the engine or 
 in giving directions to its owner, the latter is an independent 
 contractor.^'"'^ It has been held that even where the railroad 
 company furnishes the motive power and operates the con- 
 struction train by its own engineer, it will not be liable for 
 damages created in operating it where the engineer is under 
 
 ^' Chute V. Moeser (1907), 77 
 Kans. 706; 95 Pac. 398. Cf., 
 Scharff v. Southern Illinois, etc., 
 Co. (1905), 115 Mo. App. 157; 92 
 S. W. 126; Veitch v. Jenkins 
 (1907), 107 Va. 68; 57 S. E. 574. 
 Evidence was held insufficient to 
 show that a master steam fitter in 
 repairing a building was an inde- 
 pendent contractor, in Meyers v. 
 Syndicate, etc., Co. (1907), 47 
 Wash. 48; 91 Pac. 549. Painters 
 and decorators have been held to 
 be independent contractors ; Met- 
 zinp:er v. New Orleans Board, etc. 
 (1907), 120 La. 124; 44 So. 1007; 
 Finkelstein v. Balkin (1907), 103 
 
 N. Y. Supp. 99. Likewise per- 
 sons operating mills, factories, 
 etc. ; Kirby v. Lackawanna, etc., 
 Co. (1905), 109 App. Div. 334; 95 
 N. Y. Supp. 833; Giacomini v. 
 Pacific, etc., Co. (1907), 5 Cal. 
 App. 218; 89 Pac. 1059; B.vrclay 
 V. PuGET Sound, etc., Co. (1908), 
 48 Wash. 241; 93 Pac. 430; 16 
 L. R. A. (N. S.), 140. 
 
 ^^ Louisville, etc., R.mi.ro.xd v. 
 CONROY (1896), 63 Miss. 562; 56 
 Amer. Rep. 810. 
 
 ^ Wab.^sh, etc., R.mlro.sd v. 
 Farver (1887), 111 Ind. 195: 12 
 N. E. 296; 60 Amer. Rep. 696; 3 
 Am. & Eng. R. Cas. 134.
 
 84 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the control of the contractor.^^" Where a person con- 
 tracted with a railroad company to complete an abandoned 
 construction job, at a certain price, this was held not to 
 make him the company's servant for whose trespass in tak- 
 ing timber from another's land the company would be 
 liable. -^~ One who undertakes to grade and repair a part 
 of the roadbed for a railroad track, the railroad company 
 having no control of the means by which the work is to 
 be accomplished and having only a right of general super- 
 vision and inspection to see that the contract is properly 
 performed is an independent contractor. ^^^ 
 
 (c) Architects. 
 
 An architect who merely prepares the plans and specifi- 
 cations and does not thereafter supervise the execution of 
 the work on his employer's behalf is an independent con- 
 tractor ; -^^ and especially where he undertakes to execute 
 the entire work in addition to preparing the plans. ^^^ 
 It is said, however, that as building operations are 
 ordinarily conducted, the architect acts as the agent of 
 the one for whom the work is being done.^^*^ A 
 recent New York case holds that an architect employed by 
 
 ^' Miller v. Minnesota, etc., 
 Railuoad (1888), 76 Iowa 655; 
 39 N. W. 188 ; 14 Amer. Dec. 258 ; 
 38 Am. & Eng. R. Cas. 234. 
 
 ^-New Orleans, etc., Railroad 
 V. Reese (1884), 61 Miss. 581; 18 
 Am. & Eng. R. Cas. 110. 
 
 ^ Boyd v. Chicago, etc., Co. 
 
 (1905), 217 Ills. 332; 75 N. E. 
 
 496; 108 Amer. St. Rep. 253; 43 
 
 Amer. & Eng. R. Cas. ( N. S. ) , 1 54 ; 
 
 Cf., Louisville, etc., R. v. Cheatham 
 
 (1902), 118 Tenn. 160; 100 S. W. 
 902. 
 
 ==^ Pitcher v. Lennon (1896), 12 
 App. Div. 356; 42 N. Y. Supp. 
 156; Burke v. Ireland (1901). 166 
 N. Y. 305; 59 N. E. 914. 
 
 ^'Boswell v. Laird (1857), 8 
 Cal. 469; 68 Amer. Dec. 345. 
 
 ^Campbell v. Lunsford (1887), 
 83 Ala. 512; 3 So. 522; Schwartz 
 V. Gilmore (1867), 45 Ills. 455; 
 92 Amer. Dec. 227.
 
 WnO ARE INDEPENDENT CONTRACTORS. 
 
 85 
 
 the owner, in the matter of inspection, is to be regarded as 
 an independent contractor. ^^^ 
 
 (d) Trnckinen. 
 
 On the same principle (non-direction, non-interference, 
 etc.), it has been held that one who employs a public, 
 licensed draymen to liaul a lot of barrels of goods is not 
 liable for injuries inflicted by the latter by rolling a barrel 
 against a person. ^38 A leading New York case asserts that 
 a truckman renders services to his employer, ordinarily, as 
 an independent contractor and not as a servant. --'^ An 
 expressman contracting to haul goods for a house at a cer- 
 tain price per week is an independent contractor. ^-^^ One 
 who does teaming work for a person, who merely directs 
 him what to haul and where to, and Vvdio leaves all details 
 of the work to the employee is a contractor and not a serv- 
 ant. -"'^ While plaintiff was walking on a city street, she 
 was run into by an express wagon driven by B., a licensed 
 expressman, owning the horse and wagon. He was de- 
 livering goods for the defendant. His wagon had attached 
 to it a sign whose name designated defendant's shop. The 
 arrangement between them was that B. was to deliver de- 
 fendant's goods at $15 a week, furnishing horse and wagon, 
 doing the work himself or by his employees as he chose, 
 determining his own route, being free to and doing similar 
 
 ==" Burke v. Ireland, supra. Ills. App. 513; (1897), 168 Ills. 
 
 ^DeForest v. Wright (1852), 514; 48 N. E. 163. 
 
 2 Mich. 368. cited in Tiffany on ==* Murray v. Dwight (1900), 
 
 Dom. Rels. 510. See also, Dalton 161 N. Y. 301 ; 55 N. E. 901 ; 4S 
 
 V. Bachelor (1851), 1 Post. & F. L. R. A. 673. 
 
 15. For a case involving an un- "*" Foster v. Wadsworth, etc., Co. 
 
 licensed teamster as an indcpend- (1897), 168 Ills. 514; 48 N. E. 
 
 ent contractor, see Wadsworth, 163. 
 
 etc., Co. V. Foster (1893), 50 ^" McCarty v. Muir (1893). 50 
 
 Ills. App. 510.
 
 86 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 work for others. "If the facts were as testified to by B. 
 and defendant's manager, B. was not defendant's servant 
 but was an independent contractor for whose negligence 
 defendant was not responsible." ^*- 
 
 (e) Liveryman. 
 
 Livery-stable proprietors render services to their em- 
 ployers, ordinarily, as independent contractors and not as 
 servants. ^^^ A Federal case holds that the driver of a 
 licensed cab in New York city is the servant of the owner, 
 towards the public, although a bailee of the horse and 
 vehicle. ^^^ The relation of master and servant is not 
 created by an agreement between the owner of cabs and 
 horses whereby they are let to drivers for a specified rental. 
 
 -*■ Burns v. Michigan Paint 
 Co. (1908), 152 Mich. 613; 116 
 N. W. 182. In a note to this 
 case in 16 L. R. A. (N. S.), 816, 
 "Cartmen as Independent Con- 
 tractors," it is said: "The cases 
 generally hold that draymen, 
 truckmen, cartmen, etc., are re- 
 garded as independent contractors 
 unless there is specified evidence 
 that control was exercised over 
 them by the owner of the goods 
 being hauled. The later cases 
 . . . generally turn on the 
 question whether the owner of 
 the goods exercised or did not 
 exercise control over the work 
 during the process of the haul- 
 ing;" citing Drennon v. Patton, 
 Worsham, etc., Co. (1908, Tex. 
 Civ. App.), 109 S. W. 218; Chi- 
 cago, etc., Co. V. Campbell (1904), 
 116 Ills. App. 322; Loughrain v. 
 Autophone Co. (1902), 77 N. Y. 
 
 App. Div. 542; 78 N. Y. Supp. 
 919; Baldwin v. Abraham (1901), 
 67 N. Y. Supp. 1079; 171 N. Y. 
 677; 64 N. E. 1118. 
 
 -"Quarman v. Burnett (1840), 
 6 Mees. & W. 499; 4 Am. Neg. 
 R. 437, n. ; Jones v. Corporation 
 (1885), 14 Q. B. D. 890; Joslin 
 v. Grand Rapids Ice Co. (1883), 
 50 Mich. 516; 45 Amer. Rep. 54; 
 Driscoll V. Towle (1902), 181 
 Mass. 416; 63 N. E. 922; Little v. 
 Hackett (1885), 116 U. S. 366; 
 6 Sup. Ct. 391 ; 23 Law ed. 655. 
 
 ="^Caroill V. Dufify (1903), 123 
 Fed. 721. Compulsory servants 
 as independent contractors : Li- 
 censed public carmen, McMuUen 
 V. Hoyt (1876), 2 Daly, N. Y. 
 271 ; licensed drovers, MilHgan v. 
 Wedge (1840), 12 Ad. & El 737; 
 but contra, in principle, Martin 
 V. Temperly (1843), 4 Q. B. 295. 
 See ante, Sec. 8.
 
 WHO ARE INDEPENDENT CONTRACTORS. 87 
 
 such drivers agreeing not to use the horses for more than 
 a certain number of hours, to wear a particular uniform, 
 to abstain from liquor, conform strictly to prescribed rates 
 and other regulations, the agreement being subject to can- 
 cellation on violation of any such condition, there being no 
 limitation on the driver's discretion as to the manner in 
 v^hich he shall use the property and the fares earned belong- 
 ing to him. ^■^^ 
 
 (/) Loggers. 
 
 One cutting logs for another under special contract and 
 using the latter's dam, and injuring a riparian owner, is 
 an iiidependent contractor. ^-^^ The defendants' agent pur- 
 chased a raft with money furnished by them for that pur- 
 pose. For purchasing and transporting the raft to de- 
 fendants' depot he received a commission. The defen- 
 dant company was held liable for negligence in sinking 
 a flat-boat in navigating the raft. ^■^' 
 
 (g) Railroad Companies. 
 
 A leading case holds that a bailor is not liable for the 
 torts of a bailee or the bailee's servants. ^"^^ A transfer 
 company's agent, permitted by a railway company to check 
 baggage on its trains, is not an employee of the railway 
 company. ^"*'^ A Pullman car porter is a servant of the 
 
 **' Connor v. Pennsylvania R. note to 65 L. R. A. 469. 
 
 (1904), 24 Pa. Super. Ct. 241. =** New York, etc., Railro.ad v. 
 
 ^" Carter v. Berlin Mills New Jersey, etc., Railroad 
 
 (1876). 58 N. H. 52; 42 Amcr. (1897), 60 N. J. L. 338; 61 Id. 
 
 Rep. 572. 287; 38 Atl. 828; 41 Id. 1116; 
 
 =*' Taylor v. Mexican, etc., 43 L. R. A. 849, 854. 
 
 Railroad (1847), 2 La. Ann. 654. -^" Meflford v. Louisville, etc.. 
 
 Timber haulers, etc., as independ- Railroad (1892), 14 Ky. Law Rep. 
 
 ent contractors, see cases cited in 327; 20 S. W. 263.
 
 88 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 railroad company hauling the car, as respects passengers 
 on the train. ^^^ But he is not a servant of the railroad 
 company in the sense that makes him a co-servant of the 
 regular train employees. ^^^ 
 
 A lessee or licensee of the exclusive privilege of entering 
 railroad cars or upon the right of way to sell or supply 
 lunches, is not the railroad company's agent or servant so 
 as to render it liable for an assault and battery on such 
 lessee's competitor lawfully seeking patronage on his own 
 premises, of passengers. ^°^ Where a foot passenger fell 
 through a railroad bridge, which the public were permitted 
 to use upon a track which a licensee company had built to 
 connect its own system with that of the defendant, the 
 latter was held not liable. --'^ One railroad company own- 
 ing a road which is under the exclusive control and man- 
 agement of another company has been held in a Kentucky 
 case not to be liable for personal injuries occasioned by 
 the negligence of the latter's employees. -^^ A mine owner 
 furnished a spur track connecting with an adjacent railway 
 track to haul coal from its mine, and the railway company 
 in hauling such coal used its own cars and operated them 
 by its own servants in a negligent manner. The railway 
 company was held to be an independent contractor, and 
 stood in the relation of carrier towards its shipper. ^^^ 
 
 A street railroad company may be employed as an inde- 
 pendent contractor by another street railroad company to 
 clear and repair its cars and it, and not defendant company, 
 
 ^Railroad Co. v. Ray (1898), =^Gwathney v. Little Miami 
 
 101 Tenn. 1 ; 46 S. W. 554. See Railroad (1861), 12 Ohio St. 92. 
 
 post, Sees. 133, 135. -=' Harper v. Newport, etc., 
 
 ^'Hughson V. Railroad Co. Railroad (1890), 12 Ky. Law Rep. 
 
 (1893), 2 App. D. C. 98. 333; 14 S. W. 346. 
 
 ^Fluker v. Georgia Railroad '^'^ Coal Run Coal Co. v. Strawn 
 
 (1889), 81 Ga. 461; 2 L. R. A. (1884), 15 Tils. App. 347. 
 42; 9 S. E. 529; 12 Amer. St. 
 Rep. 328.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 89 
 
 was held liable to a passenger on one of defendant's cars 
 for the negligence of the servant of the traction company. ^°° 
 
 (It) Vessels, etc. 
 
 One chartering a ship and furnishing a crew assuming 
 control by contract, is an independent contractor as to the 
 owner, and not an agent or servant. ^^" If a charterer of a 
 boat employs a towing company to tow it, the latter is an 
 independent contractor as to the former, for the negligence 
 of whose servants the former is not liable. -^^ In England 
 the courts hold that "the tug is in the service of the tow, 
 and the tow is answerable for the negligence of her 
 servant." ^^° In America the owner of a tug is regarded as 
 being, under ordinary circumstances, an independent con- 
 tractor whose negligence is not imputable to the owner of 
 the tow. "^^ A stevedore loading a ship and not subject to 
 
 ^Beckman v. Meadville, etc., 
 R. (1907), 219 Pa. 26; 67 Atl. 
 983; 51 Amer. & Eng. R. Cas. (N. 
 S.), 224. 
 
 ""McDowell V. Homer Rams- 
 dell, etc., Co. (1894). 78 Hun (N. 
 Y.), 228; 28 N. Y. Supp. 821. 
 
 -'^McLauphlin v. New York, 
 etc., Co. (1894). 7 Misc. (N. Y.), 
 119; 27 N. Y. Snpp. 248. Cf., 
 generally, Tanco v. Booth (1891), 
 15 N. Y. Supp. 110. 
 
 =" Union S. S. Co. v. The Ara- 
 can (1874), L. R. 6 P. C. 127. 
 Cf., The Niobe (1888), L. R. 13 
 Prob. Div. 155, rejecting a con- 
 tention that the tug owner was 
 an independent contractor [coun- 
 sel citing Quarman v. Burnett 
 (1840), 6 Mees. & W. 499], and 
 citing Spraight v. Tedcastle 
 
 (1881), L. R. 6 App. C. 217; The 
 American (1874), L. R. 6 P. C. 
 127. See also, The Stormcock 
 (1885), 5 Asp. Mar. L. Cas. 470; 
 53 L. T. (N. S.),53; The Cleadon 
 (1860). 14 Moore P. C. C. 97; 
 The Mary (1879), L. R. 5 Prob. 
 Div. 14; The Sinquasi (1879), L. 
 R. 5 Prob. Div. 241. 
 
 -'"' Sproul v. Hemmingway 
 (1833), 14 Pick. (Mass.), 1; 25 
 Amer. Dec. 350; McLaughlin v. 
 New York, etc.. Co. (1894), 7 
 Misc. 119; 27 N. Y. Supp. 248; 
 Sturgis V. Boycr (1860). 24 How. 
 110; Mabey v. Coop' r. The (1871), 
 14 Wall. 204; The Belknap (1873),' 
 2 Low. Dec. 281 ; Fed. Cas. 1244. 
 Contra, Smith v. Creole (1853), 
 2 Wall. Jr., 485; Fed. Cas. 13033, 
 overruled by later cases, supra.
 
 90 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the ship owner's control is an independent contractor. ^'^^ 
 "A stevedore furnishing his own appliances and his own 
 servants is in respect of the owner or charterer of the vessel, 
 an independent contractor and not a sen^ant; and clearly 
 the owner or charterer is not liable for the negligence of the 
 stevedore or his servants, in the absence of special circum- 
 stances changing the rule." ^^^ A stevedore engaged in un- 
 loading a vessel is held in Massachusetts, as a matter of law, 
 an independent contractor, ^^s a firm undertaking to make 
 repairs on a vessel, having entire control of the work 
 and the persons engaged thereon, is an independent 
 contractor. ^^'* 
 
 (i) Traveling Agents. 
 
 If the control which is generally considered the decisive 
 mark of the relationship of master and servant, was as a 
 matter of fact, exercised over a commercial traveler (which 
 fact is primarily for the jury) such traveler, though paid by 
 commission, is, in England, a '"servant" only within the 
 meaning of her embezzlement statutes.^^^ 
 
 "^^ Rankin v. Merchants, etc, 
 Co. (1884). 73 Ga. 229; 54 Amer. 
 Rep. 874; 14 Am. Neg. Cas. 75; 
 Sweeny v. Murphy (1880), 32 La. 
 Ann. 628. 
 
 =«^Thomps. Neg., Sec. 635, citing 
 Daley v. Boston, etc., Railroad 
 (1888), 147 Mass. 101; 16 N. E. 
 690; Pregenzer v. Burleigh (1893), 
 26 N. Y. Supp. 35. For ferrymen 
 as independent contractors, see 
 Bowyer v. Anderson (1831), 2 
 Leigh, 550; Norton v. Wiswall 
 (1858), 26 Barb. 618, cited in 
 Crusselle v. Pugh (1881), 67 Ga. 
 430; 44 Amer. Rep. 724; Felton 
 V. Deall (1850), 22 Vt. 170; 54 
 
 Amer. Dec. 61. Licensed pilots 
 as independent contractors, see 
 The Maria, 1 W. Rob. 95, 106, by 
 statute; cf., Martin v. Temperly 
 (1843), 4 Q. B. 295. See ante, 
 Sec. 8. 
 
 '■^^ Sullivan v. New Bedford, etc., 
 Co. (1906), 190 Mass. 288; 76 
 N. E. 1048. 
 
 =« Nelson v. Richardson (1903), 
 108 Ills. App. 121. 
 
 ^^Regina v. Tite (1861), 8 Cox 
 C. C. 458; Rex v. Carr (1811), 
 Russ. & R. C. C. 198; Regina v. 
 May (1861), Leigh & C, C. C. 
 13; Regina v. Bailey (1871), 12 
 Cox C. C. 56.
 
 WHO ARE INDEPENDENT CONTRACTORS. 91 
 
 (/) Dealers and Merchants. 
 
 Where the plaintiff contracted to conduct a department in 
 defendant's store it did not create the relation of employer 
 and employee so as to render the former's absence, without 
 the latter's consent, a breach, where the contract treats the 
 plaintiff as the principal of the department, makes him the 
 responsible purchaser of the merchandise purchased for it, 
 leaving the defendant merely a guarantor, charges him with 
 store rent and office expenses and with one-half of all losses 
 arising from bad debts, reserves to the defendant, as profits, 
 merely a commission on the net sales, and interest upon 
 the goods purchased for the department, and requires him 
 to render accounts to the plaintiff. ^^^ 
 
 (k) Physicians. 
 
 "There is no more distinct calling than that of the doctor 
 and none in which the employee is more distinctly free from 
 the control of his employer." '^'^~ In this case an employee 
 was injured in a street car accident, and the company sent a 
 physician to examine him, and this physician directed the in- 
 jured person, who claimed he could not stand on his left leg, 
 to try to stand on it, and in an effort to do so the plaintiff 
 fell and sustained other injuries ; and the court held that the 
 company was not liable for the latter injury as the physician, 
 in making the examination, was an independent contractor 
 and free from the control or direction of the company em- 
 ploying him. A physician whose services are supplied by a 
 common carrier to an employee is an independent con- 
 
 ^'•Lord V. Spiclman (1898), 29 West End Railw.w (1900), 176 
 
 App. Div. 292; 51 N. Y. Supp. Mass. 177; 57 N. E. 339; 49 L. 
 
 534. R. A. 826; 79 Amer. St. Rep. 309; 
 
 •" Holmes. Ch. J., in Pearl v. Burd. Cas. Torts, 407.
 
 92 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 tractor ; -^^ so also one whose services are supplied by a 
 common carrier to a passenger. 2«» In a leading case in New 
 Jersey a physician, whose services are supplied to the patients 
 of another physician, is held to be an independent con- 
 tractor. 2™ In another and later leading case a physician 
 who was sent by a person who, in turn, had injured the 
 plaintiff, for the purpose of examining the plaintiff, was 
 considered an independent contractor. ^'^ 
 
 Ordinarily a trained nurse performing her usual duties 
 with the skill which is the result of training in that pro- 
 fession does not come within the definition of a servant, but 
 rather is one who renders a personal service to an employer 
 in pursuit of an independent calling and, therefore, any 
 liability on her employer's part for her misconduct, result- 
 ing in a scandal causing loss of patronage of plaintiff's hotel, 
 can not rest on a master's responsibility for a servant's 
 acts. ^'" 
 
 (/) Miners and Manufacturers. 
 
 A master ore digger who employs and pays his own as- 
 sistants, to whose exclusive control and management are 
 committed the w^ork of mining ore, under a contract with 
 the mine-owner, and Vvho is paid by the owner so much per 
 car for ore mined, is not a servant of the owner, although 
 the latter has a right, under a custom, to object to miners 
 
 ^York V. Chicago, etc. Rail- 
 road (1896), 98 Iowa 544; 67 N. 
 W. 574. 
 
 ^ O'Brien v. Cunard S. S. Co. 
 (1891), 154 Mass. 272; 28 N. E. 
 266; 13 L. R. A. 329; Allan v. 
 State Steamship Co. (1892), 132 
 N. Y. 91; 30 N. E. 482; 15 L. R. 
 A. 166; 28 Amer. St. Rep. 556. 
 
 ="° Myers v. Holborn (1895), 58 
 N. J. L. 193; 33 Atl. 389; 30 L. 
 R. A. 345 ; 55 Amer. St. Rep. 606. 
 
 -•^ Pearl v. West End Railway 
 (1900), 176 Mass. 177; 57 N. E. 
 339; 49 L. R. A. 826; 79 Amer. 
 St. Rep. 309; Burd. Cas. Torts, 
 407. 
 
 "-Parker v. Seasongood (1907), 
 152 Fed. 583.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 93 
 
 whom the master ore digger assumes to employ. ^^^ In one 
 case the plaintiff's barn was destroyed by fire from a mill 
 which, while in a contractor's possession, caught fire from 
 a furnace of the steam engine; the court held that, if the 
 engine and mill were not in fact a nuisance when delivered 
 by the defendant to be used in performing the contract, and 
 if the plaintiff's injury was caused by the contractor's negli- 
 gence in not keeping them in proper repair, the defendant 
 was not liable. -"^ One selling machinery which was not 
 to become the buyer's property until finally accepted as satis- 
 factory in compliance with the contract, is in installing and 
 testing it in an independent contractor, although the power 
 used on the trial is furnished by the buyer. ^'^^ 
 
 (m) Public Authorities. 
 
 When a city is liable by reasons of its proprietary and 
 private capacity as distinguished from its governmental 
 character, it can not escape liability for personal injuries 
 caused by the negligent operation of its electric light plant 
 on the ground that the grant of authority to maintain the 
 plant is given to "the board of trustees of" such city and not 
 in terms to the city ; as a city being a mere intangible thing, 
 existing only in legal contemplation, can not itself use the 
 
 ="" Harris v. McNamara (1892), 
 97 Ala. 181; 12 So. 103. In an- 
 other case certain lessees had 
 contracted with X. to work the 
 shale for them at a given price 
 per ton. X. was to supply neces- 
 sary furnishings, maintain ma- 
 chinery, p:iy employees' wages, and 
 be liable for all accidents ; he was 
 to satisfy himself before begin- 
 nig work that the shaft, etc., were 
 safe, and neither he nor the lessee 
 were to interfere with the other's 
 
 workmen. Held: X. was a sep- 
 arate contractor and that the 
 lessees were not liable for injuries 
 sustained in his service by his 
 employees. Grant v. Shaw (1872), 
 9 Scot. L. R. 254. Other cases 
 cited in 65 L. R. A. 467. 
 
 -'" BuRBANK V. Bethel, etc., Co. 
 (1883), 75 Ale. 373; 46 Amer. Rep. 
 400. 
 
 ^° Brown v. Rockwell, etc., Co. 
 (1906), 132 Iowa 631; 110 N. VV. 
 12. See ante, n. 3.
 
 94 
 
 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 franchise, but can only act through its governing body, the 
 board of trustees. -'" An Indiana case holds that a munici- 
 pality is not relieved from liability by the fact that its elec- 
 tric light plant is under the control of a commission ap- 
 pointed by the city council. In the management and control 
 of the enterprise the commission acts in behalf of, and repre- 
 sents, the municipality and the latter is liable for the negli- 
 gent acts of the commission. ^^'^ 
 
 Sec. 39. Effect of Death as Test. 
 
 The prevailing opinion in a New York case holds that a 
 mere contract to do certain work in repairing a house for 
 a stipulated price does not create the relation of master and 
 servant so as to relieve the personal representatives of the 
 one for whom the work was done, from liability for work 
 performed after his death, even though the house is specifi- 
 cally devised and the personal representatives have no in- 
 terest therein. -'^ "Inasmuch as agency is ordinarily a 
 
 ^"Davoust v. City, etc., (1906), 
 149 Cal. 69; 84 Pac. 760; 9 Am. 
 & Eng. Ann. Cas. 847. 
 
 ^'Richmond v. Lincoln (1906), 
 167 Ind. 468; 79 N. E. 445. Where 
 the statute empowering a city to 
 operate an electric light plant 
 also creates a commission to con- 
 trol it and names the members 
 of the commission, this is not 
 enough in itself to create the com- 
 mission a corporation separate 
 from the municipality, and the 
 members of the commission are 
 still servants of the city and may 
 make it liable for their acts of 
 negligence. Fisher v. New Berne 
 (1906), 140 N. Car. 506; 53 S. 
 E. 342. By an English statute, har- 
 bor commissioners were empow- 
 ered to build or provide steam 
 
 tugs for towing vessels into and 
 out of the harbor, for compensa- 
 tion agreed upon ; plaintiff's vessel 
 was damaged through the negli- 
 gence and unskillfulness of a tug's 
 master and crew, while being 
 towed into the harbor; for their 
 negligence the commissioners 
 were held not liable. Cuthbertson 
 V. Parsons (1852), 12 C. B. 304. 
 ^"Russell V. Buckhout (1895), 
 87 Hun, 46; 34 N. Y. Supp. 271; 
 Dykman, J., dissenting on the 
 ground that a contractee's death 
 dissolved the contract, and that 
 the administratrix was liable only 
 for the amount due at decedent's 
 death. Cf., Lacy v. Getman 
 (1890), 119 N. Y. 112; 23 N. E. 
 452 ; 6 L. R. A. 728 ; 16 Amer. St. 
 Rep. 806.
 
 WHO ARE INDEPENDENT CONTRACTORS. 
 
 95 
 
 relation and not a contract, the death of either party termi- 
 nates the relation and all rights incident to it except so far 
 as the agency has already been executed. Even where the 
 agency is made irrevocable during life by clothing it in the 
 form of a perfect contract, it will ordinarily be taken as an 
 implied term in the contract that it is to terminate on the 
 death of either party. Apparently the application of the 
 maxim that the acts of the servant are the acts of the master 
 would also result in the same conclusion; for how can an 
 act be attributed to a dead man?" ^'^ 
 
 *» 2 Street's Legal Liab., 491.
 
 CHAPTER II. 
 
 General Rule of Employer's Liability, 
 
 SECTION SECTION 
 
 45. General rule stated. 53. 
 
 46. Basis of non-liability. 
 
 47. Early rule stated. 54. 
 
 48. Bush v. Stein man. 55. 
 
 49. Basis of early rule discussed. 
 
 50. Distinction as to real and 56. 
 
 personal property. 
 
 51. Present rule and tendency. 57. 
 
 52. Effect of non-interference. 58. 
 
 General rule as to liability of 
 municipalities. 
 
 Same — As to school districts. 
 
 Same — As to railroad com- 
 panies. 
 
 Same — As to other under- 
 takings. 
 
 Same — As to subcontractors. 
 
 General rule after acceptance. 
 
 Sec. 45. General Rule Stated. 
 
 In the case of a servant the employer is legally respon- 
 sible for the acts of the employee done in the course of the 
 business ; in the case of an independent contractor he is not 
 generally responsible for such acts. Subject to certain 
 exceptions enumerated hereafter, one who lets a contract 
 for work and retains no control over the work, or the 
 methods of doing it, is not liable for the negligence or other 
 wrong of the contractor. ^ It is the well settled general 
 rule, both in this country and in England, that a person who 
 
 ^Huff, Agcy., Sec. 218, citing 
 Lawrence v. Shipman (1873), 39 
 Conn. 586; Blake v. Ferris (1851), 
 5 N. Y. 48; 55 Amer. Dec. 304; 
 Hexamer v. Webb (1896), 101 N. 
 Y. 377; 4 N. E. 755; 54 Amer. 
 Rep. 703; Chase Cas. Torts, 240; 
 Atlanta, etc.. Railroad v. Kim- 
 BERLY (1893), 87 Ga. 161 ; 13 S. E. 
 277; 27 Amer. St. Rep. 231; Fos- 
 ter V. Wadsworth, Rowland Co. 
 
 96 
 
 (1897), 168 Ills. 514; 48 N. E. 
 163; Singer Manufacturing Co. 
 V. Rahn (1889), 132 U. S. 518; 
 Huff. Cas. Agcy. 9; Halliday v. 
 National Telephone Co. (1891), 
 1 Q. B. 221. See Sadler v. Ilen- 
 lock (1855), 4 E. & B. 570; Brack- 
 ett V. Lubke (1862), 4 Allen 
 (Mass.), 138; 81 Amer. Dec. 694, 
 "for cases open to doubt."
 
 GENERAL RULE OP EMPLOYER'S LLVBILITY. 
 
 97 
 
 employs an independent contractor to do work for him is 
 not liable for the wrongful acts or neglect of the contractor 
 or his servants in the performance of the work, where the 
 work to be done under the contract is lawful.- "The 
 modern doctrine seems to be that, if one engages with a 
 contractor to do an act which may be done in a lawful man- 
 ner, and the contractor in doing it unnecessarily commits a 
 nuisance, whereby injury results to a third person, the em- 
 ployer will not be liable." ^ "The general rule is that where 
 
 'Tiff. Dom. Rels., 509, citing 
 Reedie v. Railway Co. (1849), 
 4 Exch. 244; 6 Eng. R. & Corp. 
 Cas. 184; 4 Am. Neg. R. 438, n.; 
 9 Id. 122, n. ; Harrison v. Collins 
 (1878), 86 Pa. St. 153; 27 Amer. 
 Rep. 699; Cuff v. R.\ilro.\d Co. 
 (1870). 35 N. J. L. 17; 10 Amer. 
 Rep. 209; 16 Am. Neg. Cas. 668, 
 n. ; HiLLiARD V. Richardson 
 (1855), 3 Gray (Mass.), 349; 63 
 Amer. Dec. 743; King v. Rail- 
 road Co. (1876), 66 N. Y. 181 ; 23 
 Amer. Rep. 37; Blake v. Ferris, 
 supra; Stevens v. Armstrong 
 (1852). 6 N. Y. 435; Hexamer v. 
 Webb, supra; Eaton v. Railway 
 Co. (1871), 59 Me. 520; 8 Amer. 
 Rep. 430; DeForest v. Wright 
 (1852), 2 Mich. 368; Clark v. 
 Railroad Co. (1854), 28 Vt. 103; 
 Bennett v. Truebody (1885), 66 
 Cal. 509; 6 Pac. 329; 56 Amer. 
 Rep. 117; 13 Am. Neg. Cas. 517, n. 
 
 ' Thomps. Neg.. Sec. 645, citing 
 Peachey v. Rowland (1853), 13 
 C. B. 182. "If an independent con- 
 tractor is employed to do a law- 
 ful act, and in the course of the 
 work he or his servants commit 
 some casual act of wrong or neg- 
 ligence, the employer is not li- 
 able." Pickard v. Smith (1861), 10 
 
 C. B. (N. S.), 470; 7 Am. Neg. 
 R. 158, n.; 8 Id. 264, n. '"If it is 
 conceded or established that the 
 tort-feasor was an independent 
 contractor, the non-liability of the 
 employer becomes an inference in 
 point of law. if the only reason- 
 able deduction from the circum- 
 stances as shown is, that the in- 
 jury in question resulted proxi- 
 mately and solely from the 
 negligent manner in which the 
 stipulated work was performed, 
 or from a wrongful act which was 
 neither a necessary nor a probable 
 incident of that work." Note to 
 Salliotte v. King, etc., Co. (1903, 
 58 C. C. A. 466, 122 Fed. Rep. 
 37&). cited in 65 L. R. A., at p. 
 641. citing cases. It has been held 
 that where the evidence is sus- 
 ceptible of the construction that 
 the person employed was exercis- 
 ing an independent employment 
 under the contract, it is error to 
 refuse a charge to the effect that, 
 if the accident was the result of 
 the negligence of that person or 
 of his servants, the employer is 
 not liable. Potter v. Seymour 
 (1859). 4 Bosw. 140. This may be 
 too broad an assertion.
 
 98 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the owner employs a careful, skillful and competent builder 
 or contractor to erect his building, and surrenders the pos- 
 session of the premises for that purpose, then in such case 
 the owner is not liable for an injury occurring to a stranger 
 by the negligence or default of the contractor or his imme- 
 diate servants or employees engaged in doing the work." ^ 
 A leading authority declares that "in general it is entirely 
 competent for one having any particular work to be per- 
 formed, to enter into an agreement with an independent 
 contractor to take charge of and do the whole work, em- 
 ploying his own assistants, and being responsible only for 
 the completion of the work as agreed. In such case, as a 
 general rule, the contractor, for the time being, becomes an 
 independent principal, whose servants are exclusively his, 
 and not those of the employer he contracts with; and the 
 contractor is in no such sense the servant of his employer as 
 to give to others rights against the employer growing out of 
 the negligence of the contractor or of his servants." ^ 
 
 Ssc. 46. Basis of Non-liability. 
 
 "The modern decisions have placed two limitations upon 
 the liability of the master which deserve notice. The fellow 
 servant doctrine relieves the master from liability where the 
 person injured is a fellow servant of the tort-feasor. . . . 
 The other limitation on the master's liability is found in 
 
 'Richmond v. Sitterding 
 (1903), 101 Va. 354; 43 S. E. 562; 
 99 Amer. St. 879; 16 Am. Neg. 
 Rep. 609, n. ; 65 L. R. A. 445, cit- 
 ing cases. See also cases cited in 1 
 L. R. A. (N. S.), 285, and see Subd. 
 vii, c, in note to Salliotte v. King 
 Bridge Co., supra, at p. 620. 
 
 ' Cooley on Torts, Students' Ed., 
 Sec. 260, citing numerous cases, 
 q. V. The appellant's brief in Cam- 
 
 eron, etc., Co. V. Anderson (1904, 
 Tex.), reported in 1 L. R. A. (N. 
 S.), 198 (reported also in 16 Am. 
 Neg. R. 599, 608), cites cases to 
 the effect that defendant company- 
 was not liable for the acts of its 
 independent contractor, including 
 Taylor v. Dunn (1891), 80 Tex. 
 652; 16 S. W. 732; Clapp v. Kemp 
 (1877), 122 Mass. 481.
 
 GENERAL RULE OP EMPLOYER'S LLViilLlTY. 99 
 
 those cases where an independent contractor is employed. 
 Here the person who lets the contract is not liable for the 
 torts of the servants employed by the contractor. The 
 reason is obvious. The conductor, or one who lets the 
 contract, has no control over the employee of the contractor, 
 and hence is not treated as their master. He is only con- 
 cerned with tlie finished product of the labor, and the con- 
 tractor, both in fact and in theory, is the master of those 
 whom he employs. Simple as this appears, the principle 
 in question was violated in probably the first case presenting 
 facts of this kind. (Bush v. Stein man, 1799, 1 B. & 
 P. 404.) But that case was soon discredited, and the law 
 is now well settled that the man who has immediate con- 
 trol or the right of control over the work is the master." ^ 
 According to Prof. Burdick, "the liability of a master 
 for the torts of his servant rests upon considerations of 
 practical expediency. A man is bound to manage his affairs 
 with a due regard for the safety of the persons and prop- 
 erty of his fellows. But suppose he turns over the man- 
 agement of certain of his transactions to persons who un- 
 dertake to accomplish a prescribed result, but who are not 
 otherwise subject to his control. Must he answer for their 
 torts which are incident to the transaction? He does, in- 
 deed, 'set the whole thing in motion;' but such persons are 
 not his servants in the ordinary sense of that term. He 
 does not direct and control their acts, and has no right to 
 command obedience from them. They are the principals 
 in the work which they have in hand. For damages in- 
 flicted by their misconduct or the misconduct of those under 
 their control, they are liable, and the law does not permit 
 
 •2 Street Legal Liab., 471-472. Richardson (1855), 3 Gray 
 
 citing Reedie v. London, etc.. R. (Mass.), 349; 63 Amcr. Dec. 743; 
 
 (1849), 4 Exch. 404; 6 Eng. R. & Pendleton v. Greenhough (1875), 
 
 Corp. Gas. 184; 4 Am. Neg. R. 1 Q. B. D. 36. 
 438. n.; 9 Id. 122, n. ; Hillard v.
 
 100 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the injured person to go back of them in the line of causa- 
 tion, save in exceptional cases to be noted hereafter." "^ As 
 is sometimes judicially declared, "there can not be more 
 than one superior legally responsible." « The doctrine of 
 an employer's non-liability has also been said to rest upon 
 "the ground that a contractor, as between him and his em- 
 ployer, is responsible only for the fulfillment of his agree- 
 ment, and pending the performance of the work, is to a 
 certain extent substituted for the party for whom the work 
 is to be performed." ® 
 
 'Burd., Torts, 133. "In ascer- 
 taining who is liable for the act of a 
 wrong-doer, you must look to the 
 wrong-doer himself or to the first 
 person in the ascending line who 
 is the employer and has control 
 over the work. You cannot go 
 further back and make the em- 
 ployer of that person liable." Mur- 
 ray V. Currie (1870), L. R., 6 C. 
 P. 24; 40 L. J., C P. 26. 
 
 'Painter v. Mayor (1863), 46 
 Pa. 213; Heidenag v. City of Phil- 
 adelphia (1895), 168 Pa. 72; 21 
 Atl. 1063. 
 
 * Reynolds v. Braithwaite (1889), 
 131 Pa. 416; 18 Atl. 1110. The 
 doctrine of an employer's non- 
 liability has also been referred to 
 as an application of the general 
 principle that where an indepen- 
 dent, responsible cause is inter- 
 posed between an alleged cause 
 and the injury, the juridical con- 
 nection between that alleged cause 
 and the injury is broken. Whar- 
 ton on Neg., Sec. 482. In a note 
 to a leading case, a distinguished 
 annotater, referring to the basis 
 of reserving control, contractual 
 
 obligation and intervening efficient 
 cause as the tests of liability, says : 
 "None of these explanations, how- 
 ever, is adequate for the purposes 
 of a fundamental inquiry, since 
 they presuppose that an affirmative 
 answer should be given to what is 
 really the ultimate question to be 
 decided, viz., the permissibility of 
 allowing one person to depute to 
 another a particular piece of work, 
 on terms which will have the 
 effect of relieving the former from 
 the obligation of seeing that the 
 work is executed with reasonable 
 care and skill. It seems clear 
 from the not very numerous au- 
 thorities which bear directly upon 
 this question that the real, and in 
 fact only, available basis for the 
 doctrine which declares such a 
 delegation of functions to be, un- 
 der certain circumstances, allow- 
 able is public policy." Note by 
 Mr. C. B. Labatt, to the leading 
 case of Salliotte v. King Bridge 
 Co. (1903, Va.), reported in 65 
 L. R. A. "It seems clear, how- 
 ever," he continues, "that the rule 
 as to the non-liability of employ-
 
 GENERAL RULE OF EMPLOYER S LIABILITY. 
 
 101 
 
 Sec. 47. Early Rule Stated. 
 
 At the outset, it was held that a landowner was liable 
 for ALL injuries resulting from the negligence of employees 
 engaged in executing work on his land, though such work 
 was done by the servant of one who had contracted to do 
 the work, and this general rule prevailed for a while in a 
 few jurisdictions. ^'' 
 
 ers has been formulated rather 
 with reference to their interests 
 than with reference to those of 
 possible sufifcrers from the torts 
 of the contractors. . . . The 
 juridical situation, therefore, 
 would seem to be simply this — 
 that the considerations of expe- 
 diency which according to the 
 most generally accepted theory, 
 constitute the only rational foun- 
 dation of the rule which declares 
 a master to be liable for the torts 
 of his servant, are deemed to be 
 inoperative, or to be superseded 
 and overridden by other and an- 
 tagonistic considerations of expe- 
 diency, in some classes of cases 
 where the person employed is 
 exercising an independent busi- 
 ness'' (p. 634, citing Gregory v. 
 Hill (1869), 8 Sc. Sess. Cas., 3d 
 series 282; Farwell v. Boston, 
 ETC., Railroad (1842), 4 Met., 
 Mass. 55; 38 Amer. Dec. 339; 
 Chicago, etc.. Railroad v. Mo- 
 RANDA (1879), 93 Ills. 314; 34 
 Amer. Rep. 168; Coon v. Syra- 
 cuse, etc., Railroad (1849), 6 
 Barb. (N. Y.), 231, and other 
 cases). 
 
 "BusTi V. Steinman (1799), B. 
 & P. 404, reported in full in the 
 next section of the text ; followed 
 in Sly V. Edgely (1806), 6 Esp. 
 
 6; Randleson v. Murray (1838), 8 
 A. & E. 109 ; 14 Am. Neg. Cas. 75 ; 
 Lowell v. Boston, etc. Railroad 
 (1839), 23 Pick. (Mass.), 24; 34 
 Amer. Dec. 33; New York v. 
 Bailey (1845), 2 Denio (N. Y.), 
 433 ; Stone v. Cheshire Railroad 
 (1849), 19 N. H. 427; 51 Amer. 
 Dec. 192; Wiswall v. Brinson 
 (1849), 10 Ired. L. (N. C), 554; 
 Memphis v. Lasscr (1849), 9 
 Humph. (Tenn.),760; Nashville v. 
 Brown (1871), 9 Heisk. (Tenn.), 
 1; 24 Amer. Rep. 289; Silvers v. 
 Nerdlinger (1868), 30 Ind. 53; 
 Mej-ers v. Snider (1848), Bright 
 (Pa.) 489. "The doctrine now 
 under discussion is one of com- 
 paratively recent growth. An ex- 
 amination of the language used by 
 the judges, the authorities cited 
 and the arguments relied upon by 
 the defendant's counsel, in the 
 earliest of the reported cases on 
 the subject, which was decided 
 1799, will make it apparent that 
 at that date the responsibility of 
 an employer for the torts of a 
 contractor was deemed to be the 
 same in kind and degree as his 
 responsibility for the torts of a 
 servant or an agent." Note to 
 Salliotte v. King Bridge Co. 
 (1903, Va.), 65 L. R. A. 624. In 
 a case decided shortly after Bush
 
 102 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 48. Bush v. Steinman, 1 Bosanquet & Puller, 404. 
 (Easter Term, 1799, 38 Geo. III.) 
 
 These two actions were on the case against the 
 defendant for causing a quantity of lime to be 
 placed on tlic high road, by means of which the 
 plaintiff and his wife were overturned and much 
 hurt, and the chaise, in which they then were, 
 considerably damaged. Plea : Not Guilty. 
 
 The two actions came on together to be tried 
 before Eyre, Ch. J., at the Guildhall Sittings after 
 last Hilary term, when the following circum- 
 stance appeared in evidence. The defendant 
 having purchased a house by the road side (but 
 which he had never occupied), contracted with a 
 surveyor to put it in repair for a stipulated sum; 
 a carpenter having a contract under the surveyor 
 to do the whole business, employed a brick-layer 
 under him, and he again contracted for a quantity 
 of lime with a lime burner, by whose servant the 
 lime in question was laid in the road. The Lord 
 Chief Justice was of opinion that the defendant 
 was not answerable for the injury sustained by 
 the plaintiff under the above circumstance, but 
 in order to save expense, a verdict was taken for 
 the plaintiff for 12 £, 12 s. with liberty to the de- 
 fendant to move to have a nonsuit entered. 
 
 Accordingly a rule nisi for that purpose having been ob- 
 tained on a former day, 
 
 V. Steinman, supra, a verdict was down of certain water pipes in a 
 
 affirmed against a water works public street, Lord Ellenborough 
 
 company, for an injury resulting stating that he had "no doubt" as 
 
 to the plaintiff from the negli- to the defendant's liability; Ma- 
 
 gence of men employed by certain thews v. West London, etc., Co. 
 
 pipe layers with whom the com- (1813), 3 Camp. 403. 
 pany had contracted for the laying
 
 GENERAL RULE OP EMPLOYER'S LLVBILITY. 103 
 
 Cockell and Shepherd, Serjts., now shewed cause. The 
 question is not whether this action might not have been 
 brought against some other person, but whether it cannot 
 be maintained against the present defendant. It is suffi- 
 ciently estabhshed that masters are civilly answerable for 
 the neglect of their servants, though absent at the time 
 of the injury committed. Hern v. Nicholls, 1 Salk., 289. 
 Jones V. Hart, 2 Salk., 441. So it is with carriers and 
 owners of ships. The house in this case was undergoing 
 a repair for the defendant, and the act which caused the 
 injury complained of, was an act done for his benefit, and 
 in consequence of his having authorized others to work 
 for him. Though the person by whose neglect the accident 
 happened was the immediate servant of another, yet, for 
 the benefit of the public, he must be considered as the 
 servant of this defendant. The maxim in law is respondeat 
 superior, and accordingly Lord Kenyon in a case strongly 
 analogous to the present said, 'Tn all these cases I have 
 ever understood tliat the action must either be broueht 
 against the hand committing the injury or against the 
 owner for whom the act was done." Stone and another v. 
 Cartivright, 6 Term Rep., 411. If this defendant be not 
 liable, the plaintifif may be obliged to sue all the parties 
 who have subcontracts in this case, before he can obtain 
 any redress for the injury he has sustained. 
 
 LeBlanc and Marshall, Serjts., contra. The plaintiff 
 contends, first, that a person is liable for the consequences 
 of every act done for his benefit; at least if the act take 
 place on his own premises; secondly, that he is answerable 
 for any injuries committed by tlnxse whom he employs, 
 if the injuries happen in the course of carrying into exe- 
 cution the commission with which they are charged. First, 
 it is clear that the cause of action did not in this case arise 
 on the defendant's premises, the complaint being, that a 
 quantity of lime which should have been placed there, was
 
 104 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 actually laid in the high-road; that being the case, there 
 is no authority to shew that the defendant is liable, merely 
 because the act from which the injury arose was done for 
 his benefit. If that general proposition were true, it might 
 be contended, that the defendant must have answered for 
 any accident which might have happened during the prepa- 
 ration of the lime in the lime-burner's yard. Secondly, 
 The liability of the principal to answer for his agents, is 
 founded in the superintendence and control which he is 
 supposed to have over them. 1 Black. Com., 431. In the 
 civil law that liability was confined to the person standing 
 in the relation of paterfamilias to the person doing the 
 injury. Inst, lib., 4, tit. 5, § 1, Dig. lib. 9, tit. 3. And 
 though in our law it has been extended to cases where the 
 agent is not a mere domestic, yet the principle continues 
 the same. Now, clearly it was not in the power of this 
 defendant to control the agent by whom the injury to this 
 plaintiff was effected. He was not employed by the de- 
 fendant, but by the lime-burner; nor was it in the defend- 
 ant's power to prevent him, or any one of the intermediate 
 subcontracting parties, from executing the respective parts 
 of that business which each had undertaken to perform. 
 The defendant's interference would have amounted to a 
 breach of his own contract with the surveyor, by which 
 the latter was empowered to employ such persons as he 
 might think proper. So little connection was there be- 
 tween the defendant and the various persons employed 
 in the work that he could have maintained no action against 
 any one of them for having ill performed his part, but 
 must have resorted to the surveyor with whom his contract 
 was made. With respect to Stone v. Cartwright, the 
 owner of the mine was there said to be answerable for the 
 negligence of the persons employed by the steward, but 
 it is to be observed, that he was also answerable to them 
 for their wages. In Lane v. Sir Robert Cotton, 12 Mod.
 
 GENERAL RULE OP EMPLOYER'S LLVBILITY. 105 
 
 488, 9, Holt. Ch. J., said that "the reason why a principal 
 shall answer for his deputy is, because as he, as principal, 
 has power to put him in, so he has power to put him out 
 without shewing any cause." So in Michael v. Alcstree, 
 (1677) 2 Lev. 172, it was held that an action might be 
 maintained against a master for damage done by his ser- 
 vant to the plaintiff, in exercising his horses in an improper 
 place, though he was absent, because it should be intended 
 that the master sent the servant to exercise the horses 
 there. But if a servant who is ordered to do a lawful act 
 exceed his authority, and thereby commit an injury, the 
 master is not liable. Kingston v. Booth, Skin. 228, Middle- 
 ton V. Fowler, 1 Salk. 282. 
 
 Eyre, Ch. J. At the trial I entertained great doubts 
 with respect to the defendant's liability in this action. He 
 appeared to be so far removed from the immediate author 
 of the nuisance, and so far removed even from the person 
 connected with the immediate author in the relation of 
 master, that to allow him to be charged for the injury 
 sustained by the plaintiff seemed to render a circuity of 
 action necessary. Upon the plaintift''s recovery, the de- 
 fendant would be entitled to an action against the surveyor, 
 the surveyor and each of the subcontracting parties in suc- 
 cession to actions against the persons with whom they 
 immediately contracted, and last of all the lime-burner 
 would be entitled to the common action against his own 
 servant. I hesitated, therefore, in carrying the responsi- 
 bility beyond the immediate master of the person who 
 committed the injury, and I retained my doubts upon 
 the subject, till I had heard the argument on the part of 
 the plaintiff, and had an opportunity of consulting with my 
 brothers. They, including ]\Ir. Justice Buller, are satisfied 
 that the action will lie, and upon reflection, I am disposed 
 to concur with them ; though I am ready to confess that I
 
 106 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 find great difficulty in stating with accuracy the grounds 
 on which it is supported. The relation between master and 
 servant, as commonly exemplified in actions brought 
 against the master, is not sufficient ; and the general propo- 
 sition, that a person shall be answerable for any injury 
 which arises in carrying into execution that which he has 
 employed another to do, seems to be too large and loose. 
 The principle of Stone v. C artzvright ,^^ with the de- 
 cision of which I am well satisfied, is certainly applicable 
 to this case ; but that of Littlcdale v. Lord Lonsdale ^^ 
 comes much nearer. Lord Lonsdale's colliery was worked 
 in such a manner by his agents and servants (or possibly 
 by his contractors, for that would have made no difference), 
 that an injury was done to the plaintiff's house, and his 
 Lordship was held responsible. Why? Because the injury 
 was done in the course of his working the colliery ; whether 
 he worked it by agents, by servants, or by contractors, still 
 it was his work; and though another person might have 
 contracted with him for the management of the whole con- 
 cern without his interference, yet the work being carried 
 on for his benefit, and on his property, all the persons 
 employed must have been considered as his agents and 
 servants, notwithstanding any such arrangement; and he 
 must have been responsible to all the world, on the principle 
 of sic utere tuo ut alienum non laedas. Lord Lonsdale 
 having empowered the contractor to appoint such persons 
 under him as he should think fit, the persons appointed 
 would in contemplation of law have been the agents and 
 servants of Lord Lonsdale. Nor can I think it would have 
 made any difference, if the injury complained of had arisen 
 from his Lordship's coals having been placed by the work- 
 men on the premises of Mr. Littledale, since it would have 
 
 " Stone V. Cartwright ( ), 6 '-Littledale v. Lord Lonsdale 
 
 Term Rep. 4n. ( ), 2 H. Bl. 267.
 
 GENERAL RULE OP EMPLOYER'S LLViliLlTY. 107 
 
 been impossible to distinguish such an act from the general 
 course of business in which they were engaged, the whole 
 of which business was carried on either by the express 
 direction of Lord Lonsdale, or under a presumed authority 
 from him. The principle of this case, therefore, seems to 
 afford a ground which may be satisfactory for the present 
 action, though I do not say that it is exactly in point. 
 According to the doctrine cited from Blackstone's Commen- 
 taries, if one of a family "layeth or casteth" anything out 
 of the house which constitutes a nuisance, the owner is 
 chargeable. Suppose, then, that the owner of a house, 
 with a view to rebuild or repair, employ his own servants 
 to erect a hord in the street (which being for the benefit 
 of the public they may lawfully do), and they carry it out 
 so far as to encroach unreasonably on the highway, it is 
 clear that the owner would be guilty of a nuisance; and I 
 apprehend there can be but little doubt that he would be 
 equally guilty if he had contracted with a person to do it for 
 a certain sum of money, instead of employing his own serv- 
 ants for the purpose ; for, in contemplation of law, the erec- 
 tion of the hord would equally be his act. If that be estab- 
 lished, we come one step nearer to this case. Here the 
 defendant by a contractor, and by agents under him, was 
 repairing his house; the repairs were done at his expense, 
 and the repairing was his act. If, then, the injury com- 
 plained of by the plaintiffs was committed in tlie course 
 of making those repairs, I am unable to distinguish the case 
 from that of erecting the hord, or from Littledale v. Lord 
 Lonsdale, unless, indeed, a distinction could be maintained 
 (which, however, I do not think possible), on the ground 
 of the lime not having been delivered on the defendant's 
 premises, but only at a place close to them, with a view to 
 being carried on to the premises and consumed there. My 
 Brother Buller recollects a case which he would have stated 
 more particularly, had he been able to attend. It was this :
 
 108 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 A master having employed his servant to do some act, 
 the ser\^aiit out of idleness employed another to do it, and 
 that person in carrying into execution the orders which had 
 been given to the servant, committed an injury to the plain- 
 tiff, for which the master was held liable. The responsi- 
 bility was thrown on the principal from whom the authority 
 originally moved. This determination is certainly highly 
 convenient and beneficial to the public. Where a civil in- 
 jury of the kind now complained of has been sustained, 
 the remedy ought to be obvious, and the person injured 
 should have only to discover the owner of the house which 
 was the occasion of the mischief; not to be compelled to 
 enter into concerns between that owner and other persons, 
 the inconvenience of which would be more heavily felt than 
 any which can arise from a circuity of action. Upon the 
 whole case, therefore, though I still feel a difficulty in stating 
 the precise principle on which the action is founded, I am 
 satisfied with the opinion of my Brothers. 
 
 Heath, J. I found my opinion on this single point, 
 viz. : That all the subcontracting parties were in the employ 
 of the defendant. It has been strongly argued that the 
 defendant is not liable, because his liability can be founded 
 in nothing but the mere relation of master and servant; 
 but no authority has been cited to support that proposition. 
 Whatever may be the doctrine of the civil law, it is per- 
 fectly clear that our law carries such liability much further. 
 Thus a factor is not a servant; but being employed and 
 trusted by the merchant, the latter, according to the case 
 in Salkeld, is responsible for his acts. There are besides 
 this other cases, as where a person hires a coach upon a 
 job, and a job-coachman is sent with it, the person who 
 hires the coach is liable for any mischief done by the 
 coachman while in his employ, though he is not his servant. 
 We all remember an action for defamation brought against
 
 GENERAL RULE OF EMPLOYER'S LLVBILITY. 109 
 
 Tattersall, who was a prorpietor of a newspaper, with six- 
 teen others ; the Hbel was inserted by the persons whom the 
 proprietors had employed by contract to collect news, and 
 compose the paper, yet the defendant was held liable. Now 
 this is a strong- case to show that it makes no difference 
 whether the persons employed by the defendant were em- 
 ployed on a quantum meruit, or were to be paid a stipulated 
 sum. In Roscwcll v. Prior,^^ an action for the con- 
 tinuance of a nuisance was held to lie against the defendant, 
 though he had underlet the building which was the subject 
 of it, and though the plaintiff had recovered against him 
 in a former action for the erection of the nuisance ; for 
 the Court said, "He aflirmed the continuance by his demise, 
 and received rent as a consideration for it." That case 
 is analogous to the present; the ground of the decision 
 having been that the defendant was benefited by the 
 nuisance complained of. It is not possible to conceive a 
 case in which more mischief might arise than in the present, 
 if the various subcontracts should be held suflkient to 
 defeat the plaintiff of his action. Probably he would not 
 be able to trace them all, since none of the parties could give 
 him any information, and consequently he might be turned 
 round every time he came to trial. 
 
 RooKE, J. I am of the same opinion. He who has work 
 going on for his benefit, and on his own premises, must be 
 civilly answerable for the acts of those whom he employs. 
 According to the principle of the case in 2 Lev., it shall be 
 intended by the court that he has a control over all those 
 persons who work on his premises, and he shall not be 
 allowed to discharge himself from that intendment of law 
 by any act or contract of his own. He ought to reserve 
 such control, and if he deprive himself of it, the law will 
 
 " Rosewell v. Prior (1702), 12 Mod. 635.
 
 110 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 not permit him to take advantage o£ that circumstance in 
 order to screen himself from an action. The case which 
 has been supposed of the Hme having been deposited at a 
 distance from the defendant's house, and the accident 
 having happened there, does not apply : for here a person 
 acting under the general employment of the defendant 
 brought a quantity of lime to the premises, and deposited 
 it without any objection being made by any person there, 
 whereas it was the duty of the defendant to have provided 
 a person to superintend those employed in his work. The 
 person from whom the whole authority is originally de- 
 rived, is the person who ought to be answerable, and great 
 inconvenience would follow if it were otherwise. There 
 is such a variety of subcontracts in this case as rarely occurs, 
 but this serves only to illustrate more strongly the mischief 
 which would ensue should we depart from the doctrine in 
 Stone V. Cartwright. In that case, and in Littledale v. 
 Lord Lonsdale, the safest rule was adopted. The plaintiff 
 may bring his action either against the person from whom 
 the authority flows, and for whose benefit the work is 
 carried on, or against the person by whom the injury was 
 actually committed. If the employer suffer by the acts of 
 those with whom he has contracted, he must seek his reme- 
 dy against them. 
 Rule discharged. 
 
 Sec. 49. Basis of Early Rule Discussed. 
 
 In the case of Bush v. Steinman, it is said, "the 
 court principally relied upon the case of Littledale v. Lons- 
 dale, 2 H. Bl. 267, wherein defendant was held responsible 
 for an injury to the plaintiff's horse, done by persons with 
 whom he had contracted, and not merely employed as agents 
 or servants to work a colliery, on the ground that the col-
 
 GENERAL RULE OP EMPLOYER S LLVBILITY. 
 
 Ill 
 
 liery was the defendant's property, was on his land, and 
 the description of persons working it could make no differ- 
 ence in his responsibility. . . . See likewise Stone v. 
 Cartzvright, 6 T. R., 411 ; Flozver v. Adam, 2 Taunt. 314; 
 Payne v. Rogers, 2 H. Bl. 350; Leslie v. Founds, 4 Taunt. 
 ^9 ."14 "Lord Chief Justice Eyre's opinion in Bush 
 V. Steinman, shows the difficulty of this doctrine, and 
 the grounds on which it is founded." '•"' 
 
 Sec. 50. Distinction as to Real and Personal Property. 
 
 In an English case decided in 1826, the court rejected 
 the broad and unqualified principle announced in Bush v. 
 Steinman, but were still inclined to accept the decision as 
 binding with respect to injuries resulting from the per- 
 formance of work on or near the employer's premises.^® 
 The doctrine that an employer's liability is measured by 
 different standards, according as the negligence complained 
 of was committed in reference to real or personal property, 
 was applied or recognized in several later cases, English 
 as well as American. ^'^ But the doctrine that a dift'erent 
 
 " Note to Wej'land v. Elkins 
 
 ( ), Holt's N. P. 227. "See, 
 
 also. Laugher v. Pointer (1826), 
 
 5 B. & C. 547, where most of the 
 cases are reviewed ; Hughes v. 
 
 Boyer ( ), 9 Watts, 556; Mil- 
 
 ligan V. Wedge (1840), 12 Ad. 
 
 6 El. 737." Story on Agency, 9th 
 ed., 551 ; Id. 558, et seq. 
 
 " Note to Story Agcy., Sec. 454. 
 "See this case commented on in 
 
 Duncan v. Findlater ( ), 6 
 
 Clark & F. 894. by Lords Cotten- 
 ham and Brougham, where it 
 seems to have been thought to 
 push the doctrine of the liability 
 of the principal to its fullest ex- 
 
 tent. Mr. Holt has appended a 
 very able note (p. 229) on this 
 subject to the case of Weyland v. 
 Elkins, 1 Starkie, 272." (Story 
 Agcy.. 548-9.) 
 
 '"Laugher v. Pointer (1826), S 
 Barn. & C. 547. In some of the 
 American states this early rule 
 was at first restricted so as to af- 
 fect only realty. Stone v. Che- 
 shire Railro.\d (1849), 19 N. H. 
 427; 51 Amer. Dec. 192. Ques- 
 tioned in Wright v. Holbrook 
 (1872), 52 X. H. 120; 13 Amer. 
 Rep. 12. 
 
 "Quarman v. Burnett (1840), 
 6 Mees & W. 499 ; 4 Am. Neg. R.
 
 112 INDEPENDENT CONTRACTORS AND TilEIR LIABILITY. 
 
 rule prevails as to real property than to personal property 
 was soon rejected, and among- the first to repudiate it were 
 the courts which first adopted it.^*^ And a succession of 
 carefully considered cases established the same views in a 
 number of the United States. ^'^ At the present, the dis- 
 tinction between realty and personalty in this connection 
 has been generally, if not wholly, abolished.^** 
 
 Sec. 51. Present Rule and Tendency. 
 
 As a general thing, the doctrine of Bush v. Stein man 
 has been repudiated.-^ J^^dge Thompson, in his exhaustive 
 
 437, n; Rapson v. Cul^bitt (1842), 
 9 jMees & W. 709. Cf., Button 
 V. Amesbiiry National Bank 
 (1902), 181 Mass. 154; 63 N. E. 
 405; Hardaker v. Idle District, 
 etc. (1896), 1 Q. B. 335; Blatten- 
 berger v. Little Schuyskill, etc., 
 Co. (1839), 2 Miles (Pa.), 309. 
 
 '-''Milligan V. Wedge (1840), 12 
 Ad. & El. IZT ; Reedie v. London, 
 ETC., R.MLROAD (1849), 4 Exch. 
 254; 4 Am. Neg. Rep. 438, n; 9 
 Id. 122, n ; which case unanimous- 
 ly and definitely repudiated the 
 distinction which formerly pre- 
 vailed. To the same effect. Gay- 
 ford V. Nicholls (1854), 9 Exch. 
 702. 
 
 "Blake v. Ferris (1851), 5 
 N. Y. 48; 55 Amer. Dec. 304; 
 Barry v. St. Louis (1852). 17 Mo. 
 121; DeForrest v. Wright (1852), 
 2 Mich. 368; Pack v. New York 
 (1853), 8 N. Y. 222; Hilliard v. 
 Richardson (1855), 3 Gray 
 (Mass.), 349; 63 Amer. Dec. 743; 
 collecting and examining authori- 
 ties; BoswELL V. Laird (1857), 8 
 Cal. 469; 68 Amer. Dec. 345. The 
 
 doctrine of Bush v. Steinman 
 was expressly disapproved in 
 Gourdier v. Cormack (1853), 2 E. 
 D. bmith, 254. 
 
 ^Laugher v. Pointer, supra; 
 Boswell v. Laird, supra; King v. 
 New York, etc., Railroad (1876), 
 66 N. Y. 181; 23 Amer. Dec. 2>7 ; 
 Ryder v. Thomas (1873), 13 Hun 
 (N. Y), 296; Conlin v. Charles- 
 ton (1868), 15 Rich. L. (S. C.),' 
 201; Benedict v. Martin (1862), 36 
 Barb. (N. Y.), 288; McC.\fferty 
 V. Spuyten Duyvil, etc., Rail- 
 road (1874), 61 N. Y. 178; 19 
 Amer. Rep. 267; Gilbert v. Beach 
 (1855), 16 N. Y. 606. 
 
 ^ Quarman v. Burnett (1840), 
 6 M. & W. 499; 4 Am. Neg. R.' 
 317, n ; Hilliard v. Richardson 
 (1855), 3 Gray (Mass.), 349; 63 
 Amer. Dec. 743; Painter v. Pitts- 
 Ijurgh (1863), A6 Pa. St. 213; 
 Pack V. New York, etc., Railroad 
 (1853). 8 N. Y. 222; Cuff v. 
 Newark, etc., Railroad (1870), 
 35 N. J. L. 574; 10 Amer. Rep. 
 205: 16 Am. Neg. Gas. 668, n. ; 
 Kellogg V. Payne (1866), 21 Iowa,
 
 GENERAL KILE OP EMPLOYER'S LLVBILITY. 
 
 113 
 
 work on "Negligence," states the general rule to be "that 
 one who has contracted with a fit and competent person, 
 exercising an independent employment, to do a piece of 
 work not in itself unlawful, or of such a nature that it is 
 likely to become a nuisance, or to subject third persons to 
 unusual danger, according to the contractor's own methof': 
 and without being subject to control except as to the results 
 of his work, and subject to other qualifications hereafter 
 stated, will not be answerable for the wrongs of such con- 
 tractor, his subcontractors or his servants, committed in the 
 prosecution of such work." ^^ 
 
 In a valuable note to one of his articles, Mr. Labatt 
 summarizes the present tendency regarding the doctrine of 
 
 575; Allen v. Willard (1868), 57 
 Pa. St. 381; Pawlet v. Rutland, 
 etc., Railroad (1855), 28 Vt. 297; 
 King v. New York, etc., R.\il- 
 Ro.M) (1876). 66 N. Y. 181; 23 
 Amer. Rep. i7 ; Ryder v. Thomas 
 (1878), 13 Hun (N. Y.), 296. 
 "But the authority of Bush v. 
 Steinm.vn has been in the modern 
 cases either entirely denied or 
 much doubted." Note to Story 
 Agcy., 5th ed., p. 551, . citing 
 Knight V. Fox (1850), 5 Exch. 
 721; Overton v. Freeman (1852), 
 11 C. B. 367; 9 Am. Neg. R. 122, 
 n.; HiLUARD V. Richardson, .yw- 
 pra; Rcedie v. London, etc., Rail- 
 road (1849), 4 Exch., 244; 6 Eng. 
 R. & Corp. C. 184. "The great 
 weight of modern decisions upon 
 this question establishes the rule 
 that where the relation of inde- 
 pendent contractor exists as to the 
 use of real property, and the 
 party employed is skilled in the 
 performance of the duty he under- 
 takes and the thing directed to 
 
 be done is not in itself a nuisance, 
 or will not necessarily result in 
 a nuisance, the injury resulting, 
 not from the fact that the work 
 is done, but from the negligent 
 manner of doing it by the con- 
 tractor or his servants, the owner 
 cannot be made to respond in 
 damages." Robinson v. Webb 
 (1875), 11 Bush (Ky.). 464. 
 
 •-Thomps. Neg., Sec. 621. He 
 adds in a foot note that he states 
 "the rule broadly bringing into 
 use all the well recognized quali- 
 fications," and cites a multitude 
 of cases supporting the rule 
 stated, though some of them ex- 
 clude some of the qualifications. 
 A tenant consented to his land- 
 lord's making repairs; he engaged 
 an independent contractor through 
 whose negligence the tenant was 
 injured; the landlord was held 
 not liable. Jefferson v. Jameson, 
 etc.. Co. (1897^. 165 IlLs. 138: 46 
 N. E. 272. See post. Sees. 106- 
 109.
 
 114 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Bush v. Steinman as follows: "From the foregoing 
 review it will be apparent that, about the middle of the 
 19th century, almost every court which had had an oppor- 
 tunity of expressing its views had definitely discarded, not 
 merely the broad principle embodied in Bush v. Stein- 
 man, viz. : that a person must answer for the torts of all 
 those who are in his employ, whether they are servants or 
 contractors, but also the qualified doctrine upon which it 
 had been for some time supposed that that doctrine could 
 be supported, viz. : that a responsibility of this extent is 
 imputable wherever the injury resulted from the execution 
 of work on, near or in respect to, real property belonging to 
 the employer. What may be regarded as the characteristic, 
 as it is certainly the most important, feature of the doc- 
 trinal developments during the subsequent period is the 
 gradual delimitation of the domain within which the general 
 rule as to the non-liability of an employer for the torts of 
 an independent contractor is controlled and overridden, 
 by the principle that a person who is subject to an absolute 
 duty can not. by delegating it to another party, relieve him- 
 self from liability for injuries caused by its non-fulfillment. 
 An examination of the cases . . . will show that the 
 result of working out this principle in its application to 
 certain situations has been the formation of several groups 
 of precedents, which in any case involving similar facts, 
 put a plaintff, so far as his actual right of recovery is 
 concerned, in a position which is very nearly, if not quite, 
 as favorable as he would have occupied if the doctrine 
 announced in Bush v. Steinman had found a perma- 
 nent place in Anglo-American jurisprudence. It seems 
 certain, however, that a plaintiff, now suing for injuries 
 received under the same circumstances as those involved 
 in that case, could not recover under any of the more re- 
 cent doctrinal developments. The work was not intrin-
 
 GENERAL RULE OP EMPLOYER S LIABILITY. 
 
 115 
 
 sically dangerous, nor was there a violation of any absolute 
 duty which the employer was bound, at his peril, to see 
 performed. How far these encroachments upon the older 
 doctrine of non-liability will be carried remains to be seen. 
 In this respect the law is at present in a transition state. 
 But in view of the trend of judicial opinion, as indicated 
 by the most recent decisions, it seems perfectly safe to 
 predict, that in some directions at least, the immunity of 
 the employer will continue to be more and more 
 abridged." ^3 
 
 Sec. 52. Effect of Non-interference. 
 
 Ordinarily, as implied in preceding sections, the propri- 
 etor is not liable when he does not interfere with the manner 
 of conducting the work.^'* Where a railroad company 
 employs an engineer to superintend the general progress 
 of the construction of its road and to see that the work is 
 done according to contract, the railroad company is not 
 liable for the acts of its independent contractor. -** The 
 
 ^Note to Salliotte v. King 
 Bridge Co. (1903), 58 C. C. A. 
 466; 122 Fed. 378. in 65 L. R. A., 
 at pp. 631-632. 
 
 ^Larson v. Metropolitan 
 Street Railroad (1892), 110 Mo. 
 234; 19 S. W. 416; 16 L. R. A. 
 330; 33 Amer. St. Rep. 439. See 
 ante, Sees. 18, 19. An early Penn- 
 sylvania case says it is settled in 
 England '"that defendants, not 
 personally interfering or giving 
 directions respecting the progress 
 of a work, but contracting with a 
 third person to do it, are not 
 responsible for a wrongful act 
 done or negligence in the per- 
 formance of the contract if the 
 
 act agreed to be done is legal." 
 Painter v. Pittsburgh (1863), 46 
 Pa. 213; Edmundson v. Pitts- 
 burgh, etc., Railroad (18S5). Ill 
 Pa. 316; 2 Atl. 404. 
 
 ^ Clark V. Hannibal, etc., Rail- 
 road (1865;), 36 Mo. 202; Calla- 
 han V. Burlington, etc., Railroad 
 (1867), 23 Iowa, 562; Eaton v. 
 European, etc., Railroad (1871), 
 59 Me. 520; 8 Amer. Rep. 430; 
 Rekdie v. London, etc.. Railroad 
 (1849), 4 Exch. 244; 6 Eng. R. 
 & Corp. Cas. 184; Erie v. Cal- 
 kins (1877). 85 Pa. St. 247; 27 
 Amer. Rep. 642; Reed v. Alle- 
 ghany (1875), 79 Pa. St. 303; 
 Pack V. New York (1832), 8 N.
 
 116 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 doctrine of an employer's non-liability "is frequently put 
 upon the ground that the characteristic incident of the 
 relation created by an independent contract is, that the 
 employer has not the power of controlling the person em- 
 ployed in respect to the details of the stipulated work, and 
 that it is a necessarily juridical consequence of this situa- 
 tion that the former should not be answerable for an 
 injury resulting from the manner in which those details 
 may be carried out by the latter." ^^ In a recent California 
 case, the court said in part: "Moreover, upon the face of 
 these facts, it would be a conclusion amounting almost to 
 absurdity to say that the F. Bros, -(employers) who were 
 shown to be no more than farmers and unskilled in dredg- 
 ing work and in the use of dredgers, should be held 
 accountable for the necessary details in the proper perform- 
 ance of an undertaking such as this (2^2 miles of 20-foot 
 ditching), and that it was or ever could have been contem- 
 plated that they and not the (defendant) dredging company 
 knew how the work should have been performed, . . . 
 and that they had undertaken the legal responsibility," etc.^"^ 
 
 Sec, 53. General Rule as to Liability of Municipalities. 
 
 The rule exempting the proprietor from liability for 
 damages where the work is done by an independent con- 
 tractor is, in general, the same in its application to a 
 
 Y. 222. Under a general denial the course of the work." Harri- 
 
 it is not error to charge that son v. Kiser (1887), 79 Ga. 588; 
 
 "where one has a lawful work to 4 S. E. 320. 
 
 do and employs another who has -' Note to Salliotte v. King 
 
 an independent business of his Bridge Co. (1903), 58 C. C. A. 
 
 own, including work of that class, 466 ; 122 Fed. 378 ; 65 L. R. A., 
 
 to do it, and where the employer p. 632. 
 
 himself does not exercise any direc- ''^^ Teller v. Bay, etc., Co. 
 
 tion as to how it shall be done, he (1907), — Cal. — ; 90 Pac. 942; 
 
 is not responsible for any wrong 12 L. R. A. (N. S.). 273. 
 
 that the employee may commit in
 
 GENERAL KL'LE OF EMPLOYER S LIAlilLlTV 
 
 117 
 
 municipal corporation, as to any other proprietor. A 
 municipal corporation is generally not liable for the negli- 
 gence of an independent contractor or his employees; this, 
 however, is subject to certain exceptions stated later.^^ 
 Broadly speaking, a city will not be liable for the negligent 
 performance of a contract by one who, for an agreed 
 compensation, undertakes its performance, and the city 
 retains no control or supervision over the methods or 
 manner of work.^"^ When applied to municipal corporations 
 
 ="Nevins v. Peoria (1866), 41 
 Ills. 502; McFadi>en v. Jewell 
 (1903), 119 Iowa. 321; 93 N. W. 
 302; 97 Amer. St. Rep. "321 ; 60 
 L. R. A. 401 (cleaning highways 
 of weeds) ; Barry v. St. Lou's 
 (1852), 17 Mo. 121; Hilsdorf v 
 St. Louis (1869), 45 Mo. 94, 98; 
 100 Amer. Dec. 352; Jansen v 
 Jersey City (1898), 61 N. J. Law. 
 243; 39 Atl. 1025; 4 Am. Neg. 
 Rep. 313 (building city hall; a 
 doubtful decision) ; Kelly v. New 
 York (1854), 11 N. Y. 432; Pack 
 V. New York (1853). 8 N. Y. 
 222; Uppington v. New York 
 (1901), 165 N. Y. 222; 59 N. E. 
 91 ; 53 L. R. A. 550 ; 6 Am. Neg. 
 Rep. 366 (constructing sewer; a 
 doubtful decision) ; Erie v. Caul- 
 kins (1877). 85 Pa. St. 247; 27 
 Amer. St. Rep. 642; Ginther v 
 Yorkville (1897), 3 Pa. Super. 
 403 (laying water pipes and erect- 
 ing fire plugs) ; Painter v. Pitts- 
 burgh (1863). 46 Pa. St. 213; 
 Reed v. Alleghany City (1875), 
 19 Pa. St. 300 ; White v. Philadel- 
 phia (1902), 201 Pa. St. 512; 51 
 Atl. 332 (in which an independent 
 contractor employed in dredging 
 out a canal flooded fields adjoin- 
 
 ing; the damage which ensued 
 would have been avoided by the 
 construction of a dam with a by- 
 pass for carrying off the water) ; 
 HOWARTH V. McGUGAN (1893), 
 
 23 Ont. Rep. 396; 47 Am. & Eng. 
 Corp. Cas. 133 (contract for re- 
 pair of highway). To the con- 
 trary are : Delmonico v. New 
 York (1848), 1 Sandf. S. C. (N. 
 Y.), 222; Nashville v. Brown 
 (1871), 9 Heisk. (Tenn.), 1; 24 
 Amer. Rep. 289; Bush v. Stein- 
 man (1799), 1 Bos. & Pul. 404; 
 Milliard v. Richardson (1855), 
 3 Gray (Mass.), 363; 63 Amer. 
 Dec. 742. Commenting on some 
 of these cases. Judge Thompson 
 in his Commentaries on Negli- 
 gence says at Sec. 5803, note 197: 
 "This (Bush v. Steinman) is 
 one of the most distinctly over- 
 ruled cases in the books ; Nash- 
 ville V. Brown, supra, which fol- 
 lows it. is entirely out of line 
 with the current of American au- 
 thority." See ante. Sec. 3i>n. 
 
 ^Koontz V. District of Colum- 
 bia (1904), 24 App. (D. C), 59; 
 Bennett v. Mt. Vernon (1904), 
 124 Iowa, 537; 100 N. W. 349; 16 
 Am. Neg. Rep. 612, n ; LaGrouc
 
 118 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the rule of exemption is subject to the quahfication that 
 such corporations are under the absolute duty of exercising 
 reasonable care to the end that their streets and sidewalks 
 are kept free from nuisances and safe for the public travel; 
 and it is obvious that they are just as much bound to 
 exercise this care for the prevention and removal of ob- 
 structions, pitfalls or other nuisances placed there by their 
 own contractors as when they are placed there by mere 
 passersby.^^ 
 
 V. New Orleans (1905), 114 La. 
 253; 38 So. 160; Wright v. Mus- 
 kegon (1905), 140 Mich. 215; 103 
 N. W. 558; Haefelin v. INIcDonald 
 (1904), 96 App. Div. 213; 89 N. 
 Y. Supp. 395; Jewell v. Mt. Ver- 
 non (1904), 91 App. Div. 578; 87 
 N. Y. Supp. 120; Kelly v. New 
 York (1905), 106 App. Div. 576; 
 94 N. Y. Supp. 872. It has also 
 been held that a city which enters 
 into a contract whereby the con- 
 tractor undertakes to carry off 
 the garbage and refuse collected 
 in the city, to some point in Lake 
 Michigan not less than fifteen 
 miles from the city, and there 
 dump it into the lake, the city 
 reserving to itself the right to re- 
 let the contract' in case of im- 
 proper or imperfect performance, 
 is not liable for damages to fish- 
 ing nets resulting from the gar- 
 bage being carried into them by 
 the ordinary movements of the 
 water; Kuehn v. Milwaukee 
 (1896), 92 Wise. 263; 65 N. W. 
 1030. a decision which Judge 
 Thompson declares "proceeds, 
 with a poor sense of justice, in 
 disregard of the principle that the 
 proprietor is liable where the in- 
 
 jury proceeds from the nature of 
 the work itself." Thomps. Neg., 
 p. 603. 
 
 ^Jefferson v. Chapman (1889), 
 27 Ills. App. 43; 127 Ills. 428; 20 
 N. E. 33 : Thomps. Neg., Sec. 533, 
 et seq. If this principle of lia- 
 bility is properly carried out it 
 will go far toward making a mu- 
 nicipal corporation liable for de- 
 fects in highways, public sewers, 
 and other public improvements 
 which are the result of the negli- 
 gent manner of doing public work 
 by its contractors, if imder the 
 rule obtaining in the given juris- 
 diction, such liability attaches to 
 municipal corporations under any 
 circumstances. Beatrice v. Reid 
 (1894), 41 Nebraska 214; 59 N. 
 W. 770. The general rule has 
 been extended so far as to exempt 
 a municipal corporation from lia- 
 bility for injuries to third persons 
 occasioned by the negligence of 
 workmen engaged in grading a 
 street, under the direction of a 
 person who has entered into a 
 contract with the corporation to 
 perform the work in conformity 
 to a plan referred to in the con- 
 tract, for a specified sum, to be
 
 GENERAL RULE OP EMPLOYER S LLVBILITY. 
 
 119 
 
 Sec. 54. Same as to School Districts. 
 
 In Iowa, in a suit against a school district for an injury 
 to a child received from the machine of a well borer while 
 boring a well in the schoolhouse yard, the plaintiff failed 
 to recover damages because the negligence was shown to 
 have been that of an independent contractor.^" 
 
 Sec. 55. Same as to Railroad Companies. 
 
 The general rule of non-liability relieves a railroad com- 
 pany from liability for injuries due to the negligence of 
 contractors where the work they are engaged in performing 
 is not essentially hazardous, and ordinary care has been 
 used in the selection of the contractors.^^ Where the rail- 
 road company has not committed the execution of any of 
 its franchises to contractors employed by it to build its 
 road, the courts in general hold that it stands under the same 
 immunity from liability to answer for the wrongs done by 
 an independent contractor, whom it employs merely to 
 produce certain results and over whose methods it exercises 
 no control, as that which attaches, under like circumstances, 
 to any other proprietor. ^^ The cases cited proceed upon the 
 
 paid for by the corporation. Pack 
 V. New York (1S52), 8 N. Y. 222; 
 Kelly V. New York (1854), 11 
 N. Y. 432. These authorities are, 
 however, challenged, as see post, 
 Sec. 143. 
 
 *" Wood V. Independent School 
 District (1876), 44 Iowa. 27. Cf., 
 Sec. 22, n. 
 
 " Norfolk, etc., Railroad v. 
 Stevens (1899), 97 Va. 631; 34 
 S. E. 525; 46 L. R. A. 367; ReiUy 
 V. Chicago, etc.. Railroad (1904), 
 122 Iowa, 525; 98 N. W. 464; 33 
 Am. & Eng. R. Cas. (N. S.,) 418; 
 
 16 Am. Neg. R. 611, n. See, also, 
 Sec. ?)'B>g, ante. 
 
 ^ Rome, etc.. Railroad v. Chas- 
 TEEX (1889), 88 Ala. 591; 7 So. 
 94; 40 Am. & Eng. R. Cas. 559; 
 St. Louis, etc., Railroad v. Yon- 
 LEY (1900), 53 Ark. 503; 14 S. W. 
 800; 9 L. R. A. 604; 45 Amer. & 
 Eng. R. Cas. 578; McCann v. 
 King's County, etc., Railroad 
 (1892), 46 N. Y. St. Rep. 327; 19 
 N. Y. Supp. 668; Miller v. Min- 
 nesota, etc.. Railroad (1888), 76 
 Iowa, 665; 39 N. W. 188; 14 
 Amer. St. Rep. 258; 38 Am. &
 
 120 INDEPENDENT CONTRACTORS AND THEIR LLVJBILITY. 
 
 view that a contract by a railroad company with another 
 person or corporation for the construction of its road, 
 is not such a delegation of its chartered rights as will render 
 it liable for unauthorized wrongs committed by the con- 
 tractor or his servants in the prosecution of the work. 
 Therefore, a railroad company will not be liable to a third 
 person for a nuisance resulting from a negligent or im- 
 proper construction of the road by the construction com- 
 pany occupying the position of an independent contractor, 
 even though (in the view of one court) it is notified that 
 the work is being improperly done.^^ 
 
 Sec. 56. Same as to Other Undertakings. 
 
 Defendants, owning a sugar refinery, employed a rigger 
 to remove machinery from a railroad car to their refinery. 
 In doing the work he opened a coal hole in the sidewalk, 
 and left it open a few minutes after finishing the work, and 
 a child fell into it and was injured. It appeared that the 
 defendants neither directed nor interfered with the manner 
 of the work, and it was therefore held that, as the rigger- 
 was an independent contractor, they were not liable for 
 the injury.-"^^ One is not liable for the negligent piling 
 of lumber by another who has contracted to take the lumber 
 from a car, pile and dry it, use a portion of it in making 
 articles to be paid for by the piece, and turn the rest over 
 to the former for use on portions of the premises remaining 
 
 Eng. R. Cas. 234; St. Louis, etc., 
 Railroad v. Willis (1888), 38 
 Kans. 330; 16 Pac. 728; 33 Am. 
 & Eng. R. Cas. 397. See post, 
 Sees. 115, 116, et scq., for discus- 
 sion of the liability of railway 
 companies when the alleged inde- 
 pendent contractor's work in- 
 volves the exercise of the fran- 
 
 chise rights and duties of such 
 railway companies. 
 
 ^Atlanta, etc., Railroad v. 
 KiMBERLEY (1891), 87 Ga. 161; 13 
 S. E. 277; 27 Amer. St. Rep. 231. 
 
 '* Harrison v. Collins (1878), 86 
 Pa. St. 153; 27 Amer. Rep. 699, 
 cited in Tifif. Dom. Rels., 509. See, 
 generally, Sec. 38, ante.
 
 GENERAL RULE OP EMPLOYER'S LL\BILITY. 
 
 121 
 
 in his control, the owner having no control or supervision 
 as to the piling. •*■'' The following have been held independ- 
 ent contractors for whose acts the owner was not liable : 
 A stair builder's servants improperly placed cleats on de- 
 fendant's stairs to protect them from injury before being 
 painted;^" a contractor failed to safeguard a trench;'*^ a 
 contractor failed to barricade and place lights on a pile of 
 sand.^^ 
 
 Sec. 57. General Rule as to Subcontractors. 
 
 The same rules apply in determining responsibility for 
 the acts of a subcontractor as in the case of a principal 
 contractor.^^ Broadly stated, the principle which exoner- 
 ates a proprietor from liability for the negligence of an 
 independent contractor applies, subject to the same qualifi- 
 cation as to control, as between the contractor and the sub- 
 contractor, and exempts the former from liability for the 
 negligence of the latter.'*'^ A subcontractor's torts are 
 governed by the rules applicable to the original contractor. 
 
 '^ Wright v. Big R.vpids, etc., 
 Co. (1900), 124 Mich. 91; 82 N. 
 W. 829; 50 L. R. A. 495. . 
 
 "^Louthan v. Hewes (1902), 
 138 Cal. 116; 70 Pac. 1065; 16 Am. 
 Neg. R. 613, n. 
 
 °' Ridgeway v. Downing Co. 
 (1900), 109 Ga. 591; 34 S. E. 
 1028; 7 Am. Neg. R. 218. 
 
 ■"HOFF V. S HOCKLEY (1904), 122 
 Iowa. 720; 98 N. W. 573; 101 
 Amer. St. Rep. 289; 64 L. R. A. 
 538; 16 Am. Neg. Rep. 607, n. 
 See, for further illustrations, ante, 
 Sec. 38. 
 
 ^ Barrows on Neg., p. 165, citing 
 Cuff v. Railroad Co. (1870), 35 
 N. J. Law, 17; 10 Amer. Rep. 
 
 205 ; Burd. Cas. 403 ; 16 Am. Neg. 
 Cas. 668, n. ; New Orleans, etc.. 
 Railroad v. Reese (1864), 61 
 Mass. 581; 18 Am. & Eng. R. 
 Cas. 110; The Harold (1884), 21 
 Fed. 428; Hawke v. Brown 
 (1898), 28 App. Div. 37; 50 N. Y. 
 Supp. 1032; Rapson v. Cubbitt 
 (1342), 9 Mees. & W. 710; Knight 
 V. Fox (1850), 5 Exch. 721 ; Over- 
 ton V. Freeman (1853). 11 C. B. 
 867; 9 Am. Neg. R. 122, n. 
 
 ■"' Pioneer, etc., Co. v. Hansen 
 (1898), 176 Ills. 100; 52 N. E. 
 17; 3 Am. Neg. R. 16; Schutte 
 V. United, etc., Co. (1902), 68 N. 
 J. Law, 435; 53 Atl. 204; 16 Am. 
 Neg. R. 614, n.
 
 122 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 The subcontractor becomes the principle in the execution 
 of that part of the work committed to him, and for his 
 torts, neither the original contractor nor his employer is 
 liable, save in the excepted cases already referred to and 
 more fully discussed in the succeeding chapters. ^^ If a 
 general contractor of work, in turn, sublets the whole, or 
 portions of the work to independent contractors, he will 
 occupy towards them, in respect of liability for their 
 wrongs, a position analogous to that which is occupied by 
 a proprietor toward an independent contractor; that is, he 
 will not be liable for the wrongs committed by such sub- 
 contractors or their servants, except in cases where a pro- 
 prietor would be liable, under like circumstances, for the 
 wrongs of an independent contractor or his servants. ^^ 
 Ordinarily a subcontractor is not liable for the negligence 
 of his subcontractor; and so on down as far as successive 
 independent employments may obtain.'*^ A fortiore the 
 employer of the principal contractor is not liable for the 
 torts of a subcontractor.'*^ "The employer is not respon- 
 
 " Burd. Torts, 145, citing Over- the right to make alterations is re- 
 ton V. Freeman, supra; Beberich served, does not change the rela- 
 V. Ebach (1890), 131 Pa. St. 165; tion so as, of itself to make the 
 18 Atl. 1008; Powell v. Con- contractor liable for his subcon- 
 STRUCTiON Co. (1890), 88 Tenn. tractor's negligence. Green v. 
 692; 13 S. W. 691; 17 Amer. St. Soule (1904), 145 Cal. 96; 78 
 Rep. 925. Pac. 337; 17 Am. Neg. R. 8. 
 
 *-CuFF V. Newark, etc., Rail- '* Knight v. Fox (1850), 5 
 ROAD (1870), 35 N. J. Law, 15, Exch. 721; 20 L. J. Exch. 9. 
 574; 16 Am. Neg. Cas. 668, n.; 16 ** McLean v. Russell (1850), 12 
 Amer. Rep. 205; Slater v. Mer- Sc. Sess. Cas., 2d series, 887; 
 sereau (1876), 9 Mees. & W. Moore v. Sanborn (1853). 2 
 710; Rapson v. Cubbitt (1842), 9 Mich. 519; 59 Amer. Dec. 209. 
 Mees. & W. 710; Overton V. Free- If the relation between a con- 
 man, supra; Beberich v. Ebach, tractor and a subcontractor is not 
 supra; Powell v. Virginia, etc., that of master and servant, th^ 
 Co., supra. The fact that a build- subcontractor and not the con- 
 ing is to be erected under the tractor is liable, generally, for his 
 supervision of an architect and own wrongs and those of his serv-
 
 GENERAL RULE OP EMPLOYER'S LLVBILITY. 
 
 123 
 
 sible for the negligence of the independent contractor or 
 his sub-agents while the work is in progress, unless (a) 
 he is negligent in the selection of the contractor; or unless 
 (b) tile object of the contract is unlawful; or unless (c) 
 he has omitted to perform an absolute, personal duty." ^^ 
 
 Sec. 58. General Rule After Acceptance. 
 
 ic 
 
 If the work has been completed and accepted by the 
 eniplo}er, his immunity from responsibility for any danger- 
 ous elements that it may contain ceases, and his liability 
 is determined by the rules of law ordinarily applicable to 
 the breach of the duties of ownership and control.'*^ After 
 the work of the contractor is completed and the owner 
 resumes control of his property he is, of course, liable for 
 its safe condition. It is sometimes a nice question whether 
 the owner has resumed control, but this is said to be 
 essentially a question of fact and not of law."*^ If the 
 contractor abandons the work the employer's immunity has 
 been held to cease, and the ordinary rules of an owner's 
 liability to apply.^^ 
 
 ants. Johnson v. Ott (1893), 155 
 Fa. St. 17; 25 Atl. 751; Dalyell 
 V. Tyrer (1858), 28 Law J., Q. B.. 
 52. 
 
 "Barrows on Neg., Sec. 60, 
 black letter text. For the employ- 
 er's liability regarding a foreign 
 contractor, see San ford v. Paw- 
 tucket Street Railroad (1896, R. 
 I.), 33 L. R. A. 564. 
 
 "See ante, Sec. 19; post, Sec. 
 173, ct scq. 
 
 " Donovan v. Transit Co. 
 (1884), 102 Cal. 245; -36 Fac. 517; 
 
 Read v. Fire Distrct (1898), 20 
 R. L 574; 40 Atl. 760; 4 Anier. 
 Neg. Rep. 589. 
 
 '^Huff. Agcy., 2d ed., Sec. 227, 
 citing Read v. East Providence 
 Fire District, supra; Higgins v. 
 Western Union Telegraph Co. 
 (1898), 156 N. Y. 75; 50 N. E. 
 500; 66 Anier. St. Rep. 537. See 
 post. Sec. 174, et seq. 
 
 *^ Savannah, etc., Railroad v. 
 Phillips (1892), 90 Ga. 829; 17 S. 
 E. 82.
 
 CHAPTER III. 
 
 Employers' Exceptional Liability — I. Character of 
 
 Work. 
 
 SECTION SECTION 
 
 65. Exceptions to general rule. 12. Work dangerous per se ; gen- 
 
 66. Doctrine of collateral negli- eral rule. 
 
 gence. 7Z. Same — Blasting. 
 
 67. Contract work a nuisance. 74. Same — Fires. 
 
 68. Same — Unauthorized. 75. Same — Excavations. 
 
 69. Same — Unlawful, other than 76. Same — Explosives. 
 
 nuisance. 77. Same — Balloon Ascensions. 
 
 70. Same — Calling for injurious 78. Same — Logging. 
 
 result. 79. Same — Overhanging objects. 
 
 71. Same — Result unforeseen. 
 
 Sec. 65. Exceptions to General Rule. 
 
 While in a large majority of cases, there is no sufficient 
 legal reason, founded on public policy or on the relations 
 of the parties, why the employer should be liable to third 
 parties for the negligence of the contractor or of his serv- 
 ants, there are nevertheless certain duties of so grave a 
 nature that the responsibility for their performance can 
 not be avoided by delegation. In some cases, as already 
 noted, a person harmed by the tort of an independent con- 
 tractor is allowed to go beyond the general principle of 
 exemption of his employer and seek redress from such con- 
 tractor's employer. The extent of this exceptional liability 
 is a question upon which the courts of this country and of 
 England are not agreed. Its narrowest limits are appar- 
 ently those fixed by the recent decisions of New York, as 
 shown later in this section. There is, in not a few instances, 
 a conflict of authority as to whether a particular state of 
 124
 
 employer's exceptional liability. 125 
 
 facts and circumstances brings the case within the general 
 rule, relieving the employer from liability, or causes it to 
 fall within one of the exceptions which render the employer 
 liable. It has been declared that "the various qualifying 
 elements . . . are not all referred to in any single judicial 
 announcement of the doctrine." ^ But, as appears in the 
 succeeding paragraph, several authorities have undertaken 
 to enumerate the exceptional cases in which the employer 
 will still be liable. 
 
 "The general rule of an employer's non-liability is sub- 
 ject to certain exceptions which have been thus stated : 
 (1) If a contractor faithfully perform his contract, and a 
 third person is injured by the contractor in the course of 
 its due performance or by its result, the employer is liable, 
 for he causes the precise act to be done which occasions the 
 injury; but for the negligence of the contractor not done 
 under the contract, but in violation of it, the employer is 
 in general not liable. . . . (2) If I employ a contractor 
 to do a job of work for me which, in the progress of its 
 execution, obviously exposes others to unusual perils, I 
 ought. I think, to be responsible on the same principle as 
 in the last case, for I caused acts to be done which naturally 
 expose others to injury. . . . (3) If I employ as 
 contractor a person incompetent or untrustworthy, I may 
 be liable for injuries done to third persons by his careless- 
 ness in the execution of his contract. . . . (4) The 
 employer may be guilty of personal neglect connecting itself 
 with the negligence of the contractor in such manner as 
 to render both liable." ^ 
 
 ' Note to Salliotte v. King duct of his contractor where (a) 
 
 Bridge Co. (1903, Fed.), 65 L. K a positive duty is imposed by con- 
 
 A. 622. tract or general law; (b) an 
 
 ^Lawrence v. Shipman (1873), obligation is imposed by statute; 
 
 39 Conn. 586, 589, per Seymour, J. (c)- the work to be done is in- 
 
 "The employer cannot avoid re- trinsically dangerous." Barrows 
 
 sponsibility for the negligent con- on Neg.. Sec. 63, black letter text
 
 126 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 The exceptions to the rule that an employer is not liable 
 for the negligence of an independent contractor or of his 
 servants are stated as follows in a leading Georgia case : 
 (1) \\'hen the work is wrongful in itself, or if done in the 
 ordinary manner would result in a nuisance, the employer 
 will be liable for injury resulting to third persons, although 
 the work is done by an independent contractor. (2) If, 
 according to previous knowledge and experience, the work 
 to be done is in its nature dangerous to others, however 
 carefully performed, the employer will be liable, and not 
 the contractor, because it is said, it is incumbent upon him 
 to foresee such danger and take precautions against it, 
 . . . and in this exception is included the principle that 
 where the injury is caused by defective construction, which 
 was inherent in the original plan of the employer, the latter 
 is liable. (3) Where the v\Tongful 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 can not 
 evade liability by employing another to do that which he 
 has agreed to perform. (4) Where a duty is imposed 
 by statute. The person on 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 himself or by a contractor 
 employed by him. (5) The employer may also make him- 
 self 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 
 of some part of it, so that the relation of master and serv- 
 ant 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 a superintendent, does not 
 make the employer liable ; nor does reserving the right to
 
 employer's exceptional llvbility. 127 
 
 dismiss incompetent workmen. (6) The employer may 
 also be held liable upon the ground that he has ratified or 
 adopted the unauthorized wrong of the independent 
 contractor." '' 
 
 In a very recent Tennessee case, the court says : "While 
 the general rule is that the proprietor or employer is not 
 liable for the negligence of his contractor and the servants 
 and assistants of the latter, yet there are well established 
 exceptions and limitations to it. These exceptions in gen- 
 eral are : Where the act contracted to be done is wrongful 
 or tortious in itself; where the injury is the direct or 
 necessary consequence of the work to be done ; where the 
 thing to be done or the manner of its execution involves 
 a duty to the public incumbent on the proprietor or em- 
 ployer; where the work contracted for is intrinsically dan- 
 gerous, and the performance of tlie contract will probably 
 result in injury to third persons or the public; and w^here 
 the proprietor interferes with the contractor in the per- 
 formance of the work. Nor does the general rule apply 
 where the work has been completed and accepted." ^ 
 
 "As well stated in recent New York cases, there are but 
 three cases in which the owner of fixed property is respon- 
 sible for acts done upon it which results in injury to an- 
 other ; ( 1 ) Where the person doing the act stands towards 
 the proprietor in the relation of employee or servant; (2) 
 where the act as authorized by a contract between the pro- 
 prietor and actor necessarily produced the injur)^; (3) where 
 the injury was occasioned by the omission of some duty 
 
 'Atlant.v, etc., Railroad v. conceded that upon ground of 
 
 KiMBERi.EY (1891), 87 Ga. 161; 13 public policy certain exceptions 
 
 S. E. 277; 27 Amer. St. Rep. 231. are made by law to the general 
 
 *McHarge v. Newcomer (1907), rule." Young v. Fosburg Lumber 
 
 117 Tenn. 595; 100 S. W. 700; 9 Co. (1908, N. C), 60 S. E. 654: 
 
 L. R. A. (N. S.), 298. "It is 16 L. R. A. (N. S.), 255.
 
 128 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 imposed on the proprietor." ° "Where the employer per- 
 sonally interferes with the work and the acts performed 
 by him occasion the injury; where the thing contracted 
 to be done is unlawful ; where the acts performed create a 
 public nuisance; and where the employer is bound by 
 statute to do a thing efficiently and an injury results from 
 its inefficiency; these are the only cases where a person 
 employing a contractor is liable for his torts." " 
 
 "The rule of independent contractor {i. e., employer) 
 and non-liability for the negligence of a contractor em- 
 ployed by him, or by the agents or servants of the latter, 
 is subject to exceptions: First, when duties are imposed 
 upon him by law, (a) by statute or ordinances, {h) by 
 express contract to indemnify : Second, where the employer 
 is at fault, (a) in defective construction inherent in the 
 plan, {h) where he retains the right to direct the time and 
 manner of work, (c) ratifies or adopts unauthorized 
 wrongs, {d) by not furnishing proper appliances required 
 by law, ((?) interfering with the work, or (/) is negligent 
 in selecting a careful contractor : Third, where the work 
 
 ^Thomps. Neg., Sec. 646, citing 
 McCafferty v. Spuyten Duyvil, 
 ETC., Railroad (1874), 61 N. Y. 
 178; 19 Amer. Rep. 267; Ryder v. 
 Thomas (1878), 13 Hun (N. Y.), 
 296. 
 
 'Berg v. Parsons (1898), 156 
 N. Y. 109; 50 N. E. 957; 41 L. R. 
 A. 391 ; 66 Amer. St. Rep. 542 ; 4 
 Am. Neg. Rep. 432; 47 Cent. L. 
 J., 237; Burd. Cas. Torts, 406, 
 note. "It will be observed that 
 the New York doctrine recog- 
 nizes and expresses such a duty 
 (a duty which the employer can 
 not assign to a contractor) in 
 
 three classes of cases : 1, Where 
 the work contracted for is unlaw- 
 ful ; 2, where it amounts to a 
 public nuisance; 3, where a stat- 
 ute imposes the duty. To this ex- 
 tent, then, all the authorities are 
 agreed. Undoubtedly, the weight 
 of authority favors the recogni- 
 tion and enforcement of such a 
 duty; also, when 'according to 
 previous knowledge and experi- 
 ence the work to be done is in its 
 nature dangerous to others, how- 
 ever carefully performed.' " Burd., 
 Torts, 141.
 
 employer's exceptional liability. 129 
 
 to be done is wrongful or dangerous in itself (a) that it 
 would ordinarily cause a nuisance, (b) where the job in 
 its very construction ordinarily becomes dangerous, how- 
 ever carefully performed." '' 
 
 The exceptions are sometimes covered by statute. Thus, 
 Sec. 3819 of the Georgia Civil Code provides: "The em- 
 ployer is liable for the negligence of the contractor: 
 (1) When the work is wrongful in itself, or if done in the 
 ordinary manner, would result in a nuisance; (2) or if, 
 according to previous knowledge and experience, the work 
 to be done is in its nature dangerous to others, however 
 carefully performed; (3) or if the wrongful act is in vio- 
 lation of a duty imposed by express contract upon the em- 
 ployer; (4) or if the wrongful act is in violation of a duty 
 imposed by statute; (5) or if the employer retains the 
 right to direct or control the time and the manner of execut- 
 ing the work, or interferes and assumes control, so as to 
 create the relation of master and ser\^ant, or so that an 
 injury results which is traceable to his interference; (6) 
 or if the employer ratifies the unauthorized wrong of the 
 independent contractor," ^ 
 
 Under the general rule, it is likewise commonly held that 
 the contractor will not be liable to third persons for the 
 negligent act of his subcontractor unless the thing con- 
 tracted to be done is necessarily a nuisance, or the injury 
 is a direct result of the act or thing which the independent 
 
 ^ Lytle V. Conover Bldg. Co. statute (Art. 2320, La. Rev. Code) 
 
 (1902), 12 Oh. Dec. 346; 11 Am. was held not to apply to the man- 
 
 Neg. R. 641, n. ner in which the independent con- 
 
 *This section was applied in tractor performed his work in 
 
 Ridgeway V. Downing Co. (1900), Gallagher v. Southwestern, etc., 
 
 109 Ga. 591; 34 S. E. 1028; 7 Am. Association (1876), 28 La. Ann. 
 
 Neg. Rep. 218. An analogous 943.
 
 130 INDEPENDENT CONTRACTORS AND THEIR LIABILITY, 
 
 contractor is required, to do, or the case comes within one 
 of the generally accepted exceptions.'*' 
 
 That a proprietor can not relieve himself from liability 
 simply by means of an agreement to that effect with the 
 contractor has been repeatedly asserted.^" "This principle 
 (that the proprietor can not relieve himself from liability 
 by an agreement with the contractor) may be generalized 
 and enlarged by stating that no proprietor can be allowed, 
 
 " Salliotte v. King Bridge Co. 
 (1903), 122 Fed. 378; 58 C. C. A. 
 466; 65 L. R. A. 620; 16 Am. 
 Neg. R. 615, n; Green v. Soule 
 (1904). 145 Cal. 96; 78 Pac. 337; 
 Crudup V. Schreiner (1901), 98 
 Ills. App. 337; Aldritt v. Gillette, 
 etc., Co. (1902), 85 Minn. 206; 88 
 N. W. 741. 
 
 " Covington, etc., Bridge Co. 
 V. Steinbrock (1899), 61 Ohio 
 St. 215; 55 N. E. 618; 76 Amer. 
 St. Rep. 325; 7 Am. Neg. R. 154; 
 Vosbeck v. Kellogg (1899), 7?: 
 Minn. 176; 80 N. W. 957; Keys 
 V. Second Baptist Church (1904), 
 99 Me. 108; 59 Atl. 446; 17 Am. 
 Neg. Rep. 526. In a note to Cov- 
 ington, etc., Co. V. Steinbrock, 
 supra, are cited the following 
 cases: Bower v. Peate (1876), 1 
 Q. B. D. 321; 15 Am. Neg. Rep. 
 645; Tarry v. Ashton (1876), 1 
 Q. B. D. 314; 7 Am. Neg. R. 157, 
 n.; Hughes v. Percival (1883), 8 
 App. Cas. 443; Dalton v. Angus 
 (1881), 6 App. Cas. 829; 7 Am. 
 Neg. Rep. 157, n.; Hole v. Rail- 
 way Co. (1861), 6 H. & N. 488; 
 7 Am. Neg. R. 157, n. ; 8 Id. 301, 
 n.; Gray v. Pullen (1864). 5 B. 
 & S. 970; 7 Am. Neg. Rep. 158. 
 n.; Hardaker v. Idle District 
 
 (1896), 1 Q. B. D. 335; Storrs 
 v. City of Utica (1858), 17 N. 
 Y. 104; 72 Amer. Dec. 437; 
 Spence v. Schultz (1894), 103 Cal. 
 208; 37 Pac. 220; Stevenson v. 
 Wallace (1876), 27 Gratt. (Va.), 
 77; Water Co. v. Ware (1872), 
 16 Wall. 566; 21 L. Ed. 485; 
 Black v. Finance Co. (1894), 
 App. Cas. 48; 7 Am. Neg. Rep. 
 158, n. See, also, Pittsfield, etc., 
 Co. V. Shoe Co. (1902), 71 N. H. 
 522; 53 Atl. 807; 60 L. R. A. 116; 
 D.wis V. Summerfield (1903), 
 133 N. C. 325; 45 S. E. 654; 63 
 L. R. A. 492; 92 Amer. St. Rep. 
 781; 16 Am. Neg. Rep. 611, n. ; 
 Sturges V. Society (1881). 130 
 -Mass. 414; 39 Amer. Rep. 463; 
 GoRHAM V. Gross (1878), 125 
 Mass. 232; 28 Amer. Rep. 234; 
 M e c h e m Agcy., Sees. 747-8 ; 
 Whart. Neg., Sec. 185; Wood, 
 Master & S., Sec. 316; Shear. & 
 R. Neg., Sec. 176; Pickard v. 
 Smith (1861), 10 C. B. (N. S.), 
 470; 7 Am. Neg. R. 158, n. ; 8 Id. 
 264, n.; Penny v. Council (1898), 
 2 C. B. 392; 7 Am. Neg. Rep. 
 158, n. ; Halliday v. Telephone Co. 
 (1899), 2 Q. B. 392; Lawrence v. 
 Shipman (1873), 39 Conn. 586, 
 589.
 
 employer's exceptional, liability. 
 
 131 
 
 in this way, to cast off any of the absolute duties which the 
 law puts upon him by virtue of his ownership of property.*^ 
 It will be observed that hardly any two authorities agree 
 on the enumeration or classification of the exceptions to 
 the general rule that ordinarily an employer is not answer- 
 able for the acts of his independent contractor or of the 
 latter's servants. Each enumeration is more or less com- 
 plete and accurate, and each classification is more or less 
 logical, but nevertheless arbitrary. The present writer has 
 adopted a classification which appears to him better adapted 
 to an exhaustive discussion of the subject at hand, and 
 without attempting any complete enumeration, has divided 
 the present phase of the general subject into three main 
 sub-heads, namely : I. Exceptions depending on the char- 
 acter of the work undertaken. II. Exceptions depending 
 on the character of the obligation owing by the employer. 
 And, III. Exceptions determined by the conduct of the 
 employer; and in this and the next three chapters these 
 exceptions will be discussed in the order named. ^^ 
 
 " Thomps. Neg., Sec. 651. The 
 proprietor cannot relieve himself 
 from the liability which the law 
 imposes upon him where the, work- 
 is wrongful per se, by any agree- 
 ment which he may make with the 
 undertaker of the work. Ellis v. 
 Sheffield, etc., Co. (1853), 2 El. 
 & Bl. 967; CoLGROVE v. Smith 
 (1894), 102 Cal. 220; 36 Pac. 411 ; 
 27 L. R. A. 590. 
 
 ^" For statements as to the ex- 
 ceptions to the general rule, see 
 the following cases : Birmingham 
 V. McCary (1887). 84 Ala. 469; 4 
 So. 630; Berg v. Parsons (1898), 
 156 N. Y. 109; 50 N. E. 957; 66 
 Amer. St. Rep. 542; 41 L. R. A. 
 391; 41 Am. Neg. Rep. 432; Burd. 
 
 Cas. Torts, 406, note; Water Co. 
 V. Ware (1872), 16 Wall. 566; 
 Clark v. Fry (1858), 8 Ohio St. 
 358; 72 Amer. Dec. 590; Chicago 
 V. Robbins (1862), 2 Black (U. 
 S.), 418; Railroad Co. v. Manning 
 (1872), 15 Wall. (U. S.), 649; 
 7 Am. Neg. Cas. 309; Cuff v. 
 Newark, etc., Railroad (1870), 
 35 N. J. Law, 17; 10 Amer. Rep. 
 205; 16 Am. Neg. Cas. 668, n. 
 For further illustrations as to the 
 liability of an owner or employer 
 for the negligence of an inde- 
 pendent contractor and his serv- 
 ants, see the cases cited in note 
 45, Cooley on Torts, Student's 
 ed., p. 482. See, also, Atlanta, 
 ETC., Railroad v. Kimberley
 
 132 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Seci 66. Doctrine of Collateral Negligence. 
 
 The negligence of the contractor or of his servants for 
 which the employer is held answerable, in the exceptional 
 cases enumerated, is often spoken of as not collateral to 
 the work, but directly involved in it.^^ "The rule reliev- 
 ing the employer from the acts of an independent con- 
 tractor is limited to collateral or casual torts of the 
 independent contractor, and does not extend to injuries 
 resulting from the unlawfulness of the work itself, or to 
 injuries which are a necessary consequence of executing 
 the work in the manner provided for in the contract or 
 subsequently prescribed by the employer, or to those which 
 are caused by the violation of some absolute, nondelegable 
 duty which the employer is bound to discharge, or to those 
 which are due to some other specific act of negligence on 
 the part of the employer himself." ^^ If the act or neglect, 
 which produces the injury, is purely collateral to the work 
 contracted for, and entirely the result of the wrongful act 
 of the contractor and his workmen, the proprietor is not 
 
 (1891), 87 Ga. 161; 13 S. E. 277; 
 27 Amer. St. Rep. 231 ; Engel v. 
 Eureka Club (1893), 137 N. Y. 
 100, 104; 32 N. E. 52; 22 Amer. 
 St. Rep. 695. 
 
 "Burd. Torts, p. 141, citing 
 Hole v. Railway Co. (1861), 6 
 H. & N. 488; 7 Am. Neg. R. 
 157, n.; 8 Id. 301, n. ; Bower v. 
 Peate (1876), 1 Q. B. D. 321; 45 
 L. J. (Q. B.), 446; 11 Am. Neg. 
 R. 645; Pye v. Faxon (1892), 156 
 Mass. 471; 31 N. E. 640; Water 
 Co. V. Ware (1872), 16 Wall. (U. 
 S.), 566. 
 
 ^* Note to Salliotte v. King 
 Bridge Co. (1903, 58 C. C. A. 466, 
 122 Fed. 378), in 65 L. R. A. 621. 
 
 622. "Jt will be observed that 
 the torts which are covered by 
 the descriptive epithets 'collateral' 
 and 'casual' as used in the second 
 form of statement, are identical 
 with those which fall outside the 
 scope of the exceptive clauses in 
 the third." Id., p. 624. "Ordi- 
 narily an independent contractor's 
 casual tort, that is, his tort which 
 is merely collateral to the prose- 
 cution of the work, is not one 
 for which the employer can be 
 held responsible." Note to Kamp- 
 
 MAN V. ROTHWELL (1906, TcX.). 
 
 17 L. R. A. (N. S.), 758, citing 
 a number of recent cases.
 
 employer's EXCEPl'IONAL LIABILITY 
 
 133 
 
 liable; but if tiie injury directly results from the work 
 which the contractor engaged and was authorized to do, 
 he is equally liable with the contractor.*^ When the main 
 act is lawful, and the contractor incidentally commits an 
 unlawful act, the employer is not liable.*^ "It is a general 
 
 "Chicago V. Robbins (1862), 2 
 Black (U. S.), 428; Robbins v. 
 Chicago (1866), 4 Wall. (U. S.). 
 679; Water Co. v. Ware (1872), 
 16 Wall. (U. S.), 566, 576; Hund- 
 hausen v. Bond (1874), 36 Wise. 
 29; O'Rourke v. Hart (1870), 7 
 Bosw. (N. Y.), 511; 9 Id. 301; 
 Earl V. Beadleston (1877), 10 
 Jones & Sp. (N. Y.), 295; Davie 
 V. Levy (1887). 39 La. Ann. 551; 
 2 So. 395; 4 Amer. St. Rep. 225. 
 Two recent cases well illustrate 
 the distinction between "collateral' 
 and "direct" negligence above re- 
 ferred to : BoovER V. Wilbur 
 (1900). 176 Mass. 482; 57 N. E. 
 1004; 8 Am. Neg. Rep. 246; 53 
 L. R. A. 172; Covington, etc., Co. 
 v. Steinbrock (1899), 61 Ohio 
 St. 215; 55 N. E. 618; 7 Am. Neg. 
 R. 154; 76 Amer. St. Rep. 375, 
 and note thereto. See, also, Kerr 
 v. Atlantic, etc., Railroad (1895), 
 25 Can. (S. C), 197, cited in 65 L. 
 R. A. 655. 
 
 *' Wilson v. White (1883), 71 
 Ga. 506; 51 Amer. Rep. 269. 
 Thus, if the plaintiff is not of 
 right entitled to support for his 
 house, and where the gravamen 
 of the action is not the unlawful- 
 ness of the act itself, but the 
 negligent manner of performing 
 it, it seems on principle that the 
 defendant's having let the work to 
 an independent contractor skilled 
 
 in such business and of good 
 repute, would exonerate the own- 
 er ; for the negligence would not 
 be his but would be that of the 
 independent contractor and the 
 latter would be liable. Gayford 
 V. Nichols (1854), 9 Exch. 702. 
 The proprietor was held liable 
 where the independent contractor 
 employed to construct the stone- 
 work, drew heavy loads of stone 
 over the sidewalk in front of the 
 premises so as to render the walk 
 defective and unsafe and an in- 
 jury to a pedestrian resulted there- 
 from. Mullins v. Siegel, etc., Co. 
 (1904), 88 N. Y. Supp. 737. A 
 proprietor was held not liable for 
 the negligence of an independent 
 contractor's servant in throwing a 
 piece of lime in a mortar bed in 
 the street, causing injury to a 
 passerby, as the work itself was 
 not a nuisance and the injury did 
 not necessarily result therefrom. 
 Strauss v. Louisville (1900), 108 
 Ky. 155; 55 S. W. 1075. A high- 
 way traveler was injured by a 
 stone thrown from a blast in a 
 quarry (about fifty yards from a 
 highway) operated by a contrac- 
 tor in securing stone to improve 
 defendant's highway under con- 
 tract ; it did not appear that de- 
 fendant authorized or knew of 
 such blasting; the stone might 
 have been quarried bj' less dan
 
 134 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 rule that one who employs another to do a piece of work 
 is not liable for the other's collateral negligence, unless the 
 relation of master and servant existed betw^een them. The 
 following exceptions to the general rule apply to and 
 govern this case: (1) Whenever an injury to a third party 
 results from the employer's failure to perform a duty which 
 he owes to such party, he will not be permitted to avoid his 
 liability by letting the performance of the work to another; 
 (2) One who has a piece of work to perform, which, in 
 its nature, is dangerous to others, is under obligation to 
 see that it is carefully performed so as to avoid such injury, 
 and he can not delegate the obligation to an independent 
 contractor and thus avoid his liability in case the work is 
 negligently done to another's injury." ^'' 
 
 I. Character of Work. 
 
 Sec. 67. Contract Work a Nuisance. 
 
 A well-established exception to the general rule is that 
 if the employer contracts for a nuisance or other unlaw^ful 
 
 gerous but more expensive mean? 
 than blasting. It was held that 
 plaintiflf could not recover as the 
 injury could not reasonably have 
 been anticipated and was entirely 
 collateral to the work contracted 
 for and not its probable conse- 
 quence. Symons v. Alleghany Co. 
 (1907), 105 Md. 254; 65 Atl. 1067. 
 So, also, a railroad company will 
 not be liable for the negligent 
 performance of an act not neces- 
 sary to the execution of the con- 
 tract and not called for by it. 
 Chattahoochee, etc., Railroad v. 
 Behrman (1903), 136 Ala. 508; 
 
 35 So. 132. When a proprietor 
 lets a contract for work on his 
 property to an independent con- 
 tractor and that contractor in per- 
 forming the same commits torts 
 which are not necessary to such 
 performance, the owner is not 
 liable therefor. Murtfelt v. New 
 York, etc., R. (1886), 102 N. Y. 
 702; 25 Am. & Eng. R. Cas. 144. 
 " St. Louis, etc., R. v. Madden 
 (1908), ^^ Kans. 80; 93 Pac. 
 586; 17 L. R. A. (N. S.), 788; 50 
 Am. & Eng. R. Cas. 48, syllabus 
 by court, citing numerous cases.
 
 employer's exceptional LLVBILITY. 
 
 135 
 
 act, he remains liable to any person injured in consequence 
 of the performance of the contract.^^ For if the work 
 contracted for is unlawful, as where it naturally constitutes 
 or creates a nuisance, then the rule exempting the employer 
 does not apply, but both the employer and the contractor 
 are liable for injuries resulting therefrom.^^ Judge 
 Thompson lays down the rule thus: "If the work con- 
 tracted for by the proprietor of the real property is 
 wrongful per sc, that is, if, in the ordinary mode of doing 
 it, it will create a nuisance or if it involves a trespass upon 
 another's property, the former proprietor will be liable for 
 any injuries which may result from it to a third person, 
 although the work is done by a person exercising an inde- 
 pendent employment and employing his own servants." ^^ 
 
 ""Ellis V. Sheffield Gas Co. 
 (1853), 2 El. & Bl. 767; Deford 
 V. State (1863), 30 Md. 179; 
 Kctcham v. Newman (1894), 141 
 N. Y. 205; 36 N. E. 197; 24 L. 
 R. A. 102. 
 
 "•Congreve v. Smith (1853), 18 
 N. Y. 79; Chase Cas. Torts, 180; 
 Creed v. Hartman (1864), 29 N. 
 Y. 591; 86 Amer. Dec. 341. If 
 the work contracted for creates a 
 nuisance, the employer is answer- 
 able. Burd. Torts, 140, citing and 
 quoting from Berg v. Parsons 
 (1898), 156 N. Y. 109, and citing 
 Hole v. Railway Co. (1861), 6 
 H. & N. 488; Deford v. State, 
 supra; Woodman v. Metropoli- 
 tan Railway Co. (1889), 149 
 Mass. 335; 21 N. E. 482; 4 L. R. 
 A. 213; 14 Amer. St. Rep. 427; 
 12 Am. Neg. Cas. 80; 6 Rail. & 
 Corp. L. J.. 72; Thomas v. 
 Harrington (1903), 72 N. H. 45; 
 54 Atl. 285; 65 L. R. A. 742; 16 
 Am. Neg. Rep. 608, n. 
 
 ^Thomp. Neg., p. 648; Leber 
 V. Minneapolis, etc., Railroad 
 (1882), 29 Minn. 256; 13 N. W. 
 31, a case of trespass; Ellis v. 
 Sheffield, etc., Co. (1853), 2 El. 
 & B. 766; Cuff v. Newark, etc., 
 Railroad (1870), 35 N. J. Law, 
 17. 574; 10 Amer. Rep. 205; 16 
 Am. Neg. Cas. 668, n. ; Kellogg 
 V. Payne (1866), 21 Iowa, 578; 
 Robbins v. Chicago (1866), 4 
 Wall. (U. S.), 657; Chicago v. 
 Robbins (1862), 2 Black (U. S.), 
 418; Water Co. v. Ware (1872), 
 16 Wall. (U. S.), 566, 576; Hole 
 V. Sittingbourne, etc.. Railroad, 
 supra; Hundhausen v. Bond 
 (1874), 36 Wise. 29; Lockwood v. 
 New York (1858). 2 Hilt. (N. 
 Y.), 66; Keegan v. Western 
 Railroad (1853), 8 N. Y. 175; 59 
 Amer. Dec. 476; Clark v. Fry 
 (1858), 8 Ohio St. 358; 72 Amer. 
 Dec. 590. Compare Hill v. New 
 River Co. (1868), 9 B. & S. 303; 
 Wabash, etc., Railroad v. Farver
 
 136 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 The owner can not, by any contract, relieve himself of 
 duties resting upon him as owner of real estate, not to do 
 or suffer to be done upon it that which will constitute a 
 nuisance, and therefore an invasion of the rights of others.^^ 
 It is clear that where the creation of a nuisance is a direct 
 and necessary incident of the stipulated work as a whole, 
 the principal employer is liable.^^ 
 
 (1887), 111 Ind. 195, 198; 12 N. 
 E. 296; 60 Amer. Rep. 696; 31 
 Am. & Eng. R. Cas. 134 (rule so 
 stated, but the proprietor was ex- 
 onerated and the contractor held 
 liable) ; Davie v. Levy (1887), 39 
 La. Ann. 551; 2 So. 395; 4 Amer. 
 St. 225. 
 
 =' Chicago V. Robbins (1862), 2 
 Black (U. S.), 418; Clark v. Fry 
 (1858), 8 Ohio St. 358; 72 Amer. 
 Dec. 590; Hughes v. Railroad Co. 
 (1883), 39 Ohio St. 461; 15 Am. 
 & Eng. R. Cas. 100; Curtis v. 
 KiLEY (1891), 153 Mass. 123; 26 
 N. E. 421 ; Burd. Cas. Torts, 
 403; Thomas v. Harrington 
 (1903), 72 N. H. 45; 54 Atl. 285; 
 65 L. R. A. 742; 16 Am. Neg. R. 
 608, n. ; Southern Ohio Railroad 
 V. MoREY (1890), 47 Ohio St. 207; 
 24 N. E. 269; 7 L. R. A. 701; 43 
 Am. & Eng. Ry. Cas. 97; Haw- 
 VER V. Whalen (1892), 49 Ohio 
 St. 69; 29 N. E. 1049; 14 L. R. 
 A. 828; McCarrier v. Hollister 
 (1902), 15 So. Dak. 366; 89 N. 
 W. 862; 11 Am. Neg. R. 641; 91 
 Amer. St. Rep. 695 ; Carlson v. 
 Stocking (1895), 91 Wise. 432; 
 65 N. W. 58 ; Holliday v. National 
 Telegraph Co. (1899), 2 Q. B. 
 392. See, also, Dillon v. Hunt 
 (1891), 105 Mo. 154; 16 S. W. 
 516; 24 Amer. St. Rep. 374. 
 
 -Dressell v. Kingston (1884), 
 32 Hun, 533; Salves v. New City 
 Gas Co. (1879, Quebec), 2 L. N. 
 S. C. 97 (horse fell into a pit 
 excavated in the street of a city) ; 
 Seymour v. Cummins (1889), 119 
 Ind. 148; 21 N. E. 549; 52 L. R. 
 A. 126; Florsheim v. DuUaghan 
 (1895), 58 Ills. App. 593. See 
 other cases cited in 65 L. R. A. 
 752. For Missouri cases on the 
 question of the liability of one for 
 a nuisance on his own premises, 
 see Dillon v. Hunt (1881), 11 Mo. 
 App. 246; s. c. (1882), 82 Mo. 
 150. The reasoning of the Court 
 of Appeals is approved in Dillon 
 V. Hunt (1891), 105 Mo. 154; 16 
 S. W. 516; 24 Amer. St. Rep. 374. 
 Cf., Perry v. Lord (1885), 17 
 Mo. App. 212. The rule that one 
 who employs another to commit 
 a nuisance or a trespass must 
 answer for it, although he exer- 
 cises no control over that other 
 as to the mode employed by him 
 to reach the unlawful result, rests 
 upon the idea that the employer 
 becomes a co-trespasser by reason 
 of trespassing or participating in 
 the work that is done, and not 
 on the doctrine of respondeat su- 
 perior. Kellogg v. Payne (1886), 
 21 Iowa, 575, per Cole, J. In 
 Maryland a proprietor was held
 
 employer's exceptional liability. 
 
 137 
 
 Some decisions make a distinction between cases where 
 the wrong done is something within the immediate control 
 of the contractor or of his servants, and where it proceeds 
 from something left by them in the street, in the nature of 
 a public nuisance.^^ Numerous cases hold that a city is 
 liable for injuries arising from dangerous nuisances in its 
 streets, such as unguarded excavations, although the negli- 
 gence is that of contractors of public work with the city.^^ 
 
 It has been held in a leading Indiana case that it is not 
 necessarily a nuisance to operate a portable steam engine, 
 in a careful manner, in close proximity to a public highway ; 
 so that if it is operated negligently by an independent con- 
 tractor, engaged in pumping water out of an excavation 
 for a railroad company, whereby a traveler's horse is 
 frightened, the company is not liable.^^ In another leading 
 
 not liable for the contractor's act 
 on the principle of respondeat su- 
 perior, yet if proof showed the 
 building was so constructed as to 
 constitute a nuisance, he would be 
 liable; otherwise, if erected in an 
 ordinarily substantial and secure 
 manner and it was overthrown by 
 extraordinary causes. Deford v. 
 State (1863), 30 Md. 179. 
 
 ^ Blumb v. City of Kans.\s 
 (1884), 84 Mo. 112; 54 Amer. 
 Rep. 87; Herrington v. Lansing- 
 burgh (1888), 36 Hun (N. Y.). 
 598; 110 N. Y. 145; 17 N. E. 
 728; 10 Amer. St. Rep. 348. Cf., 
 Kelly V. Mayor (1854), 11 N. Y. 
 433; Pack v. Mayor (1853), 8 N. 
 Y. 222. Contra, Log.\nsport v. 
 Dick (1880), 70 Ind. 80; 36 
 Amer. Rep. 166. 
 
 =* Beatrice v. Rcid (1894), 41 
 Nebr. 214; 59 N. W. 770; Hani- 
 ford V. Kansas City (1890), 103 
 
 Mo. 172; 15 S. W. 753; Bauer v. 
 Rochester (1885), 59 Hun (N. 
 Y.), 615; 12 N. Y. Supp. 418; 
 Turner v. Newburgh (1888). 109 
 N. Y. 301; 16 N. E. 344; 4 Amer. 
 St. Rep. 453. (See other cases 
 cited in Sec. 139, et seq.) 
 
 ''Wabash, etc.. Railroad v. 
 Farver (1887). Ill Ind. 195; 12 
 N. E. 296; 60 Amer. Rep. 696; 31 
 Am. & Eng. R. Cas. 134. In a 
 case where a plaintiff was entitled 
 to support for his buildings as 
 well as for his land, it was not a 
 defense against liability for negli- 
 gence in such an action, that the 
 defendant contracted with an ex- 
 perienced and skillful excavator 
 to do the work. These cases are 
 referable to the class holding 
 that where one does on his own 
 land an act per se a nuisance he 
 is answerable therefor although 
 the work is done by an indepen-
 
 138 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Indiana case an action was held maintainable where the 
 injury charged v/as that a drainage ditch obstructed the 
 plaintiff's access to his own premises, that the soil of his 
 lot fell into it, and that stagnant and filthy water was al- 
 lowed to remain in it.^*^ 
 
 In the category of liability of an employer for injuries 
 occasioned by the omission of some duty imposed on him, 
 is the case of a continuing nuisance; for a man must not 
 suffer a nuisance to continue on his premises, to the injury 
 of others, although he was not responsible for its creation.^'^ 
 On the other hand, it has been held that a railroad company 
 which has not accepted its road from an independent con- 
 tractor for its construction at the time a third person re- 
 ceived injuries from a nuisance can not be held to have 
 ratified any act of the contractor by which the nuisance was 
 
 dent contractor. Stevenson v. 
 Wallace (1876), 27 Gratt. (Va.). 
 n, 91; Bower v. Peate (1876), 1 
 Q. B. Div. 321; 11 Am. Neg. 
 Rep. 645. 
 
 ^ Seymour V. Cummins (1889), 
 119 Ind. 148; 21 N. E. 549; 5 L. 
 R. A. 126. The plaintifif, a 
 worker in marble, was held en- 
 titled to recover where his monu- 
 ments were injured by large 
 quantities of soot, etc., which col- 
 lected on defendant's iron smoke 
 stack and were blown on to the 
 monuments on plaintiff's prem- 
 ises, and as the injury was the 
 natural result of erecting such a 
 smoke stack at that place, the 
 defendant was not protected by 
 its having been erected by an in- 
 dependent contractor. Skelton v. 
 Fenton, etc., Co. (1894), 100 Mich. 
 87; 58 N. W. 609. The defend- 
 ant city had made a contract with 
 a party for removing carcasses of 
 
 animals dying or killed in its 
 limits. On one occasion after 
 many mules had been destroyed 
 by a fire, the mayor, in order to 
 obviate the nuisance which would 
 have resulted from conveying 
 them through the streets arranged 
 with the contractor's servant to 
 throw them in the river. The 
 latter took a convenient road to 
 the river and threw them in at 
 a point temporarily overflowed 
 and concealing plaintiff's quarry. 
 The carcasses were not carried 
 away but sank into the quarry, 
 so that plaintifif could not reopen 
 it. For the injury so caused, the 
 city was held not answerable. 
 That tlie act was negligent or the 
 consequence proximate is not un- 
 questionable. HiLSDORF v. St. 
 Louis (1869), 45 Mo. 94; 100 
 Amer. Dec. 352. 
 
 " Osborn v. Union Ferry Co. 
 (1869), 53 N. Y. 629; Burgess v.
 
 employer's exceptional, liability. 
 
 139 
 
 created, in the absence of any evidence showing that it had 
 knowledge thereof.-^ If the contractor is the author of 
 the nuisance and is the primary wrong-doer, he will be 
 liable in damages to the person injured in consequence of 
 it, although the employing corporation may also be liable 
 for a violation of its duty in suffering the nuisance to 
 
 remam 
 
 29 
 
 Sec. 68. Contract Work Unauthorized. 
 
 "Where the necessary authority to undertake the speci- 
 fied work has not been obtained, or where it can not be 
 performed without violating an express legislative enact- 
 ment, the mere fact tliat it is entrusted to an independent 
 contractor will not relieve the person for whose benefit it 
 is done from liability for such injuries as its execution may 
 produce." ^'^ Thus it is asserted in a California case, that 
 one who is injured by falling through a wooden trap door 
 over an excavation in a sidewalk can, where such cover- 
 ings are prohibited by an ordinance of the city, recover 
 against the owner of adjoining premises, notwithstanding 
 
 Gray (1845), 1 C. B. 578; Matheny 
 V. Wolffs (1865), 2 Duv. (Ky.), 
 137. 
 
 ^Atlanta, etc.. Railroad Co. 
 V. KiMBERLY (1894), 87 Ga. 161; 
 13 S. E. 277; 27 Amer. St. Rep. 
 231. 
 
 *Howarth v. McGugan (1893), 
 25 Ont. 396; 47 Am. & Eng. Corp. 
 Cas. 133. Cf., Stewart v. Cali- 
 fornia Imtrovement Co. (1900), 
 131 Cal. 125; 61 Pac. 280; 52 L. 
 R. A. 205; Burd. Cas. Torts. 412 
 (steam-roller negligently run, city 
 held liable and contractor exempt.) 
 
 ^ Note to Thomas v. Harring- 
 
 ton (1903, 72 N. H. 45), in 65 L. 
 R. A. 746, citing, inter alia. Shea 
 V. River, etc.. Board (1880), Jr. 
 L. R., 6 C. L. 179. "It will be 
 observed that, by changing the 
 logical standpoint, the cases which 
 have been made to turn upon this 
 principle may, without difficulty, 
 be brought within the purview of 
 another principle, viz. : that a per- 
 son who is subject to a statutory 
 duty, must at his peril see that 
 it is fulfilled, whether the work 
 to which it is incident is or is 
 not let out to an independent con- 
 tractor." Id., 748.
 
 140 INDEPENDENT CONTRACTORS AND THEIR UABILITY. 
 
 that a few days before the accident such owner employed a 
 carpenter, who was an independent contractor, to repair 
 the door and the neghgence of the latter contributed to the 
 accident. =^^ And when a company, without the necessary 
 municipal authority, employed a contractor to open trenches 
 in the streets of a city and a person was injured by fahing 
 over a heap of stones left by the contractor, the company 
 was liable for the contractor's unlawful act.^^ Several 
 rulings on this point have been made in New York. Thus, 
 it is said, that persons who, without special authority, 
 make or continue a covered excavation in a public street or 
 hiMiway, for a private purpose, should be responsible for 
 all injuries to individuals resulting from the street or high- 
 way being thereby less safe for its appropriate use, in the 
 absence of contributory negligence ; ^s and again, if a per- 
 
 " Barry v. Terkildsen (1887), 
 72 Cal. 254 ; 13 Pac. 657 ; 1 Amer. 
 St. Rep. 55. Where a building is 
 erected in a manner forbidden by 
 ordinance or statute and, in con- 
 sequence, it falls or collapses, the 
 owner is liable for any damage or 
 injury occasioned thereby; Walker 
 V. McMillan (1882), 6 Can. S. C. 
 R. 241; Pitcher v. Lennon (1886), 
 16 Misc. 609; 38 N. Y. Supp. 
 1007. 
 
 »'EUis V. Gas, etc., Co. (1853), 
 23 L. J. Q. B. 42 ; 2 El. & Bl. 767. 
 In an Australian case it was held 
 that one who had contracted with 
 a local council to make or repair 
 a street, under conditions prohib- 
 iting subletting without its con- 
 sent, and requiring ol)structions 
 to be fenced and lighted, was not 
 liable to one injured by stumbling 
 over rubbish unprotected by fence 
 or light, although it was left there 
 
 by one to whom he had without 
 consent sublet a part of the work; 
 PhilHps V. Byrne (1877), 3 Vict. 
 L. R. 179. By an English act, 
 commissioners appointed to im- 
 prove a harbor, were empowered 
 with the ballast board's sanction, 
 to exhibit lights, etc., to guide 
 ships navigating the harbor. The 
 contractor employed to execute 
 the work was held guilty of negli- 
 gence is not obtaining such sanc- 
 tion to set up lights on the ends 
 of piles during the progress of 
 the operations, but the commis- 
 sioners were held not liable for 
 injury to a vessel due to want of 
 such lights. This decision is of 
 doubtful value on the second 
 point. Gilbert v. Halpin (1858, 
 Exch.), 3 Ir. Jur. (N. S.). 300; 
 Pigot, C. B., dissented. 
 
 •^'Congreve v. Smith (1858), 18 
 N. Y. 79; Chase Cas. 180.
 
 employer's exceptional liability. 
 
 141 
 
 son who is not authorized to excavate in a highway employs 
 a contractor to do so, he is Hable for injuries inflicted by 
 the contractor in doing the work, though he would not be 
 so liable if he iiad first obtained a license to excavate.'"'* 
 On the other hand, it has been held in New York lately 
 that a contractor engaging to erect a building, does not 
 become liable to a penalty imposed by a city ordinance pro- 
 hibiting the deposit of the material in the street without a 
 permit, because the ordinance has been violated by an in- 
 dependent subcontractor where the original contractor had 
 no authority to direct him in the matter. Nor will the 
 original contractor's failure to procure such permit make 
 him liable where there is no necessity for depositing the 
 material in the street, and he does not know that it will 
 be done.^^ 
 
 Sec. 69. Contract Work Unlawful, other than Nuisance. 
 
 An eminent author has declared that "it is at least true 
 that where the contract calls for the doing of an act that 
 is itself wrongful, the employer remains liable for all the 
 consequences, practically as a joint tort feasor with the 
 contractor." ^^ "When the thing contracted to be done is 
 tortious or unlawful, merely doing it by another person, 
 under any form of contract, will not relieve the employer 
 
 =" Creed v. Hartman (1864), 29 
 N. Y. 591 ; 86 Amer. Dec. 341. 
 
 ''Buflfalo V. Clement (1892), 19 
 N. Y. Supp. 846. 
 
 '•Huflf. Agcy., 2cl cd., Sec. 220. 
 Where work is contracted for is 
 unlawful, the employer is liable; 
 Burd. Torts, pp. 139-140, quoting 
 Berg v. Parsoxs (1898), 156 N. 
 Y. 109, and citing Ellis v. Slieffield 
 
 Gas Co. (1853), 2 El. & B. 767; 23 
 L. J. Q. B. 42; Spcnce v. Schultz 
 (1894), 103 Cal. 208; 37 Pac.220; 
 McDonnell v. Rifle Room Co. 
 (1888), 71 iMich. 61; 38 N. W. 
 681; Crisler v. Ott (1894). 72 
 ]\liss. 166; 16 So. 416; Ketcham 
 V. Newman (1894), 141 N.Y. 205. 
 209; 36 N. E. 197; 24 L. R. A. 
 102.
 
 142 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 from responsibility." ^^ The question what kind of work 
 is unlawful or wrongful per se within the rule which charges 
 the proprietor for the injurious consequences of work being 
 done by an independent contractor "would conduct us into 
 an infinite variety of detail." ^^ It is clear that a proprietor 
 who makes a contract for the doing of an act upon his land 
 which will necessarily require the commission of a trespass 
 upon the premises of an adjoining owner will become liable 
 for such trespass, if committed, and it will be no defense that 
 it was committed by an independent contractor."'^ It is 
 obvious that where the work which the contractor engages 
 to do is wrongful per se, the owner and the contractor will 
 occupy the position of joint tort feasors, and the person 
 damnified may recover against either or both.^*^ Both the 
 owner and the contractor will be liable where the act con- 
 tracted to be done is itself wrongful.'*^ But where one 
 
 ^ Barrows on Neg., sec. 62 
 (black-letter), citing Ellis v. Gas 
 Co., supra; Blessington v. City of 
 Boston (1891), 153 Mass. 409; 26 
 N. E. 1113; Sturges v. Society 
 (1881), 130 Mass. 414; 39 Amer. 
 Rep. 463; Curtis v. Kiley (1891), 
 153 Mass. 123; 26 N. E. 421; 
 Burd. Cas. 403 ; Woodman v. Met- 
 ropolitan Railroad Co. (1889), 
 149 Mass. 335; 21 N. E. 486; 4 L. 
 R. A. 213 ; 14 Amer. St. Rep. 427 ; 
 6 R. & Corp. L. J. 72 ; 12 Am. Neg. 
 Cas. 80; Babbage v. Powers 
 (1891), 130 N. Y. 281; 29 N. E. 
 132; 14 L. R. A. 398. 
 
 ''Thomps. Neg. 649. Frequent 
 instances are presented in this and 
 the next three chapters. In a 
 recent leading case it is said that 
 the construction of the brick work 
 of a house abutting on a street 
 is not regarded as an enterprise 
 inherently dangerous to the users 
 
 of the street, so as to make the 
 proprietor liable for the injuries 
 to a pedestrian by the placing of a 
 plank across the sidewalk for the 
 use of laborers in carrying brick 
 and mortar into the building; 
 Richmond v. Sitterding (1903), 
 101 Va. 354; 43 S. E. 562; 99 
 Amer. St. Rep. 879; 65 L. R. A. 
 445 ; 16 Am. Neg. R. 609, n. 
 
 ^Ketcham v. Cohn (1893), 51 
 N. Y. St. R. 213; 22 N. Y. Supp. 
 181; Waller v. Lasher (1890), 37 
 Ills. App. 609; Coleman v. State 
 (1892), 134 N. Y. 564; 31 N. E. 
 902. 
 
 ^-Kollockv. Madison (1893), 84 
 Wise. 458; 54 N. W. 725. 
 
 "Murray v. Arthur (1901), 98 
 Ills. App. 331; Wilbur v. White 
 (1903), 98 Me. 191; 56 Atl. 567; 
 16 Am. Neg. R. 606, n. ; Crisler 
 V. Ott (1894), 72 Miss. 166; 16 
 So. 416.
 
 EMPLOYER S EXCEPTIONAL LIABILITY. 
 
 143 
 
 railroad contracted with another to construct its road and 
 the latter unnecessarily erected an embankment, which 
 flooded plaintiff's lot, the first railroad company was held 
 not liable."*- 
 
 Sec. 70. Same, Calling for Injurious Result. 
 
 If the employer contracts for improper materials or an 
 unsafe plan, or generally an unsafe result, he remains liable 
 for damages occasioned thereby, although the work is done 
 by an independent contractor.'*^ "It is as sound a rule of 
 law, as of morals, that when, in the natural course of things, 
 injurious consequences will arise to another from an act 
 which I cause to be done, unless means are adopted by 
 which such consequences may be prevented, I am bound, 
 so far as it lies in my power, to see to the doing of that 
 which is necessary to prevent the mischief. Failure to do so 
 would be culpable negligence on my part." ■*^'' "One who 
 causes work to be done is liable for the acts of employees 
 of an independent contractor, where the resulting injury, 
 instead of being collateral and flowing from the negligent 
 act of the employee alone, is one that might have been anti- 
 cipated as a direct or probable consequence of the per- 
 formance of the work if reasonable care was omitted in 
 the course of the performance." ^•^'' 
 
 *^ Chattahoochee, etc., R. v. 
 Zebcrman (1903), 136 Ala. 132; 
 30 Am. & Eng. R. Cas. (N. S.), 
 929; 16 Amer. Neg. R. 101, n. 
 
 "Huff. Agcy., 2d. ed.. Sec. 221, 
 citing GoRH.\M v. Gross (1878), 
 125 Mass. 232; 28 Amer. Rep. 234. 
 
 "» Norwalk Gas Co. v. Norwalk 
 (1893), 63 Conn. 496, 528; 28 Atl. 
 32, per Fenn, J. 
 
 *'•' R.\ILKO.\D Co. V. M R E Y 
 
 (1890), 47 Ohio St. 207; 24 N. 
 
 E. 269; 43 Am. & Eng. R. Cas. 
 97; 7 L. R. A. 701. To the same 
 effect D.wiE V. Levy (1887), 39 
 La. Ann. 551; 2 So. 395: Wert- 
 
 HEIMER V. Saundebs (1897), 95 
 
 Wise. 573; 37 L. R. A. 146; 70 
 N. W. 824. One can not escape 
 liability by contracting for that 
 the necessary or probable effect 
 of which would be to injure oth- 
 ers; Evans v. Murphy (1893), 87 
 Md. 498; 40 Atl. 109; Bonap.\rte
 
 144 INDEPENDENT CONTRACTORS AND TiiEIK LIABILITY. 
 
 To establish the owner's liability on the ground that the 
 injury complained of was the natural and probable conse- 
 quence of the contract, *'it is not enough to show that the 
 employer supplied one or more of the instrumentalities 
 which were necessary for the execution of the stipulated 
 work. It does not follow that, because those instrumentali- 
 ties were capable of being so used as to constitute a 
 nuisance, or of being used in an improper, negligent or 
 mischievous manner, an injury of which it is an efficient 
 cause must therefore be regarded as a natural consequence 
 of the permission to use it. The extent of the authority 
 conferred by the employer is, to execute the contract by 
 a proper and reasonable use of any means and appliances 
 which he furnishes. . . . Nor can the liability of an 
 employer, for the careless management of an appliance, be 
 inferred from the mere fact that there was an understand- 
 ing between him and the contractor that such an appliance 
 was to be used." *"* 
 
 V. Wiseman (1899), 89 Md. 12; 
 42 Atl. 918; 44 L. R. A. 482; 
 Burd. Cas. Torts. 404; Pye v. 
 Faxon (1892), 175 Mass. 185; 55 
 N. E. 894; 78 Amer. St. 486; 
 Carrico v. West Virginia, etc.. 
 Railroad (1891), 35 W. Va. 389; 
 14 S. E. 12; (1894), 39 W. Va. 
 86; 19 S. E. 571; 24 L. R. A. 50. 
 "In other cases the interposition 
 of an independent contractor has 
 been held to be no protection to 
 the defendant, for the reason that 
 the stipulated work was to be 
 executed on land owned or occu- 
 pied by certain incidents which 
 would be likely to produce injury 
 to the adjoining premises, unless 
 the appropriate precautions were 
 taken. Thu.s, the plaintiff has 
 
 been allowed to recover where 
 the work of making an excavation 
 for a building was so negligently 
 executed that a building on the 
 adjoining premises was damaged 
 by the withdrawal or weakening 
 of its lateral support." Note to 
 Jacobs v. Fuller, etc., Co. (1902, 
 Ohio), in 65 L. R. A. 848. One 
 who employs a contractor to do 
 a particular act is liable for the 
 contractor's injurious acts "which 
 flow out of the fulfillment of the 
 contract." Pitts v. Kingsbridge, 
 etc.. Board (1871), 25 L. T. (N. 
 S.), 195. 
 
 ** Note to Salliotte v. King. 
 ETC., Co. (1903), 58 C. C. A. 
 466; 122 Fed. 378, in 65 L. R. A. 
 at p. 642, citing cases.
 
 employer's exceptional llvbility. 
 
 145 
 
 If tlie contract in its purview contemplates an act neces- 
 sarily injurious to the rights or property of another, the 
 contractee is liable for resulting- damage; as where a canal 
 company contracted for the repair of its canal with soil to 
 be taken from certain land belonging to another, the re- 
 moval of which was of necessity injurious to such other's 
 property;"*""* and where a contract stipulates for the erec- 
 tion of a wall of insufficient tliickness in consequence of 
 which it falls, the proprietor must pay the damages;"*" so 
 also, if the plans are defective or the materials directed to 
 be used arc unsuited, the owner will be liable for damage 
 or injury occasioned thereby.'*' If the acts done by the 
 contractor and causing the injury were done in pursuance 
 of the contract itself, or otherwise under the direction of a 
 city, the city will be liable."*^ It is said, in a Kentucky case, 
 
 " Williams v. Irrigation Co. 
 (1892), 96 Cal. 15; 30 Pac. 961 ; 31 
 Amer. St. Rep. 172; Crenshaw v. 
 Ullman (1893), 113 Mo. 633; 20 
 S. W. 1077. 
 
 '"Treadwell v. New York 
 (1861), 1 Daly (N. Y.), 128. 
 
 *= Meier v. Morgan (1892), 82 
 Wise. 289; 52 N. W. 174; 33 
 Amer. St. Rep. 39. If an exca- 
 vation result in a trespass upon 
 adjacent property, in consequence 
 of the work being done in con- 
 formity with the plans furnished 
 by the proprietor, he will be re- 
 sponsible, although the work was 
 done by an independent contrac- 
 tor; Mamor v. Lussem (1872), 65 
 Ills. 484. Where an employe of 
 a person hired to build a water 
 tank was injured by its bursting 
 during a test because of defective 
 rivet bolts, and it was shown that 
 the owner's engineer was respon- 
 
 sible for the substitution of an 
 insufficient method of making 
 these holes, instead of having ihem 
 drilled as required by the plans 
 prepared by the owner, the em- 
 ployer was held liable; Duerr v. 
 Consolidated Gas Co. (1903), 83 
 N. Y. Supp. 714. 
 
 '"Nevins v. Peoria (1866), 41 
 His. 515; Robbins v. Chicago 
 (1866), 4 Wall. (U. S.). 657. 679; 
 2 Black (U. S.), 418; Cf, also, 
 Ellis v. G.^s Co. (1853), 2 El. & 
 Bl. 767; Hole v. Sittingbourne, 
 ETC., Railro.\d (1861), 6 Hurl. & 
 N. 497; 7 Am. Neg. R. 157, n. ; 
 8 Id. 301, n. ; Newton v. Ellis 
 (1885). 5 El. & Bl. 115; Sc.\mmon 
 V. Chicago (1861), 25 Ills. 424; 
 79 Amer. Dec. 334; 14 Am. Neg. 
 Cas. 418. n.; Lowell v. Boston, 
 ETC., R.\iLRo.\D (1839), 23 Pick. 
 24 ; 34 Amor. Dec. 33 ; St. Paul v. 
 Seitz (1859), 3 Minn. 297; 11
 
 146 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 that a city is responsible to property owners for unneces- 
 sary injury to their property in making local improvements 
 where the work is done by contractors; and it is held that 
 the contractors are not liable when they do the work prop- 
 erly and in accordance with the plans and specifications. 
 In the particular case the injury consisted in so grading a 
 street as to change the flow of the surface water. This 
 decision is questioned. ^^ The proprietor has been held 
 liable for injuries due to the obstruction of a street, which 
 was a direct and necessary incident of the work.°° 
 
 A complaint against an employer is demurrable if the 
 allegations show that the injury complained of was caused 
 by the negligent manner in which the contractor executed 
 the work in question, unless some allegation also shows a 
 misfeasance or malfeasance on the employer's part which 
 caused the contractor to do the work negligently, and that 
 
 Amer. Dec. 753; Palmer v. Lin- 
 coln (1876), 5 Nebr. 137; 25 
 Amer. Rep. 470; Buffalo v. Hol- 
 LOvvAY (1852), 7 N. Y. 493; 57 
 Amer. Dec. 530 ; Lockwood v. New 
 York (1858), 2 Hilt. (N. Y.), 66; 
 Storrs v. Utica (1858), 17 N. Y. 
 104; 72 Amer. Dec. 437; Clark 
 V. Fry (1858), 8 Ohio St. 379; 
 72 Amer. Dec. 590. Here as 
 elsewhere the employer will be 
 liable for injuries which proceed 
 from the nature of the work it- 
 self, and not from the manner in 
 which the contractor e-xecuted it ; 
 Ray V. Poplar Bluff (1897), 70 
 Mo. App. 252, failure of the con- 
 tractor to guard an opening in 
 a bridge ; Penny v. Wimbledon, 
 etc.. Council (1899), 2 Q. B. 72; 
 7 Am. Neg. R. 158, n., failure to 
 safeguard street excavation. 
 "Pearson v. Zable (1879), 78 
 
 Ky. 170. In 5 Thomps. Neg., 289, 
 it is said: "Clearly they are jonit 
 tort-feasors." Where a bridge 
 built for a city by a contractor 
 fell, causing damage and a jury 
 found that it fell in consequence 
 of "defect and inartificiality in 
 the plan" of it, "as furnished by 
 the city engineer," the city was 
 held liable. Dayton v. Pease 
 
 ( ), 8 Ohio St. 80. 
 
 ^'' Johnston v. Phoenix, etc., Co. 
 (1901), 169 N. Y. 581; 62 N. E. 
 1096. To render an employer 
 liable for injuries to a third per- 
 son during the performance of a 
 contract by an independent con- 
 tractor, the injury must have 
 arisen not from the work being 
 done, but from the method adopt- 
 ed in doing it; Sullivan v. Durham 
 (1898\ 35 App, Oiv. CN. Y.), 
 342; 54 N. Y. Supp. 962.
 
 employer's exceptional liability. 147 
 
 the origin of the injury complained of, therefore, be traced 
 to the action of the former in setting in motion the imme- 
 diately efficient cause of the wrong.^^ 
 
 Sec. 71. Same, Result Unforeseen. 
 
 The liability of the employer set out in the last preceding 
 section is predicated upon the principle that one is liable 
 for the proximate, natural and probable consequences of 
 his own act. Hence, if there was no primary culpability 
 in a given instance and the injury complained of resulted 
 as a remote, unforseen consequence, under the general 
 principles of ordinary care, then the employer is not an- 
 swerable ; and likewise, if the independent contractor or his 
 servant is not guilty of negligence in the premises, the con- 
 tractor is not liable. Thus, where a person employs a com- 
 petent architect and contractor and the plans are sufficient 
 and approved by the building department of the munici- 
 pality, the owner is not liable for an accident which happens 
 by reason of the foreman of the contractor putting the 
 foundation of a column on disturbed earth. ^- It has been 
 held that where the injury was caused by "the manner in 
 which the contractor managed the details of the work," 
 the employer is not liable ; ^^ nor is he liable for "a wrong- 
 ful act unnecessarily done" by the contractor in the per- 
 formance of his work ; ^* nor for an act which did "not 
 necessarily arise" out of the work contracted for.^^ The 
 employer, it was held in an early leading English case, is 
 
 "White V. New York (1897), Railroad Co. (1809), 58 N. Y. Supp. 
 
 15 App. Div. (N. Y.), 440; 44 286. To the same effect. Shiite 
 
 N. Y. Supp. 454. Cf.. Boardinan v. v. Princeton (1894). 58 Minn. 237; 
 
 Creighton (1901), 95 Me. 154; 49 59 N. W. 1050. 
 
 Atl. 663. "Upton V. Townsend (1855). 17 
 
 ''Burke V. Ireland (1901), 166 C. B. 30. 71. 
 
 N. Y. 305; 59 N. E. 914. "^ Chicago, etc.. Railroad v. Hen- 
 
 ""Hauscr v. Metropolitan Street nessey (1884), 16 Ills. App. 153.
 
 148 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 not liable where a contractor for the work of diverting a 
 creek erected an embankment so defectively that it could 
 not resist the action of the water w^hich it was intended to 
 confine. ^*^ 
 
 Sec. 72. Work Dangerous per se; General Rule. 
 
 "The general rule is, that an employer is not liable for 
 an injury caused by the negligence or wrongful act of an 
 independent contractor in executing the work in compliance 
 with his contract ; but this rule does not apply when the 
 contract requires the performance of w^ork intrinsically 
 dangerous." •'^' Where the contract calls for the per- 
 formance of w^ork intrinsically dangerous, although in such 
 cases the thing to be done may be lawful, it is none the 
 less opposed to the spirit and policy of the law to permit the 
 person wdio has assumed the imposed duty to escape liability 
 by shifting it to a contractor."^ In several English cases 
 it is held that if, according to previous knowledge and ex- 
 perience, the work which the proprietor engages the con- 
 tractor to do is inherently dangerous to third persons, and' 
 likely to lead to mischief, however carefully performed, it 
 will be incumbent upon him to foresee such mischief and 
 
 °° Allen v. Hayward (1845), 7 
 Q. B. 960; 4 Eng. Ry. & C. Cas. 
 104. Where a floor fell in conse- 
 quence of its being overloaded, 
 the owner of the premises was 
 held not liable; Dillon v. Sixth 
 Avenue Railroad (1884), 97 N. Y. 
 627. See, also, Hale v. Johnson 
 (1875), 80 Ills. 185; 14 Am. Neg. 
 Cas. 417, n., wall fell. 
 
 "Anderson v. Fleming (1903), 
 160 Ind. 597; 67 N. E. 443; 66 
 L. R. A. 119; 16 Am. Neg. R. 606, 
 
 citing numerous authorities, in- 
 cluding GODDAED V. HaRPSWELL 
 
 (1892), 83 Me. 499; 24 Atl. 956; 
 30 Amer. St. 411. An exception 
 to the rule of non-liability for the 
 acts of an independent contractor 
 exists where the work is neces- 
 sarily dangerous, unless certain 
 precautions are taken; Montgom- 
 ery St. R. V. Smith (1905), 146 
 Ala. 316; 39 So. 75; 42 Am. & 
 Eng. R. Cas. (N. S.). 131. 
 ^Barrows Neg., p. 165.
 
 employer's exceptional llvbility. 
 
 149 
 
 to take precautions against it."" Where the law, statutory 
 or common, imposes a special duty upon the owner of 
 highly dangerous things to see that they are properly used, 
 the employer is liable, if such precautions are not taken, 
 
 "• Daniel v. Metropolitan Rail- 
 road Co. (1871), L. R.: 5 H. 
 L. 63, per Colonsay, J. ; Bower 
 V. Peate (1876), 1 Q. B. D. 321; 
 11 Am. Neg. Rep. 645; Pickard 
 V. Smith (1861), 10 C. B. (N. S.), 
 470; 7 Am. Neg. R. 158, n. ; 8 Id. 
 264, n. ; Cf., Pearson v. Cox (1877), 
 2 C. P. Div. 369. See, also, the 
 following American cases : Nor- 
 walk Gas Co. v. Norwalk (1892), 
 63 Conn. 495; 28 Atl. 32; Col- 
 grove V. Smith (1894), 102 Cal. 
 220; 33 Pac. 115; 27 L. R. A. 
 590; Chicago, etc., Co. v. Meyers 
 (1897), 168 Ills. 139; 48 N. E. 
 66; Jefferson v. Chapm.\n 
 (1889), 127 Ills. 438; 20 N. E. 
 33; 11 Amer. St. Rep. 139; Fitz- 
 patrick v. Chicago, etc.. Railroad 
 (1888), 31 Ills. App. 649. If the 
 work to be executed is extra-haz- 
 ardous, and such that in the nat- 
 ural course of things injurious 
 consequences are likely to ensue, 
 unless suitable means are adopted 
 to prevent such consequences, the 
 employer is liable unless he uses 
 due care in the adoption of such 
 means; Huff. Agcy., 2d. ed.. 
 sec. 224; Bower v. Peate (1876). 
 L. R. 1 Q. B. D. 321; 45 L. J. 
 Q. B. 446 ; Black v. Christ Church 
 Finance Co. (1894). A. C. 48; 7 
 Am. Neg. R. 158, n. ; Thompson 
 V. Lowell, ETC.. R.\ilro.\d (1898), 
 170 Mass. 577; 49 N. E. 3S6; 40 
 L. R. a. 345; 64 Amer. St. Rep. 
 
 323; Cameron v. Oberlin (1897), 
 19 Ind. App. 142; 48 N. E. 386; 
 Norwalk Gas Co. v. Norwalk 
 (1893). 63 Conn. 495; 28 Atl. 321; 
 BoN.\PARTE v. Wiseman (1899), 
 89 Md. 12; 42 Atl. 918; 44 L. R. 
 A. 482; Burd. Cas. Torts, 404; 
 Covington, etc.. Bridge Co. v. 
 Steinbrock (1899), 61 Ohio St. 
 215; 55 N. E. 618; 7 Am. Neg. 
 R. 154; 76 Amer. St. Rep. 575; 
 Wetherbee v. Partridge (1899), 
 175 Mass. 185; 55 N. E. 894; 78 
 Amer. St. Rep. 486. See, also. 
 Hale Torts, 136; Brown v. Mc- 
 Leish (1887), 71 Iowa 381; 32 N. 
 W. 385. "It has never been sup- 
 posed that cutting down one's 
 own trees in a forest was so 
 intrinsically and essentially dan- 
 gerous as to impose on the owner 
 of the land or the trees the abso- 
 lute duty of looking out for per- 
 sons who might be passing along 
 a private footpath." Young v. Fos- 
 hurg, etc., Co. (1908, N. C), 60 
 S. E. 654. "With the exception 
 of the Young case, Knowlton v. 
 Hoit (1891), 67 N. H. 155; 30 
 Atl. 346. set out in that case, is 
 apparently the only case wherein 
 this question is discussed ; Ander- 
 son v. Tug River, etc., Co. (1906), 
 59 W. Va. 301; 53 S. E. 713, 
 may, however, be referred to.'' 
 Note to Young case, 16 L. R. A. 
 (N. S.). 255.
 
 150 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 no matter how careful or skillful the independent contractor 
 may be.*^^ The proprietor is liable, on the principle of 
 being- answerable for his own negligence, where the injury 
 proceeds from the nature of the work itself, and not from 
 the manner in which the independent contractor has 
 executed it. If from any reason the nature of the work 
 is such that, when done in the ordinary mode, it is neces- 
 sarily or naturally injurious, in a legal sense, to a third 
 person, the proprietor must answer to him in damages 
 for it.*^^ 
 
 ** Salisbury v. Erie Railway 
 (1901), 66 N. J. L. 233; 50 Atl 
 117; 88 Amer. St. Rep. 480; 55 
 L. R. A. 578. 
 
 "Williams v. Fresno, etc., Co. 
 (1892), 96 Cal. 14; 31 Amer. St. 
 Rep. 172; 30 Pac. 961; Carlson v. 
 Stocking (1895), 91 Wise. 432; 65 
 N. W. 58. The proprietor will 
 not be absolved from liability for 
 the negligence of an independent 
 contractor where the work is, in 
 itself, dangerous and likely to 
 lead to mischief; Toledo, etc., Co. 
 V. Bosch (1900), 101 Fed. 530; 
 Sullivan v. Durham (1898), 54 
 N. Y. Supp. 962, blasting; Penny 
 V. Wimbledon, etc., Council 
 (1898), 2 Q. B. 72; 7 Am. Neg. 
 R. 158, n. Where the work con- 
 tracted for is intrinsically danger- 
 ous, the employer is held liable; 
 Joliet v. Harwood (1877), 86111s. 
 110; 29 Amer. Rep. 17; Madigan 
 V. Wellington, etc., Railroad 
 (1883), N. Zeal. L. R. 2 S. C. 
 209; Bossence v. Kilmore (1883), 
 9 Vict. L. R. 35, "dangerous in 
 itself;" Angus v. Dalton (1878), 
 L. R. 4 O. B. D. 162, 187. If 
 
 the act contracted to be done was 
 intrinsically dangerous, a city will 
 be liable; Joliet v. Seward (1877), 
 86 Ills. 402, blasting rocks ; Marsh 
 V. Philadelphia (1894), 8 Pa. Dist. 
 Rep. 340, excavating for a subway 
 in a street and proceeding with 
 the work so carelessly that a 
 house abutting on the street falls 
 into the excavation and is de- 
 stroyed. In an action for damages 
 for personal injuries resulting 
 from an independent contractor's 
 blasting, it was held that the 
 plaintiff must show, inter alia, 
 that the contractor was employed 
 in a work which necessarily re- 
 quired blasting with explosives 
 in the heart of the city, that no 
 provision was made in the con- 
 tract for observing proper pre- 
 cautions, and that the independent 
 contractor did the work without 
 taking proper precautions, so neg- 
 ligently that the plaintiff as a 
 result was injured; Huntt v. Mc- 
 Namee (1900), 72 C. C. A. 441; 
 141 Fed. 293. "It can not be 
 successfully maintained that 
 building a house on a lot abutting
 
 employer's exceptional llvbility. 
 
 151 
 
 "It is sufficiently manifest that the virtual abrogation 
 now under discussion (/. e., employers' non-liability for 
 an independent contractor's torts) would result if the law 
 were to predicate, in respect to all kinds of work indiffer- 
 ently, the existence of an absolute duty on the employer's 
 part to guard against accidents, probable as well as im- 
 probable, that may happen to the damage of third persons 
 while that work is being performed by an independent 
 contractor." ^2 "if^ therefore, recovery is sought on the 
 ground that the employer ought to have adopted certain 
 precautionary measures for the purpose of preventing the 
 injury complained of, the action will fail, unless the plain- 
 tiff can at least show that, in view of the nature of the work 
 and the conditions under which it was to be executed, the 
 defendant should have foreseen that the actual catastrophe 
 which occurred was likely to happen if those precautionary 
 measures were omitted. Whether the production of evi- 
 dence to this effect will entitle him to go to the jury upon 
 the question whether the employer ought to have provided 
 for the protection of the public" is a point which has "elicited 
 different opinions. . . . But it seems to be a reason- 
 able inference from the more recent decisions * * * 
 that this point should.be decided in plaintiff's favor." ^^ 
 
 upon a street is inherently and 
 necessarily dangerous, or that 
 danger and hazard must necessa- 
 rily attend its erection. It is a 
 lawful work and of necessity en- 
 gaged in by thousands every day, 
 and if carefully and properly done, 
 involves no danger to any one." 
 Richmond v. Sitterding (1903), 
 101 Va. 354: 43 S. E. 562; 99 Am. 
 St. Rep. 879; 16 Am. Neg. R. 
 609, n.; 65 L. R. A. 445, citing 
 cases. 
 
 '■ Note to S.xLLiOTTE V. King, 
 ETC., Co. (1903), 58 C. C. A. 466; 
 122 Fed. 378, in 65 L. R. A. at 
 p. 639, citing City, etc., R.\ilro.\d 
 V. MooREs (1894), 80 Md. 348; 30 
 Atl. 643; 45 Amer. St. Rep. 345. 
 
 *^Note to S.VLLIOTTE V. KlXG, 
 
 ETC., supra, citing Pearson v. Cox 
 (1877), L. R. 2 C. P. Div. 369; 
 Jacobs v. Fuller, etc., Co. (1902), 
 67 Ohio St. 70; 65 L. R. A. 833; 
 13 Am. Neg. R. 208; 16 Id. 611, n.
 
 152 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Judge Thompson says on this point : ^'* "If we pause to 
 consider the effect of the decisions which affirm the liability 
 of the proprietor (for the violation of a statutory duty), 
 we shall see that they go far toward bringing us back to 
 the doctrine of Bush v. Steinman.^'^ There is no solid 
 distinction between one's obligation to perform a duty im- 
 posed on him by statute and a duty imposed by common law. 
 To obstruct the street in front of my premises is a nuisance 
 at common law, and the wrongfulness of the act is not 
 augmented because it is prohibited by statute; such a 
 statute is merely declaratory of the common law. If this 
 act is committed by a contractor doing a job of work for 
 me, it is difficult to see upon what grounds I should be held 
 liable where the act is prohibited by statute, as in Gray v. 
 PuLLEN,®" and not liable where the act is merely a nuisance 
 at common law, as in many cases which overrule Bush v. 
 Steinman.^'" In a very able judgment *^^ Lord Cockburn 
 appealed to Gray v. Pullen for the doctrine that where 
 one causes an act from which danger may arise to others, 
 he must see to it that others are not thereby injured, and 
 that he can not divest himself of this liability by trans- 
 ferring it to an independent contractor, and that eminent 
 judge declared that Tt can make no difference in point of 
 principle whether the obligation Vi^as imposed by statute 
 or existed at common law.' " 
 
 ** Thomps. Neg., Sec. 658, p. 609. 
 
 ■^ (1799), 1 Bos. & Pull. 404. 
 
 ^^(1864), 5 Best & S. 970; 7 
 Am. Neg. F. 158, n. 
 
 "'' Supra, n. 65. 
 
 •« Bower v. Peake (1876), 1 Q. 
 B. D. 321, 328; 11 Am. Neg. R. 645. 
 On facts similar to Gray v. Pullen, 
 supra, but where there was no 
 duty imposed by statute, a differ- 
 
 ent result was reached ; Sadler 
 V. Henlock (1855), 4 El. & Bl. 
 570, commenting on which, Judge 
 Thompson says (Neg. sec. 667, 
 note 93) : "But it is difficult to 
 distinguish between a liability im- 
 posed by statute and one subsist- 
 ing at common law, particularly 
 as the statute is only declaratory 
 of the common law."
 
 employer's exceptional liability. 
 
 153 
 
 As to what work is intrinsically dangerous, this is a ques- 
 tion which has proved troublesome even for the courts 
 which recognize and enforce the distinction taken between 
 collateral and direct negligence.^'* This exception of liability 
 for extra hazardous work has not met with universal favor. 
 It has been applied to numerous cases of excavating lands and 
 endangering the support of adjoining property, to an exhibi- 
 tion of markmanship, to the clearing of land by fire, to the re- 
 moval of dangerous walls, and to blasting. On the other 
 hand, some courts refuse to consider dynamite blasting, 
 excavating, trench digging, etc., so dangerous as to be non- 
 assignable unless the work is unlaw^ful, or a nuisance, or 
 the duty is imposed by statutes.'** When the work to be 
 done is itself lawful and is likely to be attended with in- 
 jurious consequences, it is manifestly difficult to draw a 
 clear line of distinction, or formulate a general rule de- 
 termining just what degree of danger is necessary to place 
 the responsibility on the employer. It would seem, however, 
 that if the contemplated work is of such a nature that in 
 the exercise of ordinary care it could be done with safety, 
 although, in the absence of such care, it would be attended 
 with danger, and probable injury, to third persons, the 
 contractor alone would be responsible.'^ It is immaterial 
 
 *" See ante, sec. 66. 
 
 "•Myer v. Hobbs (1876), 57 Ala. 
 175; 29 Amer. Rep. 719; Mayor, 
 etc., V. McCarty (1887), 84 Ala. 
 469; 4 So. 630; Scammon v. Chi- 
 cago (1861), 25 Ills. 424; 79 Amer. 
 Dec. 334; 14 Am. Neg. Cas. 
 418, n. ; Kepperly v. Ramsdcn 
 (1876), 83 Ills. 354; Tibbetts v. 
 Knox, etc.. Railroad (1873), 62 
 Me. 437; Blumb v. City of Kan- 
 sas (1884). 84 Mo. 112; 54 Amer. 
 Rep. 87; Cuff v. Newark, etc.. 
 Railroad (1870), 35 N. J. L. 17; 
 
 10 Amer. Rep. 205; 16 Am. Neg. 
 Cas. 668, n. ; Blake v. Ferris 
 (1851), 5 N. Y. 48; 55 Amer. 
 Dec. 304; Hackett v. Western 
 Union Telegraph Co. (1891), 80 
 Wise. 187; 49 N. W. 822; 10 Rail. 
 & C. L. J. 390. 
 
 " Barrows on Neg., p. 166, citing 
 Engel v. Eureka Club (1893), 
 137 N. Y. 100; 32 N. E. 1052; 33 
 Amer. St. Rep. 695 : Conners v. 
 Hennessey (1873). 112 Mass. 96; 
 McCafferty v. Railroad Co. 
 (1874), 61 N. Y. 178; 19 Amer.
 
 154 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 what time the accident happened, whether before, after or 
 during- the work, if otherwise the employer is liable. "^^ 
 
 Sec. 73. Same, Blasting. 
 
 It is desirable to notice separately those cases which 
 relate to injuries caused by blasting operations, for the 
 reason that the doctrine that the employer is exempt from 
 liability under such circumstances is not accepted by all the 
 authorities.'-^ One author asserts that blasting with dyna- 
 mite is considered by most courts so dangerous an under- 
 taking as to impose upon the landowner or employer the 
 non-assignable duty of seeing that the work is carefully 
 conducted.^^ On the other hand, it has been declared, and 
 supported by an array of decisions, that ''by the weight of 
 authority it seems that he (the employer) is not liable, 
 although the work to be done is intrinsically dangerous, so 
 long as no negligence can be imputed to him in employing 
 such contractor, and the work itself be lawful, and will not 
 necessarily result in injury to another." '^' 
 
 15 
 
 Rep. 267; Butler v. Hunter opinion in McCafferty v. Spuy- 
 
 (1862), 7 Hurl. & N. 826; 8 Am. ten, etc., R. Co., supra, was ex- 
 
 Neg. R. 301, n. pressly disapproved in Wetherbee 
 
 •-Piggott on Torts, 96. CI, v. Partridge (1899), 175 Mass. 
 
 Khron v. Brock (1887), 144 Mass. 185; 53 N. E. 894; 78 Amer. St. 
 
 516; 11 N. E. 748. 486. Cf., also, Murphy v. Lowell 
 
 '^Note to S.\LLioTTE V. King, ( ), 124 Mass. 564; Tiffin v. 
 
 ETC. Co. (1903), 58 C. C. A. 466; McCormack ( ), 34 Ohio St. 
 
 122 Fed. 378, in 65 L. R. A., at 638; 32 Amer. Rep. 408; Water 
 
 p. 644. Co. V. Ware (1872), 16 Wall. 
 
 74 
 
 Burd. Torts, p. 143. citing (U. S.), 566. 
 
 Norwalk Gaslight Co. v. Bor- ''Article on "Explosives," by 
 
 ough of Norwalk (1893), 63 Conn. Mr. F. E. Jennings in 19 Cyc. 9. 
 
 495 ; 28 Atl. 32 ; Joliet v. Har- For an exhaustive discussion re- 
 
 wooD (1877), 86 Ills. 110; 29 garding "Liabiliay for injury to 
 
 Amer. Rep. 17; dissenting opinion person or property from concus- 
 
 of Dwight, C, in McCafferty v. sion caused by blasting," see note 
 
 Spuyten Duyvil, etc.. Railroad to Bessemer, etc., Co. v. Doak 
 
 (1874), 61 N. Y. 178, 185; 19 (1907, Ala.), 44 So. 627; 12 L. 
 
 Amer. Rep. 267. The prevailing R. A. (N. S.), 389.
 
 employer's exceptional liability. 
 
 155 
 
 In Vermont a railroad company was held liable for its 
 failure to remove rocks thrown upon land adjoining the 
 right of way as a result of blasting operations conducted 
 by a contractor.'" Where a city contracted in writing with 
 A. for the erection of waterworks, which contract was 
 assigned to B., and by him to C, and C.'s employees negli- 
 gently caused the death of X., while such employees were 
 engaged in blasting in trenches in the streets for water 
 pipes, the city was held liable, though it had reserved no 
 control over the work or over C.'s employees."' Some 
 cases hold that where a contract for the erection of a build- 
 
 " Sabin v. Vermont, etc., Rail- 
 road (1853), 25 Vt. 363; but de- 
 fendants did not raise the point 
 of independent contractors. Other 
 cases in note 65 L. R. A. 753. 
 
 "LOGANSPORT V. DiCK (1880), 
 
 70 Ind. 65; 36 Amer. Rep. 166. 
 But see Staklter v. Huntington 
 (1899), 153 Ind. 354; 55 N. E. 88; 
 Schnurr v. Board, etc., Hunting- 
 ton Co. (1899), 22 Ind. App. 188; 
 53 N. E. 425. If a person con- 
 tracts with a municipal corpora- 
 tion to do a job of blasting rock, 
 or to perform any other work 
 which is inherently dangerous to 
 others, he will not be relieved 
 from liability to a person injured 
 thereby from the fact that he sub- 
 let the contract to another by 
 whose negligence the injury act- 
 ually occurred, for in such case 
 the proprietor himself would be 
 liable; Buddin v. Fortunato 
 (1890), 10 N. Y. Supp. 115. If 
 the proximity of other persons, or 
 the situation nf their property with 
 reference to the work, is such that 
 blasting cannot be carried on at 
 
 all without subjecting such per- 
 sons or such property to unrea- 
 sonable risks, then the doing of 
 it is a nuisance per se or negli- 
 gence per se, at least in such 
 sense as makes the proprietor an 
 insurer against any injurious con- 
 sequences which may flow from 
 it and obliges him to pay dam- 
 ages, if damages accrue. In such 
 case it will be no defense to him 
 whatever that he has committed 
 the work of blasting to an inde- 
 pendent contractor ; in other 
 words, that he has hired some 
 one else to do an act which is 
 inherently mischievous and dan- 
 gerous to others; Brennan v. 
 Schreiner (1892), 8 Abb. (N. C. 
 N. Y.), 481; 20 N. Y. Supp. 130. 
 Most of the New York cases hold 
 differently; see notes 80 et scq. 
 See on the subject of "blasting," 
 in general, the leading case of 
 Klepsch v. Don.\ld (1892), 4 
 Wash. 436 ; 30 Pac. 991 ; 31 Amer. 
 St. Rep. 936; 8 Wash. 162; 35 
 Pac. 621.
 
 156 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 ing contemplates blasting in close proximity to adjoining 
 buildings, the work is intrinsically dangerous, and the 
 ordinary rule of independent contractor does not apply."^^ 
 Thus, blasting of necessity involves danger to all who are 
 in the immediate vicinity, and when the owner of premises 
 within the city employes a contractor to do work thereon, 
 which necessitates blasting, he is liable for injuries caused 
 thereby to a third person.'^'' 
 
 The doctrine of liability for extra hazardous work has, 
 as already stated, often been rejected in the case of a con- 
 tract for blasting.^" Where the situation is such that the 
 blasting will not be dangerous to persons in the vicinity, pro- 
 vided the contractor gives timely notice of the explosion of 
 each blast, and if a person is injured by such an explosion 
 through the contractor's failure to give such notice, then 
 if any liability arises it will be that of contractor and not 
 that of the city or village ; since the injury arises from the 
 manner of doing the work and through a failure of duty 
 on the contractor's part and not that of the municipality.^^ 
 
 " Wetherbee v. Partridge 
 (1899), 175 Mass. 185; 55 N. E. 
 894; 78 Amer. St. Rep. 4S6; Bran- 
 nock V. Elmore (1892), 114 Mo. 
 55; 21 S. W. 451. Cf., Carmen v. 
 Steubenville, etc., Railroad (1854), 
 4 Ohio St. 399. Contra, in New 
 York; see notes 80 et scq. 
 
 ^* James' Administrator v. Mc- 
 MiNiMY (1892), 93 Ky. 471; 20 
 S. W. 435; 40 Amer. St. 200; 15 
 Am. Neg. Cas. 233, n. See, also, 
 Georgia Central Railroad v. Bern- 
 stein. 113 Ga. 175; 38 S. E. 394. 
 Compare, contra, Holland, etc., 
 Co. V. Baird, 169 N. Y. 136; 62 
 N. E. 149, reversing 63 N. Y. 
 Supp. 73. 
 
 ''Berg v. Parsons (1898), 156 
 N. Y. 109; 50 N. E. 957; 41 L. 
 
 R. A. 391 ; 66 Amer. St. Rep. 542; 
 47 Cent. L. J. 237; 4 Am. Neg. 
 R. 432; Burd. Cas. 406, note. See 
 McNamee v. Hunt (1898), 87 Fed. 
 Rep. 298; Carter v. Berlin Mills 
 (1876), 58 N. H. 52; 42 Amer. 
 Rep. 572; Cuff v. Newark, etc.. 
 Railroad (1870), 35 N. J. L. 17; 
 10 Amer. Rep. 205; 16 Am. Neg. 
 Cas. 668, n. In Berg v. Parsons, 
 supra, three judges (Gray, Bart- 
 lett and Haight) dissented on the 
 ground that there was evidence 
 justifying the conclusion that the 
 employer was culpable in engaging 
 an incompetent contractor. 
 
 " Herrington v. Lansingburgh 
 (1886), 110 N. Y. 145; 17 N. E. 
 728; 6 Amer. St. Rep. 348.
 
 employer's exceptional llvbility 
 
 157 
 
 If, however, the situation of the premises on which the 
 blasting is done, with reference to the lawful proximity of 
 third persons or with reference to adjacent property, is 
 such that the blasting can be carried on without subjecting 
 such persons or property to unreasonable risks, provided 
 it is properly done( i. e., that explosives of excessive force 
 are not used, blasts are properly covered, proper warnings 
 are given, and, if necessary, barriers are erected to arrest 
 flying missiles) then it becomes the duty of the independent 
 contractor to take these precautions, and if damages ensue 
 from the neglect of them, he and not the proprietor will 
 be liable.*^ If full effect be given to the principle of non- 
 
 ^^ French v. Vix (1894), 143 N. 
 Y. 90; 37 N. E. 612, reversing 30 
 Abb. (N. C), 158; 21 N. Y. Supp. 
 1016; Booth v. Rome, etc., Rail- 
 RO.\D (1893), 140 xN. Y. 267; 35 
 N. E. 24; 24 L. R. A. 105; 37 
 Amer. St. Rep. 552; Burd. C 
 Torts, 717. reversing 17 N. Y. 
 Supp. 336; 63 Hun 624. The 
 earlier New York doctrine was 
 different, as see Hay v. Cohoes 
 Co. (1849), 2 N. Y. 159; 51 Amer. 
 Dec. 279; Tremain v. Cohoes Co. 
 (1849), 2 N. Y. 163; 51 Amer. 
 Dec. 284. See, also, upholding the 
 present New York rule, Brannock 
 V. Elmore (1892), 114 Mo. 56; 21 
 S. W. 451; Roemer v. Striker 
 (1893). 21 N. Y. Supp. 1090 
 (1894). 142 N. Y. 136; 36 N. E. 
 808. See, also, McCafferty v. 
 
 SpUYTEN DuYVIL, etc., RAILR0.\n 
 
 (1874), 61 N. Y. 178; 19 Amer. 
 Rep. 267; Kelly v. New York 
 (1854). 11 N. Y. 432; Pack v. 
 New York (1853). 8 N. Y. 222; 
 Storrs v. Utica (1858). 17 N. Y. 
 104; 72 Amer. Dec. 437. In 
 
 Storrs v. Utica, supra, Comstock, 
 J., says : "The opinion [in Blake 
 V. Ferris (1851), 5 N. Y. 48; 55 
 Amer. Dec. 304], contains a very 
 elaborate, and I doubt not, a very 
 correct exposition of the doctrine 
 of respondeat superior, but I feel 
 less sure that the doctrine was 
 applied with strict accuracy to 
 the facts in the case." Logans- 
 port V. Dick (1880), 70 Ind. 65; 
 36 Amer. Rep. 166, since over- 
 ruled in effect; Tibbetts v. Knox, 
 etc.. Railroad (1873), 62 Me. 437 
 Hill V. Schneider (1897), 13 N. Y 
 App. Div. 299; 43 N. Y. Supp. 1 
 1 Am. Neg. R. 141 ; Wiener v 
 Plallack, 14 N. Y. Supp. 365 
 Brennan v. Gellick. 20 N. Y. St. 
 1023; 30 Abb. (N. C), 166; see 
 especially Berg v. Parsons, supra. 
 It was held in Roemer v. Stryker. 
 supra, that no error had been 
 committed in allowing the defend- 
 ant to give in evidence a written 
 contract between himself and an- 
 other whereby the latter agreed to 
 make an excavation, in which
 
 158 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 liability, it is said to be clear that cases in which a contract 
 is entered into for the performance of work by means of 
 blasting must stand outside the category of those in which 
 the employer is held responsible on the ground that he con- 
 tracted for work which was "intrinsically dangerous." ^* 
 A constitutional provision, imposing on corporations, exer- 
 cising eminent domain, a liability for consequential dam- 
 ages caused by taking property, was held not to render a 
 railway corporation exercising such power liable for dam- 
 ages caused by a contractor's negligence in blasting rocks 
 so as to throw them on property adjacent to its right of 
 way.^"^ Recovery was denied in a case where the plaintiff 
 was injured by a rock thrown out by a blast set off while 
 the foundation for a house was being excavated by a con- 
 tractor. ^^^ In a recent California case, it is stated that the 
 rule that one employing an independent contractor is not 
 liable for the latter's negligence can not be modified by the 
 doctrine that the employer is liable if the work is such as 
 would necessarily produce wrongful consequences without 
 reference to the negligence of the contractor, or is such as 
 
 work blasting was done. In Hill 
 V. Schneider, supra, the New York 
 supreme court held that a prelim- 
 inary injunction will not lie at a 
 tenant's instance to restrain his 
 landlord from blasting in an ad- 
 joining piece of land, it appearing 
 that he personally has not en- 
 gaged in blasting, but has em- 
 ployed an independent contractor 
 to accomplish a certain result, not 
 wrongful per sc, reserving to him- 
 self no control over the manner 
 of doing the work; the decision 
 proceeds on the ground that the 
 work was not apparently such as 
 might injure plaintiflF pendente 
 lite. 
 
 ^ Schnurr v. Huntington Co. 
 (1899), 22 Ind. App 188; 53 N. 
 E. 425, in which a county board, 
 with the city's consent, let a con- 
 tract to construct a sewer from 
 the court house to the city's 
 sewer; the city, the individual 
 members of the board and the 
 board, collectively, were held not 
 answerable. See, also, Blumb v. 
 City, etc. (18S4), 84 Mo. 112; 54 
 Amer. Rep. 87. 
 
 " Edmundson v. Pittsburgh, etc., 
 Railroad (1885), 111 Pa. St. 316; 
 2 .'\tl. 404. Cf., Ardesco Oil Co. 
 v. Gilson (1870), 63 Pa. St. 146. 
 
 *'Hunt v. Vandcrbilt (1894), 
 115 N. C. 559; 20 S. E. 168.
 
 employer's excei^ional liability. 
 
 159 
 
 is intrinsically dangerous and constitutes ipso facto a 
 nuisance, where the injury is produced by blasting in the 
 construction of a wagon road through an uninhabited and 
 substantially untraveled, wild, mountainous region.***^ 
 
 Sec. 
 
 74. Same, Fires. 
 
 There is an irreconcilable conflict among the cases in- 
 volving the question as to the employer's liability for the 
 act of an independent contractor in the use of fire, in the 
 performance of his contract. Thus, in the opinion of some 
 courts, a contract to burn brush on the defendant's lands 
 
 ""Houghton v. Loma, etc., Co. 
 (1907), 152 Cal. 500; 93 Pac. 82; 
 14 L. R. A. (N. S.), 913. "It 
 would seem to be held generally 
 that blasting operations in them- 
 selves are not considered so in- 
 trinsically dangerous as to render 
 an employer liable for the negli- 
 gent act of an independent con- 
 tractor from the very act of 
 employing him to do the work 
 contracted for, or to impose upon 
 such employer the absohue duty 
 to take special precautions to 
 avoid injuries from the opera- 
 tions ; in other words, the mere 
 employing of an independent con- 
 tractor to perform work requiring 
 blasting will not ipso facto take 
 the case out of the general rule, 
 and render the employer liable 
 for injuries caused by the negli- 
 gent acts of the independent con- 
 tractor. Numerous cases, indeed, 
 do hold that the employer is 
 lial;le for the acts of an inde- 
 pendent contractor in blasting 
 operations; but these cases arc 
 
 not necessarily opposed in prin- 
 ciple to the rule set out above, as 
 they are generally decided upon 
 the facts of the particular case, 
 and those facts are such as clearly 
 to render the rule inapplicable or 
 to form a clear cut exception." 
 Note to Houghton v. Loma, etc., 
 Co. (1907, Cal.), 14 L. R. A. (N. 
 S.), 914. A railway construction 
 contract spccilied that all dam- 
 ages from blasting should be paid 
 by the contractor, and in case any 
 damages should occur to ar.other 
 landowner's premises through the 
 wilfullness or carelessness of the 
 contractor, or his employees, and 
 remain unsettled thirty days, the 
 railroad should have the right to 
 retain in its hands, out of money 
 due the contractor, sufficient to 
 pay such damages ; the railroad 
 company was held not liable to 
 third persons for injuries caused 
 by the contractor in blasting. 
 Tibbetts, v. Knox, etc., Railroad 
 (1873). 62 Me. 437.
 
 160 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 calls for the doing of intrinsically dangerous work.^'^ An 
 eminent authority declares: "Upon the plainest considera- 
 tions, this principle ought to be applied to the case where 
 an independent contractor, acting within the terms of his 
 contract, sets out a fire on the premises of the proprietor, 
 where he is doing work under contract, and the fire spreads 
 to the lands of an adjoining proprietor, doing damage there; 
 for certainly it must be conceded that a fire, unless guarded, 
 is likely to lead to mischief. Accordingly, it has been held 
 that a corporation owning land is liable in damages for the 
 act of its contractor in negligently and improperly lighting 
 a fire on its land, and permitting it to spread to the land 
 of another owner, although such contractor in so doing 
 disregards specific instructions contained in the contract in 
 regard to the time at wdiich such fire should be lighted. To 
 escape liability, the corporation must show that the act 
 of the contractor was that of a trespasser and not within 
 the scope of the contract." ^^ 
 
 A railroad company let a contract to another to burn 
 a fire guard along its right of way. Through the contrac- 
 tor's negligence the fire escaped his control and damaged 
 the plaintiff's property. Held : ( 1 ) That the work was 
 performed as part of the operation of the railroad and that 
 
 *' Black V. Christ Church Fi- 
 nance Co. (1894), A. C. 48; 
 7 Am. Neg. R. 158, n; Cameron 
 V. Oberlin (1897), 19 Ind. App. 
 142; 48 N. E. 385; 16 Am. Neg. 
 R. 599, 608, in which latter case 
 it appeared that the negligence 
 flowed directly from the acts 
 which the contractor agreed to do 
 and was by the landowner author- 
 ized to do. 
 
 •^ Thomps. Neg., Sec. 656, citing 
 Black V. Christ Church, etc., Co., 
 supra. A municipal council which 
 
 contracted with a person for the 
 destruction of dead animals by 
 burning in the council's paddock, 
 the work being highly dangerous 
 at the time the contract was made, 
 but susceptible of being safely 
 performed if certain precautions 
 were observed, was held respon- 
 sible for injuries caused to plain- 
 tiff's property as a result of the 
 contractor's failure to observe 
 these precautions. Hannan v. 
 Shcpparton (1892, Vict), 14 Aust. 
 L. T. 83.
 
 EMPLOYER S EXCEPTIONAL LIABILITY. 
 
 161 
 
 the railroad company could not, by delegating the work 
 to an independent contractor, avoid the liability placed on 
 it by statute; (2) That the work being of a character from 
 which, in the natural course of things, injurious conse- 
 quences to others might be expected to result, unless means 
 were adopted to prevent them, the railroad company was 
 bound to see that measures were taken to prevent such 
 injury and could not avoid the obligation by letting the 
 work to an independent contractor. ^'-^ 
 
 The doctrine of liability for extra hazardous work has 
 been more often rejected in the case of a contract for the 
 setting of fires.'-'" In St. Louis, etc., Ry. v. Yonly,^^ 
 the court intimates that such work might be intrinsically 
 dangerous under some circumstances; but holds that the 
 
 *" St. Louis, etc., R. v. Madden 
 (1908), n Kans. 80; 93 Pac. 586; 
 17 L. R. A. (N. S.), 788; 50 Am. 
 & Eng. R. Cas. (N. S.), 48, sjlla- 
 bus by court, citing inter alia, 
 Gillson V. North Grey R. Co. 
 (1874), 36 U. C. (Q. B.), 475, two 
 judges dissenting; and distinguish- 
 ing Wabash, etc., R. v. Farver 
 (1S87), 111 Ind. 195; 12 N". E. 
 296; 60 Amer. Rep. 696; 31 Amer. 
 & Eng. R. Cas. (N. S.), 134. In 
 a note to the Madden case in 17 
 L. R. A. (N. S.), 788, citing nu- 
 merous cases, the learned anno- 
 tatcr says, "the extra hazardous 
 nature of this undertaking is 
 deemed to justify the separate 
 note." 
 
 "" St. Louis, etc., Railro.ad v. 
 YoNLY (1900), 53 Ark. 503; 13 
 S. W. 333; 45 Am. & Eng. R. 
 Cas. 51S; 9 L. R. A. 604. See, 
 also, Leavitt v. Bangor, etc.. 
 Railroad (1897), 89 Me. 509; 36 
 
 L. R. A. 382; 7 Am. & Eng. R. 
 Cas. 354; 1 Am. Neg. R. 605. 
 
 "■Supra, note 90. In this case 
 injuries resulted to an adjoining 
 proprietor from the negligent per- 
 formance by a third person of his 
 contract to burn the brush grow- 
 ing upon a railroad company's 
 right of way, when such burning, 
 if carefully done, would have 
 caused no injury. Judge Thomp- 
 son says this is "opposed to sound 
 principle." Comm. on Neg., Sec. 
 656, note 37. That burning piles 
 of brush is not considered in- 
 trinsically a dangerous work, see 
 Shute V. Princeton Tp. (1898), 58 
 Minn. 337; 59 N. W. 1050; Carl- 
 son V. Stocking (1895). 91 Wise. 
 432; 65 N. W. 58; Stone v. Rail- 
 road Corporation (1849). 19 N. 
 H. 427; 57 Amer. Dec. 192. But 
 see, Mahoney v. Dankwert (1899), 
 108 Iowa, 321 ; 79 N. W. 134.
 
 162 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 burden of showing that it was so dangerous is on the plain- 
 tiff. Unless the circumstances of the case are such that 
 the mere fact of authorizing- the fire to be set is per se neg- 
 ligence, then if it is set by an independent contractor, the 
 fact that it escapes his control through his negligence and 
 gets upon tlie lands of another and there does damage, does 
 not make the landowner, on whose land it is set by the in- 
 dependent contractor, liable for such damage, though the 
 independent contractor undertook the work of clearing the 
 land at a stipulated sum per acre.^" In a case where the 
 property owner employed a painter to paint his house for 
 a lump sum, and gave him no directions as to the manner 
 of the work, the painter was held an independent contractor 
 for the result of whose act in setting out a fire by the negli- 
 gent operation of a paint burner, the proprietor was not 
 liable.^^ A town which enters into a contract with an indi- 
 vidual for the repair of a highway, including the destruc- 
 tion by fire of brush which has theretofore been cut and 
 piled, is not liable for damages caused by the negligence of 
 such contractor when burning the brush. '^■^ 
 
 Sec. 75. Same, Excavations. 
 
 Digging trenches in highways or across footpaths has 
 been considered by many, if not most, courts so dangerous 
 
 "-Ferguson v. Hubbell (1884), 
 97 N. Y. 507; 49 Amer. Rep. 544. 
 The proprietor of a grain eleva- 
 tor, in which there is much in- 
 flammable matter, is not, as a 
 matter of law, guilty of negli- 
 gence in failing to have automatic 
 sprir.klers in the building. Cox 
 V. Central, etc.. Railroad (1898). 
 170 Mass. 129; 49 N. E. 97; 9 
 Am. & Eng. R. Cas. (N. S.), 591. 
 
 '^Francis v. Johnson (1904), 
 127 Iowa, 391; 101 N. W. 878; 17 
 Am. Neg. R. 507. A municipal- 
 ity was held not liable where a 
 fire spread from timber which 
 was being burnt on a road by an 
 independent contractor. Carroll 
 V. Plympton (1860). 9 U. C. C. 
 P. 345. 
 
 ""Shute V. Princeton (1894). 58 
 Minn. 337; 59 N. W. 1050.
 
 EMPLOYER S EXCEPTIONAL LIABILITY. 
 
 163 
 
 as not to be assignable so far as liability is concerned.'*"' 
 An incorporated company undertaking to lower the grade 
 of its road while in the receipt of tolls, and while the road 
 is open for travelers, is bound to guard that part retained 
 for public use, to warn travelers of danger threatened by 
 obstructions, and by suitable devices to direct them in the 
 proper route; of which duties it may not divest itself by 
 shifting the responsibility to others. ^^ Excavating adjoin- 
 ing land has also been held intrinsically dangerous within 
 this rule.'*^ The contractor may be liable jointly with his 
 principal to the adjoining owaier, although the contractor 
 merely engaged to do the excavating, and did it, supposing 
 that his principal would take measures to support the ad- 
 joining land.^^ On the other hand, it has been held that a 
 telegraph company is not liable to one who is injured by 
 falling into a hole dug in a public street by a railroad com- 
 pany engaged as an independent contractor in erecting a 
 line of poles and wire for it, where the contract does not 
 
 ""Spence v. Schultz (1894), 103 
 Cal. 208; 37 Pac. 220; Curtis v. 
 KiLEY (1891), 153 Mass. 123; 26 
 N. E. 421 ; Burd. Cas. Torts, 403 ; 
 McCarkier v. Hollister (1902), 
 15 S. D. 336; 89 N. W. 862; 91 
 Amer. St. Rep. 695; 11 Am. Neg. 
 R. 641. 
 
 "Lancaster Avenue Improve- 
 ment Co. V. Rhoads (1887), 116 
 Pa. St. 377; 9 Atl. 852; 2 Amer. 
 St. Rep. 608. As the work of 
 making in the street an excava- 
 tion to receive one of the columns 
 which are to support an elevated 
 railway is intrinsically dangerous, 
 the company owning the line can 
 not, by intrusting the work to an 
 independent contractor, escape its 
 obligation to see that the pitfall 
 thus created is so guarded as to 
 prevent its being a cause of in- 
 
 jury to passersby; for, since this 
 obUgation is imperative so long 
 as the excavation exists, notice 
 that it is not sufficiently protected 
 is not a condition of legal re- 
 sponsibility for injuries resulting 
 from it. Flynn v. New York Ele- 
 vated Railroad (1883), 17 Jones 
 & S. 60, in which case the wheels 
 of plaintiff's truck slipped into 
 the hole in question. Contra, as 
 to dock commissioners' liability 
 for railroad company under some- 
 what similar circumstances. Bar- 
 ham V. Ipswich Dock (1885), 54 
 L. T. (N. S.), 23. 
 
 " Bonaparte v. Wiseman 
 (1899), 89 Md. 12; 42 Atl. 918; 
 44 L. R. A. 482; Burd. Cas. 404. 
 
 •■^ Green v. Berge (1894), 105 
 Cal. 52; 38 Pac. 539; 45 Amer. 
 St. Rep. 25.
 
 164 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 require such holes either to be dug in the street or to be left 
 unguarded, but leaves the manner of erecting the line en- 
 tirely to the railroad company."^ 
 
 Sec. 76. Same, Explosives. 
 
 A natural gas company employed a contractor in a city 
 street, and through his negligence an explosion occurred. 
 The gas company was held not liable unless it had accepted 
 the work from the contractor prior to the explosion, or 
 knew the work was so done as to be dangerous. ^'^^ In an 
 Illinois case, a gas company contracted for the doing of 
 certain work which required the forcing of explosive gas 
 through pipes not yet thoroughly cemented; the gas leaked 
 and caused an explosion; the gas company was held liable 
 for the resulting damages, notwithstanding the fact that the 
 work was done by a construction company which was an 
 independent contractor. In this case, all the officers and 
 employees of the construction company were connected with 
 the gas company. ^°^ It has very recently been held that an 
 employer is liable for injuries due to an independent con- 
 
 "* Hackett v. Western Union 
 Telegraph Co. (1891), 80 Wise. 
 187; 49 N. W. 822; 10 Rail. & 
 Corp. L. J., 390. A Georgia 
 ruling to the effect that a street 
 railway company authorized to 
 lay its track in a street is not 
 liable for injuries occasioned by 
 the negligence of a servant of an 
 independent contractor whom it 
 has engaged to do the work, 
 where it had reserved no control 
 over his conduct, but that the lia- 
 bility is upon the contractor, is 
 questioned by eminent authority, 
 "since in such a case the work is 
 inherently dangerous and likely to 
 lead to mischief, unless properly 
 guarded, which brings the case 
 
 within the operation of another 
 principle ; and, moreover, it is a 
 just conclusion that the grant of 
 a franchise to tear up the public 
 street of a city is made upon 
 the implied condition that the 
 grantee will see to it that the 
 public are guarded from unneces- 
 sary danger during its operation." 
 Fulton County Street Railroad v. 
 McConnell (1891), 87 Ga. 756; 13 
 S. E. 828; Thomps. Neg., Sees. 
 652, 671. 
 
 ^"^ Chartiers, etc., Co. v. Lynch 
 (1888), 118 Pa. St. 362; 12 Atl. 
 435. 
 
 "^ Chicago, etc., Gas Co. v. 
 Myers (1897), 168 Ills. 139; 48 
 N. E. 66. But see, Chartiers, etc..
 
 EMPLOYER S EXCEPTIONAL LIABILITY. 
 
 165 
 
 tractor's act in breaking up heavy machinery by dynamite 
 in a large city within 150 feet of highways and residences, 
 as the rule absolving employers from liabih'ty for inde- 
 pendent contractors' neghgence does not prevail where the 
 work contemplated was hazardous and was to be performed 
 within dangerous proximity to persons rightfully on the 
 streets or in the residences near by.^^^ The owner and not 
 the maker of a boiler was held liable for its explosion by 
 reason of insufficient repairs where the repairs were made 
 under the supervision of the owner.^*^^ A street railroad, 
 which had provided a suitable place for an exhibition of 
 fireworks, which was in charge of a competent independent 
 contractor, was not liable, where a piece of fireworks fail- 
 ing to explode, the father of the man in charge, who was 
 assisting as a volunteer, gave it to the injured boy and told 
 him to take it away and have a good time with it.^^^ 
 
 Sec. 77. Same, Balloon Ascensions. 
 
 A street railway company, advertising a balloon ascen- 
 sion at a park owned and controlled by it, was held liable 
 for the death of a child at such ascension caused by the fall 
 of a pole to which the balloon was attached, where proper 
 notice of the fact that it would fall was not given, even 
 though the person making the ascension w'as employed as 
 an independent contractor. ^^^ This doctrine of liability 
 
 Co. V. Lynch, supra. Where a 
 telegraph company laying wires in 
 a highway employed a plumber to 
 solder the joints of tubes, and 
 through the use of a defective 
 benzine lamp an explosion re- 
 sulted, injuring a passerby, the 
 telegraph company was held liable. 
 Holliday v. National Telegraph 
 Co. (1899), 2 Q. B. 392. 
 
 "-Falendcr v. Blackwell (1905), 
 39 Ind. App. 121; 79 N. E. 393. 
 
 On the general subject of blast- 
 ing, see ante. Sec. 73. 
 
 ""James McNeil, etc., Co. v. 
 Crucible, etc., Co. (1904), 207 Pa. 
 St. 493; 56 Atl. 1067. 
 
 '" Noggle V. Carlisle, etc., R. 
 (1906), 215 Penn. 357; 64 Atl. 
 547; 44 Amer. & Eng. R. Cas. (N. 
 S.), 627. 
 
 ""Richmond, etc., R.mlroad v. 
 Moore (1897), 94 Va. 493; 27 S. 
 E. 70; 37 L. R. A. 258.
 
 166 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 for extra hazardous work has also been rejected in the case 
 of a contract for an exhibition of balloon ascension/"*^ 
 
 Sec. 78. Same, Logging. 
 
 A lumberman, contractins:^ for logs to be delivered at 
 the mouth of a stream, is not liable for the destruction of 
 a bridge by reason of the contractor allowing the logs to 
 jam in the stream wath those of owners, the accident oc- 
 curring by reason of a freshet breaking the jam.^'^'^ Where 
 a person employed to haul logs left some of them on a high- 
 way, thereby creating a dangerous obstruction which caused 
 injuries to the plaintiff, the employer was held not liable.^*'* 
 Where a boom of logs which was to have been towed across 
 an inlet of the sea, which was insecurely fastened, and 
 being set adrift by a storm was driven against the 
 piles supporting a house, the employer was declared not 
 responsible. ^'^'^ 
 
 Sec. 79. Same, Overhanging Objects. 
 
 Where a property owner lets to a contractor the work 
 of constructing or repairing an awning over a sidewalk in 
 front of his store, the case "comes under the exception to 
 the general rule ; that is, that the work contracted for in- 
 volves a thing inherently dangerous to the public, from 
 which injuries to those using the streets were probable and 
 might reasonably be anticipated by the proprietor. This 
 is a well-established exception, and has been frequently 
 applied to cases of this character." ^^° 
 
 '"« Smith v. Renick (1898), 87 ^'* Easter v. Hall (1901), 12 
 
 Md. 610; 41 Atl. 56; 42 L. R. A. Wash. 160; 40 Pac. 728. 
 
 277. "" McH ARGE V. Newcomer 
 
 ^"'Overseer, etc., v. Pelton (1907), 117 Tenn. 595 ; 100 S. W. 
 
 (1901), 129 Mich. 31; 87 N. W. 700; 9 L. R. A. (N. S.), 298, 
 
 1029. 302, citing Jefferson v. Chapman 
 
 "* Manchester V. Warren (1893), (1889), 127 Ills. 438; 20 N. E. 
 
 67 N. H. 482; 32 Atl. 763. 33; 11 Amer. St. Rep. 139; Wood-
 
 EMPLOYER S EXCEFl'lONAL LIABILITY. 
 
 167 
 
 On the other hand, an abutting- owner was liekl not hable 
 for a sign falhng down during a violent storm, from his 
 building onto one using the adjacent sidewalk, where the sign 
 was placed by an independent contractor about two weeks 
 before. ^^^ 
 
 MAN V. Metropolitan Railroad 
 Co. (1889), 149 Mass. 335; 21 N. 
 E. 482; 6 Rail. & Corp. L. J., 
 72; 4 L. R. A. 213; 14 Amer. St. 
 Rep. 427; 12 Am. Neg. Cas. 80; 
 Omaha v. Jensen (1892), 35 
 Nebr. 68 ; 52 N. W. 833 ; 37 Amer. 
 St. Rep. 432; Engel v. Eureka 
 Club (1893), 137 N. Y. 100; 32 
 N. E. 1052; 33 Amer. St. Rep. 
 695; Cameron, etc., Co. v. Ander- 
 son (1904), 98 Tex. 156; 81 S 
 W. 282; 1 L. R. A. (N. S.), 198 
 16 Am. Neg. Reg. 599, 608 
 Southern Ohio Railroad v 
 Morey (1890), 47 Ohio St. 207; 
 24 N. E. 269 ; 7 L. R. A. 701 ; 43 
 Amer. & Eng. R. Cas. 97. Plain- 
 tiff recovered judgment for dam- 
 ages for injuries inflicted on her 
 while walking along a much used 
 public street in a citj', by the fall- 
 ing of a hammer from an over' 
 head bridge in course of con- 
 struction on defendant's line of 
 railway. The evidence showed 
 that when the necessary riveting 
 was being done the workmen had 
 to work very rapidly, and as a 
 result rivets, tools, etc., frequently 
 fell to the ground beneath, ren- 
 dering travel unsafe. The bridge 
 was constructed by contractors of 
 large experience. The work was 
 being done under state authority 
 
 and with the city's consent. The 
 court instructed that it was no 
 defense that the work was being 
 done by independent contractor.^. 
 This was affirmed on appeal. 
 Philadelphia, etc., R. v. Mitch- 
 ell (1908. Md.), 69 Atl. 422; 17 
 L. R. A. (N. S.), 974, citing 
 cases. 
 
 '"McNuIty v. Ludwig (1908), 
 109 N. Y. Supp. 703. While 
 plaintiff was walking along the 
 street, she was injured by terra 
 cotta gargoyle falling on her from 
 a building. Defendant had been 
 employed by the building owner 
 to decorate it and had completed 
 it two days before the accident. 
 The building itself was unfinished. 
 The contractor, after the decora- 
 tions were done, had placed ropes, 
 etc., on parts covered thereby 
 which might have disarranged 
 them, l)ut there was also evidence 
 that they flapped in the wind, and 
 that when one of the large bunt- 
 ings came down, after being 
 blown up by the wind, it brought 
 with it the terra cotta which 
 struck plaintiff, and it was held 
 that defendant's negligence was 
 not established. Cross v. Koster 
 (1897, N. Y. App. Div.), 3 Amer. 
 Neg. Rep. 256.
 
 CHAPTER IV. 
 
 Employer's Exceptional Liability — II. Character of 
 
 Obligation. 
 
 SECTION 
 
 85. Absolute duty. 
 
 86. Statutory duty, generally. 
 
 87. Same — Excavating, general- 
 
 ly. 
 
 88. Same — Same — Shoring. 
 
 89. Same — Authorized appropri- 
 
 ations. 
 
 90. Same— Conditional under- 
 
 takings. 
 
 91. Same — Licensee's liability to 
 
 public. 
 
 92. Proprietor's duty regarding 
 
 sidewalks. 
 
 93. Same— Regarding highways. 
 
 94. Same — R e m o v i n g con- 
 
 demned buildings. 
 
 95. Same— As to adjoining own- 
 
 ers. 
 
 96. Same— Condition of prem- 
 
 ises generally. 
 
 97. Same— Duty to supervise. 
 
 98. Same— Duty as to invitees. 
 
 SECTION 
 
 99. Same — Furnishing a p p li- 
 ances. 
 
 100. Building contracts, general- 
 
 ly. 
 
 101. Same — Relation, how shown. 
 
 102. Same — Management of ma- 
 
 chinery. 
 
 103. Same— Party walls. 
 
 104. Same — Removing dangerous 
 
 wall. 
 
 105. Same — Exempt though fatal. 
 
 106. Landlord and tenant, gener- 
 
 ally. 
 
 107. Same— Discharging legal 
 
 duty. 
 
 108. Same— Personally supervis- 
 
 ing. 
 
 109. Same— W o r k imminently 
 
 dangerous. 
 
 110. M a s t e r's non-assignable 
 
 duty. 
 
 Sec. 85. Absolute Duty. 
 
 The broadest statement of this exceptional liabih'ty is 
 as follows : "The weig-ht of reason and authority is to the 
 effect that where a person 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 injury to others, 
 
 1G8
 
 employer's exceptional liability. 
 
 169 
 
 he can not, by letting it to a contractor, avoid his liability, 
 in case it is negligently done to the injury of another." ' 
 "There are certain absolute duties resting upon natural 
 persons and corporations, either by operation of law or by 
 reason of having been voluntarily assumed. The law does 
 not permit a person or corporation to cast off such a duty 
 upon an independent contractor, so as to exonerate himself 
 or itself for the consequences of its nofi-performance." ^ 
 Where a person is bound to the performance of an act as 
 a duty, or is held to a certain standard of conduct, he can 
 not escape responsibility by intrusting its perfomiance to 
 another; and if the person so intrusted fails to perform such 
 act, or conform to such standard of conduct, whether he 
 bore the relation of contractor or servant, the person on 
 whom the duty rests is liable for his negligence, and it is 
 immaterial whether the obligation is imposed by contract 
 or general law.^ 
 
 ^ Covington, etc., Co. v. Stein- 
 brock (1899), 61 Ohio St. 215; 
 55 N. E. 618; 76 Amer. St. Rep. 
 375; 7 Am. Neg. R. 154. 
 
 ^Thomps. Neg., Sec. 665, citing 
 Jefferson v. Chapm.\n (1889), 
 127 Ills. 438; 20 N. E. 33; Cabot 
 V. Kingman (1896). 166 Mass. 
 403; 44 N. E. 344; 33 L. R. A. 45. 
 Generally, the performance of no 
 duty owed to the public or to pri- 
 vate individuals can be delegated 
 so as to escape liability. Lebanon 
 Light, etc., Co. v. Leap (1894), 
 139 Ind. 443; 39 N. E. 57. If a 
 person or corporation stands under 
 pre-existing obligations, however 
 imposed or assumed, to do a par- 
 ticular thing, or to do it in a 
 particular way, such person or 
 corporation cannot unload such 
 responsibility upon some one else. 
 
 Fowler v. Saks (1890), 7 Mackey 
 (D. C), 507; 7 L. R. A. 649. 
 
 'M.attise v. Manuf.\cturing 
 Co. (1894), 46 La. Ann. 1535; 16 
 So. 400; 49 Amer. St. Rep. 356 
 City, etc., Railro.ad Co. v. Moores 
 (1894), 80 Md. 348; 30 Atl. 643 
 45 Amer. St. Rep. 345; Storrs v. 
 CiTv of Utica (1858), 17 N. Y 
 104; 12 Amer. Dec. 437; Colgrove 
 V. Smith (1894), 102 Cal. 220 
 36 Pac. 411; 27 L. R. A. 590 
 Willi .VMS v. Irrig.mion Co 
 (1892). 96 Cal. 14; 30 Pac. 961 
 31 Amer. St. Rep. 172; Pye v, 
 Faxon (1892), 156 Mass. 471; 31 
 N. E. 640; Hole v. Railro.xd Co, 
 (1861), 6 Hurl. & N. 483; 7 Am 
 Neg. R. 157, n.; 8 Id. 301, n. It 
 is a precept of law that, when 
 the performance of a duty rests 
 upon one absolutely, he cannot
 
 170 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 86. Statutory Duty, Generally. 
 
 If the employer is under an obligation of positive law to 
 do a particular thing, or to observe particular safeguards, 
 he can not relieve himself of this liability by putting the 
 work into the hands of an independent contractor.^ Where 
 
 shift it to the shoulders of an- 
 other, but is still liable for its 
 non-performance, although the 
 fault be directly attributable to 
 an independent contractor. This 
 is equally true of common law 
 duties. Barrows Neg., p. 164. 
 "Of this nature is the duty which 
 rests upon the owners of fixed 
 property of guarding dangerous 
 substances collected on their prop- 
 erty, or of guarding dangerous 
 work authorized by them to be 
 done thereon so as to prevent 
 mischief to others. So, a carrier 
 of passengers is under an obliga- 
 tion of exercising a high degree 
 of care to the end that the vehicles 
 and means of transportation, pro- 
 vided by him, shall be safe for 
 the purposes intended ; which care 
 cannot be devolved by him on an 
 independent contractor. Other 
 public duties are devolved upon 
 railroad companies and other cor- 
 porations by their charters ; and 
 it is a sound view that they can 
 not escape responsibility for the 
 failure to perform such duties by 
 delegating the performance of 
 them to independent contractors 
 who may be pecuniarily irre- 
 sponsible, each of whom may 
 proceed into the country with an 
 army of laborers and perform the 
 most oppressive acts towards sep- 
 arate agricultural proprietors, who, 
 if such were the law, would be 
 
 left substantially without remedy." 
 Thomps. Neg., Sec. 665, referring 
 to Clark v. Hannibal, etc., R. Co. 
 (1865), 36 Mo. 202; Meyer v. 
 Midland, etc., R. (1873), 2 Nebr. 
 319; McKinley v. Chicago, etc., 
 R. (1890), 40 Mo. App. 449. It 
 has been held in many cases that 
 where the work is wrongful 
 naturally, the proprietor is liable. 
 Chicago v. Norton, etc., Co. 
 (1900), 97 Ills. App. 651; (1902), 
 196 Ills. 580 ; 63 N. E. 1043 ; Mur- 
 ray V. Arthur (1901), 98 Ills. App. 
 331 ; Omaha, etc., Co. v. Harga- 
 dine (1904, Nebr.), 98 N. W. 
 1071; Holliday v. National Tele- 
 phone Co. (1899, C. A.), 2 Q. B. 
 392. 
 
 * Hole v. Sittingbourne Rail- 
 road (1861), 6 Hurl. & N. 488; 
 30 L. J. Ex. 81; 7 Am. Neg. R. 
 157, n.; 8 Id. 301, n; Reuben v. 
 Swigert (1898), 7 Ohio Dec. 
 638; 15 Ohio C. C. 565; Downey 
 V. Low (1897), 22 N. Y. (App. 
 Div.), 460; 48 N. Y. Supp. 207. 
 "The reports contain a large num- 
 ber of cases in which the plaintiff 
 has been held to be entitled tf 
 recover on the ground that the 
 damage suffered by him resulted 
 from the infringement of a duty 
 imposed upon the defendant by a 
 statute or a municipal ordinance." 
 Note to Anderson v. Fleming 
 (1903, Tnd.), in 66 L. R. A. 121, 
 citing cases.
 
 employer's exceptional ll\bility. 
 
 171 
 
 a statute or the common law imposes the duty upon a per- 
 son to a contract to take agreed precautions in the doing 
 of certain work, the employer is bound to see that such 
 precautions are taken and if not taken the employer is 
 liable.'' A person may not invoke the rule of exemption 
 to excuse the non-performance of a duty cast on him by 
 express statute. The sound rule is said to be that where 
 a statutory obligation is imposed upon a person he is liable 
 for any injury which arises to others in consequence of 
 its having been negligently performed; and this whether 
 it were performed by himself or by a contractor employed 
 by him." On the contrary, there is a holding to the effect 
 
 "Water Co. v. Ware (1872), 16 
 Wall. (U. S.), 566. When the 
 obligation is raised by statute or 
 ordinance, the responsibility for 
 its performance is absolute. Bar- 
 rows Neg., p. 165. Sec. 58, Eng- 
 lish Railway, etc.. Act of 1845. 
 provides that if the company shall 
 in the course of making the rail- 
 way, use or interfere with any 
 road, it shall from time to time 
 make good all damage done by it 
 to such road; a railway compiany 
 used certain roads by the carriage 
 of building materials over the 
 same, to be and actually used ir 
 making such railway, etc. Two 
 judges held it had thereby done 
 damage to such roads, and it 
 was held liable to make good the 
 damage so done, although the ma- 
 terials were really conveyed in 
 the carts of the contractors or 
 subcontractors, or of other per- 
 sons employed by it. West, etc.. 
 Railroad v. Wakefield, etc.. Board 
 (1864). 33 L. J. Mag. Cas. (N. 
 S.), 174. 
 
 "■Gray v. Pullen (1864), 5 Best. 
 & S. 970; 7 Am. Neg. R. 158, n. ; 
 Hole v. Sittingbourne Railroad. 
 supra; Weber v. Buffalo Railroad 
 Co. (1897), 47 N. Y. Supp. 7. 
 Decisions holding employers liable 
 for the non-performance by inde- 
 pendent contractors of duties im- 
 posed by express statute '"really 
 fall within the class of cases 
 * * * which hold that a person 
 cannot excuse the doing of an act 
 unlawful per se, by alleging that 
 it was done by another, who con- 
 tracted to do it for him. A 
 statute empowers a person or 
 corporation to do a certain act in 
 a certain way. He attempts to 
 do it. but does it in a different 
 way. In so far as he does it in a 
 different way it is an unlawful 
 act, generally a nuisance. If an 
 injur}- happens to one in conse- 
 quence of its being thus done in 
 an unlawful manner, he cannot 
 avoid liability by alleging that the 
 wrong was that of one with whom 
 he had contracted to do the act
 
 172 INDEPENDENT CONTRACTORS AND THEIR LIABILITY 
 
 that the principle of liability applies only where there is 
 an express and fully defined statutory duty, absolutely im- 
 posed upon the owner of the premises, pointing out how 
 and when he is to perform it; and upon this theory it was 
 held that a Pennsylvania statute, relating to a natural gas 
 company, enacting "that any company laying a pipe-line 
 under the provisions hereof, shall be liable for all damages 
 occasioned by reason of the negligence of such gas com- 
 pany," did not extend so far as to make such a company 
 liable for damages caused by an explosion which took place 
 
 lawfully, but who did it unlaw- 
 fully. The privilege of doing or 
 having the act done for his bene- 
 fit is granted only on condition 
 of its being done in a certain way, 
 and he impliedly agrees to an- 
 swer for injuries which may flow 
 from the doing of the act unless 
 it is done in that way. If we 
 pause to consider the effect of 
 these decisions, we shall see that 
 they go far toward bringing us 
 back, to the doctrine of Bush v. 
 Steixman (1799, 1 Bos. & P. 
 404)." Thomps. Neg., Sec. 667, 
 p. 607. Under a statute requiring 
 contracts for curbing streets to 
 provide that the work be done 
 under the immediate supervision 
 of the mayor and city engineer, 
 it is the city's duty to use at least 
 ordinary care to see that the 
 stones are not placed and kept in 
 a dangerous condition, and where 
 a boy was injured by the fall of 
 a stone placed in an unstable posi- 
 tion, it is no defense to show 
 that an independent contractor 
 was doing the work. Frankfort 
 V. Allen (1904), 26 Ky. L. R. 
 
 581; 82 S. W. 292. Sees. 1166-7, 
 Tennessee Code, touching the lia- 
 bility which railroads incur by 
 failing to observe certain precau- 
 tions in running their trains, do 
 not apply to contractors engaged 
 in constructing a railroad. Griggs 
 V. Houston (1881), 104 U. S. 
 553; 8 Amer. & Epg. R. Cas. 359, 
 per Waite, C. J. In actions 
 against a railroad company for 
 injuries caused by negligence .in 
 restoring a highway after building 
 its road as required by statute 
 (Tex., R. S., Art. 4426), it is 
 no defense that the work was be- 
 ing done by an independent con- 
 tractor. Here the company was 
 held liable where, in running its 
 road across a highway, a tem- 
 porary way was built for the pub- 
 lic across the track, which, on 
 completing the road and restoring 
 the crossing, was left in a dan- 
 gerous condition and notice there- 
 of was not given the public. 
 Texas, etc., R. v. Johnson (1899, 
 Tex. Civ. App.), 6 Amer. Neg. 
 Rep. 716.
 
 EMPLOYER S EXCEPTIONAL LIABILITY. 
 
 173 
 
 while its pipes were being laid, and which was attributable 
 to the negligence of an independent contractor employed in 
 laying them, the company not having accepted the work and 
 having no notice of the fact that the contractor was pro- 
 ceeding with the work in a negligent manner." 
 
 Sec. 87. Same, Excavating-, Generally. 
 
 If there is an absolute duty, by common law or statute, 
 upon a proprietor proposing to excavate for the purpose of 
 building, it will be no defense to the action of an adjoining 
 
 '' Chartiers, etc., Gas Co. v. 
 Waters (1838), 123 Pa. St. 220; 
 16 Atl. 423. "It should be ob- 
 served in reference to this case 
 that it was not well decided, upon 
 the ground already considered 
 {ante, Sec. 652), that a proprietor 
 who employs an independent con- 
 tractor to do the work which, 
 unless guarded and cared for, is 
 likely to lead to mischief, is 
 under t'ne personal obligation of 
 taking care and pains to prevent 
 such mischief. All experience af- 
 firms the conclusion that, with 
 the exception of gunpowder, dyna- 
 mite, and similar explosives, few 
 substances are more likely to 
 lead to mischief, unless properly 
 guarded, than what is called nat- 
 ural gas." Thomps. Neg., Sec. 
 667, note 97. "In order that an 
 employer may be held liable on 
 the ground that his contractor 
 violated a statutory duty imposed 
 on him, the terms of the statute 
 must be such as to show that the 
 legislature intended to subject 
 him to an express and definite 
 obligation, either as regards the 
 
 work which he is to do or as 
 regards the manner in which he 
 is to do it." Note to Anderson 
 V. Fleming (1903, Ind.), 66 L. R. 
 A. 125. "If the statute relied 
 upon expressly provides for the 
 contingency of the works being 
 executed under an independent 
 contract and declares that the 
 duty must be fulfilled by the em- 
 ployee or contractor, the statute 
 will not ordinarily be construed 
 as enlarging the personal liability 
 of the employer, the intention of 
 the legislature being presumed to 
 be that the duty shall then be dis- 
 charged by the employer only 
 when the work is done under his 
 immediate control." Id, In a 
 dictum in an Irish case, Murphy, 
 J., was of the opinion that even 
 if a breach of a statutory obliga- 
 tion had been proved, the owner's 
 liability did not extend beyond 
 the penalty of the statute. This 
 view is condemned by a learned 
 annotater and author. Crawford 
 V. Peel (1887), Ir. L. R. 20, C. 
 P. 332. Criticised in Labatt on 
 Master & Servant. Sees. 799-800.
 
 174 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 owner, injured by a violation of it, that the former engaged 
 an independent contractor to do it.^ The rule under this 
 head has been extended to cases where a railroad is by 
 statute authorized to construct its road across a highway, 
 and by the negligence of an independent contractor the 
 highway is rendered unsafe, even though the statute does 
 not expressly require the railroad to observe particular 
 safeguards.'* 
 
 Sec. 88. Same, Shoring Excavations. 
 
 The liability of the landowner making an excavation 
 for the trespass of his contractor in entering an adjoining 
 building of the plaintiff for the purpose of shoring it up, 
 where there was a statute requiring the excavating land- 
 owner to shore up his neighbor's buildings, was discussed 
 in a leading New York case.^" In Pennsylvania it is held 
 that if the house of an abutting owner is undermined and 
 destroyed as the direct result of the construction of a sub- 
 way on which the house abuts because of the contractor's 
 
 *Dorrity v. Rapp (1878), 72 N. 
 Y. 307. See, also, Sees. 95, 141, 
 et seq., post. 
 
 * Deming v. Terminal Railway 
 Co. (1900), 49 N. Y. App. Div. 
 493; 63 N. Y. Supp. 615. Cf., 
 Sec. 116, et seq., post. Unless the 
 obligation to place a boarding in 
 front of a building under erection 
 is imposed by a statute applicable 
 to the locality in which the work 
 is being executed, the owner of 
 the building is not liable for in- 
 juries resulting from the fact that 
 the contractor by whom it was 
 being erected, omitted to put up 
 the boarding. Crawford v. Peel 
 (1887), Ir. L. R., 20 C. L- 332. 
 But see note 7, supra. 
 
 "Ketcham v. Newman (1894), 
 141 N. Y. 205; 36 N. E. 197; 24 
 L. R. A. 102. Where the walls 
 of a house adjacent to one being 
 erected for defendant falls as a 
 result of the fact that the trench 
 of the wall of the new house is 
 excavated by the contractor for 
 the work to the depth indicated 
 by the plans, and by reason of 
 such contractor's failure to shore 
 up the adjacent wall properly, the 
 injury is deemed to be the conse- 
 quence of the act which the con- 
 tractor was employed to do and 
 the landowner is therefore liable. 
 Wheelhouse v. Darch (1877), 28 
 U. C. C. P. 269.
 
 employer's exceptional liability. 
 
 175 
 
 negligence, the employing city will be liable, for the reason 
 that the work is of such a kind that unless it is guarded, 
 attended to and shored up by the party doing the work 
 {i. c, the city) it is likely to lead to mischief to the prop- 
 erty of abutting owners, which circumstance puts upon the 
 city the primary duty of seeing that it is so guarded and 
 shored up. which duty it cannot cast off upon an indepen- 
 dent contractor, who may be insolvent, so as to shift its 
 responsibility for the damages. ^^ 
 
 Sec. 89. Same, Authorized Appropriations. 
 
 If the charter of a corporation formed for public pur- 
 poses authorizes it to enter upon the land of private pro- 
 prietors and take therefrom materials to be used in the con- 
 struction of its works, the corporation will be answerable 
 for any such materials taken by its contractors, wdiether it 
 authorized the taking or not, and no matter what its ar- 
 rangements between itself and its contractors may be.^^ 
 
 Sec. GO. Same, Conditional Undertakings. 
 
 There is substantial unanimity in the view, that when a 
 valid statute or municipal ordinance commands the ob- 
 servance of certain precautions in doing particular work, 
 
 "Marsh v. Philadelphia (1S94), 
 8 Pa. Dist. Rep. 340; Stork v. 
 Phil.mielphia (1900), 195 Pa. St. 
 101; 45 Atl. 678; 49 L. R. A. 600; 
 (1901), 199 Pa. St. 4G2; 49 Atl. 
 236. 
 
 '- Lesher v. Wab.\sh, etc., Co. 
 (1852), 14 Ills. 85; 56 Amer. Dec. 
 494; Hinde v. Wabash, etc., Co. 
 (1853), 15 Ills. 72. If any specinl 
 provision of a statute authorizing 
 a lease by a railroad company 
 
 has not been duly followed, the 
 result is the same as if the con- 
 tract of lease had been wholly 
 unauthorized. Ricketts v. Chesa- 
 PE.\KE, ETC., Railroad (1890), 33 
 W. Va. 433; 10 S. E. 801; 7 L. 
 R. A. 354; 25 Amer. St. Rep. 
 901 ; Freeman v. Minneapolis, etc., 
 Riilroad Co. (1881), 23 Minn. 
 4-^3 ; 10 N. W. 5"4. See, general- 
 ly, as to lessee operating road, 
 Sec. 126.
 
 176 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the work is to be deemed inherently dangerous, unless these 
 precautions are taken. In such cases the employer is bound 
 to see that the precautions are taken, and can not escape 
 responsibility by letting the work to ever so skillful or 
 careful a contractor. ^^ If a permit to place building ma- 
 terial in the street is coupled with a condition that it be 
 lighted and guarded, the lot owner is liable for the failure 
 of a contractor to light and guard material placed there. ^^ 
 Where an employer is bound by a statute to do a thing 
 efficiently and an injury results from its inefficiency the 
 employer is liable. ^^ In a leading English case, a railway 
 company was empowered by statute to construct a railway 
 bridge across a navigable river, the statute providing that 
 it should not be lawful to detain any vessel navigating the 
 river for a longer time than sufficient to enable any car- 
 riages, animals or passengers, ready to traverse, to cross 
 the bridge, and to open it to admit such vessel. The com- 
 pany employed a contractor to construct the bridge in con- 
 formity with the statute; but before the work was 
 completed, the bridge, from some defect in its construction. 
 
 '^'Gray v. Pullen (1864), 5 B. 
 & S. 970; 7 Am. Neg. R. 158, n. ; 
 Wilson v. White (1883), 71 
 Ga. 506; 51 Amer. Rep. 259; 
 Atlanta, etc., Railroad v. Kim- 
 BERLEY (1891), 87 Ga. 161; 13 
 S. E. 277; 27 Amer. St. Rep. 231; 
 Hinde v. Wabash, etc.. Railroad 
 (1853), 15 Ills. 72; Bramiock v. 
 Elmore (1892), 114 Mo. 55; 21 
 S. W. 451 ; Houston, etc.. Rail- 
 road V. Meador (1878), 50 Tex. 
 //; Smith v. Milwaukee, etc., 
 Exchange (1895), 91 Wise. 360; 
 64 N. -W. 1041 ; 51 Amer. St. Rep. 
 912. 
 
 "Reuben v. Swigart (1898), 7 
 Ohio Dec. 638; 15 Ohio C. C. 565. 
 
 ''Berg v. Parsons (1898), 156 
 N. Y. 109; 50 N. E. 957; 41 L. 
 R. A. 391 ; 66 Amer. St. Rep. 542; 
 4 Am. Neg. R. 432, citing Smith 
 V. Milwaukee, etc.. Exchange, 
 supra. The New Jersey courts 
 seem to hold the view of Berg v. 
 Parsons, as see Cuff v. Newark, 
 etc., Railroad (1870), 35 N. J. 
 Law, 1; 10 Amer. Rep. 205; 16 
 Am. Neg. Gas. 668, n. ; Schutte 
 V. United Electric Co. (1902), 68 
 N. J. Law, 435; 53 Atl. 204; 16 
 Am. Neg. R. 614, n ; and see Hoff 
 V. Shockley (1904), 122 Iowa, 
 720; 98 N. W. 573; 64 L. R. A. 
 538; 101 Amer. St. Rep. 289; 16 
 Am. Neg. R. 607, n.
 
 employer's exceptional LLVBILITY. 
 
 177 
 
 could not be opened and plaintiff's vessel was prevented 
 from navigating the river. The defendant company was 
 held liable for the damage.'" A corporation bound, in con- 
 sideration of the franchise, to keep a road or bridge in 
 repair, is liable for injury to a person from want of repair, 
 whether the defect is patent or latent, unless the plaintiff 
 was in default or the defect was due to inevitable accident, 
 tempest or lightning, or a third person's wrongful act, of 
 which it had no notice or knowledge; and this liability 
 attaches although ordinary care was used in the erection or 
 repair, and the work was done by competent workmen under 
 contract. ^^ It has been held that an ordinance imposing a 
 penalty upon the owner or general contractor engaged in 
 the construction of a building over a certain height, who 
 
 ^" Hole v. Sittingbourne, etc.^ 
 Railroad (1851), 6 Hurl. & N. 
 483; 30 L. J. Ex. 81. Under an 
 English statute, defendant was 
 empowered to make a drain from 
 his premises to a sewer, by cut- 
 ting a trcriCh across the highway. 
 The statute carefully provided 
 that where the surface of a high- 
 way should be thus broken, the 
 one breaking it should restore it 
 to its former condition, or be sub- 
 ject to a penalty for a failure to 
 do so. Defendant employed to 
 do this a contractor by whose 
 negligence the drain was improp- 
 erly filled, in consequence of 
 which damages ensued to plaintiff. 
 The Queen's Bench was unani- 
 mously in favor of defendant. On 
 appeal, the Exchequer Chamber 
 was unanimously in favor of re- 
 versal. Gray v.' Pullen (1864). 5 
 Best. & S. 970. 
 
 " Pennsylvania, etc., Co. v. 
 
 Graham (1869), 63 Pa. 290; 3 
 Amer. Rep. 549. Cf., Downey v. 
 Lowe (1897), 22 App. Div. 460; 
 48 N. Y. Supp. 207, in which the 
 plaintiff fell into a coal chute 
 left in the highway by the li- 
 censee's contractor. A private 
 railway track was built to a cer- 
 tain manufacturing establishment, 
 under a city license on stringent 
 conditions, designed to prevent 
 accidents. No one but the de- 
 fendant company had any right 
 to build or maintain it. Hence, 
 all who used the track for the pur- 
 poses for which it was con- 
 structed were held to be using it 
 as the owner's agents, for whose 
 acts they were liable. This ap- 
 plies even to the operatives of the 
 railway company with whose track 
 the private track in question was 
 connected. McWilliams v. De- 
 troit, etc.. Co. (1875), 31 Mich. 
 274.
 
 178 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 fails to build a temporary roof over the sidewalk in front 
 of the building, does not enlarge the liability of the prop- 
 erty owner and that it applies to the owner only in cases 
 where the building is being erected under the direction and 
 control of the owner. ^® 
 
 Sec. 91. Licensee's Liability to Public. 
 
 On the other hand, the New York Court of Appeals, in 
 a case wherein a license or grant was given by the authori- 
 ties of a city to certain persons to construct a sewer in one 
 of its streets, with the proviso "that the grantees should 
 cause proper guards and lights to be placed at the excava- 
 tion, and should be answerable for any damages or injuries 
 which might be occasioned to persons, animals or property 
 in the construction of the sewer," held that this provision 
 did not inure to the benefit of a stranger, so as to render 
 the grantees liable to him for the negligence of an inde- 
 pendent contractor, to whom they had let out the job and 
 for whose negligence they would not ordinarily be respon- 
 sible.^^ But this was questioned by the same court in a 
 later case.^" A street railroad company's liability to pay 
 
 ^«Koch V. Fox (1892), 75 N. 
 Y. Supp. 913. The employer was 
 held liable in several early Scotch 
 cases where a contractor failed 
 to fence off a building under erec- 
 tion in accordance with the provi- 
 sions of a police act. Binnie v. 
 Parlane (1825), 4 Sc. Sess. Cas., 
 1st series, 122; Chapman v. Par- 
 lane (1825), 3 Sc. Sess. Cas., 1st 
 series, 585. T.ia])ility for the 
 breach of the imperative duty im- 
 posed by a city license upon one 
 owning a building being con- 
 structed to keep secure a roof 
 bui!t over the sidewalk so as to 
 
 prevent accidents to pedestrians, 
 cannot be avoided by the fact that 
 the roof fell in consequence ot an 
 excavation made by an indepcn- 
 cent contractor. Scheller v. Sil- 
 bermintz (1906), 50 Misc. 175; 98 
 N. Y. Supp. 230. 
 
 ^^ Blake v. Ferris (1851), 5 N. 
 Y. 48; 55 Amer. Dec. 334. 
 
 ^''Storrs v. Utica (185^), 17 N. 
 Y. 106; 72 Amer. Dec. 437. "It 
 is manifestly contrary to sound 
 principle. If A. makes a contract 
 with B. for the protection of C, 
 and C. is injured in consequence 
 of B. breaking the contract, C.
 
 employer's exceitioxal liability. 
 
 179 
 
 damages to persons for injuries resulting from its per- 
 formance of the work of reconstructing a highway bridge 
 over a canal, such work being done under a permit granted 
 upon the condition that those damages shall be paid, can 
 not be avoided by delegating the work to a contractor.^^ 
 A person who obtains a license from municipal authorities to 
 encumber a street while his ice house is being filled is liable 
 for injuries caused by unlawful obstructions created in the 
 street by blocks and fragments of ice, although the work is 
 done for him by a contractor.^^ Where a person fell into 
 
 may recover damages of B."' 
 Thomps. Nag., Sec. 674, citing 
 Langridge v. Levy (1837), 2 
 Mees. & W. 519; 4 Mees. & W. 
 337. In the case cited the city 
 granted a license containing a 
 certain proviso intended for the 
 protection of its citizens. When 
 the grantee accepted the license, 
 the proviso acquired the force of 
 a contract. The one to whom the 
 defendant delegated the construc- 
 tion of the work failed to take 
 the precautions stipulated for in 
 the proviso, and in consequence 
 of this, a citizen, for whose bene- 
 fit the proviso was intended, was 
 injured. ''Here was clearly a 
 cause of action, on his part, 
 against the defendant. If there 
 was not, eflforls of this kind on 
 the part of a city to protect its 
 citizens must be rendered, to a 
 great extent, nugatory.'' Thomps. 
 Neg., p. 617, citing Hole v. 
 
 SiTTINGCOUR.N'E, ETC.. RAILROAD 
 
 (1861), 6 Hurl. & N. 48S. 
 
 ^ Weber v. Buffalo Railroad Co 
 (1897). 20 App. Div. 292; 47 N. 
 Y. Supp. 7. 
 
 " Darmstaetter v. Monahan 
 
 (1873), 27 iMich. 188. "The vir- 
 tual effect of this doctrine is that 
 the privilege so granted is re- 
 garded as being subject to the 
 implied condition that the licensee 
 shall see to it, at his peril, that 
 the safety of the public is secured, 
 so far as that result can be at- 
 tained by the exercise of reason- 
 able care. A fortiori will the li- 
 censee be held liable for the non- 
 performance of that duty where 
 an express condition to this effect 
 was attached to the grant of the 
 privilege." Note to Anderson v. 
 Fleming (1903. Ind.), 66 L. R. 
 A. 135. A builder licensed to 
 erect a boarding which encroached 
 on a street, made it with a mov- 
 able panel for convenience. Once 
 when the one whose duty it was 
 to remove the panel was away, a 
 subcontractor's employee removed 
 it and placed it so negligently 
 that it was blown down injuri- g 
 a passerby. The builder was held 
 liable on the ground that hav'ng 
 received a license to encroach on 
 a public street to facilitate the 
 erection of the buildinpr, he was 
 under a special obligation to the
 
 ISO INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the opening made by removing under a license from the 
 civil authorities a grating over an area, the Illinois court 
 held the person injured could not recover from the land- 
 owner. This was very soon afterwards disapproved by the 
 United States Supreme Court, but was later followed by 
 the court of its origin. ^^ 
 
 Sec. ^'^ 
 
 iJ^, 
 
 Proprietor's Duty Regarding Sidewalks. 
 
 There is considerable conflict of authority as to the lia- 
 bility of the proprietor of premises for the acts of an inde- 
 pendent contractor or of his servants in creating defects in 
 or dangerous conditions upon public sidewalks adjoining 
 
 public carefully to exercise the 
 privilege and not interfere with 
 the safety of passersby. Evans 
 V. Martin (1880j, 6 Vict. L. R. 
 176. 
 
 ^ScAMMON V. Chicago (1861), 
 25 Ills. 424; 79 Amer. Dec. 334; 
 14 Am. Neg. Cas. 418, n. ; Chicago 
 V. Robbins (1862), 2 Black (U. 
 S.), 418; (1866), 4 Wall. (U. S.), 
 657; Keppcrly v. Ramsden (1876), 
 83 Ills. 554. '-placing an obstruc- 
 tion such as the one involved in 
 this case (/. e., a pile of cinder 
 alongside a street car track) in 
 the street is prima facie unlawful. 
 If the person so placing the ob- 
 struction relies upon an express 
 license obtained from the city, the 
 burden is on him to show the ex- 
 istence of the permit; or, if it is 
 his contention that the obstruction 
 is of a character such as he may 
 lawfully place in the street with- 
 out any express permission from 
 the city authorities, then such cir- 
 cumstances must appear in proof. 
 . . . Having placed an unlaw- 
 
 ful obstruction in the street, its 
 liability for the consequences 
 thereof continued, notwithstanding 
 it may also have been the duty 
 of the contractor to remove the 
 obstruction." Woodman v. Met- 
 ropolitan Railroad Co. (1889), 
 149 Mass. 335; 21 N. E. 482; 4 
 L. R. A. 213; 14 Amer. St. Rep. 
 427; 6 Rail. & Corp. (L. J), 72; ' 
 12 Am. Neg. Cas. 80. "Appellant 
 placed this obstruction in the 
 street at its peril. It was bound 
 to answer for the consequences. 
 . . . After the cinders were in 
 the street, the first and most im- 
 perative duty that rested upon 
 appellant and the contractor was 
 to remove them. After they were 
 there, however, and until they 
 could be removed, it was the duty 
 of appellant, as well as the con- 
 tractor, to guard the public 
 against any injury from the ob- 
 struction." Kenyon v. Chicago 
 City Railway Co. (1908), 235 Ills. 
 406; 85 N. E. 660.
 
 employer's exceptional ll\bility. 
 
 181 
 
 such premises, and such conflict is noticeable even in the 
 decisions of the same given jurisdiction. On the one hand 
 the rule as to liability for safety of premises has been ex- 
 tended to the protection of pedestrians in a public way in- 
 jured by inadvertently falling into unguarded excavations 
 adjacent to the sidewalk.-"* In New York one who had con- 
 tracted to build a block of houses and who had let out the 
 work of excavating, blasting, etc., to a subcontractor, was 
 held responsible for injury to a third person occasioned 
 by falling into an excavation made in the sidewalk by the 
 subcontractor or his servants, notwithstanding the fact 
 that the subcontractor had stipulated to guard against acci- 
 dents by proper precautions and to make good all damages, 
 on the principle that the work contracted for was wrongful 
 per se, the consent of the public authorities not having first 
 been obtained, and the principal contractor hence became 
 quasi-insurcr of the public against the injurious conse- 
 quences of it.-^ "A person wdio maintains for his own con- 
 venience, on the surface of a public footpath adjacent to 
 the premises occupied by him, an aperture which is ordi- 
 
 =^'VViggin V. St. Louis (1896), 
 135 Mo. 558; 37 S. W. 528. 
 
 ^Congreve v. Smith (1858), 18 
 N. Y. 79; Chase's C. Torts. 180; 
 Creed v. Hartman (1864), 29 
 N. Y. 591; 86 Amer. Dec. 341. 
 The fact of letting to an indepen- 
 dent contractor t,he work of 
 building area walls and construct- 
 ing coal vaults under a sidewalk 
 in front of his premises will not 
 relieve the owner of a city lot 
 from his personal duty of seeing 
 that an excavation in a sidewalk 
 which he has made for such 
 vault, is guarded with ordinary 
 care. Hence, where such an ex 
 
 cavation was made originally by 
 the lot owner himself, the law 
 imposes on him the personal duty 
 of guarding it with ordinary care, 
 which duty cannot be shifted to 
 an independent contractor by let- 
 ting to him a contract to con- 
 struct the walls of the vault and 
 to finish the job; but if such con- 
 tractor or his servants negligently 
 place a defective covering in a 
 coal hole above the vault and a 
 person falls into it. the lot owner 
 is liable. Hawver v. Whalen 
 (1892), 49 Ohio St. 69; 29 N. E. 
 1049; 14 L. R. A. 828.
 
 182 INDEPENDENT CONTRACTORS AND THEIR LIABILITY 
 
 narily covered by a grating- scuttle, a trap-door, and who 
 makes a contract which requires that the aperture shall 
 be opened while the stipulated work is being performed, is 
 answerable for injuries received by a passerby in conse- 
 quence of the failure of the contractor's servants to close 
 the aperture or to fasten the covering securely." '^^ So 
 also, the proprietor was held liable where the servant of 
 an independent contractor left a coal chute unguarded ; ^^ 
 and where such servants failed to light and guard building 
 material deposited in the street.^^ 
 
 "^Note to Jacobs v. B'uller, 
 ETC., Co. (1902), 67 Ohio St. 70; 
 65 N. E. 617; 13 Am. Neg. R. 
 208; in 65 L. R. A. 844, citing 
 cases. Plaintiff, a pedestrian, who 
 fell into a coal hole in a sidewalk 
 adjoining land of defendant, in 
 possession of a tenant, recovered 
 damages, it appearing that the 
 coal hole was used in connection 
 with the land, and its cover was 
 defective prior to the execution 
 of the lease, to the knowledge 
 (actual or implied) of the owner. 
 Hill V. Hayes (1908), 199 Mass. 
 411; 85 N. E. 434. In repairing 
 a sidewalk on a public highway, 
 independent contractors are re- 
 quired to do whatever the law 
 requires the property owner to do. 
 Kaufman v. Roth well (1908. 
 Tex.), 109 S. W. 1089; 17 L. R. 
 A. (N. S.), 758. 
 
 "Downey v. Low (1897), 48 
 N. Y. Supp. 207. "It is a matter 
 of such common knowledge as to 
 require the contractors to take 
 notice of it that the sidewalk 
 would be used by pedestrians at 
 night, and that one who had no 
 notice of the existence of such an 
 
 obstruction (planks laid across a 
 newly made cement walk) would 
 be liable to stuml)le on it and 
 thereby sustain an injury; it be- 
 comes the duty, therefore, of the 
 contractors to guard against such 
 an event by placing guards or 
 lights, etc. Where this is not 
 done, the liability of the property 
 owner and of the contractors is 
 bej^ond question." Kaufman v. 
 Roth WELL, supra. 
 
 ^Reuben v. Swigart (1898), 7 
 Ohio C. Dec. 638; 15 Ohio C. C. 
 565. With reference to the care 
 required in replacing the cover 
 of a coal hole in a sidewalk, the 
 distinction has been taken that 
 the owner of the adjacent build- 
 ing is not responsible for the 
 negligent manner in which a coal 
 company performs its contract in 
 delivering coal through such a 
 coal hole, but that such exemption 
 from responsibility continues only 
 while the coal company is per- 
 forming its contract; after which 
 time it is the duty of the owner 
 to give his personal attention, to 
 the end that the cover of the 
 holes is properly replaced so as
 
 employer's exceptional liability. 
 
 183 
 
 So also, as to dangerous conditions other than excava- 
 tions. Thus, the owner was held liable where the con- 
 tractor for brick-work on a building failed to erect barri- 
 cades to prevent injuries to persons on the sidewalk from 
 falling materials.-'' The defendants, property owners, when 
 they erected their awning over the sidewalk in front of 
 their store were said, in a recent Tennessee case, to have 
 "assumed all the obligations of the city to the public, and 
 something more. It was their duty to exercise a high de- 
 gree of care and diligence in the construction, maintenance, 
 inspection and repair of the awning, so as to prevent it from 
 obstructing the street, or endangering those using it; and 
 their failure to do so, or to take proper precautions to 
 protect the public at all times from injury in any way 
 growing out of its maintenance or repair, renders them 
 liable for the damages suffered." ^" 
 
 to make the sidewalk safe for 
 pedestrians. Benjamin v. Metro- 
 politan Street Railroad Co. (1896), 
 133 Mo. 274; 34 S. W. 590. The 
 owner of a building cannot shift 
 the duty under which he stands 
 to adjoining owners, or to passers- 
 by on the sidewalk or street, of 
 keeping his building in repair, by 
 committing the repair of it. after 
 a fire, to an insurance company, 
 which has reserved in a policy 
 the right to repair in case of a 
 fire. Steppe v. Alter (1896), 4S 
 La. Ann. 363; 19 So. 147; 55 
 Amer. St. Rep. 281. 
 
 =» Young et al. v. Trapp (1904), 
 118 Ky. 813; 82 S. W. 429. The 
 New York Court of Appeals holds 
 that the employer is liable if the 
 work itself creates a dangerous 
 condition, and that an abutting 
 owner for whom an independent 
 
 contractor was constructing a 
 wall in the rear of his premises 
 was liable for an injury to a per- 
 son, caused by a raised flagstone 
 in the driveway at its intersection 
 with the sidewalk, where the 
 flagging was raised by the con- 
 tractor's heavily loaded wagons. 
 Mullins V. Siegel. Cooper Co. 
 (1905), 183 N. Y. 129; 75 N. E. 
 1112, on appeal from 88 N. Y. 
 Supp. 737. 
 
 '" McH.VRGE V. Newcomer 
 (1907), 117 Tenn. 595; 100 S. W. 
 700; 9 L. R. A. (N. S.), 298, 
 citing Robbins v. Chicago (1866), 
 4 Wall. (U. S.). 657; Jefferson 
 V. Ch.\pman (1889), 127 Ills. 433; 
 20 N. E. 33; 11 Amer. St. Rep. 
 139; Hawver v. Wh.vlen (1892), 
 49 Ohio St. 69; 29 N. E. 1049; 14 
 L. R. A. 828. When a person, 
 for his own profit, suspended a
 
 184 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 In several cases the liability of the landowner seems to 
 have been established, partly at least, on the ground that 
 the act of the contractor in rendering the sidewalk unsafe 
 was in violation of a statute or ordinance.^^ Where a 
 building is being constructed on a city lot and the excava- 
 tion in the sidewalk is not protected as required by ordi- 
 nance, the owner of the lot is liable to persons injured by 
 falling therein, although the work is being done by an in- 
 dependent contractor.^^ A person injured by falling 
 through a wooden trap-door over an excavation in a side- 
 walk can, where such coverings are prohibited by an ordi- 
 nance of the city, recover against the owner of the premises, 
 notwithstanding the fact that a few days before the acci- 
 dent such owner employed a carpenter, who was an inde- 
 pendent contractor, to repair the door and the negligence 
 of the latter contributed to the accident.^^ 
 
 On the other hand, it has been held that a landowner, 
 who makes a contract with another person to provide the 
 
 lamp over a sidewalk and per- 
 mitted its fastenings to become 
 decayed, so that it was knocked 
 down by the negligence of a con- 
 tractor in repairing it, injuring a 
 foot passenger, he could not 
 escape payment of damages on the 
 ground that the contractor was 
 not his servant, and that he him- 
 self has been guilty of no per- 
 sonal negligence. Tarry v. Ashton 
 (1876), 1 Q. B. D. 314. See, 
 also, Gleeson v. Railroad Co. 
 (1890), 140 U. S. 435; 11 Sup. 
 Ct. Rep. 859. 
 
 ^^ See Sec. 69, ante. 
 
 '^Spence v. Schultz (1894), 103 
 Cal. 203; 27 Pac. 220; Crenshaw 
 V. Uilman (1893), 113 Mo. 633; 
 20 S. W. 1077; Savannah, etc., 
 
 Railroad v. Phillips (1892), 90 
 Ga. 829; 17 S. E. 82; Lancaster 
 v. Insurance Co. (1887), 92 Mo. 
 460; 5 S. W. 23; 1 Amer. St. 
 Rep. 739; Wood, Mast. & S., pp. 
 621-624; Ketcham v. Newman 
 (1894), 141 N. Y. 205; 36 N. E. 
 197; 24 L. R. A. 102; Smith v. 
 Traders Exchange (1895), 91 
 Wise. 360; 64 N. W. 1041; 51 
 Amer. St. Rep. 912; 30 L. R. A. 
 504; Taylor, etc., Railroad v. 
 Warner (1895), 88 Tex. Civ. 
 App. 642; 31 S. W. 66; 32 S. W. 
 868; Hole v. Sittingeoukne Rail- 
 road Co. (1851), 6 Hurl. & N. 
 488; 7 Am. Neg. R. 157, n. 
 
 ^' Barry v. Terkildsen (1887), 
 72 Cal 254; 13 Pac. 657; 1 Amer. 
 St. Rep. 55.
 
 EMPLOYER S EXCEPTIONAL LLVBILITY. 
 
 185 
 
 materials and construct a sidewalk in front of his premises, 
 retaining no power to direct the manner of doing the work 
 and retaining no control or right of control over the con- 
 tractor in the performance of the contract in any respect, 
 except that the work shall be in compliance with the con- 
 tract, is not liable for an injury caused by stones and other 
 obstructions negligently left in the street by the con- 
 tractor.^^ So also, a landowner was held not liable to a 
 passerby for an injury caused by a building contractor's 
 negligence in allowing brick and mortar to fall from the 
 wall.^^ In an early Indiana case it was held that owners 
 
 "Independence v. Slack (1895), 
 134 Mo. 66; 34 S. W. 1094. De- 
 fendant, owning city property, em- 
 ployed F. & B. on terms making 
 them independent contractors to 
 build a cement sidewalk fronting 
 her property, which they did. 
 Sometime thereafter the sidewalk 
 broke and defendant called on 
 them to repair it, without pay, 
 to which they objected but which 
 they ultimately did, defendant 
 giving no directions except to 
 point out the place to repair. In 
 repairing it, they left unguarded, 
 unlighted obstructions on the 
 sidewalk, and plaintiflf, passing 
 along at night, was injured. The 
 court instructed the jury to find 
 against the defendant and for 
 the contractors. On appeal the 
 former was sustained and the 
 judgment in favor of F. & B. was 
 reversed. The court expressly 
 follows the rule in Robbins v. 
 Chicago (1866), 4 Wall. (U. S.), 
 678; Kaufman v. Rothwell 
 (1908, Tex.), 109 S. W. 1089; 17 
 L. R. A. (N. S.), 258, citing 
 
 inter alia Chesapeake, etc., Co. 
 V. Alleghany Co. (1881), 57 Md. 
 201; 40 Amer. Rep. 430. On the 
 other hand, an abutting owner 
 for whom an independent con- 
 tractor constructed a cement side- 
 walk, was held not responsible 
 for the latter's negligence in 
 leaving a hole in the planking 
 that he placed over the newly 
 constructed walk. Massey v. 
 Oates (1905), 143 Ala. 248; 39 
 So. 142. 
 
 "Pye v. Faxon (1892), 156 
 Mass. 471; 31 N. E. 640. The 
 employer was held not to be re- 
 sponsible where a servant of a 
 contractor or a subcontractor 
 caused injury to a person on the 
 adjacent street or rightfully on 
 the premises, by letting fall a 
 brick. Wolf v. American Tract 
 Society (1893). 15 App. Div. 98; 
 49 N. Y. Supp. 236. If one en- 
 gages a contractor to pump water 
 from a cellar, and the lalter's 
 servants do so negligently, where- 
 by ice is formed on the sidewalk, 
 the owner is not liable to one in-
 
 186 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 of the building, alongside which the excavation was made, 
 having caused the work to be done by virtue of a license 
 p-ranted bv the city, were bound to use every reasonable 
 care that such privilege's exercise should not become a 
 nuisance or produce injury, failing in which such owner 
 was liable. 2^ In a later case, recovery was denied for 
 injury received by a person falling into an unguarded, un- 
 lighted excavation dug under a footpath. The court said 
 the earlier doctrine was not binding because the question 
 of the employer's liability for the contractor's negligence 
 was not really involved, the action being by the former 
 to recover from the latter, damages he had had to pay the 
 injured person.^^ 
 
 It has been held that no action was maintainable where 
 a fence built around an excavation in the sidewalk was 
 
 jured l)y falling thereon. Larow 
 V. Clute (1891), 60 Hun, 580; 14 
 N. Y. Supp. 616. 
 
 =* Silvers v. Nerdlinger (1868), 
 30 Ind. 53. 
 
 *'Ryan v. Curran (1878), 64 
 Ind. 345; 31 Amer. Rep. 123. 
 "This view of the decision is 
 clearly erroneous, as the only 
 ground on which the action could 
 be maintained is that the em- 
 ployer was himself primarily liable 
 for the negligence of the con- 
 tractor." Note to Jacobs v. 
 Fuller, etc., Co. (1902, Ohio), 
 in 68 L. R. A. 846; 13 Am. Neg. 
 R. 208. Judge Thompson in his 
 Commentaries on Negligence pro- 
 nounces this latter Indiana deci- 
 sion as "seemingly unsound." 
 Ryan v. Curran has been followed 
 in Cummins v. City of Seymour 
 (1881), 79 Ind. 491; Wabash, etc.. 
 Railroad v. Farver (1887), 111 
 
 Ind. 195: 31 Am. & Eng. R. Cas. 
 134; Dooley v. Town of Sullivan 
 (1887), 112 Ind. 451, in which 
 the former holding is qualified to 
 the extent that "it is quite clear 
 that to fasten a liability on the 
 toi^'ii it must be shown that the 
 work was intrinsically dangerous, 
 or that the town authorities had 
 notice of the danger, or were 
 negligent in not acquiring notice;" 
 followed in City of Evansville v. 
 Senhenn (1897). 151 Ind. 42; 47 
 N. E. 634; 51 N. E. 83; 41 L. R. 
 A. 728; 68 Amer. St. Rep. 218; 
 Park v. Board, etc. (1891), 3 Ind. 
 App. 538; 30 N. E. 147, holding a 
 county liable as to a bridge ren- 
 dered defective by a contractor, 
 but overruled as to county's lia- 
 bility in Board, etc., v. Allman 
 (1895), 142 Ind. 593; Zimmerman 
 v. Baur (1894), 11 Ind. App. 607.
 
 employer's excei^ional liability. 
 
 18i 
 
 blown down and struck a passerby; the court saying- : "'i'he 
 structure being lawful, all the acts necessary to be done in 
 completing it were collateral to the undertaking. If the 
 fence was insufficient, or if the contractor went beyond the 
 permit in obstructing the street, these acts are to be charge- 
 able to the persons who did them." ^^ Where the owner of 
 premises having occasion to construct an improvement in 
 his cellar which is required by the board of health, employs 
 a contractor, who is bound to do all work and furnish all 
 materials, the employer is not liable for injuries to a pedes- 
 trian from colliding with a barrel placed over an open coal 
 hole in the sidewalk, and kept there by the contractor to 
 supply necessary ventilation for the prosecution of the 
 work.^^ 
 
 Sec. 93. Same, Regarding- Highways. 
 
 The rule of liability for safety of premises extends to 
 the protection of users of a highway against defective over- 
 hanging structures. "^^ The principle of holding an owner 
 liable for work dangerous per se, has often been applied 
 so as to charge a proprietor with liability for damages to 
 a traveler in consequence of one who has contracted wdth 
 the proprietor to do work on his premises, having made a 
 
 ** Martin v. Tribune Association 
 (1883). 30 Hun (N. Y.), 291. 
 
 "Maltbie v. Bolting (1893). 6 
 Misc. 339; 26 N. Y. Supp. 903. 
 Lial)ility of the employer was de- 
 nied where the injury was caused 
 by a truckman's negligence in roll- 
 ing barrels out of his employer's 
 store. Riedel v. Mo ran. etc., Co. 
 (1894). 103 Mich. 262; 61 N. W. 
 509. In an action against a lot 
 owner for personal injuries re- 
 ceived from a defect in a side- 
 
 walk, it was declared that the 
 defendant ought to be allowed to 
 introduce evidence to show that 
 independent contractors were in 
 possession and control of the 
 premises, and that the defendant 
 had no notice of the defect. 
 Ster V. Tuety (1887). 45 Hun (N. 
 Y.). 49. 
 
 '"Huff. Agcy., 2d ed.. Sec. 225, 
 citing Tarry v. Ashton (1876), 1 
 Q. B. D. 314; 7 Am. Neg. R. 
 157, n.
 
 188 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 dangerous excavation in the street and failed to properly 
 guard the same for the protection of the traveling public, 
 generally on the principle that where work to be done neces- 
 sarily constitutes an obstruction or defect in the street 
 which renders it dangerous to travelers, unless properly 
 guarded or shut off from public use, the principal for whom 
 the work is done can not defeat a just claim for damages 
 by proving that the work which constituted the defect or 
 obstruction was the work of an independent contractor.'*^ 
 If the contract provides for doing work in the street itself, 
 such as making water and sewer connections and the like, 
 then as to such work the owner may be liable. ■*- A prop- 
 
 "Robbins v. Chicago (1866), 4 
 Wall. (U. S.), 657, 678; Chicago 
 V. Robbins (1862), 2 Black (U. 
 S.), 418; Baltimore v. O'Don- 
 NELL (1879), 53 Md. 110; 36 
 Amer. Rep. 395 ; Circleville v. 
 Neuding (1885), 41 Ohio St. 465; 
 Houston, etc., Railroad v. Meador 
 (1878), 50 Tex. 11; Logansport 
 V. Dick (1880), 70 Ind. 65; 36 
 Amer. Rep. 166; Birmingham v. 
 McCrary (1887). 84 Ala. 469; 4 
 So. 630; 27 Cent. L. J. 598; 
 Detroit v. Cory (1861), 9 Mich. 
 165; 80 Amer. Dec. 1^\ Storrs 
 V. Utica (1858), 17 N. Y. 104; 
 72 Amer. Dec. 437; Curtis v. 
 KiLEY (1891), 153 Mass. 123; 26 
 N. E. 421; Burd. C. Torts, 403; 
 to the contrary. Fuller v. Citizens 
 Bank (1882), 15 Fed. 875, which 
 Judge Thompson characterizes as 
 an "ill-considered case." Thomps. 
 Neg., Sec. 653, note 25; also Cf., 
 Moline v. McKinnie (1888), 30 
 Ills. App. 419. 
 
 *^Spence v. Schultz (1894). 103 
 Cal. 208; 37 Pac. 220; Wiggin v. 
 
 St. Louis (1896), 135 AIo. 558; 
 Zl S. W. 528; Thomas v. Har- 
 rington (1903), 72 N. H. 45; 54 
 Atl. 285; 65 L. R. A. 742; 16 Am. 
 Neg. R. 608, n ; Southern Ohio 
 Railroad v. Morey (1890), 47 
 Ohio St. 207; 24 N. E. 269; 7 
 L. R. A. 701 ; 43 Am. & Eng. R. 
 Cas. 97; Hawver v. Whalen 
 (1892), 49 Ohio St. 69; 29 N. K 
 1049 ; 14 L. R. A. 828 ; McCarrier 
 V. HoLLisTER (1903), 15 S. Dak. 
 366; 89 N. W. 862; 91 Amer. St. 
 Rep. 695; 11 Amer. Neg. R. 641. 
 That the proprietor will be liable 
 for the failure of his contractor 
 to safeguard an excavation in a 
 street, see, in addition to the fore- 
 going cases. Fisher v. Tryon 
 (1898), 15 Ohio C. C. 541; Mur- 
 phy V. Perlstein (1902), 76 N. 
 Y. Supp. 657; Ann v. Herter 
 (1903). 79 N. Y. Supp. 825. Let- 
 ting work which involves a 
 dangerous excavation in a public 
 highway to an independent con- 
 tractor will not absolve the prin- 
 cipal from liability for injuries
 
 EMPLOYER S EXCEPTIONAL LIABILITY. 
 
 189 
 
 erty owner can not relieve himself from liability for injuries 
 to a traveler on a highway by reason of the negligent failure 
 to guard and light, after dark, a trench opened in the high- 
 way, to connect his dwelling with the street water main, 
 by employing an independent contractor to do the work."*^ 
 On the other hand, it has been asserted that if an owner 
 pursuant to a building contract commits the entire care 
 and control of the premises to the contractor, he will not 
 be liable to a traveler injured by an unguarded excavation 
 in the street.^* 
 
 Where an owner contracts for the erection or repair of 
 a building upon his lot, he is generally held not liable for 
 the acts or negligence of the contractor or his servants in 
 obstructing the street or in permitting objects to fall into 
 the street whereby those lawfully using the street are in- 
 
 to a traveler, caused by the negli- 
 gent act of the contractor in fail- 
 ing to maintain proper guards. 
 Cameron, etc., Co. v. Anderson 
 (1904), 98 Tex. 156; 81 S. W. 
 282; 1 L. R. A. (N. S.), 198; 16 
 Am. Neg. R. 599, 608. The plain- 
 tiff was held entitled to recover 
 on the ground that the ditches 
 which caused his injuries had 
 been left open and unguarded by 
 the contractor. Baxter v. Warner 
 (1876), 6 Hun (N. Y.), 585. Cf., 
 Blake v. Ferris (1851), 5 N. Y. 
 48; 55 Amer. Dec. 304; Storrs v. 
 Utica (1858). 17 N. Y. 104; 72 
 Am. Dec. 437. 
 
 "Thom.xs v. Harrington 
 (1903), n N. H. 45; 54 Atl. 285; 
 65 L. R. A. 742; 16 Am. Neg. R. 
 608, n. 
 
 "Allen V. Willard (186S), 57 
 
 Pa. St. 374; Erie v. Caulkins 
 (1877), 85 Pa. St. 247; 27 Amer. 
 Rep. 642; Scammon v. Chicago 
 (1861), 25 Ills. 424; 79 Amer. 
 Dec. 334; 14 Am. Neg. Cas. 418, 
 n. ; Pfau v. Williamson (1873), 
 63 Ills. 16; Ryder v. Thomas 
 (1878), 13 Hun (N. Y.), 296. 
 Contra, Chicago v. Robbins 
 (1S62), 2 Black (U. S.), 418; 
 Robbins v. Chicago (1866). 4 
 Wall. (U. S.). 557. In the ab- 
 sence of an e.xpre.ss or implied 
 authorization, one who employs a 
 contractor to repair a levee near 
 a highway does not become re- 
 sponsible for an injury caused by 
 an excavation made in the high- 
 way by removing dirt tlierefrom. 
 Andrews v. Runyon (1834), 65 
 Cal. 629; 4 Pac. 669. For addi- 
 tional cases, see 65 L. R. A. 652.
 
 190 INDEPENDENT CONTRACTORS AND TJIEIR LIABILITY. 
 
 jiired.-'"''' Thus, a landowner employing a carpenter at a 
 given price to alter a building and to furnish all material 
 therefor, is not liable to a third person injured by driving 
 on material deposited on the highway adjoining tlie land 
 by the contractor's teamster, intended for use in making 
 the alterations.^^ A landowner is not liable for an injury 
 to a passerby caused by a plank, attached to a scaffolding 
 by a roofer, being blown down by the wind.^' Persons 
 employed to build a railway for a street car company negli- 
 gently stretched a wire rope across a street, the manner of 
 doing the work having been left to such persons, and the 
 company was held not liable.*^ 
 
 ^"Frassi v. McDonald (1898), 
 122 Cal. 400; 55 Pac. 139; Hoff 
 V. Shockley (1904), 122 Iowa, 
 720; 98 N. W. 573; 101 Amer. St. 
 Rep. 289; 64 L. R. A. 538; 16 
 Amer.Neg. R. 607, n; Strauss v. 
 Louisville (1900), 108 Ky. 155: 
 55 S. W. 1075, where plamtiff was 
 injured by the contractor's servant 
 throwing a piece of lime into a 
 mortar bed placed in the street. 
 BooMEK V. Wilbur (1899), 176 
 Mass. 482; 57 N. E. 1004; 53 L. 
 R. A. 172; 8 Amer. Neg. R. 245; 
 Emmerson v. Fay (1896), 94 Va. 
 60; 26 S. E. 386; Richmond v. 
 SiTTERDixG (1903), 101 Va. 354; 
 43 S. E. 562; 99 Amer. St. Rep. 
 879; 65 L. R. A. 445; 16 Am. 
 Neg. R. 609, n. ; Smith v. Mil- 
 
 V/AUKEE, ETC., EXCHANGE (1905), 
 
 91 Wise. 360; 64 N. W. 1041; 51 
 Amer. St. Rep. 912; 30 L. R. A. 
 504. 
 
 '• HlLUARD V. Richardson 
 (1855), 3 Gray, 349; 63 Amer. 
 Dec. 743. The owner of land 
 who employs an independent con- 
 
 tractor to erect or repair a build- 
 ing on his lot, is not liable for 
 injuries resulting from the con- 
 tractor's deposit of planks in the 
 highway or other negligence on 
 the part of the contractor or his 
 servants. McCarthy v. Second 
 P.VRiSH (1880). 71 Me. 318; 36 
 Amer. Rep. 320; Forsyth v. 
 Hooper (1865), 11 Allen (Mass.), 
 419; Pearson v. Cox (1877), 2 
 C. P. Div, 369, cited in Tiff. Dom. 
 Rels.. 510. The employer is not 
 liable to tliird persons for injuries 
 to one coming in contact with 
 timbers dragged through the 
 streets by an independent con- 
 tractor, to be used in erecting a 
 building. Doran v. Flood (1891). 
 47 Fed. 543. 
 
 "Hexamer v. Webb (1896), 101 
 N. Y. 377; 54 Amer. Rep. 703; 4 
 N. E. 755. 
 
 ■** Sanford v. Pawtucket St. R. 
 Co. (1896), 19 R. I. 537; 35 Atl. 
 67; 33 L. R. A. 564; 4 Amer. & 
 Eng. Railroad Cas. (N. S.), 318. 
 Where a proprietor of a house
 
 employer's exceptional LLVBILITV 
 
 191 
 
 Sec. 94. Same, Removing Condemned Building's. 
 
 Whether a landowner, notified by pubhc authorities to 
 remove a condemned buikb'ng, can reheve himself from 
 liability for improperly doing so by engaging a third person 
 to do it, is variously decided."*'' A property owner, who 
 had been ordered by the inspector of buildings to remove 
 the walls of a ruined building, as a nuisance to the public 
 as well as to adjoining property, let the job of removal to 
 an independent contractor who had agreed to save the 
 owner harmless for injuries done to others in the per- 
 formance of the contract. Plaintiff was injured through 
 the negligence of the contractor and his servants. The 
 court held the owner liable for the injury on the ground 
 that "the doing of the work necessarily involved danger 
 to others, unless great care was used, and the injury re- 
 sulted from negligence in doing the work. It was not col- 
 lateral to the employment, as would have been the case, 
 had a servant of the contractor, while at work, negligently 
 
 contracted with a builder to ex- 
 ecute certain repairs and the 
 builder made a subcontract for 
 the plaster work, it was held that 
 neither the proprietor nor the 
 the principal contractor was liable 
 for injuries caused bj^ the up- 
 setting of a vehicle which resulted 
 from the negligence of 'the sub- 
 contractor in leaving a heap of 
 lime in the street, without any 
 fence or protection, outside the 
 space which had been duly set 
 apart, fenced in and lighted by 
 the principal contractor, in ac- 
 cordance with the provisions of 
 a police act. McLean v. Russell 
 (1850). 12 Scotch Sess. Cas., 2d 
 series, 887. See, also, Reagan v. 
 
 Casey (1894), 160 Mass. 374; 36 
 N. E. 58. A railroad company 
 was held liable for injuries caused 
 by an obstruction erected in the 
 highway by a contractor engaged 
 in constructing the road, in Dem- 
 ing V. Terminal R. Co. (1900), 
 63 N. Y. Supp. 615. 
 
 ^ That he may, see Earl v 
 Beadleston (1877), 10 Jones & 
 S. (N. Y.), 294; Butler v. Hunter 
 (1862), 7 Hurl. & N. 825; 8 Am. 
 Neg. R. 301, n. Contra, Brown 
 V. Werner (1873). 40 Md. 15: 
 Bower v. Peate (1876), 1 Q. B. 
 D. 321 ; 11 Am. Neg. R. 645. See, 
 also, Dillon v. Hunt (1884), 82 
 Mo. 150.
 
 192 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 let fall a brick upon a person passing by." And in reply- 
 to the argument that it is "unreasonable that one who has 
 work to perform, that he himself can not perform from 
 want of knowledge or skill, should be held liable for the 
 negligence of one whom he employed to do it, since, if he 
 did reserve control, it would avail nothing, from his own 
 want of knowledge and skill," the court said : "There is 
 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 per- 
 formance of work that 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 nevertheless 
 be the more careful in selecting an agent to act for him. 
 This is a dutv 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 concerned." ^" 
 
 But upon the sale of a house standing upon the vendor's 
 land to a suitable person for the purpose of removing same 
 within a reasonable time, and surrendering possession and 
 control thereof to such vendee, the house itself being in a 
 safe condition capable of being removed without danger to 
 anyone, neither the vendee nor his agents while engaged 
 in moving the property sold are the vendor's servants for 
 whose careless conduct the vendor can be held liable under 
 the doctrine of respondeat snperior.^^ 
 
 '"Covington v. Steinbrock "Wilmotv. McPadden (1906), 
 
 (1899), 61 Oho St. 215; 55 N. E. 76 Conn. 357; 65 Atl. 157; 19 L. 
 
 618; 76 Amer. St. Rep. 375; 7 R. A. (N. S.), 1101. 
 Am. Neg. R. 154.
 
 EMPLOYER S EXCEPTIONAL LLVBILITY. 
 
 193 
 
 Sec. C5. Same, as to Adjoining Owners. 
 
 The decisions as to the habihty of property owners to 
 adjoining owners due to work being done upon or in con- 
 nection with the property of the former owners by inde- 
 pendent contractors or their servants, are at great variance 
 with each other, and no general rule as to this particular 
 relation may safely be asserted. On the one hand, it is 
 stated by Judge Thompson : "''- "One who is causing a 
 building to be erected on his own lands, stands under the 
 legal duty of supporting the land or building (quaere F) 
 of his neighbor, or voluntarily assumes that duty, and if 
 he negligently fails to perform it, so that the land caves in 
 or the building falls down, he must answer in damages to 
 its proprietor, altliough he may have committed the work 
 to an independent contractor and left him to his own 
 method/''"^ The employment of an independent contractor to 
 make an excavation adjoining the premises of another does 
 not relieve the proprietor from the obligation to take rea- 
 sonable precautions to prevent injury to his adjoining pro- 
 prietor." ^"* Where the walls of a building were left in 
 
 *' Thomps. Neg., Sec. 654. 
 
 •"Citing Bower v. Peate (1876), 
 1 Q. B. D. 321; 11 Am. Ncg. R. 
 645; Cohen v. Simmons (1892), 
 66 Hun (N. Y.). 634; 21 N. Y. 
 Siipp. 335; Larson v. Metropoli- 
 tan Street Railroad (1892), 110 
 Mo. 234; 19 S. W. 416; 16 L. R. 
 A. 330; 45 Alb. Law. J. 514; 34 
 Cent. Law J. 513; 33 Amer. St. 
 Rep. 439. 
 
 "Citing Samuel v. Novak 
 (1904), 99 Md. 558; 58 Atl. 19; 
 D.\vis V. Summerfield (1903), 
 133 N. C. 325; 45 S. E. 654; 63 
 L. R. A. 492; 92 Amer. St. Rep. 
 781 ; 16 Am. Neg. R. 611, n., hold- 
 
 ing plaintiff entitled to notice. 
 Where a contractor, to whom had 
 been intrusted the work of re- 
 building a tenement in which a 
 prescriptive easement of lateral 
 support had been acquired by the 
 owner of the adjoining tenement, 
 executed the work so negligently 
 as to cause the subsidence of an 
 arcli in the vault of the latter 
 tenement and a bulging of the 
 walls of the vault, the owner was 
 held liable. LeMaitre v. Davis 
 (1881), L. R.. 19 Ch. Div. 281. 
 It is error to instruct that one 
 who contracts for the erection 
 of a building is not responsible
 
 194 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 a dangerous condition by a fire, and the owner employed a 
 contractor to take them down, and in consequence of his 
 negligence in doing the work the walls fell on adjoining 
 property, the owner was held liable on the ground that 
 "When a party is under a duty to the public or a third 
 person to see that work he is about to do or have done is 
 carefully performed, so as to avoid injury to others, he can 
 not. by letting it to a contractor, avoid his liability, in case 
 it is negligently done to the injury of another." ^^ A land- 
 owner was held liable for the negligence of a contractor 
 in permitting fire to escape to adjacent lands from lands 
 which he had contracted to clear and make ready for the 
 plow, where such negligence flowed directly from the acts 
 which the contractor agreed to do and was by the land- 
 
 where the work has been let to a 
 contractor although he may have 
 told such contractor to make the 
 building a certain width, render- 
 ing it necessary to encroach on 
 adjoining premises to excavate 
 for the foundation; the owner is 
 bound to know the width of h;s 
 lot, and if he becomes a party to 
 any encroachment upon his neigh- 
 bor's premises whereby, as here, 
 his neighbor's house is injured or 
 destroyed, he is a co-trespasser 
 and is as responsible as though 
 he himself made the excavation. 
 Williamson v. Fisher (1872), 52 
 Mo. 198. "Perhaps the exception 
 is even broader than this. In one 
 case it is stated, by way of dic- 
 tum, to be this: 'If a contractor 
 faithfully performs his contract, 
 and a third person is injured by 
 the contractor, in tlie course of 
 its due performance, or by its 
 result, the employer is liable, for 
 
 he causes the precise act to be 
 done which occasions the in- 
 jury.'" Huff. Agcy., 2d ed., Sec. 
 220, citing Lawrence v. Shipman 
 (1873), 39 Conn. 586. 
 
 °° Covington, etc., Co. v. Stein- 
 brock (1899), 61 Ohio St. 215, 
 223; 55 N. E. 618; 76 Amer. St. 
 Rep. 375; 7 Am. Neg. R. 154. 
 Cf., Duer v. Consolidated Gas 
 Co. (1903), 86 App. Div. (N. Y.), 
 14; 38 N. Y. Supp. 714. Where 
 the owner of a house which has 
 been burned leaves the walls 
 thereof standing in an unsafe and 
 tottering condition, he is liable to 
 an adjoining owner for damages 
 caused by its fall on the latter's 
 building, and it is no defense 
 that the premises were in the sole 
 charge of a skillful contractor 
 under contract to rebuild the 
 house. Sessengut v. Posey 
 (1879), 67 Ind. 408; 33 Amer. 
 Rep. 98. See Sec. 92, note 28.
 
 EMPLOYER S EXCEPTIONAL LLVBILITY. 
 
 195 
 
 owner authorized to do. and which was the natural and 
 probable consequence of the performance of the work in 
 the manner agreed upon/'" Where a property owner em- 
 ployed a contractor to blast within a few feet of the house 
 of an adjoining owner and took no precautions against 
 resulting injuries, the proprietor was held liable/''^ 
 
 ^Cameron v. Oberlin (1897), 
 19 Ind. App. 142; 48 N. E. 386. 
 If a proprietor employs a con- 
 tractor to construct a drain from 
 his cellar into the common sewer 
 in the street, through a plank 
 barrier beneath the surface of the 
 street, which surrounds the block 
 of buildings in which the cellar 
 is situated, and the work is so 
 negligently and improperly done 
 that, after it is finished, tide water 
 flows through the opening made 
 in the barrier into the plaintiffs 
 cellar, the proprietor employing 
 the contractor to do the work is 
 liable for the damages thereby in- 
 flicted upon the plaintiff; in the 
 view of the court, the doctrine oi 
 independent contractor does not 
 apply to such a case; "but where 
 the thing contracted to be done, 
 from its nature, creates a nuisance, 
 or where, being improperly done, 
 it creates a nuisance and causes 
 mischief to a third person, the em- 
 ployer is liable for it." Sturges 
 V. Theological, etc.. Society 
 (1881), 130 Mass. 414; 39 Amcr. 
 Rep. 463. An abutting owner who 
 obtains from the city authority to 
 grade the street, and contracts 
 with an independent contractor 
 to grade such street, and his lots, 
 was held liable for the dumping 
 
 into a ravine by the contractor, 
 with his knowledge and procure- 
 ment, of mud and quicksand 
 which overflowed another's land 
 several hundred feet distant, al- 
 though permission was obtained 
 of the intervening owners to over- 
 flow their lots. Koch v. Sackman, 
 etc., Co. (1894), 9 Wash. 405; 37 
 Pac. 703. Where the owner of 
 shore land contracted with an- 
 other to dredge in front of it and 
 deposit the dredging on the rear, 
 and failed to provide means to 
 prevent it from sliding on to the 
 land of an adjoining owner, he 
 was held liable. Braisted v. 
 Brooklyn, etc., R. Co. (1899), 61 
 N. Y. Supp. 674. 
 
 " Wetherbee v. P.\rtridge 
 (1899), 175 Mass. 185; 55 N. E. 
 894; 78 Amer. St. Rep. 486. 
 WHiere defendant's contractor, in 
 working on his building negli- 
 gently raised excessive dust, broke 
 into a chimney throwing soot and 
 rubbish down it so as unneces- 
 sarily to damage the business and 
 goods of the occupant of the ad- 
 joining premises, the plaintiff was 
 held entitled to recover. Cameron 
 v. Eraser (1881). 9 Sc. Sess. Cas., 
 4th series, 26, a somewhat doubt- 
 ful decision.
 
 196 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 On the other hand, it is said that, if in a building con- 
 tract, the excavating is so negligently done as to injure 
 adjoining premises, the owner is not liable, if the plans, 
 etc., furnished the contractor are sufficient to secure a safe 
 construction of the building and the erection of the build- 
 ing was not naturally dangerous to adjoining property.^^ 
 Persons contracting for the erection of buildings have been 
 held not responsible where the excavation for the building 
 was so negligently made as to injure a building on the ad- 
 joining land.^^ If a carpenter is employed at a stated 
 price to repair a house, furnishing all material and labor, 
 and the house falls down through the negligence or un- 
 skillfulness of the contractor, to the injury of another's 
 property, the employer, it is held, is not answerable.^^ 
 
 "In dealing with this subject, it should be kept carefully 
 in view that a proprietor who employs an independent con- 
 tractor to work on his land is not at all liable for any tres- 
 
 ^ Crenshaw v. Ullman (1893), 
 113 Mo. 633; 20 S. W. 1077. 
 
 ■* Aston V. Nolan (1883), 63 Cal. 
 269; Crenshaw v. UHman, supra; 
 Harrison v. Kiscr (1887), 79 Ga. 
 588; 4 S. E. 320. A landowner 
 is not answerable where a sub- 
 contractor so carelessly executed 
 a contract for the removal of cer- 
 tain earth and rock from the de- 
 fendant's vacant lot that a stable 
 belonghig to an adjoining land- 
 owner was injured. King v. 
 Livermore (1876), 9 Hun (N. 
 Y.), 298, affirmed (1877), 71 N. 
 Y. 605. 
 
 •^ Connors V. Hennessey (1873), 
 112 Mass. 96. Liability has been 
 denied in a case where a pile of 
 lumber was so negligently erected 
 by a contractor that it toppled 
 over and fell into an adjoining 
 
 lot, thereby causing a man's death. 
 Andrews v. Boedecker (1885), 17 
 Ills. App. 213; 9 Amer. St. Rep. 
 649. In a case where the work- 
 men of one who had contracted 
 with the defendant to erect a 
 building carried away some bricks 
 and other materials belonging to 
 the buildings of a person who 
 owned the adjacent land, it was 
 held error to instruct the jury 
 that if they were "of the opinion 
 that the workmen while they were 
 on the land by the defendant's 
 permission, had from the want of 
 due care injured the plaintiff's 
 property, or had carried away the 
 plaintiff's materials, the defendant 
 would be liable for those acts." 
 Gayford v. Nicholls (1854), 9 
 Exch. 702.
 
 employer's exceptional ll\bility, 197 
 
 passes upon the property of others which the contractor 
 may permit in doing the work, on the theory of respondeat 
 superior; since the contractor is neither his agent nor his 
 servant in the sense of this rule. The mere fact then that 
 the independent contractor commits such a trespass while 
 acting within, what might be called, the scope of his em- 
 ployment (i. e., while acting in carrying out the contract), 
 does not at all tend to charge the proprietor with liability, 
 unless the contract expressly or by fair implication, author- 
 izes the contractor to commit the trespass." °^ 
 
 Sec. 96. Same, Condition of Premises, Generally. 
 
 If owners are charged with the duty of keeping premises, 
 such as a mine, safe, they are liable though independent 
 contractors are to employ such premises (in this instance, 
 to take out the ore.^'- For a discussion of the liability of 
 the owner of premises for damages resulting from a so-called 
 "attractive nuisance" (analogous to the turn-table cases) 
 created by the independent contractor, see the recent case 
 cited below.^'"^ 
 
 Sec. 87. Same, Duty to Supervise. 
 
 Judge Thompson declares : 'Tt has been well laid down 
 that, if the building of a house is split up into several differ- 
 ent contracts, and the owner undertakes to supply the ma- 
 terials and no provision is made for the supervision of the 
 work, or for maintaining guards, the duty of protecting 
 the public remains on the owner." °^ The duty of an em- 
 
 "^ Davison v. Shanahan (1S92), '='Wilmot v. McPadden (1906), 
 
 93 Mich. 486; 53 N. W. 624; 78 Conn. 276; 61 Atl. 1069; 79 
 
 Andrews v. Runyon (1834), 65 Conn. 367; 65 Atl. 157, and note 
 
 Cal. 629; 4 Pac. 669. thereto in 19 L. R. A. (N. S.), 
 
 •"Lake Superior, etc., Co. v. \094, ct scq. 
 
 Erickson (1878), 39 Mich. 492; " Thonip. Neg.. Sec. 657, citirg 
 
 33 Amer. Rep. 423; Kelly v. Homan v. Stanley (1870), 66 
 
 Howell (1884), 41 Ohio St. 438. Pa. St. 464; 5 Amer. Rep. 3S9.
 
 198 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 ployer to supervise the work being done under an inde- 
 pendent contract is sometimes predicated specifically with 
 respect to work which involves the performance of absolute 
 duties incumbent on the employer.^'^ The existence of the 
 duty of supervision is occasionally inferred from the terms 
 of some statutory provision which regulates the performance 
 of the work in question.^" The duty in question may be 
 the result, express or implied, of the contract itself; thus, 
 on the ground that it was provided in the contract for the 
 erection of a building that partitions, etc., were to be taken 
 down or filled up as might be required and anchored where 
 directed, it was held that the directions were to be given by 
 the owners.^ ^ 
 
 That an employer is not bound to supervise the progress 
 of work contracted to be done for him by an independent 
 contractor, for the purpose of preventing the commission 
 of collateral torts by either the contractor or his servants, 
 has been frequently declared.'''^ "The doctrine relieving 
 the employer from the necessity of supervising the work 
 
 ■^O'Brien v. Board, etc. (1880), 
 6 Vict. L. Rep. 204; Williams v. 
 Tripp (1878), 11 R. I. 447. 
 
 "•"Chicago V. Dermody (1871), 
 61 Ills. 431; 14 Am. Neg. Cas. 
 418, n. ; Anderson v. Fleming 
 (1903), 160 Ind. 597; 61 N. E. 
 443; 66 L. R. A. 119; 16 Am. Neg. 
 R. 606, n. It is clear that in cer- 
 tain cases the law virtually de- 
 clares that the employer must, at 
 his peril, see that the work is 
 executed with reasonable care. 
 Hole v. Sittingbourne, etc., R. 
 (1861), 6 Hurls. & N. 488, per 
 Pollock, B. ; Dalton v. Angus 
 (1881), L. R., App. Cas. 829, per 
 Blackburn, J. 
 
 "' LA^•cASTER V. Connecticut, 
 ETC., Co. (1887), 92 Mo. 1 ; 5 S. 
 W. 23; 1 Amer. St. Rep. 739. 
 
 *"* Braidwood v. Bonnington, etc., 
 Co. (1866), 2 Scot. L. Rep. 152, 
 in which the defendants were held 
 not liable for the negligent super- 
 vision of an inspector whom the 
 defendant employers had sent; 
 Woods V. Trinity Parish (1893), 
 21 D. C. 540, where a contractor 
 left a shutter in a church tower 
 insecure and the society was ex- 
 cused ; Aldritt v. Gillette, etc., Co. 
 (1902), 85 Minn. 206; 88 N. W. 
 741, case of a subcontractor; 
 Hawke v. Brown (1898), 28 App. 
 Div. (N. Y.), 37; 50 N. Y. Supp.
 
 employer's exceptional liability. 
 
 199 
 
 may be regarded as one which is deducible directly from 
 the legal conception of an independent contractor, as being 
 essentially a person, who, ex hypothesi, is entitled to exer- 
 cise his own discretion with regard to the manner in which 
 the restdts which lie has undertaken to produce shall be 
 achieved; or it may be put upon the ground that the em- 
 ployer is entitled to act upon the presumption that a con- 
 tractor, who has been carefully selected, will exercise 
 reasonable skill and prudence in executing the stipulated 
 work." «^ 
 
 Sec. 98. Same, Duties as to Invitees. 
 
 If the ow-ner of property contracts for work to be done 
 upon it, he is, as to invitees, bound to keep the premises 
 in a safe condition and can not excuse himself on the 
 
 1032, holding there was no duty 
 to employ a supervising archi- 
 tect; Boardman v. Creighton 
 (1901). 95 Me. 154; 49 Atl. 363, 
 that an emploj'er is not to be 
 held liable simply by alleging it 
 was his duty to examine the 
 work from time to time. Through 
 a subcontractor's negligence, water 
 flowed into plaintiff's cellar. The 
 court held that the principal con- 
 tractor was not liable as he was 
 under no obligation by his con- 
 tract to give any direction as to 
 this portion of the work, and had 
 no control or authority over the 
 mode or manner of its perform 
 ance but only a right to insist 
 generally that the work be done 
 according to the terms of the con- 
 
 tract. Slater v. Mersereau (1876), 
 64 N. Y. 138. 
 
 ^ Note to Salliotte v. King, 
 ETC., Co. (1903). 58 C. C. A. 466; 
 122 Fed. 378, in 65 L. R. A. 620, 
 636. The presumption is that 
 "directions were given to do the 
 work in the ordinary way, and to 
 take all the proper precautions 
 not to cause any mischief." Pol- 
 lock, C. B., in Butler v. Hunter 
 (1862), 7 Hurl. & N. 826. To the 
 same effect, Eaton v. European, 
 ETC., R. (1871), 59 Me. 520; 8 
 Amer. Rep. 430; Carter v. Berlin 
 Mills (1876), 58 N. H. 52; 42 
 Amer. Rep. 572; City of Inde- 
 pendence v. Slack (1895), 134 
 Mo. 66 ; 34 S. W. 1094.
 
 200 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sfronnd that the work is under the exclusive control of a 
 contractor.'^ When the owner of premises, which are 
 under his control, employs an independent contractor to do 
 work upon them, which from its nature, is likely to render 
 the premises dangerous to persons who may come upon 
 them by the invitation of the owner, the owner is not re- 
 lieved, by reason of the contract, from the obligation of 
 seeing that due care is used to protect such persons. The 
 owner can not continue to hold out the invitation without 
 being bound to exercise due care in keeping the premises 
 reasonably safe for use according to the invitation.''^ 
 
 Sec. 99. Same, Furnishing Appliances. 
 
 A propriet6r, who engages with a contractor to paint his 
 building, the proprietor to furnish the staging for that 
 purpose, is under an implied warranty to furnish a safe 
 staging for that purpose; and if the staging breaks, injur- 
 ing the contractor or his servants, the proprietor must pay 
 damages, notwithstanding the staging was built for him by 
 
 '"Huff. Agcy., 2d ed., Sec. 225, 
 citing Curtis v. Kiley (1891), 
 153 Mass. 123; 23 N. E. 421; 
 Burd. Cas. Torts, 403; Coughtry 
 V. Globe Woolen Co. (1874), 56 
 N. Y. 124; 15 Amer. Rep. 387. 
 Cf., Stewart v. Putnam (1879), 
 127 Mass. 403; Sturges v. Theo- 
 logical, ETC., Society (1831), 130 
 Mass. 414; 39 Amer. Rep. 463; 
 Woodman v. Metropolitan Rail- 
 road (188?), 149 Mass. 335; 21 
 N. E. 482; 4 L. R. A. 213; 14 
 Amer. St. Rep. 427; 6 Rail. & 
 Corp. Law J. 72; 12 Am. Neg. 
 Cas. 80. 
 
 " Curtis v. Kiley, supra. On 
 
 the ground that the operations 
 contemplated were not such as 
 necessarily involved injury to 
 visitors, it was held that the 
 owner of a pleasure resort and 
 street railway leading to it, did 
 not, by leasing the privilege of 
 operating a switchback railway 
 at the resort, and advertising it 
 as one of the attractions of the 
 place, become an insurer against 
 accidents to persons patronizing 
 the lessee, or become liable for 
 his carelessness. Knottnerus v. 
 North, etc., Steamship Co. 
 (1892), 93 Mich. 348; 53 N. W. 
 529; 17 L. R. A. 726.
 
 employer's exceptional llvbility. 
 
 201 
 
 another independent contractor, for by accepting it from 
 such contractor he adopts it as his own."- 
 
 Sec. 100. Building Contracts, Generally. 
 
 The early case of Bush v. Steinman '^^ carried the 
 doctrine of liability of a landowner for the safe condition 
 of his premises, to the extreme point of holding that, where 
 work is done on an owner's premises, he ought to reserve 
 control over the methods, and if he does not, is liable for 
 all results. It is generally agreed, at the present time, that 
 a landowner will not be liable for the negligence of an in- 
 dependent contractor or that of his servants in construct- 
 ing a building, unless the work is inherently dangerous, or 
 its nature is such that in letting it the owner commits to 
 the contractor some absolute duty resting on him as owner 
 of the property.^"* "A property owner, who undertakes 
 
 '" Mulchey v. Methodist, etc., 
 Society (1878). 125 Mass. 487; 15 
 Am. Neg. Cas. 661, n. ; 6 Reporter, 
 751. The case was also likened 
 to that class of cases wherein the 
 proprietor of realty is held liable 
 to pay damages to any one who, 
 invited to come upon his prem- 
 ises, is injured by a latent defect 
 therein. Indemaur v. Dames 
 (1866), 1 C. P. 274; Elliott v. 
 Pray (1865), 10 Allen (Mass.). 
 378; 87 Am. Dec. 653; Gilbert v. 
 Naele (1875), 118 Mass. 278; 
 Pickard v. Smith (1861), 10 C. 
 B. (N. S.), 470; 7 Am. Neg. R. 
 158, n.; 8 Id. 264, n; Holmes v. 
 Northeastern R. (1869), L. R., 4 
 E.xch. 254 ; 9 Am. Neg. R. 559, n. ; 
 
 COUGHTRY V. GlOUE, ETC., Co. 
 
 (1874), 56 N. Y. 154; 15 Amer. 
 Rep. 387. 
 
 •' (1799), 1 B. & P. 404, reported 
 herein, Sec. 48, ante. As already 
 shown, the case of Bush v. 
 Steinman has been unfavorably 
 commented on in this connection 
 in England and America, and is 
 probably not now law. Rhedie v. 
 London, etc., R. (1849), 4 Exch, 
 244, 246; 6 Eng. Rail. & Corp. 
 Cas. 184; Pollock on Torts, 5th 
 ed. p. 76, note h; Blake v. Ferris 
 (1851), 5 N. Y. 48. 62-64; 55 
 Amer. Dec. 304; see, also. Strauss 
 V. City of Louisville (1900), 108 
 Ky. 155; 55 S. W. 1075. 
 
 "Robinson v. Webb (1875), 11 
 Bush (Ky.), 464; Erie v. Caul- 
 kins (1877), 85 Pa. St. 247; 27 
 Amer. Rep. 642; Ryder v. Thomas 
 (1878), 13 Hun, 206; Gilbert v. 
 Beach (1855), 16 N. Y. 606; 
 Engel v. Eureka Clud (1893),
 
 202 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the erection of a building thereon, and employes a compe- 
 tent architect to draw the plans and specifications and to 
 supervise the work, and a competent contractor to construct 
 the foundation and building, is not responsible for an 
 accident caused by the defective execution of the plan by 
 the contractor and the failure of the architect carefully 
 to inspect the work. These persons are regarded as in the 
 exercise of an independent calling." '^^ Where alterations 
 in a building were being made by a contractor, and a wall, 
 weakened by age and decay, fell and injured a third person, 
 the owner was not liable, for the work was considered not 
 intrinsically dangerous, and could have been done with 
 safety had due care been used."^^' "The principle, upon which 
 
 137 N. Y. 100; 32 N. E. 1052; 
 33 Amer. St. Rep. 695; Vander- 
 pool V. Husson (1858), 28 Barb. 
 (N. Y.), 196; Deford v. State 
 (1863), 30 Md. 179; Clark v. Fry 
 (1858), 8 Ohio St. 358; 72 Amer. 
 Dec. 590. 
 
 "White's Supp. to Thomps. 
 Neg., p. 92, citing Bjornsen v. 
 Saccone (1899), 88 Ills. App. 6; 
 Geist V. Rothschild (1900), 90 Ills. 
 App. 324; Murray v. Arthur 
 (1901), 98 Ills. App. 331; Calla- 
 han V. Philips Academy (1901), 
 180 Mass. 183; 62 N. E. 360; 
 Eldred v. Mackie (1901), 178 
 Mass. 1; 59 N. E. 673; Burns v. 
 McDonald (1894), 57 Mo. App. 
 599, plumber; Korn v. "Weir 
 (1904), 88 N. Y. Supp. 976; 16 
 Am. Neg. R. 611, n. ; Nelson v. 
 Young (1904), 87 N. Y. Supp. 
 69; Southwestern Telephone Co. 
 V. Paris (1905), 39 Tex. Civ. App. 
 424; 87 S. W. 724; Richmond v. 
 SiTTERDiNG (1903), 101 Va. 354; 
 43 S. E. 562; 99 Amer. St. Rep. 
 879; 65 L. R. A. 445; Burke v. 
 
 Ireland (1901), 166 N. Y. 305; 
 59 N. E. 914. 
 
 '" Engel v. Eureka Club (1893), 
 137 N. Y. 100; 32 N. E. 1052; 33 
 Amer. St. Rep. 695. "The rule 
 applicable to buildings which are 
 being reconstructed or repaired 
 is in no way different from that 
 which prevails with respect to 
 buildings under construction ;" 
 note to Salliotte v. King, etc., 
 Co. (1903, 58 C. C. A. 466, 122 
 Fed. 378), in 65 L. R. A. 649. 
 See cases cited in said note under 
 (7). One owning a building be- 
 ing constructed is held not liable 
 for the negligence of an in- 
 dependent contractor's servant in 
 leaving a stone in a dangerous 
 position so that it fell and in- 
 jured one using the adjacent side- 
 walk, though the matter of 
 barricading the walk or taking 
 other precautions does not seem 
 to have been considered. John- 
 son V. Helbing (1907), 6 Cal. 
 App. 424; 92 Pac. 360.
 
 EMPLOYER S EXCEPTIONAL LIABILITY. 
 
 203 
 
 the rights and liabilities of the owners of property upon 
 which work is being done by independent contractors rest, 
 is well settled and uniformly recognized. It is founded on 
 wisdom and sound policy. The limitations which have been 
 put upon the immunity from liability are also settled. The 
 application of the exceptions has given rise to much dis- 
 cussion and frequently to some conflict in the views of the 
 court." "^7 
 
 Sec. 101. Same, Relation, How Shown, 
 
 In a joint action against the owner of a building, the 
 contractor and subcontractor, for an injury to the em- 
 ployee of the latter, the contracts and specifications be- 
 tween the owner and the contractor were held properly ad- 
 mitted to show the relation of the defendants to one 
 another. '^^ 
 
 Sec. 102. Same, Management of Machinery. 
 
 A building owner is not liable for injuries caused by an 
 independent contractor's servant improperly managing a 
 hoisting apparatus furnished in a reasonably safe condi- 
 tion by such building owner.''^ A street railway company 
 is not liable for injuries received by a child, who was drawn 
 into a machine used for the manufacture of concrete, by 
 one who had contracted for the building of the road.®^ 
 Nor is a railway company liable for injuries resulting from 
 
 " Young v. Fosburg Lumber 
 Co. (1908, N. C), 60 S. E. 654; 
 16 L. R. A. (N. S.). 259. 
 
 " Pioneer, etc., Co. v. Howell 
 (1901), 189 Ills. 123; 59 N. E. 
 535. 
 
 '° Piette V. Bavarian Brewing 
 Co. (1892), 91 Mich. 605; 52 N. 
 W. 152; 13 Am. Neg. Cas. 53. n. 
 Where plaintiff's property was 
 injured by the fall of a derrick 
 used in the construction of a 
 
 building under an independent 
 contract, the owner of the build- 
 ing was held not liable. Prairie, 
 etc., Co. V. Doig (1873), 70 Ills. 
 52. 
 
 ^ Chicago, etc., R. v. Hennessey 
 (1884), 16 Ills. App. 153. To the 
 same effect where a child's hand 
 was caught in a pulley used by a 
 contractor in stringing telephone 
 wires. Vosbeck v. Kellogg (1899). 
 78 Minn. 176: 80 N. W. 957.
 
 204 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the fact that a derrick furnished to a contractor for the 
 purpose of unloading- railway iron was permitted by him 
 to get into a defective and dangerous condition.^^ 
 
 Sec. 103. Same, Party Walls. 
 
 "It is the general duty of the owner of premises to keep 
 the w^alls of his building in a safe condition, so that they 
 will not endanger his neighbor by falling; and if he negli- 
 gently omits its performance and his neighbor is injured, 
 the injury is actionable." ^^ Where a proprietor has an 
 easement of support in a party wall as wdiere it had been 
 erected at the joint expense of both the coterminous land- 
 owners, or by their common vendor, then if one disturbs 
 it to the other's injury, he does so at his peril, whether he 
 does the work personally or by an independent contractor.^^ 
 Where damages are caused to an adjoining proprietor by 
 the breach of duty of a house owner to rebuild with rea- 
 sonable dispatch a party w^all, which he had had taken 
 down, such damages are imputable to him, even though he 
 has employed a competent architect and builder, and though 
 they are responsible for the negligence, if any, which caused 
 the delay.®^ But it is said that the work of raising a party 
 wall is neither dangerous nor extraordinary in itself, so 
 as to make the person for whom it is done liable for the negli- 
 gence of an independent contractor in doing the work.^^ 
 
 Sec. 104. Same, Removing Dangerous Wall. 
 
 Where a building or a structure is in such a condition 
 that it is liable to fall during the process of removing it or 
 
 "King v. Railway Co. (1876), evidence showed the negligence 
 
 66 N. Y. 181 ; 23 Amer. Rep. 37. was that of the contractor and 
 
 *^ Excel v. Eureka Club not of the owner. 
 
 (1893) 137 N. Y. 100; 32 N. E. «' Thomps. Neg., Sec. 1125, and 
 
 1052; 33 Amer. St. Rep. 692, cases cited. 
 
 citing Mullen v. St. John "Joliffe v. Woodhouse (1894, 
 
 (1874), 57 N. Y. 567; 15 Amer. C A.), 10 Times L. R. 553. 
 
 Rep. 530, in which, however, the '"Negus v. Becker (1894), 143
 
 employer's exceptional liability. 
 
 205 
 
 tearing it down, the owner of it is not relieved from lia- 
 bility to one who is injured in consequence of its so falling 
 by the fact that the work of tearing it down and removing 
 it had been committed to an independent contractor.*"^ The 
 owner of a building, who employs a contractor to remove 
 walls which have become dangerous, is liable for the negli- 
 gence of the contractor in performing the work, whereby 
 a third person is injured, the same as though the contractor 
 were his servant.^^ The owner of a chimney was held liable 
 for its fall, although he had hired an independent contrac- 
 tor to inspect it, who had pronounced it safe.***^ 
 
 Sec. 105. Same, Exempt Though Fatal. 
 
 The employer has been held not liable in a number of 
 cases where the injuries caused by the independent contrac- 
 tor's negligence proved fatal. ^^ 
 
 N. Y. 303; 38 N. E. 290; 25 L. 
 R. A. 667; 45 Amer. St. Rep. 724. 
 As to party walls and similar 
 cases, see Ketcham v. Newman 
 (1894), 141 N. Y. 205; 36 N. E. 
 197; 24 L. R. A. 102; Bower v. 
 Peate (1876), 1 Q. B. D. 321; 16 
 Am. Neg. R. 645. 
 
 ^ Engel v. Eureka Club, 59 
 Hun (N. Y.). 593; 14 N. Y. Supp. 
 184; (1893), 137 N. Y. 100; 32 
 N. E. 1052 ; 33 Amer. St. Rep. 695. 
 
 ^ Stcinbrook v. Covington, etc., 
 Co. (1897), 4 Ohio (N. P.), 229; 
 6 Ohio Dec. 328; Northern Trust 
 Co. V. Palmer (1898), 70 Ills. 
 App. 93; 56 N. E. 796; 3 Am. 
 Neg. R. 531. 
 
 '^"CoRK V. Blossom (1894), 162 
 Mass. 330; 38 N. E. 495; 26 L. 
 R. A. 256; 44 Amer. St. Rep. 362. 
 A property owner employed an 
 independent contractor to repair 
 certain chimneys, by taking off a 
 
 few feet and relaying the brick. 
 Such work, the court declared, 
 was not such as would neces- 
 sarily endanger persons in the 
 street. It did not involve throw- 
 ing brick into the street, or caus- 
 ing or allowing them to fall so as 
 to endanger persons traveling 
 therein. The negligence of the 
 contractor's servants in handling 
 bricks was a mere detail of the 
 work. The work itself could not 
 be classed as dangerous. Any 
 negligence of the contractor's 
 servants was merely collateral to 
 the work and did not render the 
 property owner liable. Boomer v. 
 WiLiiuR (1900), 176 Mass. 4S2; 
 57 N. E. 1004; 53 L. R. A. 172; 8 
 Am. Neg. R. 246, cited in Burd. 
 Torts, p. 141. 
 
 "^Doran v. Flood (1891), 47 
 Fed. 543; Thornton v. Lennon 
 (1898), 29 App. Div. (N. Y.),
 
 206 INDEPENDENT CONTRACTORS AND THEIR LIABILITi. 
 
 Sec. 106. Landlord and Tenant, Generally. 
 
 In answer to the question whether a landlord, in making- 
 repairs on the demised premises during the term, will be 
 allowed to shift the responsibility for an injury to the 
 tenant, upon an independent contractor who may be in- 
 solvent, some courts hold that he will not and others that 
 he will. In some jurisdictions where the landlord employs 
 an independent contractor to make repairs, it is held that 
 he is not liable for injuries resulting from the negligence 
 of such contractor in making the repairs, where no negli- 
 gence is shown by reason of the employment of the particu- 
 lar contractor. °° The owner is not made liable for the neg- 
 ligence of the contractor resulting in injury to a tenant's 
 family in a building in course of reparation because of his 
 
 628; 51 N. Y. Supp. 433; Neu- 
 meister v. Eggers (1899), 29 App. 
 Div. (N. Y.), 385; 51 N. Y. Supp. 
 481. In fact, the fatal result of such 
 negligence does not appear to 
 have been the subject of much 
 discussion, in distinguishing such 
 cases from those ordinarily aris- 
 ing as to the employer's liability 
 for his contractor's negligence. 
 
 ™24 Cyc, 1117, citing, in addition 
 to cases referred to infra, Jefferson 
 V. Jameson, etc., Co. (1897), 165 
 Ills. 133; 46 N. E. 272, reversing 
 60 Ills. App. 587; Turner v. 
 
 McCarty ( ), 4 E. D. Smith 
 
 (N. Y.), 247; Sterger v. Van 
 
 Siclen ( ), 7 N. Y. Supp. 805. 
 
 "See, however, O'Rourke v. Feist 
 (1899), 59 N. Y. Supp. 157; 
 Worthington v. Parker (1885), 11 
 Daly (N. Y.), 545; Sulzbacker v. 
 Dickie (1876), 6 Daly (N. Y.), 
 469; Blake v. Fox (1892), 17 N. 
 Y. Supp. 508. See, also. Mills v. 
 Holton ( ), 2 Hurl. & N. 14." 
 
 Where, through the negligence of 
 an independent contractor in fail- 
 ing to take measures to insure 
 the safety of the tenants while 
 the work of building or repairing 
 is in progress, an injury happens 
 to a tenant and the contractor is 
 not under any control of the land- 
 lord, except as to the result to be 
 attained, and the tenant is hurt 
 through the act of the contractor, 
 e. g., in leaving an excavation un- 
 guarded, the landlord will not be 
 liable. Wiese v. Remme (1897), 
 140 Mo. 289 ; 41 S. W. 797 ; 3 Am. 
 Neg. R. 222. A landlord was e.x- 
 onerated from liability to a tenant 
 for an injury caused by the fall 
 of plaster where an employee of 
 the independent contractor, en- 
 gaged in repairing the house, 
 slipped his foot and went through 
 the ceiling, although the plaster 
 was out of repair and might have 
 fallen later of its own accord. 
 The proximate cause of the dam-
 
 employer's exceptional llvbility. 
 
 207 
 
 failure to obtain the tenant's consent to enter the premises.^^ 
 The general rule is, that a lessor is not liable to a servant 
 of the lessee for damages resulting from the latter's negli- 
 gence unless some duty remained upon tlie lessor from a 
 failure to perform which the injury occurred."^ A New 
 York court has recently held a landlord not liable for the 
 negligence of an independent contractor in permitting ma- 
 terial to remain in a hallway."^ "The general rule is, that 
 where a landlord lets the work of repairing his building to 
 another, to be done by the latter as an independent con- 
 tractor, and the landlord selects such a person as a man 
 of ordinary prudence and care would employ to do the 
 work, the relation of master and servant is not created, and 
 the landlord is not liable to the tenant for the negligence 
 or improper execution of the work, or responsible for the 
 carelessness or negligence of the contractor in its per- 
 formance." ^"^ A tenant, whose premises are exposed 
 
 age was deemed to be the act of 
 the contractor's employee in put- 
 ting his foot through the ceil'ng 
 and not the landlord's negli;?ence. 
 Fitzgerald v. Timoney (1895), 34 
 N. Y. Supp. 460. So, also, where 
 damage was caused to a tenant 
 by the falling of soot down a 
 chimney upon the demised prem- 
 ises, where the accident was al- 
 leged to be due to the negligence 
 of a contractor who was working 
 upon the chimney, making no 
 claiim that it was the landlord's 
 duty to use diligence to prevent 
 such an accident. O'Connor v. 
 Schnepel (1895), 33 N. Y. Supp. 
 562. 
 
 " McDermott v. McDonald 
 (1894), 55 Ills. App. 226. A land- 
 lord was held rot to be liable in 
 an action for damages brought by 
 
 the parents of a child who fell 
 into a privy vault which a con- 
 tractor had dug on the demised 
 property and left uninclosed for 
 several months. Wiese v. Remme 
 (1897), 140 -Mo. 289; 41 S. W. 
 797: 3 Am. Neg. R. 222. 
 
 ""Crusselle v. Puch (1881), 
 67 Ga. 430; 44 Amer. Rep. 724. 
 
 "'Boss V. Jarmulowsky (1903), 
 81 N. Y. Supp. 400. 
 
 "Note to Nahm V. Register, 
 ETC., Co. (1905, 120 Ky. 485, 87 
 S. W. 296), in 9 Am. & Eng. Ann. 
 Cas. 211, citing Blake v. 'Woolf 
 (1898), 2 Q. B. 425; Lawrence v. 
 Shipman (1873). 39 Conn. 536; 
 Mumby V. Bowden (1859), 125 
 Fla. 454; 6 So. 453, holding, how- 
 ever, that where it appears that 
 the landlord and not the con- 
 tractor had the control and direc-
 
 208 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 and whose goods are injured as a result of the manner in 
 which a man contracting with the landlord for the removal 
 of the adjoining house performed his work, can not re- 
 cover from the landlord.^^ 
 
 "The better view is that a landlord, who undertakes to 
 make repairs on the demised premises during the term, is 
 liable for damages to the person or property of the tenant 
 resulting from the negligence of those whom he may- 
 engage to make the repairs, although they are employed 
 by the job, and without reference to the question whether 
 the landlord is under an agreement with the tenant to make 
 the repairs or not." ^" A landlord was held liable to his 
 
 tion of the work, the former is 
 liable. Eblin v. Miller (1880), 7S 
 Ky. 371; Wiese v. Remme (1897), 
 140 Mass. 289; 41 S. W. 797; 
 Morton v. Thurber (1881), 85 N. 
 Y. 550; Boss v. Jarmulowsky, 
 supra; Mahon v. Burns (1894), 
 29 N. Y. Supp. 682; 34 Id. 91; 
 O'Connor v. Schnepel (1895), 33 
 N. Y. Supp. 562; Rotter v. Goer- 
 litz (1890), 12 N. Y. Supp. 210; 
 Meany v. Abbott (1867), 6 Phila. 
 (Pa.), 256. A landlord is not 
 liable, under an implied covenant 
 of quiet enjoyment, for injuries 
 to the personal property of a 
 tenant caused by the tortious acts 
 of the servants of an independent 
 contractor for a one story exten- 
 sion to the building, while using 
 a part of the demised premises 
 as a means of access to their 
 work. Hyde v. Wilmore (1895), 
 35 N. Y. Supp. 681. 
 
 °' Rotter v. Goerlitz (1890), 16 
 Daly, 484; 12 N. Y. Supp. 210. 
 
 ""Thomps. Neg., Sec. 1142, 1148, 
 cit'mcr Houston, etc., R. v. Meudor 
 (1878), 50 Tex. 77. Contra, Las- 
 
 ker, etc., Association v. Hatcher 
 (Tex. Civ. App., 1894), 28 S. W. 
 404. "In other jurisdictions, how- 
 ever, it is held tliat the landlord 
 in making repairs and improve- 
 ments to demised premises owes 
 a duty of reasonable care to the 
 occupying tenants, which he can 
 not escape by placing the work 
 with an independent contractor, 
 especially if the work to be done 
 is attended with danger to the 
 tenant." 24 Cyc. 1117, citing inter 
 alia, Nahm v. Register News- 
 paper Co. (1895), 120 Ky. 485; 87 
 S. W. 296; 9 Amer. & Eng. Ann. 
 Cas. 211; Curtis v. Kiley (1891), 
 153 Mass. 123; 26 N. E. 421; 
 Peerless Manufacturing Co. v. 
 Bagley (1901), 126 Mich. 225; 85 
 N. W. 568; 86 Amer. St. Rep. 
 537; 53 L. R. A. 285; Dorse v. 
 Fisher ( ), 10 Ohio Dec. (re- 
 print), 163; Wilber v. FoUansbee 
 (1897). 97 Wise. 577; 72 N. W. 
 741; 73 Id. 559; Wertheimer v. 
 Saunders (1897), 95 Wise. 573; 
 70 N. W. 824; 37 L. R. A. 146.
 
 employer's exceptional liability. 
 
 209 
 
 tenants for damages sustained by them from the weather, 
 in consequence of the act of the contractor, whom he had 
 employed to repair the building, in leaving it unroofed, 
 without covering.*^" 
 
 Sec. 107. Same, Discliargiiig- Legal Duty. 
 
 "Where a landlord is under a legal duty to make repairs, 
 and he employs an independent contractor to do the work, 
 and as a result of the contractor's negligence the tenant 
 suffers damages, the landlord can not escape by showing 
 that he employed an independent contractor, over whom 
 he had no control, to make the repairs for him." "^ A land- 
 lord who employs a contractor to make certain repairs which 
 he is bound to make is liable for injuries caused to a tenant 
 by the failure of the contractor to execute the work; as 
 where a tenant fell through a defective bridge between an 
 apartment house and another building."^ 
 
 "Sulzbacker v. Dickie (1876), 
 6 Daly (N. Y.), 469. But see 
 other New York cases, supra, 
 holding contrary. An intermedi- 
 ate Pennsylvania court holds a 
 landlord responsible to his tenant 
 for an injury arising from .the 
 negligence of a plumber in im- 
 properly constructing a water 
 tank on the leased premises. 
 Meany v. Abbott (1857), 6 Phila. 
 (Penn.), 256. The landlord was 
 held liable for injuries to a tenant 
 where no contract had been let 
 to the mechanic engaging in 
 making the repairs, in Anderson 
 V. Moore (1903). 108 Ills. App. 
 106. 
 
 "Note to Nahm v. Register, 
 ETC.. Co. (1905. 120 Ky. 485), in 
 9 Am. & Eng. Annot. Cas., p. 212, 
 citing Peerless, etc., Co. v. Bag- 
 ley (1901), 126 Mich. 225; 85 N. 
 
 W. 568; 86 Amer. St. Rep. 537; 
 53 L. R. A. 285 ; O'Rourke v. Feist 
 (1899), 42 N. Y. App. Div. 136; 
 
 59 N. Y. Supp. 157; Randolph v. 
 Feist (1898), 52 X. Y. Supp. 109; 
 Sulzbacker v. Dickie (1876), 51 
 How. Pr. (N. Y.), 500; Worthing- 
 ton V. Parker (1885), 11 Daly (X. 
 Y.), 545; Curtis v. Kiley (1891). 
 153 Mass. 123; 26 N. E. 421; 
 Burd. Cas. Torts, 403 ; Pittsfield, 
 ETC.. Co. V. Pittsfield, etc., Co. 
 (1902), 71 N. H. 522; 53 Atl. 807; 
 
 60 L. R. A. 116; Jefferson v. 
 Jameson, etc., Co. (1897). 165 
 Ills. 138; 46 N. E. 272. 
 
 "•Brennan v. Ellis (1893), 70 
 Hun, 472; 24 N. Y. Supp. 426. 
 The same rule applies where the 
 work or material is that furnished 
 by a subcontractor. Butts v. 
 Mackey Co. (1893). 72 Hun (N. 
 Y.). 562; 25 N. Y. Supp. 531. Cf.
 
 210 INDEPENDENT CONTRACTORS AND THEIR LIABITITk'. 
 
 Sec. 108. Same, Personally Supervising. 
 
 Although the landlord may call in, to do certain work, 
 a competent contractor, yet if he personally supervises the 
 work and it is improperly done and the tenant is thereby 
 damaged, the landlord will be liable ; e. g., where he called 
 in a competent tinsmith to replace defective pipes conduct- 
 ing water from the roof, and through the manner in which 
 the work was done, the goods of the tenant were injured 
 by leakage. ^'^'^ 
 
 Sec. 109, Same, Work Imminently Dangerous. 
 
 Although the landlord may stipulate with the contractor 
 for a certain result only, without reserving any control over 
 the contractor as to his methods of achieving that result, 
 yet if the result itself is imminently dangerous, in conse- 
 quence of which an injury accrues to the tenants of the 
 landlord, the latter will be liable; e. g., the landlord of a 
 tenement house was held liable to a tenant for the falling 
 of a dumb waiter, gratuitousy supplied by him for the con- 
 venience of the tenants, whose fall was due to the negli- 
 gent splicing of the ropes supporting it, although the person 
 who did the splicing was an independent contractor. ^'^^ A 
 Kentucky court has recently held that a landlord erecting 
 additional stories on a building occupied by a tenant will 
 not be relieved from liability for injuries to the stock of 
 a tenant by falling rain merely because the work is being 
 
 (1895), 147 N. Y. 715; 42 N. E. 
 722. Where a slied belonging to 
 a livery stable keeper, intended 
 for receiving carriages, was blown 
 down by a high wind while being 
 erected by an independent con- 
 tractor, whereby plaintiff's car- 
 riages, which had been p'accd in 
 the lower story after its comple- 
 tion, were injured, it was held 
 
 that the plaintiff was properly 
 non-suited and that the defendant 
 had exercised ordinary care, all 
 that the law required. Searle v. 
 Laverick (1874), L. R.. 9 Q. B. 
 122. 
 
 '"" W o r t h i n g t o n v. Parker 
 (1885). 11 Daly (N. Y.), 545. 
 
 ^''^ Blake v. Fox (1892), 17 N. 
 Y. Supp. 508.
 
 employer's exceptional ll\bility. 
 
 211 
 
 done by an independent contractor. ^^^ A Michigan court 
 held the landlord liable for the negligence of an independent 
 contractor installing an automatic sprinkler system, who 
 put in sprinkler heads which fused at too low a temperature 
 and damage to the tenant's goods from the water re- 
 sulted. ^"^ "As a limitation upon the rule (exempting a 
 landlord from liability for acts of an independent contrac- 
 tor) it is held in some cases that, where an act voluntarily 
 undertaken by a landlord in repairing his building is one 
 from its very nature liable to damage his tenant, the landlord 
 is not released from responsibility to a tenant damaged 
 thereby, although the landlord enters into a contract with 
 an independent contractor to perform the work, and the 
 damage occurs through the negligence of the latter." ^"^^ 
 
 ^"-Nahm et al. v. Register, 
 ETC., Co. (1905), 120 Ky. 485; 87 
 S. W. 296; 9 Amer. & Eng. 
 Annot. Cas. 209. Here a land- 
 lord, acting without the consent 
 of his tenant, employs an inde- 
 pendent contractor to take the 
 roof off of the leased premises 
 for the purpose of adding another 
 story to the building and the 
 landlord was held liable to the 
 tenant for the injury to the lat- 
 ter's goods resulting from the 
 negligent manner in which the 
 work was done. 
 
 "'^ Peerless Manufacturing Co. 
 V. Bagley (1901), 126 Mich. 225; 
 
 85 N. W. 568; S3 L. R. A. 285; 
 
 86 Amer. St. Rep. 537. 
 
 ^""Note to Nahm v. Register, 
 ETC., Co.. supra, 9 Amer. & Eng. 
 Annot. Cas. 212, citing Robbins v. 
 Atkins (1897), 168 Mass. 45; 46 
 N. E. 425; 1 Am. Neg. R. 617; 
 
 Sulzbacker v. Dickie (1876), 51 
 How. Pr. (N. Y.), 500; Malony 
 V. Bradley (1891), 14 N. Y. Supp. 
 794; O'Rourke v. Feist (1899), 59 
 N. Y. Supp. 157; Wertheimer v. 
 Saunders (1893), 95 Wise. 5 '3; 
 70 N. W. 824; 2>7 L. R. A. 146; 
 Wilber v. FoUansbee (1897), 97 
 Wise. 577; 72 N. W. 741; 73 N. 
 W. 559; Lasker, etc., Co. v. 
 Hatcher (1894, Tex. Civ. App.), 
 28 S. W. 404. Where damage 
 was done to the goods of a ten- 
 ant by rain which found its way 
 into the building through open- 
 ings left by an independent con- 
 tractor while a new roof wis 
 being put on, the landlord was 
 held answerable, in Meyers v. 
 Easton (187S), 4 Vict. L. Rep. 
 283. For other cases involving 
 similar occurrences and sustairirg 
 the same rule, see note in 65 L. 
 R. A. 855.
 
 212 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 110. Master's Non-assignable Duty. 
 
 If a master delegates the performance of a primary and 
 non-assignable duty, which such master owes to his own 
 servant, to an independent contractor, the rule which ex- 
 onerates a proprietor from responsibility for the negligence 
 of an independent contractor ceases to obtain, but the con- 
 tractor becomes with respect to the performance of such 
 duties the vice-principal and representative of the master, 
 and the master is liable to his servant for the negligence 
 of the contractor in failing to perform them, or in the man- 
 ner of performing them.^"^ 
 
 '"* North Chicago Street R. v. 
 Dudgeon (1900), 83 Ills. App. 
 528; 183 Ills. 477; 56 N. E. 595, 
 railwa}' company employing an in- 
 dependent contractor to repair its 
 tracks; Woodman v. Metropoli- 
 TAX R. Co. (1889), 149 Mass. 
 339; 21 N. E. 4S2; 4 L. R. A. 213; 
 6 Rail. & Corp. Law J. 72; 14 
 Amer. St. Rep. 427; 12 Am. Neg. 
 Cas. 80, a street obstructed by an 
 independent contractor in the per- 
 formance of a contract with the 
 proprietor; Sackewitz v. Ameri- 
 can, etc., Co. (1899), 78 Mo. App. 
 144; Johnston v. Phoenix, etc., 
 Co. (1901), 60 N. Y. Supp. 947; 
 169 N. Y. 581 ; Moran v. Corliss, 
 ETC., Co. (1899), 21 R. I. 385; 43 
 Atl. 874; 45 L. R. A. 267, master 
 delegated to an -independent con- 
 tractor the duty of keeping a 
 crane operated by electricity in a 
 safe condition for the use of his 
 employees and he negligently 
 failed to perform it, in conse- 
 quence of which an employee was 
 injured; Water Co. v. Ware 
 
 (1872), 16 Wall. (U. S.), 566; 
 Toledo, etc., Co. v. Bosch (1900), 
 41 C. C. A. 482; 101 Fed. 530; 
 Stewart v. Ferguson (1899), 60 
 N. Y. Supp. 429, employer di- 
 rected another to perform a statu- 
 tory duty of ' such employer, of 
 erecting a safe scaffolding where- 
 on his employees were to work; 
 Mclntyre v. Boston, etc., R. 
 (1895), 163 Mass. 189; 39 N. E. 
 1012; Pennsylvania Railroad Co. 
 V. LaRue (1897), 81 Fed. 148; 27 
 C. C. A. 363; Bushby v. New 
 York, etc., R. (1887), 107 N. Y. 
 374; 14 N. E. 407; 1 Amer. St. 
 Rep. 844. For decisions more or 
 less contra, see Bemisch v. Rob- 
 erts (1891), 143 Pa. St. 1; 21 Atl. 
 998; Mansfield, etc., Co. v. 
 McEnery (1879), 91 Penn. St. 
 185; Fraser v. Red River, etc., 
 Co. (1891), 45 Minn. 235; 47 N. 
 W. 785, scaffold; Devlin v 
 Smith (1882), 25 Hun (N. Y.), 
 206; 89 N. Y. 476; 42 Amer. Rep. 
 311. scaffold; Baird v. Dunn 
 (1895), 33 New Bruns. 156.
 
 CHAPTER V. 
 
 Employer's Exceptional Llvbility — II. Character of 
 Obligation — ( Continued ) . 
 
 SECTION 
 
 115. Franchise rights, generally., 
 
 116. Railroad companies, gener- 
 
 ally. 
 
 117. Same — Delegating operation 
 
 of road. 
 
 118. Same— Contractor operating 
 
 road. 
 
 119. Same — Contractor in control 
 
 at time of injury. 
 
 120. Same — Contractor negligent- 
 
 ly managing construction 
 train. 
 
 121. Same — Presumption as to 
 
 direction by employer. 
 
 122. Same— Contractor killing 
 
 cattle. 
 
 123. Same — Contractor failing to 
 
 fence. 
 
 124. Same — Contractor or serv- 
 
 ant trespassing. 
 
 125. Same — Duty to traveler as 
 
 to excavations. 
 
 126. Same — L e s s e e operating 
 
 road. 
 
 127. Same — T r u s t e e operating 
 
 road. 
 
 128. Same — Using tracks in com- 
 
 mon. 
 
 SECTION 
 
 129. Same — Liability as ware- 
 
 housemen. 
 
 130. Street railroads. 
 
 131. Carriers' duty, generally. 
 
 132. Same — Safe premises. 
 
 133. Same — Safe vehicles, etc. 
 
 134. Same — Safe tracks, etc. 
 
 135. Same — Sleepers, etc. 
 
 136. Same — Special contract as 
 
 to freight. 
 
 137. Same — As to running trains. 
 
 138. Same — As to criminal acts. 
 
 139. Cities and towns, generally. 
 
 140. Same — Jointly with contrac- 
 
 tor. 
 
 141. Same— Safety of streets. 
 
 142. Same — Constructing sewers. 
 
 143. Same — Grading street. 
 
 144. Same — As to bridges. 
 
 145. Same — Necessity as to no- 
 
 tice. 
 
 146. Same — Contractor's t r e s- 
 
 passes. 
 
 147. Counties. 
 
 148. Public utility companies. 
 
 149. Public charities. 
 
 150. Public exhibitions. 
 
 151. Profit corporations. 
 
 Sec. 115. Franchise Rights, Generally. 
 
 "Even though the person, who causes the injur}', is a 
 contractor, he will be regarded as the servant or agent of 
 the corporation for which he is doing the work, if he is ex- 
 
 213
 
 214 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 ercising some chartered privilege or power of such corpora- 
 tion with its assent, which he could not have exercised 
 independently of the charter of such corporation."^ It is 
 a principle of law that, when one is conducting a business 
 the necessary effect of which is to expose others to great 
 danger, so that he ought to take precautions for their 
 safety, he is responsible for the negligence of an indepen- 
 dent contractor to whom he intrusts the performance of 
 this duty. 2 "When a corporation owes a duty, either to 
 its employees or to the public, it can not delegate the per- 
 formance of that duty to a substitute." ^ Quasi-public 
 corporations, such as electric light companies, are answer- 
 able for the negligence of contractors employed by them in 
 the exercise of any of their charter powers and privileges.'' 
 
 ' Chicago, etc., Gas Co. v. 
 Myers (1897), 168 Ills. 139; 48 
 N. E. 46; Chicago v. Murdock 
 (1904), 212 Ills. 9; 72 N. E. 46; 
 103 Amer. St. Rep. 221. 
 
 ^Boucher v. New York, *itc., 
 R. (1907, Mass.), 82 N. E. 15; 
 13 L. R. A. (N. S.), 1177; 50 
 Am. & Eng. Ry. Cas. 1, citing 
 Woodman v. Metropolitan R. 
 Co. (1889). 149 Mass. 335; 21 N. 
 E. 482; 4 L. R. A. 213; 14 Amer. 
 St. Rep. 427 ; 6 Rail. & Corp. Law 
 J. 72; 12 Am. Neg. Cas. 80; Cur- 
 tis V. KiLEY (1891), 153 Mass. 
 123; 26 N. E. 421; Burd. Cas. 
 Torts, 403; Blessington v. Boston 
 (1891), 153 Mass. 409; 26 N. E. 
 1113; Pye v. Faxon (1892), 156 
 Mass. 471; 31 N. E. 640. "The 
 American reports contain a large 
 number of decisions which are 
 based on the doctrine that a cor- 
 poration cannot, by delegating to 
 another party the functions which 
 it is empowered to perform, and 
 
 which constitute the essential 
 reason for its existence, escape 
 responsibility for injuries caused 
 by the non-performance of such 
 duties as may be attached, either 
 by its charter or by the general 
 law of the state in which it is 
 organized, to the exercise of 
 franchises conferred upon it." 
 Note to Anderson v. Fleming 
 (1903, Ind.), 66 L. R. A. 136, 
 citing cases. 
 
 ^ Texas, etc., R. v. Juneman 
 (1895), 71 Fed. 939; 18 C. C. A. 
 394. 
 
 * Capital Electric Co. v. Haus- 
 wald (1898). 78 Ills. App. 359. 
 The rule of liability was held to 
 apply where a servant of a con- 
 tractor engaged in work on an 
 elevated railroad, dropped a heavy 
 piece of steel on a person passmg 
 under the structure. Metropoli- 
 tan, etc., R. V. Dick (1900), 87 
 Ills. App. 40.
 
 employer's exceptional llvbility. 
 
 215 
 
 Sec. 116. Railroad Companies, Generally. 
 
 The general rule of non-liability has usually been applied 
 so as to exempt railroads from liability for wrongs done 
 by contractors employed by them to construct and repair 
 their roads. ^ "The true distinction in these cases is, that, 
 where the wrongful act is done by contractors or lessees 
 of a railroad corporation in pursuance of the special powers 
 and privileges conferred upon it. by its charter, or by the 
 applicatory general law, and that but for such charter or 
 general enabling statute they would have no right to prose- 
 cute the particular business, such contractors or lessees 
 are regarded as servants of the company, and acting under 
 its direction for the purpose of conserving the rights of 
 third parties. But that the act which is committed by the 
 
 'Clark V. Hannibal, etc., R. 
 (1865), 36 Mo. 202; Meyer v. 
 Midland R. (1873), 2 Nebr. 319; 
 Central Railroad v. Grant (1872), 
 46 Ga. 417; 14 Am. Neg. Cas. 
 212, n; West v. St. Louis, etc., R. 
 (1872). 63 Ills. 545; Callahan v. 
 Burlington, etc., R. (1867). 23 
 Iowa, 562; Kansas, etc., R. v. 
 Fitzsimmons (1877), 18 Kans. 34; 
 Tihbetts v. Knox, etc., R. (1873), 
 62 Me. 437; E.\ton v. European, 
 ETC., Co. (1871), 59 Me. 520; 8 
 Amer. Rep. 430; Reedie v. Lon- 
 don, ETC., R. (1849). 4 Exch. 
 244; 6 Eng. Rail. & Corp. Cas. 
 184 ; Steel v. Southeastern R.ml- 
 ROAD (1855), 16 C. B. 550, parol 
 contract ; Pawlet v. Rutland, etc.. 
 R. (1855), 28 Vt. 297; Schular 
 V. Hudson River R. (1862), 38 
 Barb. (N. Y.), 653; Hunt v. 
 Pennsylvania Railroad (1866), 51 
 Penn. St. 475; Clark v. Vermont 
 
 Railroad (1854), 28 Vt. 103; 
 McCafferty v. Spuyten Duyvil. 
 etc., Railroad (1874), 61 N. Y. 
 178; 19 Amer. Rep. 267. Contra, 
 Stone v. Cheshire Railroad 
 (1849), 19 N. H. 427; 51 Amer. 
 Dec. 192; Edmundson v. Pitts- 
 burg, etc.. R. (18S5), 111 Penn. 
 St. 316; 2 Atl. 404; 23 Am. & 
 Eng. R. Cas. 423. The principle 
 that a railroad company cannot 
 delegate to another its charter 
 rights and privileges, is held not 
 to extend so far as to make the 
 company liable for the negligence 
 of an independent contractor en- 
 gaged in the construction of its 
 road, in Sanford v. P.wvtucket 
 Street Railroad (1898). 19 R. L 
 537; 35 Atl. 67; 33 L. R. A. 5r>4; 
 4 Amer. & Eng. R. Cas. (N. S.). 
 318; CuNNiNGH.vM V. Interna- 
 tiox.vl R.\ilro.\d (1879), 51 Tex. 
 503; 32 Amer. Rep. 632.
 
 216 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 company to them is one which does not require, for its 
 lawful performance, the aid of any franchise vested in the 
 company, the rule will be different and the company will 
 not be responsible for the negligence or wrong of the con- 
 tractor (or lessee) in performing it, unless such responsi- 
 bility would attach to any other proprietor under similar 
 circumstances." "^ "If a railroad is built properly," says a 
 Georgia court, *Sve 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 w^ork in a lawful and proper 
 manner." ''' 
 
 ^Thomps. Neg., Sec. 669, citing 
 in note 109, West v. St. Louis, 
 etc., R. (1872), 63 Ills. 545; San- 
 ford V. Pawtucket St. R., supra. 
 "Cf., Toledo Street R. v. Conroy 
 (1890), 39 Ills. App. 351, where the 
 doctrine is inaccurately stated." 
 In a Massachusetts case which 
 distinctly overruled Bush v. 
 Steinman (ante, Sec. 48), the 
 court said: "The case, then, of 
 Lowell v. Boston, etc., R. (1839), 
 23 Pick. 24; 34 Anier. Dec. 33, 
 stands perfectly well upon its 
 own principles, and is clearly dis- 
 tinguishable from the case at bar. 
 The court might well say that 
 the fact of N., being a contractor 
 for this section, did not relieve 
 the corporation from the duties 
 or responsibility imposed on them 
 by their charter and the law, 
 especially as the failure to re- 
 place the barriers was the act of 
 their immediate servant acting 
 under their orders." Hilliard v. 
 Richardson (1855), 3 Gray 
 (Mass.), 353; 63 Amer. Dec. 743. 
 
 'Atlanta, etc.. Railroad v. 
 Kimberley (1891), 87 Ga. 161; 13 
 S. E. 277; 27 Amer. St. Rep. 231, 
 in which the declaration alleged 
 that the defendant had made a 
 deep cut while its road was being 
 constructed, and had deposited 
 the earth taken out in such man- 
 ner as to dam up a small stream 
 and form a pond near the plain- 
 tifif's house; that the defendant 
 had placed near the house a con- 
 vict camp used in constructing the 
 road, and permitted the filth ac- 
 cumulating in the camp sinks to 
 flow out and be deposited near 
 the house, whereby the house be- 
 came infected with malaria, etc. 
 A railroad company was held li- 
 able for an injury caused by an 
 attack by a vicious steer, although 
 it had made an independent con- 
 tract with another to remove and 
 kill injured animals. Texas, etc., 
 R. v. Juneman (1895), 71 Fed. 
 939; 30 U. S. App. 541; 18 C. C. 
 A. 249.
 
 employer's exceptional liability. 217 
 
 Sec. 117. Same, Delegating Operation of Road. 
 
 A railroad company contracting for the moving of its cars 
 by liorse power over its own tracks, from one of its depots 
 to the various consignees, is Hable for the contractor's neg- 
 ligence, since it could not relieve itself from the liabilities 
 imposed by its charter, by adopting any particular kind of 
 power.^ The duty of a railroad company, either by statute or 
 at common law, to maintain gates at a crossing of a crowded 
 street in a great city, can not be delegated to an independent 
 contractor, so as to relieve it from liability for negligence of 
 the gatekeeper which results in injury to a traveler on the 
 highway.^ "In leaving railroad cars on the siding in ques- 
 tion, the railroad company was exercising its charter 
 powers, which could not be delegated so as to relieve it 
 from responsibility for the negligence of the contractor's 
 employees or defective appliances." ^"^ 
 
 Sec. 118. Same, Contractor Operating Road. 
 
 Some cases hold tliat, if a railroad company devolves the 
 execution of its franchise upon contractors, it remains as 
 liable for the latter's acts as though those acts were done 
 by its own servants. It was so held where a chartered 
 railroad company permitted a construction company to use 
 its franchises by running passenger trains over its railway. ^^ 
 In the case of a railroad in course of construction, a contract 
 
 * Philadelphia, etc., R. v. Hahn a street crossing," see note to 
 
 (183S. Pa.), 12 Atl. 479; 32 Am. Boucher v. New York, etc., R., 
 
 & Eng. R. Cas. 24. supra, at p. 1177. 
 
 ' Boucher v. New York, etc., '" Camblin v. Philadelphia, etc., 
 
 R. (1907, Mass.), 82 N. E. 15; R. (1907), 218 Penn. 54; 66 Atl. 
 
 13 L. R. A. (N. S.). 1177. For a 977; 50 Amer. & Eng. R. Cas. 
 
 discussion of the "right of a rail- (N. S.), 160. 
 
 road company to delegate to an "Chattanooga, etc., R. v. 
 
 independent contractor the main- Whiteland (1S92), 89 Ga. 190; 15 
 
 tenance of gates or a flagman at S. E. 44.
 
 218 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 between a railroad company and a construction company 
 which was doing the work of construction whereby the 
 construction company was allowed to operate the road and 
 to receive its earnins^s for a certain time, was held not to 
 relieve the railroad company from liability for injuries 
 caused by the negligence of the construction company in 
 carrying passengers; since the construction company 
 operated the road by virtue of the franchise granted by the 
 state to the railroad company, and became in substance and 
 effect, its agents in so doing. ^^ A railroad company operating 
 another's road under contract is an "agent" of the owning 
 road under the Michigan Railroad Act (Sec. 43, Comp. Laws, 
 Sec. 1987), and the agent's neglect to erect and maintain 
 fences along the road's line, enjoined by statute, renders the 
 owning road liable for all consequent damages. ^^ In a much 
 litigated Texas case it was first held, that the railroad com- 
 pany was liable where a contractor for the construction of 
 its railway violated the provisions of a statute requiring rail- 
 way companies to make proper highway crossings and keep 
 them in repair. ^^ This was reversed on appeal, the court 
 holding that a charge embodying the theory that the fact 
 that the company's engineer had no authority over the con- 
 tractor except to see that the road was constructed accord- 
 ing to details, conclusively negatives the company's liability, 
 
 " Chattanooga, etc., R. v. Lid- 
 dell (1890), 85 Ga. 482; 11 S. E. 
 853; 8 Rail. & Corp. Law J. 295; 
 21 Anier. St. Rep. 169; Lakin v. 
 Willamette, etc., R. (1885), 13 
 Ore. 436; 57 Amer. Rep. 25; 11 
 Pac. 68. 
 
 '*Bay City, etc., R. v. Austin 
 (1870), 21 Mich. 390. Cf., Gard- 
 ner V. Smith (1859), 7 Mich. 
 410; 74 Amer. Dec. 722. That 
 the contractors may be hable over 
 
 to the employing company for any 
 damages, does not relieve the cor- 
 poration from its primary liability 
 in these cases. Lesher v. Wa- 
 bash, etc., Co. (1852), 14 Ills. 
 85; 56 Amer. Dec. 494; Hinde 
 V. Wabash, eta, Co. (1853), 15 
 Ills. 12. 
 
 " Taylor, etc., R. v. Warner 
 (1895), 88 Tex. Civ. App. 642; 
 31 S. W. 66; 32 Id. 868.
 
 employer's exception.vl liability. 
 
 219 
 
 was erroneous as not applying to the evidence. ^^ On the 
 second appeal, this aspect of the defendant's liability was 
 not commented on, but recovery was allowed on the ground 
 of the company's having exercised a reserved power to 
 select the location of the crossing."' 
 
 On the other hand, it has been held that a railway com- 
 pany is not liable for damages which result through the 
 negligent management of one of its trains, used and con- 
 trolled by contractors for the construction of its road, in 
 their work of construction on a portion of the road which 
 they have built and not yet turned over to the railway com- 
 pany. ^^ So, cases exempt the railroad company, even 
 
 "^Same (1895), 88 Tex. Civ. 
 App. 642; 32 S. W. 868. 
 
 "Same (1899). 92 Tex. 535; 50 
 S. W. 120; see, also, same case 
 (1900). 60 S. W. 442. 
 
 " Cunningham v. Internation- 
 al R. Co. (1879), 51 Tex. 503; 32 
 Amer. Rep. 632; Houston, etc., R. 
 V. Meador (1878), 50 Tex. 11, 
 87; Houston, etc., R. v. Van Bay- 
 less (1876), 1 Wills (Tex. Civ. 
 App.), 247. The principle that 
 a railroad cannot delegate to an 
 employee its charter 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 ex- 
 traordinary powers only as the 
 company itself could not exercise 
 without having first complied with 
 the conditions of the legislative 
 grant of authority. Cunningham 
 V. Intern.\tion.\l R. Co., supra. 
 Where the plaintiff was being 
 conveyed in a caboose on a regu- 
 lar ticket issued by the employees 
 
 of a contractor engaged in con- 
 structing a railroad and was in- 
 jured, the railroad was held not 
 liable. Union Pacific Railroad v. 
 House (1871), 1 Wyo. 27. It is 
 error to give a charge to the jury 
 which bases the responsibility of 
 the defendant upon the isolated 
 fact that the contractor was 
 transporting freight and passen- 
 gers for a reward on a finished 
 portion of the line ; for such fact 
 would be insufficient to warrant 
 the inference thus drawn from it, 
 if it should be shown eitlier that 
 I he contractor was operating that 
 particular section of the road as 
 a means of furthering the con- 
 struction of the unfinished part, 
 or that, although the contractor 
 might have been transporting 
 freight and passengers under an 
 arrangement which did not avail 
 to exempt the railroad company 
 from liability for the contractor's 
 negligence, while he was render- 
 ing that service, yet he exercised 
 at the same time, in respect to the
 
 220 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 though the contractor for constructing the road is an in- 
 corporated company and operates the road for traffic, since 
 the hability of the raih'oad company does not attach until 
 it goes into possession and control of the road. 
 
 18 
 
 Sec. 119. Same, Contractor in Control at Time of Injury. 
 
 There is a line of authority to the effect that where a con- 
 tractor in the construction of a road, was in the exclusive 
 possession thereof, and at the time the injuries were in- 
 flicted the railroad company had no control of the road, the 
 railroad company is not responsible for injuries inflicted 
 bv the contractor or his employees.^-' 
 
 work of construction, an inde- 
 pendent occupation and was not 
 the agent of the company while 
 discharging the functions incident 
 to that position. Rome, etc., R. 
 V. Chasteen (1889), 88 Ala. 591; 
 7 So. 94; 40 Amer. & Eng. R. 
 Cas. 559. Where an independent 
 contractor engaged in cutting 
 wood for a railroad company 
 owns his own cooking car and it 
 is placed by the company on a 
 spur track to enable the con- 
 tractor to do his work convenient- 
 ly, and a fire is communicated 
 from it, causing damage to a 
 third person, the railroad com- 
 pany is not liable. Le.\vitt v. 
 B.^NGOR, ETC., R. (1897), 89 Me. 
 509; 36 Atl. 998; 36 L. R. A. 
 382; 7 Am. & Eng. R. Cas. 354; 
 1 Am. Neg. R. 605, criticised in 
 Thomps. Neg., Sec. 656. 
 
 "Chattanooga, etc., R. v. 
 Whitehead (1892), 89 Ga. 190; 15 
 S. E. 44; Atchison, etc., R. v. 
 Davis (1885), 24 Kans. 209; 8 
 
 Pac. 530; Kansas Central R. v. 
 Fitzsimmons (1877), 18 Kans. 34; 
 Burton v. Galveston, etc., R. 
 (1884), 61 Tex, 526; 21 Am. & 
 Eng. R. Cas. 218; Chicago, etc., 
 R. v. Yarb rough (1896, Tex. Civ. 
 App.), 35 S. W. 422; Dallas, etc., 
 R. V. Able (1888), 72 Tex. 150; 9 
 S. W. 871; 37 Am. Neg. R. Cas. 
 453. 
 
 ^* Kansas Central R. v. Fitz- 
 simmons (1877), 18 Kans. 34. 
 This was an action for injuries 
 to a child by a turntable used in 
 operating a railroad, which was 
 still in the contractor's possession 
 by whom it was being operated, 
 and used for carrying passengers 
 and freight; an instruction that if 
 the turntable and road were in the 
 possession of and operated by the 
 construction company only, the 
 railroad company was not liable, 
 but if the construction company had 
 possession of the road and was 
 operating it for general purposes, 
 the company was liable for the
 
 employer's exceptional llvbility. 
 
 221 
 
 Sec. 120. Same, Contractor Negligently Managing Con- 
 struction Train. 
 
 A railroad company has been held not answerable in 
 damages for the negligent management, by an independent 
 contractor or his servants, of a construction train employed 
 by him in doing the work of constructing; unless it allows 
 the contractor to assume its franchises of carrying 
 passengers.^" 
 
 Sec. 121. Same, Presumption as to Direction by Employer. 
 
 In Texas it is held that the fact that an engineer of a 
 railroad company has no authority over the contractors 
 engaged for the construction of a highway crossing, except 
 to see that it is constructed according to the agreed speci- 
 fications, does not show that the company itself did not 
 have such control over the contractors as would make the 
 company liable for their negligence in constructing a cross- 
 ing at a place which was not a public highway.^^ In Ala- 
 
 injuries, was considered erroneous 
 as prejudicial against the railroad 
 company. Judge Brewer, now of 
 the United States Supreme Court, 
 dissented. A railroad company 
 was exonerated from liability for 
 the drowning of a boy in a pool 
 of water formed by a heavy storm 
 against an embankment, con- 
 structed by an independent con- 
 tractor and still in his possession 
 and under his uncompleted con- 
 tract. Charlebois v. Gogebic, etc., 
 R. (1892), 91 Mich. 59; 51 N. W. 
 812. 
 
 ^ Scarborough v. Alabama, etc., 
 Railroad (1891), 74 Ala. 497; 10 
 So. 316; St. Louis, etc., R. v. 
 Willis (1888). 38 Kans. 330; 16 
 Pac. 728; 33 Am. & Eng. Ry. Cas. 
 
 (N. S.), 48; Hitte v. Republican, 
 etc., R. (1886). 19 Nebr. 620; 28 
 N. W. 284; 29 Am. & Eng. R. 
 Cas. 586; Kansas City, etc., R. v. 
 Fitzsimmons (1877), 18 Kans. 34. 
 See, aLso. Atchison, etc., R. v. 
 Davis (1835), 34 Kans. 202; 8 
 Pac. 530; St. Louis, etc., R. v. 
 Ritz (1883). 30 Kans. 31; 2 Pac. 
 27; McCafferty v. Spuvte.v Duy- 
 viL, ETC., R. (1874), 61 N. Y. 178; 
 19 Amer. Rep. 267; Pawlet v. 
 Rutland, etc.. R. (1S55). 23 Vt. 
 545; and see ante, Sees. 117, 118. 
 "' Taylor, etc., R. v. Warner 
 (1895), 88 Tex. 642. 648; 31 S. 
 W. 65; 32 Id. 858. Cf., s. c. 
 (1899), 92 Tex. 535; 50 S. W. 
 120; (1900), 60 S. W. 442.
 
 222 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 bania it is held that a raih-oad company is responsible in 
 damages for every wrong done by a contractor or sub- 
 contractor within the limits of his duty in grading the road- 
 bed of the company, on the ground that such grading is, 
 in conformity to common knowledge, conclusively pre- 
 sumed to have been done pursuant to the direction of the 
 company given through its engineer.-^ 
 
 Sec. 122. Same, Contractor Killing Cattle. 
 
 On the ground that they were trespassers, railroad com- 
 panies have been held liable to the owners of cattle which 
 were run over and killed by the construction trains used by 
 the contractors in building their roads.^^ An Indiana 
 statute making companies owning railroads liable jointly 
 and severally with the lessees, assignees, receivers, and 
 "other persons running or controlling the road" for stock 
 killed, was held to include contractors, even though employed 
 
 =' Alabama, etc., R. v. Coskey 
 (1890), 92 Ala. 254; 9 So. 202; 
 Alabama, etc., R. v. Williams 
 (1890), 92 Ala. 277; 9 So. 203. 
 Tn such cases a contractor is re- 
 garded as the agent or servant of 
 the corporation employing him if 
 the work involves the exercise of 
 a charter privilege or power of 
 the corporation and which he 
 could not have exercised inde- 
 pendently of its charter. Su- 
 burban, etc., R. V. Balkwill (1900), 
 94 Ills. App. 454; TaJ^lor, etc., R. 
 V. Warner, supra (1900), 60 S. 
 W. 442, Texas. Evidence that 
 defendant's railway was in opera- 
 tion at the time and that a con- 
 tractor was taking out the old 
 rails and putting in new ones 
 
 justified a finding that the de- 
 fendant was responsible for rails 
 left in the street where there was 
 no evidence offered by the de- 
 fendant to prove the relation of 
 the contractor to it was an inde- 
 pendent one. Slayton v. West 
 End Street R. Co. (1899, Mass.), 
 6 Amer. Neg. Rep. 289. 
 
 ^ Illinois, etc., R. v. Finnigan 
 (1859), 21 Ills. 645; Chicago, etc., 
 R. V. Whipple (1859), 22 Ills. 105. 
 Cf., Illinois, etc., R. v. Kanouse 
 (1866), 39 Ills. 272; 89 Amer. 
 Dec. 307 ; Toledo, etc., R. v. Rum- 
 bold (1866), 40 Ills. 143; B.^ls- 
 LEY v. St. Louis, etc., R. (1886), 
 119 Ills. 68; 8 N. E. 859; 59 Amer. 
 Rep. 784.
 
 employer's exceptional LLVBILITV. 
 
 223 
 
 by another company, running a train f)n defcnrlant's tracks, 
 with defendant's consent.^* 
 
 Sec. 123. Same, Contractor Failing to Fence. 
 
 Where there is a ])ubhc (hity resting upon a corporation 
 it can not discharge this duty by any agreement which it 
 may make with an undertaker of the work; thus, a raih'oad 
 company can not, by a contract with a private person to 
 make openings in its fence for private purposes, reheve 
 itself from its duty to the general public to keep the road 
 securely fenced except at private crossings, and its failure 
 to do so renders it liable for damages resulting to all per- 
 sons except the contracting person.^^ Where a railroad 
 company failed to comply with a statute requiring railway 
 companies and their agents to erect and maintain fences 
 along the line of the road, the employing railroad was de- 
 clared liable, in a dictum. ^'^ It was held in an Alabama 
 
 '* Hney v. Indianapolis, etc., R. 
 (1873), 45 Ind. 320. Compare 
 Rome, etc.. R. v. Ch.\steen 
 (1889), 88 Ala. 591; 7 So. 94; 
 40 Amer. & Eng. R. Cas. 348. 
 
 "Wabash, etc., R. v. William- 
 son (1891). 3 Ind. .^pp. 190; 29 
 N. E. 455. A railroad does not 
 perform its statutory duty by 
 merely contracting with another 
 person to erect a fence required 
 by the statute, if the performance 
 itself is insufficient. Gill v. At- 
 lantic, etc., R. (1875), 27 Ohio 
 S. 240; Shepard v. Buffalo, etc., 
 R. (1866), 34 N. Y. 641; New 
 Albany, etc., R. v. Maiden (1859), 
 12 Ind. 10; Chicago, etc., R. v. 
 Hutchinson (1891). 45 Kans. 185. 
 That a railway company has em- 
 ployed a contractor to grade its 
 
 road bed will not release it from 
 liability for damages caused by 
 its failure to keep up the fences 
 along the right of way, to crops 
 injured by cattle which escaped 
 from such right of way. Pound 
 V. Port Huron, etc., R.. (1884), 
 54 Mich. 13; 19 N. W. 570. 
 
 ^Gardner v. Smith (1859), 7 
 Mich. 410; 74 Amer. Dec. 722. in 
 which case the contractor's lia- 
 bility was established. An Illinois 
 statute providing for liability for 
 failing to fence railroad tracks 
 within six months after the road 
 was open for use was held to 
 apply where trains were run by 
 the contractors for construction 
 purposes. Rockford, etc., R. v. 
 Wells (1872). 66 Ills. 321.
 
 224 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 case that the owner of cattle could not recover as against 
 a railroad company where, owing to the negligence of a 
 contractor in constructing defective stock gaps and throw- 
 ing down fences, his cattle strayed onto the land adjacent 
 to the track and were injured and killed.^'^ 
 
 Sec. 124. Same, Contractor or Servant Trespassing. 
 
 Where a corporation has been authorized by law to enter 
 upon certain premises, and take therefrom material for the 
 construction of public works by making compensation 
 therefor, and the corporation afterwards contracts with 
 others to do the work, who avail themselves of the authority 
 given to take material, the corporation will be liable there- 
 for, although the contractors were bound by their contract 
 to furnish the material and do the work for a specified 
 price. Contractors in such cases are deemed servants of 
 the corporation ; the work is done by it ; and under authority 
 of law; the immunities and liabilities of the charter attach 
 to the company and it will be held accountable.-^ And 
 
 "Alabama, etc., R. v. Martin 
 (1893), 100 Ala. 511; 14 So. 401. 
 A railroad company was held li- 
 able to the lessee of a farm for 
 damages to crops caused by the 
 acts of independent contractors in 
 throwing down fences and failing 
 to erect cattle guards. Clark v. 
 
 St. Louis, etc., R. ( , Ark.), 
 
 44 Amer. & Eng. R. C. (N. 
 S.), 39. 
 
 ^Lesher v. W.'\bash, etc., Co. 
 (1852), 14 Ills. 85; 56 Amer. Dec. 
 494; Hinde v. Wabash, etc., Co. 
 (1853), 15 Ills. 72. The "salu- 
 tary doctrine" of Lowell v. Bos- 
 ton, ETC. R. (1839), 23 Pick. 
 (Mass.), 24; 34 Amer. Dec. 33, 
 
 as Judge Thompson calls it in his 
 Commentaries on Negligence, Sec. 
 670, "has frequently been affirmed 
 by other courts." Lesher v. Wa- 
 bash, ETC., R., supra; Hinde v. 
 Wabash, etc., R., supra; Ohio, 
 ETC., R. V. DUNB.\R (1850), 20 
 Ills. 623; 71 Amer. Dec. 201; 
 Chicago, etc.. R. v. McCarthy 
 (1358), 20 Ills. 385; 71 Amer. 
 Dec. 285; Illinois, etc., R. v. Fin- 
 nigan (1859). 21 Ills. 646; Illi- 
 nois, ETC., R. V. Kanouse (1866), 
 39 Ills. 272; 89 Amer. Dec. 307; 
 Toledo, etc., R. v. Rumbold 
 (1866), 40 Ills. 143; Chicago, etc., 
 R. V. Whipple (1859), 22 Ills. 105; 
 Carmen v. Steul)enville, etc., R.
 
 employer's exceptional liability. 
 
 225 
 
 where it appeared from the evidence and the defendant 
 railway company's admissions that the contractors were 
 set to work by the company's agents to clear the right of 
 way and construct its roadbed on land which had not been 
 condemned, the railway company was held liable.-^ 
 
 On any theory of the subject, if the railroad company 
 appropriates the benefit of the trespass, it will be liable to 
 the landowner on the theory of ratification. Thus, if the 
 
 (1854), 4 Ohio St. 399; Stone v. 
 Cheshire R. (1849), 19 N. H. 
 427; 51 Amer. Dt;c. 192; Tarry 
 V. Ashton (1876), 1 Q. B. D. 314; 
 Brackett v. Lubke (1862), 4 
 Allen (Mass.), 138; 81 Amer. 
 Dec. 694; Regina v. Stephens 
 (1865), L. R.. 1 Q. B. 702; Rex 
 V. Medley (1834), 6 Car. & P. 
 292. 
 
 ^ Chicago, etc., R. v. Watkins 
 (1890), 43 Kans. 50; 22 Pac. 985; 
 40 Am. & Eng. R. Cas. 499. 
 Where land had heen appropri- 
 ated by the contractor for the 
 purposes of the work of con- 
 structing a railway, it was held 
 that the person thus damaged 
 could recover directly from the 
 company. Vermont, etc., R. v. 
 Baxter (1850), 22 Vt. 365. Cf., 
 Lesher v. Wabash, etc., R. 
 (1852), 14 Ills. 85; 56 Am. Dec. 
 494, materials for dam taken from 
 adjoining land under corporate 
 authority and the company held 
 answerable. To the same effect, 
 Hinde V. Wabash, etc., Co. (1S53), 
 15 Ills. 72. And it is no defense 
 that the defendant company Ii id 
 nothing to do with employing the 
 hands doing the work but that 
 they were employed and paid by 
 
 the contractors. Cairo, etc., R. v. 
 Woolsey (1877), 85 Ills. 370. A 
 railroad company by whose di- 
 rection a contractor for the 
 construction of its road enters 
 and builds the road upon the laid 
 which it has acquired without 
 having condemned an existing 
 leasehold interest, or acquired 
 that interest in any other manner, 
 is liable as a joint tortfeasor 
 with the contractor and his serv- 
 ants, for damages done by them 
 in the prosecution of the work, to 
 the lessee's crops ; Ullman v. 
 Hannibal, etc., R. (1877), 67 Mo. 
 118. distinguished from Clark v. 
 Hannibal, etc., R. (1865), 35 Mo. 
 202. For other cases as to a rail- 
 road company's non-liability for a 
 contractor's collateral tre^p iss, see 
 note to 65 L. R. A. 655. It is 
 said that it may be stated as a 
 general rule, that as between a 
 railroad company and a contrac- 
 tor for the construction of the 
 road, the railroad company is li- 
 able for tlie acts of the con- 
 tractor's employees in entering 
 upon and d'gging up the lands of 
 others in the course of c^n=t^uc- 
 tion. Cairo, etc.. R. v. Wo,il>ey 
 (1877), 85 Ills. 370.
 
 226 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 contractor makes a wrongful appropriation of the land of 
 another, it will be no answer to his claim for damages 
 against the railroad company to aver that the appropriation 
 was made by a contractor of the company or by a receiver 
 of such contractor. But if the railroad company adopts 
 the act of the contractor and the receiver in appropriating 
 the land, it must pay a just compensation to the land- 
 
 owner 
 
 30 
 
 Where contractors employed to construct a 
 railroad, tore down the fences of a proprietor without erect- 
 ing any temporary barriers, gates or cattle-guards, so that 
 cattle came into his field and destroyed his crops, it was 
 held that the railroad company must answer to him for the 
 damages on the ground that the contractors were exercis- 
 ing the franchises of the company and were its servants. ^^ 
 In cases in which railroad companies are held liable for 
 trespasses committed by independent contractors employed 
 by them, they may be bound to respond therefor in exem- 
 plary damages if the trespasses are wanton and malicious. ^^ 
 Several American courts hold that railroad companies 
 are not liable for the unauthorized trespasses of indepen- 
 dent contractors whom they employ to construct or repair 
 
 '■^ Bloomfield, etc.. R. v. Grace 
 (1887), 112 Ind. 128; 13 N. E. 
 630. On the theory of ratifica- 
 tion, a new or reorganized rail- 
 road companjf subscribes to the 
 rights of the old one, must pay 
 for any land appropriated by its 
 predecessor and not paid for by 
 it. Lake Erie, etc., R. v. Griffin 
 (1883), 92 Ind. 487; (1886), 107 
 Ind. 464; Bloomfield, etc., R. v. 
 Van Slike ( 1886) , 107 Ind. 480. A 
 railroad company is especially li- 
 able where after its contractor 
 enters on another's lands, it there- 
 after uses and occupies the land 
 
 so seized in the operation of its 
 railroad. Bloomfield, etc., R. v. 
 Grace, supra. If plaintiffs stood 
 by and permitted defendant's con- 
 tractors to enter on or waste the 
 soil adjacent to defendant's right 
 of way without objection, an 
 equity court may refuse them dam- 
 ages therefor. Murtfelt v. New 
 York, etc., R. (1886), 102 N. Y. 
 703 ; 25 Amer. & Eng. R. Gas. 144. 
 
 "^ Chicago, etc., R. v. McCar- 
 thy (1858), 20 Ills. 385; 71 Amer. 
 Dec. 285. 
 
 '-Rockford, etc., R. v. Wells 
 (1872), 66 Ills. 321.
 
 employer's exceptional liability. 
 
 227 
 
 the railroads or other works, where the relation of such 
 contractors to the railroad company is such that an ordinary 
 proprietor would not be liable in a similar case.^^ Thus it 
 has been held that a railroad company is not liable for the 
 dumping of earth by an independent contractor engaged in 
 constructing an embankment, on the plaintiff's land outside 
 of the company's right of way.^^ Where a subcontractor 
 on a railway committed a trespass in procuring timber on 
 land not belonging to the company, the latter was held 
 not liable to the owner of the land.^^ 
 
 The decisions exempting railroad companies from liability 
 for trespasses committed by independent contractors em- 
 ployed by them "seem to involve, in many cases, a denial 
 of justice to property owners through or along whose 
 property railways are constructed. Railway companies in 
 building their roads, employ non-residents of the particular 
 districts as contractors for that purpose. They are here to- 
 day and away tomorrow. In addition to this, they are often 
 insolvent. What is still worse, they are often composed 
 
 *'St. Louis, etc., R. v. Knott 
 (1891), 54 Ark. 424; 16 S. W. 9; 
 Chicago, etc., R. v. Ferguson 
 (1893), 3 Colo. App. 414; 33 Pac. 
 684; 13 Am. Neg. Cas. 647, n; 
 Wallace v. Newcastle, etc., R. 
 (1891), 11 Penn. Co. Ct. 347. 
 
 "Hughe s V. Railroad Co. 
 (1883), 39 Ohio St. 461; 15 Am. 
 & Eng. R. Cas. 100. Where the 
 contractor in the course of con- 
 struction of the road, unlawfully 
 and willfully seizes upon and ap- 
 propriated uncondcmned land, the 
 railroad company is not liable 
 therefor unless it be shown that 
 it subsequently ratified such ac- 
 tion. Waltcmeyer v. Wisconsin, 
 etc., R. (1887), 71 Iowa, 626; 33 
 
 X. \\\ 140; 30 Am. & Eng. R. 
 Cas. 384. It has been held in 
 Canada that a railroad company 
 is not liable for an injury to ad- 
 jacent property caused by the 
 wrongful act of an independent 
 contractor in taking earth to con- 
 struct the embankments from a 
 place and in a manner not author- 
 ized by the contract. Kerr v. 
 Atlantic, etc., R. (1895), 25 Can. 
 (S. C), 197. 
 
 " Parker v. Waycross, etc., R. 
 (1888), 81 Ga. 387; 8 S. E. 871. 
 Cf., Waltemcyer v. Wisconsin, 
 etc., R. (1887), 71 Iowa, 626; 33 
 N. W. 140; 30 Am. & Eng. R. 
 Cas. 384, hauling earth away be- 
 yond ricjht of wav.
 
 228 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 of mere dummy corporations, organized by the railroad 
 companies themselves for the purpose of escaping liability 
 for wrongs done in the construction of the road. As soon 
 as these dummy corporations have served their purpose 
 they are dissolved, and property owners who are injured 
 by their trespasses are left remediless. The true theory 
 in all these cases is that of the Illinois Supreme Court 
 viz. : Whenever the independent contractor, in 
 order to prosecute his work under his contract, must ex- 
 ercise in whole or in part a franchise granted by the legis- 
 lature to his employer, the railroad company, the company 
 must answer for his torts, because it is bound to see to the 
 correct execution of the powers conferred on it by the 
 legislature. An enjoinment of this doctrine makes the 
 company liable for all manner of trespasses of the contrac- 
 tor done while prosecuting the work under his contract; 
 because in every such case he is acting in virtue of the fran- 
 chise conferred by the legislature upon the railroad com- 
 pany, namely, the franchise of building a railroad. Without 
 the possession of that franchise, the railroad company could 
 not be there by its own servants, nor could it be there by 
 an independent contractor. In such a case persons em- 
 ployed by the company to exercise its powers are deemed, 
 in law, to be its servants or agents, and it is answerable 
 for their trespasses. "^'^ 
 
 Sec. 125. Same, Duty to Traveler as to Excavations. 
 
 In an early Massachusetts case following Bush v. 
 Steinman ^^ a railroad company was compelled to pay 
 damages to a traveler who had been injured in the night 
 
 ^Thompson on Negligence, Sec. Louis, etc., R. v. Drennan (1887), 
 672, citing Rockford, etc., R. v. 26 Ills. App. 263. 
 Wells (1872), 66 Ills. 321; St. "(1799), I. B. & P. 404. Re- 
 
 ported in full. Sec. 48, ante.
 
 EMPLOYER S EXCEPTIONAL LIABILITY. 
 
 229 
 
 time by reason of the fact that the servants of a contractor 
 with the corporation, had removed and neglected to re- 
 place certain barriers which had been placed to protect 
 travelers at a point where a deep cut had been made across 
 the highway in excavating for the company's roadbed.^® 
 Where a railroad company by law is charged with a duty 
 to the public, it cannot excuse itself from a performance 
 of such duty by an independent contract with other parties ; 
 and where it is made by law the duty of a railroad company 
 to keep a highway in reasonably safe condition for travel 
 at the point where the highway intersects such railroad 
 right of way or where the law makes it the duty of a rail- 
 road company, in making alterations by means of which the 
 highway may be obstructed, to provide and keep in good 
 order suitable temporary ways to enable travelers to avoid 
 or pass such obstructions, and where a party is injured in 
 consequence of the failure of the railroad company to dis- 
 charge that duty, such company can not escape liability by 
 showing that the work was done by other parties under 
 an independent contract.^® 
 
 Sec. 126. Same, Lessee, Operating Road. 
 
 It is on the same principle that the courts generally hold 
 that a railroad company can not absolve itself from liability 
 
 "Lowell v. Boston, etc., R. 
 (1839), 23 Pick. (Mass.), 24; 34 
 Amer. Dec. 33, per Shaw, C. J. 
 In a later Massachusetts case a 
 railroad company breaking up the 
 street for its own benefit and 
 profit was said to stand under a 
 primary obligation not to do it 
 so as to constitute a nuisance dan- 
 gerous to the public, and it wa<5, 
 therefore, no defense to an action 
 brought by a traveler who had 
 
 been injured by it, that the work 
 was delegated to an independent 
 contractor. Woodman v. Metro- 
 politan R. Co. (18S9), 149 Mass. 
 335; 21 N. E. 482; 4 L. R. A. 213; 
 6 Rail. & Corp. Law J. 72; 14 
 Amer. St. Rep. 427; 12 Am. Neg. 
 Cas. 80. 
 
 "^ Choctaw, etc., R. v. Wilker 
 (1906), 16 Okla. 384; 84 Pac. 
 1086; 3 L. R. A. (N. S.), 595; 
 46 Am. & Eng. R. Cas. 759.
 
 230 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 for the wrongful acts or omissions of persons operating its 
 road by the fact of having transferred its corporate powers 
 to other parties, as by leasing its road and franchises to 
 them, except by special statutory authority; the theory 
 being that to permit such a devolution of public duties and 
 responsibilities would be contrary to public policy. ^*^ In the 
 United States the rule prevails that a railroad corporation 
 can not escape the performance of any duty or obligation 
 imposed by its charter or the general law of the state by 
 a voluntary surrender of its road into the hands of lessees, 
 and the operation of the road does not change the relations 
 of the original company to the public.^^ The lessor, by 
 
 ^Balsley v. St. Louis, etc., R. 
 (I8S6), 119 Ills. 68; 8 N. E. 859; 
 59 Amer. Rep. 784; 5 Thomps. 
 Corp., Sees. 5584-5, 6293. 
 
 " Washington, etc., R. Co. v. 
 Brown (1873), 17 Wall. (U. S.), 
 445 ; Driscoll v. Norwich, etc., R. 
 (1894), 65 Conn. 230; 32 Atl. 
 354; Virginia, etc., R. v. Wash- 
 ington (1890), 86 Va. 629; 10 S. 
 E. 927; 7 L. R. A. 344; 43 Amer. 
 & Eng. R. Cas. 688; Whitney v. 
 Atlantic, etc., R. (1857), 44 Me. 
 362; 69 Amer. Dec. 103; Stearns 
 V. Atlantic, etc., R. (1858), 46 
 Me. 116; Nugent v. Boston, etc., 
 R. (1888), 80 Me. 62; 12 Atl. 
 797; 6 Amer. St. Rep. 151; Nel- 
 son V. Vermont, etc., R. (1854), 
 26 Vt. 717; 62 Amer. Dec. 614; 
 Clement v. Canfield (1856), 28 
 Vt. 302; Abbott v. Johnstown, 
 etc., R. (1880), 80 N. Y. 27; 36 
 Amer. Rep. 572; Galveston, etc., 
 R. V. Garteiser (1895), 9 Tex. 
 Civ. App. 456; Central, etc., R. v. 
 Morris (1887), 68 Tex. 59; 3 S. 
 W. 457; International, etc., R. v. 
 
 Kuehn (1888), 70 Tex. 582; 8 S. 
 W. 484; International, etc., R. v. 
 Eckford (1888), 71 Tex. 274; 8 
 S. W. 679; East Line, etc.. R. v. 
 Lee (1888), 71 Tex. 538; 9 S. W. 
 604; Trinity, etc., R. v. Lane 
 (1891), 79 Tex. 643; 15 S. W. 
 477; 16 S. W. 18; Buckner v. 
 Richmond, etc., R. (1895), 72 
 Miss. 873; 18 So. 449; McCoy v. 
 Kansas City, etc., R. (1889), 36 
 Mo. App. 445; National Bank v. 
 Atlanta, etc., R. (1886), 25 S. C. 
 220. In Illinois, the precise rule 
 is uncertain. Compare, Ohio, 
 etc., R. v. Dunbar (1850), 20 
 Ills. 623; 71 Amer. Dec. 291 •, 
 Chicago, etc., R. v. Hart (1902), 
 104 Ills. App. 57; Chicago, etc., 
 R. v. Whipple (1859), 22 Ills. 
 105 ; Peoria, etc., R. v. Lane 
 (1876), 83 Ills. 448; W.\bash, 
 ETC., R. V. Shacklett (1S83), 105 
 Ills. 364; 44 Amer. Rep. 791; 
 Chicago, etc., R. v. Meech (1895), 
 163 Ills. 305; 45 N. E. 220; Chi- 
 cago, etc., Co. V. Stanford (1902), 
 104 Ills. App. 99; Pennsylvania
 
 employer's exceptional ll\bility. 
 
 231 
 
 accepting its charter assumes the oljhgation to carry pas- 
 sengers and freight safely over its hne. Should the lessee 
 fail to do this, the lessor is liable.''^ 
 
 Regarding the effect of statutes authorizing the sale or 
 lease of a railroad company's equipment there is conflict 
 among the decisions. For a discussion of these cases, see 
 the note by a learned author to a recent case, cited below. ^^ 
 Certain statutory undertakings (such as an electric light 
 company, a municipal ferry, etc.), have been held to come 
 within the rule holding railroad companies for the acts of 
 lessees engaged in operating the same.^^ 
 
 The liability of a railway company for the torts of an- 
 other company operating its lines under a lease executed 
 without any statutory authority has apparently not been con- 
 sidered in England. But that such liability still attaches is 
 in full accord with the rules established there that a cove- 
 nant to make such a lease is void, and that an unauthorized 
 agreement amounting to a delegation of statutory authority 
 is likewise invalid."*^ Liability for the negligence of a 
 
 Co. V. Ellett (1890), 132 Ills. 
 654; 24 N. E. 559; Pittsburg, 
 etc.. R. C. V. Campbell (1877), 
 86 Ills. 443, in this and in the 
 following case, the duty violated 
 was statutory; B.alslev v. St. 
 Louis, etc., R. (1886), 119 Ills. 
 68; 8 N. E. 859; 59 Amer. Rep. 
 784. 
 
 **East Line, etc., R. v. Cul- 
 berson (1888), 72 Tex. 375; 10 
 S. W. 706; 3 L. R. A. 557; 13 
 Amer. St. Rep. 805; Trinity, etc.. 
 R. V. Lane (1891), 79 Tex. 643; 
 15 S. W. 477; 16 S. W. 18; Balti- 
 more, ETC., R. V. P.'vuL (1895), 143 
 Ind. 23; 40 N. E. 519; 28 L. R. A. 
 216. 
 
 "•Note by Mr. C. B. Labatt to 
 Anderson v. Fleming (1903, 
 
 Ind.), in 66 L. R. A., at p. 144, 
 et seq. 
 
 " Capital Electric Co. v. Haus- 
 wald (1898), 78 Ills. App. 359; 
 Duncan v. Magistrates, etc. 
 (1877), Ct. of Sess., 14 Scot. L. 
 R. 603 ; but see, Blackwell v. Wis- 
 wall (1855). 24 Barb. (N. Y.), 
 355. 
 
 '° On the first rule see East 
 Anglian Railroad v. Eastern 
 Counties Railroad (1851), 11 C. 
 B. 775; 7 Eng. R. & Corp. Cas. 
 150. On the second, see Beman 
 V. Rufford (1851), 1 Sims (N. 
 S.), 550; Great Northern Rail- 
 road V. Eastern Counties Rail- 
 road (1851), 9 Hare, 306; 7 Eng. 
 R. & Corp. Cas. 643.
 
 232 INDEPENDENT CONTRACTORS AND THEIR LIABILITY, 
 
 licensee running trains over the licensor's track is imputed 
 on the same ground and under the same circumstances as 
 in the case of a lease.^^' Where a manufacturing company 
 leased from a railroad company the use of a sidetrack and 
 switch, it thereby assumed the duty toward the railroad 
 company of so managing the sidetrack and switch as not 
 to brins: its cars into collision with those of the railroad 
 company, and it can not shift the performance of that duty 
 so as to exonerate itself upon third persons whom it em- 
 ploys to unload its cars.^''^ 
 
 " Illinois, etc.. R. v. Barron 
 (1866), 5 Wall. (U. S.), 90. See, 
 also, Langley v. Railroad Co. 
 (1857), 10 Gray (Mass.), 103; 
 York, etc., R. v. Winans (1854), 
 17 How. (U. S.), 30; Oregon R. 
 V. Oregonian R. Co. (1888), 130 
 U. S. 23; 9 Sup. Ct. 409; Central 
 Transportation Co. v. Pullman 
 Palace Car Co. (1891), 139 U. S. 
 62; 11 Sup. Ct. 478; Quested v. 
 Newburyport, etc., R. (1879), 127 
 Mass. 204. Contra, Miller v. 
 Railroad Co. (1890), 125 N. Y. 
 118; 26 N. E. 35. "Where a rail- 
 road is leased, both the lessor 
 and lessee are jointly and several- 
 ly liable for the negligence of 
 the latter in operating the road. 
 Central, etc., R. v. Wood (1901), 
 129 Ala. 483; 29 So. 776; Penn- 
 sylvania Co. V. Sloan (1888), 
 125 Ills. 72; 17 N. E. 37; 8 Am. 
 St. Rep. 337; Chicago, etc., R. v. 
 Schmitz (1904), 211 Ills. 446; 71 
 N. E. 1050; Logan v. North Caro- 
 linaR. Co. (1895), 116 N. C. 940; 
 21 S. E. 959; Tillett v. Norfolk, 
 etc., R. Co. (1896), 118 N. C 
 1031; 24 S. E. Ill; Kinney v. 
 North Carolina, etc., R. (1898), 
 122 N. C. 961; 30 S. E. 313; 
 
 Harden v. North Carolina R. 
 Co. (1901), 129 N. C. 354; 40 S. 
 E. 184; 85 Am. St. Rep. 747; 55 
 L. R. A. 784; Harmon v. Colum- 
 bia, ETC., R. (1888), 28 S. C. 401; 
 5 S. E. 835, with note; 13 Am. St. 
 Rep. 686; Parr v. Spartenburgh, 
 ETC., R. (1895), 43 S. C. 197; 20 S. 
 E. 1009; 49 Am. St. Rep. 826; 
 Cogswell V. West St., etc., R. 
 (1892), 5 Wash. 46; 31 Pac. 411; 
 Fisher v. West Virginia, etc., R. 
 (1894), 39 W. Va. 366; 19 S.. E. 
 578; 23 L. R. A. 758. But where 
 the lease is sanctioned by legisla- 
 tive authority and the lessee is 
 given exclusive possession and 
 control of the road, the lessee is 
 alone liable. Pinkerton v. Penn- 
 sylvania, etc., Co. (1899), 193 
 Penn. St. 229; 44 Atl. 284. In 
 St. Louis, etc., R. v. Trigg 
 (1897), 63 Ark. 536; 40 S. W. 
 579, a railroad and its receivers 
 were held jointly liable for a 
 nuisance caused by an embank- 
 ment so negligently constructed 
 as to flood the plaintiff's land." 
 Cooley on Torts, Student's Ed., 
 p. 97, ef scq. 
 
 " Montgomery, etc., Co. v. 
 Montgomery, etc., R. (1888), 86
 
 employer's exceptional liability. 
 
 233 
 
 In one case the doctrine is stated without quah"fication 
 that the lessor of a railroad is not liable to an employee of 
 the lessee for injuries resulting from the use of defective 
 machinery, the same being a part of the leased property.'** 
 
 Sec. 127. Same, Trustee Operating Road. 
 
 If a railroad company devolves the execution of its 
 franchise upon trustees for mortgage bondholders, where 
 sucli trustees are not acting under the order of any court 
 but are operating the road in the name of the company, it 
 remains liable for the acts of such trustees.^^ 
 
 Sec. 128. Railroads Using Tracks in Common. 
 
 Where there is a mutual arrangement for the joint use 
 of terminal tracks between the company owning them and 
 another company also having a chartered right to enter 
 the same city, they are entitled to make use of common 
 tracks at the terminal point and in doing this the licensee 
 
 Ala. 372; 5 So. 735. It is settled 
 that, unless such a transfer has 
 been expressly authorized by stat- 
 ute, a railway company does not 
 divest itself of its liability to 
 third persons by selling, or leas- 
 ing, its franchise. Ricketts v. 
 Birmingham St. R. Co. (1888), 
 85 Ala. 600; 5 So. 353, in which 
 case the plaintiff was thrown to 
 the ground by the sudden starting 
 of a street car. 
 
 ** Buckner v. Richmond, etc., R. 
 (1895), 72 Miss. 873; 18 So. 449, 
 citing Virginia, etc.. R. v. Wash- 
 ington (1890). 86 Va. 629; 10 S. 
 E. 927; 43 Amer. & Eng. R. Cas. 
 688; 7 L. R. A. 344; East Line, 
 ETC., V. Culberson (1888), 72 
 
 Tex. 375; 10 S. W. 706; 13 Amer. 
 St. Rep. 805; 3 L. R. A. 567. 
 "This decision does not seem to 
 conform to the current of judi- 
 cial authority," declares Judge 
 Thompson. "It proceeds upon 
 the ground that, without refer- 
 ence to the question whether the 
 lease was authorized or not, the 
 servant of the lessee must look to 
 his own master only, for redress 
 of the injuries sustained by him 
 in the service. 'To his own 
 master he standeth or falleth.' " 
 Thomps. Neg., Sec. 669, note 108. 
 " Wisconsin, etc., R. . v. Ross 
 (1892), 142 Ills. 8; 31 N. E. 412; 
 12 Railroad & Corp. Law J. 81 ; 
 34 Amer. St. Rep, 49.
 
 234 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 company exercises its own franchises and not those of the 
 licensor, and the latter is not liable to its employes for in- 
 juries caused by the negligent use of a common track by 
 the employees of the licensee company.^" 
 
 Sec. 129. Liability as Warehousemen. 
 
 A railroad company, as a warehouseman, is not liable for 
 the destruction of goods by fire communicated from a pile- 
 driving engine which was being operated by an independent 
 contractor engaged in repairing the company's wharf.^^ 
 
 Sec. 130. Street Railroads. 
 
 A street railway company is liable for personal injuries 
 caused by negligence in the manner of guarding excava- 
 tions in a street which are necessary to the construction of 
 its tracks, although the work is done by an independent 
 -contractor, but under a permit from the city to the com- 
 pany.^^ Thus an electric railroad company which has let 
 to independent contractors the digging of a certain number 
 of post-holes in a public street, by a contract fixing the size 
 of the holes and nothing more, is liable for an injury 
 caused by falling into one of the holes which is completed 
 two or three days before the accident.^^ 
 
 Sec. 131. Carrier's Duty, Generally. 
 
 Whatever the rule may be in other relations, when the 
 question involves the duty of a common carrier toward his 
 
 «• Georgia, etc., R. v. Friddell R. Co. (1889), 149 Mass. 335; 21 
 
 (1887), 79 Ga. 489; 7 S. E. 214; N. E. 482; 4 L. R. A. 213; 6 
 
 11 Amer. St. Rep. 444. Rail. & Corp. Law J. 72; 14 Amer. 
 
 "Brunswick, etc., Co. v. St. Rep. 427; 12 Am. Neg. Cas. 
 
 Brunswick, etc., R. (1898), 106 80. 
 
 Ga. 270; 39 S. E. 92; 71 Amer. ^'Donovan v. Oakland, etc., R. 
 
 St. Rep. 249. T. Co. (1894), 102 Cal. 245; 36 
 
 "^Woodman v. Metropolitan Pac. 516.
 
 EMPLOYER S EXCEPTIONAL LIABILITY. 
 
 235 
 
 passengers, the person constructing his machinery or ap- 
 ph'ances becomes his alter ego and the doctrine of respon- 
 deat superior applies. The question is not one of personal 
 negligence of the carrier but it is equally a question of the 
 negligence of the agents who constructed the machine. 
 Thus, where the accident resulted from the washing away 
 of the embankment of a railroad, caused by insufficient 
 drainage, it was held that the company would not be re- 
 lieved of liability, by showing the fact that the road was 
 constructed under the supervision of a competent engineer 
 and that the drainage at the point of the accident was pro- 
 vided for in a manner directed and approved by him.''^ 
 The exact rule of skill and diligence, which the law imposes 
 on the carrier to the end that his means of transportation 
 shall be safe, would be substantially frittered away if the 
 courts were to hold that when those means of transporta- 
 tion fail, to the injury of his passengers, the carrier can 
 shelter himself behind the negligence of the manufacturer 
 or contractor by whom they were originally made. The 
 rule which exonerates a proprietor from the payment of 
 damages, happening through the negligence of an indepen- 
 dent contractor doing work on his premises, has no appli- 
 cation to the case where the contractor is constructinsr or 
 repairing the roadway or the vehicles of transportation of 
 a carrier of passengers.^" 
 
 " Philadelphia, etc., R. v. 
 Anderson (1880), 94 Penn. St. 
 351; 39 Amer. Rep. 787. See 
 Sec. 134, post. 
 
 ** C.^^RIco V. West Virginia, 
 ETC., R. Co. (1891), 35 W. Va. 
 389; 14 S. E. 12; (1894), 39 W. 
 Va. 86; 19 S. E. 571; 24 L. R. 
 A. 50. See Sec. 133. "It is well 
 settled that a railway company 
 cannot, by any form of agree- 
 
 ment, whether it be made with 
 another company or with an in- 
 dividual, relieve itself from re- 
 sponsibilit}' for the non-perform- 
 ance of the duties which are 
 incident to the discharge of its 
 functions as a common carrier." 
 Note to Anderson v. Fleming 
 (1903, Ind.), 66 L. R. A. 140, 
 citing cases, q. v. Where, under 
 state regulation, a railroad is re-
 
 236 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 132. Same, Safe Premises. 
 
 The duty of a common carrier to provide safe stations, 
 waiting rooms, platforms, approaches, passage-ways, etc., 
 for the use and convenience of its passengers, as well as 
 a safe roadway and safe vehicles, is so absolute in its na- 
 ture that the carrier can not shift the responsibility for 
 failing to perform it upon the shoulders of an independent 
 contractor."'^" In other words the duty of the carrier to- 
 wards a passenger to supply safe and convenient stations 
 and approches, is a primary duty and it cannot be trans- 
 ferred to an independent contractor employed to construct 
 or repair the premises of the carrier, so as to exonerate 
 the latter from responsibility for the condition of his 
 premises.^^ 
 
 quired to issue a bill of lading for 
 cotton in exchange for compress 
 company receipts, such bill of lad- 
 ing providing that each carrier car- 
 rying the cotton shall be entitled, 
 at its own cost, to compress it 
 for greater convenience in hand- 
 ling and forwarding, the com- 
 press company which provides its 
 own platform, machinery and em- 
 ployees, and determines for itself 
 the manner and time for prepar- 
 ing the cotton for shipment, is 
 an independent contractor for 
 whose negligence the railroad 
 company is not liable. Arthur 
 V. Texas, etc., R. (1905), 139 
 Fed. 127, reversed on other 
 grounds (1907). 204 U. S. 505; 
 40 Am. & Eng. R. Cas. (N. S.), 17. 
 
 " Barrows, etc., Co. v. Kane 
 (1898), 88 Fed. 197; 59 U. S. 
 App. 574; Thomps. Neg., Sees. 
 669, 2804, 3391. 
 
 " Gilmore v. Philadelphia, etc., 
 
 R. (1893), 154 Penn. St. 375; 25 
 Atl. 774; Delaware, etc., R. v. 
 Trautwein (1890), 52 N. J. L. 
 169; 7 L. R. A. 435; 7 Rail. & 
 Corp. Law J. 316; 41 Atl. 178; 
 19 Amer. St. Rep. 442; Watson 
 V. Oxanna Land Co. (189iy. 92 
 Ala. 320; 8 So. 770. A carrier 
 was held liable where a pas- 
 senger was injured by falling 
 through an opening at the head 
 of a flight of stairs used as a 
 means of access to the station, 
 although the opening had been 
 left by an independent contractor 
 in repairing the stairway. Gil- 
 more V. Philadelphia, etc., R., 
 supra. Where a passenger was 
 injured in consequence of the 
 defective condition of a bridge 
 on the grounds of the railroad 
 company, forming part of its 
 recognized way to and from its 
 trains, the company was held li- 
 able, notwithstanding it had an
 
 employer's exceptional liability. 
 
 237 
 
 Sec, 133. Same, Safe Vehicles, etc. 
 
 The carrier's obligation to transport the passengers 
 safely cannot be shifted from himself by delegation to an 
 independent contractor ; and it extends to all agencies em- 
 ployed, and includes the duty of protecting the passengers 
 from any injury caused by the act of any subordinate or 
 third person, engaged in any part of the service required 
 by the contract of transportation. The case cited below °* 
 was quite analogous to those in which it has been held that 
 a railroad company is responsible for the neglect or mis- 
 conduct of the servants of a sleeping car company whereby 
 a passenger sustains loss or injury while being transported 
 under a contract with the railroad company. By the weight 
 of authority the negligence of the manufacturer of the 
 vehicles used by a common carrier is in theory of law, the 
 negligence of the carrier himself, and it is not sufficient 
 that the carrier assures himself that the manufacturer is 
 of good repute in his business.^" A coach proprietor is 
 
 agreement with a third person 
 whereby the latter was bound to 
 keep the bridge in repair. Wat- 
 son V. Oxanna, etc., Co., supra. 
 But it has been said that the 
 lessee of a dock is not liable for 
 injuries caused by the fall of a 
 chute which had been negligently 
 set up by a stevedore's subcon- 
 tractor. Woodward v. P e t o 
 (1852), 3 Post. & F. 389. 
 
 ^ Barrow Steamship Co. v. 
 Kane (1898), 88 Fed. 197; 59 U. 
 S. App. 574, citing Pennsylvania 
 Co. V. Roy (1880), 102 U. S. 451; 
 
 DWINNELLE V. NeW YoRK, ETC., 
 
 R. (1890), 120 N. Y. 117; 24 N. 
 E. 319; 8 L. R. A. 224; 17 Amer. 
 St. Rep. 611; Kinsley v. L.\ke 
 Shore, etc., R. (1874), 125 Mass. 
 
 54; 28 Amer. Rep. 200; Railro.^d 
 Co. V. Walr.xth (1882), 38 Ohio 
 St. 461; 43 Amer. Rep. 433. 
 
 * Hegeman v. Western Rail- 
 road (1853), 16 Barb. (N. Y.), 
 353; (1855). 13 N. Y. 9; 64 Am. 
 Dec. 517; Caldwell v. New Jer- 
 sey, etc. (1872), 47 N. Y. 282; 
 Carroll v. Staten Island R. R. 
 (1874), 58 N. Y. 126; 17 Amer. 
 Rep. 221 ; Burns v. Cork, etc., R. 
 (1863), Irish R.. 13 C. L. (N. 
 S.), 543. Contra and unsound, 
 Grand Rapids, etc., R. v. Hunt- 
 lev (1878), 38 Mich. 537; 31 
 Amer. St. Rep. 321. The same 
 rule applies as to competent en- 
 gineers. Grote v. Chester, etc., 
 R. (1848), 2 Exch. 251; 5 Fng. 
 R. & C. Cas. 649; Brehm v. Great
 
 238 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 answerable for an accident due to an imperfection in the 
 vehicle used, if discoverable by a reasonable examination, 
 although such proprietor employed a competent coach 
 maker.*^^ In one case it was held that the recovery was 
 properly denied where the carrier showed not only that it 
 purchased the appliances responsible for the accident from 
 a reputable dealer, but also that it had subjected the appli- 
 ances to a daily inspection by an expert employee, and the 
 plaintiff offered no rebuttal, relying wholly on the doctrine 
 of res ipsa loquitur. ^^ 
 
 Sec. 134. Same, Safe Tracks, etc. 
 
 In an action against a railroad company by a passenger 
 for injuries resulting from an obstruction of the track by 
 
 Western (1861), 34 Barb. (N. 
 Y.), 256. There is authority that 
 a carrier is responsible for de- 
 fects in its cars though such 
 defects could not have been dis- 
 covered after the cars came into 
 its possession if they could have 
 been discovered by the exercise of 
 the proper care and skill in their 
 construction. Siemsen v. Oakland, 
 etc., R. (1901), 134 Cal. 494; 66 
 Pac. 672. 
 
 <« Sharp V. Gray (1833), 9 
 Bing. 457; 2 Moore & S. 621. To 
 the same effect concerning rail- 
 way engine and cars, Hegeman 
 V. Western R. Corp. (1853), 16 
 Barb. (N. Y.), 353; (1855) 13 
 N. Y. 9; 64 Amer. Dec. 517; 
 McPadden V. New York, etc., R. 
 (1871), 44 N. Y. 478; 4 Amcr. 
 Rep. '705 ; Meier v. Pennsylvania 
 R. Co. (1870), 64 Penn. 228; 3 
 Amer. Rep. 581 ; Toledo, etc., R. 
 V. Beggs (1877), 85 Ills. 80; 28 
 Amer. Rep. 613. Also as to 
 bridges: Grote v. Chester, etc., 
 
 R., supra. And to defects in 
 tracks due to negligence of one 
 contracting to construct or main- 
 tain same : Virginia, etc., R. v. 
 Sanger (1859), 15 Gratt. 230; 10 
 Am. Neg. Cas. 365; Carrico v. 
 West Virginia, etc., R. (1891), 
 35 W. Va. 389; 14 S. E. 12; 
 (1894), 39 W. Va. 86; 19 S. E. 
 571; 24 L. R. A. 50. A stage 
 company was held liable for the 
 death of a passenger caused by 
 an accident to its stage while on 
 a ferry boat owned by another, 
 but constituting a part of its 
 route, for which ferriage was paid 
 by it, the accident occurring by 
 the negligence of the ferryman 
 without defendant's participation, 
 the court considering that, as to 
 passengers, the ferry company 
 was. in law, the employee and 
 servant of defendant. McLean v. 
 Burbank (1866), 11 Minn. 277. 
 
 *' Murray v. Pawtucket, etc., 
 R. (1903), 25 R. I. 209; 55 Atl. 
 491.
 
 employer's exceptional liability. 
 
 239 
 
 work being done thereon, it is no defense that the defendant 
 had placed the work in the hands of an independent contractor 
 and that the latter's neghgence had caused the obstruction."^ 
 If a railway company while using its tracks for the carriage 
 of passengers engages in a work to be done in immediate 
 proximity to the track, negligence in the performance of 
 which would, in the opinion of cautious persons, endanger 
 the passage of its cars, and an accident to a passenger is 
 caused by an obstruction arising from negligence in the 
 performance of such work, the company must pay damages ; 
 it will be no defense that the work was placed in the hands 
 of a contractor and that the negligence which caused the 
 injury was that of one of his employees, as where, through 
 the negligence of the servants of a contractor for the doing 
 of certain stonework for a railway company, a stone was 
 rolled or shaken from an embankment and rolled under the 
 wheels of a passenger train throwing a car from the track 
 and injuring a passenger.''^ A railway company is required 
 to answer for tortious acts committed by the servants of 
 another railway company on whose tracks it has been 
 licensed to operate trains; thus, a company is liable for 
 the negligent management of a switch wdiereby a passenger 
 receives injury, although it is provided and attended to by 
 a servant of the company owning the track. '^'^ 
 
 "^Carrico v. Railroad Co. 
 (1891). 35 W. Va. 389; 14 S. E. 
 12; (1894), 39 W. Va. 86; 19 S. E. 
 571; 24 L. R. A. 50. See, also, 
 Donoyan v. Transit Co. (1894), 
 102 Cal. 245; 36 Pac. 515; Lancas- 
 ter Avenue Imp. Co. v. Rhoads 
 (1887), 116 Penn. St. 377; 9 Atl. 
 852; 2 Amer. St. Rep. 608. 
 
 *" Virginia, etc., R. v. Sanger 
 (1859), 15 Gratt. (Va.), 230; 10 
 Am. Neg. Cas. 366; Burns v. 
 
 Cork, etc., R. (1853), 13 Irish 
 C. L. (N. S.), 543. 
 
 " McElroy v. Nashua, etc., R. 
 (1849), 4 Cush. 400; 50 Amer. 
 Dec. 794. Cf., Murray v. Lehigh, 
 ETC., R. (1895). 66 Conn. 512; 34 
 Atl. 506; 32 L. R. A. 539. And 
 the converse of this is true, and a 
 licensee company which operates 
 its trains over another's road is 
 li.ible for injuries caused to a 
 passenger by a defective track.
 
 240 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 135. Same, Sleepers, etc. 
 
 In the earliest case on this subject, it was declared that 
 if one "who has made a contract with a railroad company 
 for his personal transportation from one place to another, 
 takes a seat in a sleeping car and there loses an article of 
 personal baggage through the negligence of a person in 
 charge of the car and without fault on his own part, it is 
 no defense to an action against the corporation that the car 
 was not owned by the defendant, but by a third person, 
 who by a contract with the defendant, provided conductors 
 and servants, in the absence of the evidence that the plain- 
 tiff had knowledge of these facts." ^^ In a New York case, 
 the court held, in effect, that those in charge of drawing- 
 room and sleeping cars owned by parties other than the 
 railway company operating the rest of the train are to be 
 regarded and treated, in respect to any matter involving the 
 safety and security of the passengers, as the servants of 
 the railroad company and for their acts it is responsible to 
 the same extent as if they were directly employed by it.^*' 
 
 Wabash, etc.. R. v. Peyton 
 (1883). 106 Ills. 534; 46 Amer. 
 Rep. 705. A mvmicipality was 
 not liable, in Scotland, where the 
 lessee of its ferry neglected to 
 see to it that the wire rope by 
 which the ferry was operated was 
 kept in a safe condition. Duncan 
 V. Magistrates, etc. (1877, Ct. of 
 Sess.), 14 Scot. L. R. 603. 
 
 '* Kinsley v. Lake Shore, etc., 
 R. (1878), 125 Mass. 54; 28 
 Amer.' Rep. 200; Louisville, etc., 
 R. V. Katzenberger (1886), 16 
 Lea (Tenn.), 380; 57 Amer. Rep. 
 232. 
 
 ** Thorpe v. New York, etc., 
 R. (1879), 76 N. Y. 406; 32 
 Amer. Rep. 325. To the same 
 
 effect : Pennsylvania Co. v. Roy 
 (1880), 102 U. S. 451; 26 Law 
 Ed. 141 ; Jones v. St. Louis, 
 etc., R. (1894), 125 Mo. 675; 28 
 S. W. 883; 26 L. R. A. 718; 46 
 Amer. St. Rep. 514; Cleveland, 
 etc., R. v. Walr.\th (1832), 38 
 Ohio St. 461; 43 Amer. Rep. 
 433; Williams v. Pullman, etc., 
 Co. (1888), 40 La. Ann. 417; 4 
 So. 85; 8 Amer. St. Rep. 538; 
 Dwinnellee v. New York, etc., 
 R. (1890), 120 N. Y. 117; 24 N. 
 E. 319; 8 L. R. A. 224; 17 Amer. 
 St. Rep. 611; Ulrich v. New 
 York, etc., R. (1888), 108 N. Y. 
 80; 15 N. E. 60; 2 Amer. St. 
 Rep. 369.
 
 employer's exceptional liability. 241 
 
 Sec. 136. Same, Special Contract as to Freight. 
 
 A railway company for extra compensation agreed to 
 keep a certain car in which plaintiff's perishable goods were 
 loaded, at a certain temperature sufficiently cold to preserve 
 the goods to their destination. The company failed to do 
 this and the goods were lost. "It is the contention of the 
 appellant company that it discharged its duty to appellees 
 when it furnished a refrigerator car, and that the duty of 
 icine the car, under the evidence, devolved on the X. com- 
 pany, the owner of the car. The contention is unsound. 
 It matters not . . . that the refrigerator 
 car belonged to the X. company, an independent contractor. 
 Appellees had no contract with it to furnish cars, or to use 
 them when furnished." The railway company was held 
 liable for the negligence of the X. company.^'^ 
 
 Sec. 137. Same, As to running Trains. 
 
 If the carrier commits a locomotive and train of cars to 
 a contractor to be used by the latter in executing his con- 
 tract, then for an injury which may happen to any one 
 through the negligent management of such train by the 
 contractor or his servants, the contractor and not the carrier 
 will be answerable. To this statement an exception may 
 exist where, by a custom or otherwise, the carrier permits 
 
 " St. Louis, etc., R. Co. v. neglect or default of such com- 
 
 Renfroe (1907), 82 Ark. 143; pany or its "servants" notwith- 
 
 100 S. W. 889; 10 L. R. A. (N. standing any contrary notice, etc., 
 
 S.), 317. Citing and relying on given by the company. Under 
 
 New York, etc., R. v. Cromwell this act, a railway company was 
 
 (1900). 98 Va. 227; 35 S. E. held answerable for the negli- 
 
 444: 49 L. R. .\. 462; 81 Anier. gence of a master and crew of a 
 
 St. Rep. 722. An English statute steamer with whose owners the 
 
 provides that every carrier com- company had contracted for the 
 
 pany within its purview shall be conveyance of certain cattle, 
 
 liable for the loss of or injurv Doolaii v. Midland R. (1877), L. 
 
 to any cattle, etc., caused by the R., 2 App. C. C. 792.
 
 242 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 passengers to take passage and be transported on such a 
 train, in which exceptional case he makes the independent 
 contractor his servant or agent in respect of such pas- 
 senger ; but It will always be a question of difficulty, under 
 such circumstances, whether the relation of carrier and 
 passenger has been created. If the person being so trans- 
 ported pays fare to the railway company, there will be no 
 difficulty in holding that the relation has been established; 
 but if, on the other hand, he is permitted to ride by the 
 mere courteous or officious act of the independent contrac- 
 tor then the contrary would seem to be the proper 
 conclusion/'*^ 
 
 Sec. 138. Same, as to Criminal Acts. 
 
 Under an English statute, providing that a carrier should 
 be answerable for injuries "from the felonious acts of any 
 coachman, guard, bookkeeper, porter or other sei-vant in 
 his employ," it was held that "servant" includes one who 
 is directly or indirectly employed by the carrier to do what 
 such carrier has contracted to do. Hence, a carrier under 
 such act is liable for the theft of an article by a firm's em- 
 ployee with which a subcontract had been made to deliver 
 certain goods, including those stolen.*^^ 
 
 "" Thomps. Neg., Sees. 628, 3392. 
 Wherever a statute or the com- 
 mon law imposes a special duty 
 on the employer, such as the duty 
 of a common carrier to transport 
 their passengers or freight safely, 
 such precautions must be taken 
 and the employer cannot escape 
 liability by letting the work to a 
 contractor ever so skillful or 
 careful. Burd. Torts, p. 144, 
 citirg and quoting Barrow Steam- 
 ship Co. V. Kane (1898), 88 Fed. 
 197; 59 U. S. App. 574. 
 
 ^ Machu V. London, etc., R. 
 (1848), 2 Exch. 415; 5 Eng. Ry. 
 Cas. 302. A railroad company 
 was held liable for goods obtained 
 through a forged order while 
 lying in defendant's station, and 
 misappropriated by an employee 
 of the proprietor of the receiving 
 office at which plaintifif had 
 earlier delivered them for trans- 
 mission to the station. Stephens 
 V. London, etc., R. (1886), L. R., 
 18 Q. B. Div. 121.
 
 employer's exceptional liability. 
 
 243 
 
 Sec. 139. Cities and Towns, Generally, 
 
 "It is not easy to determine when a municipality is liable 
 for the nej^ligence of a contractor. It certainly can not re- 
 lieve itself from the duty which rests upon it by transferring 
 that duty to a contractor. The corporation must see that 
 the pubhc is properly protected, and if the contractor fails 
 to perform that duty the city is responsible for the resulting 
 damages." ''^ The city will be responsible for the acts of 
 an independent contractor if the matter involved in his 
 contract is one of absolute duty owed by the city to an 
 individual or the work is intrinsically dangerous, or when 
 properly done creates a nuisance.'^ It is the general rule 
 
 '"Elliott Munic. Corps., p. 270, 
 citing Turner v. N e \v b u r g h 
 (1888), 109 N. Y. 301; 16 N. E. 
 344; 4 Amer. St. Rep. 453; Jef- 
 ferson V. CHAPM.A.N (1889), 127 
 Ills. 438; 20 N. E. 33; 11 Amer. 
 St. Rep. 139; Circleville v. Neud- 
 ing (1885), 41 Ohio St. 465; 
 HiNCK V. Milwaukee (1879), 46 
 Wise. 565; 32 Amer. Rep. 735; 
 Grant v. Stillwater (1886), 35 
 Minn. 242; 28 N. W. 660. 
 
 " Bennett v. Mount Vernon 
 (1904), 124 Iowa, 537; 100 N. 
 W. 349; 16 Am. Neg. R. 612, n. ; 
 Chicago v. Murdock (1904), 212 
 Ills. 9; 72 N. E. 46; 103 Amer. 
 St. Rep. 221, blasting for tunnel. 
 "The accepted doctrine in the 
 United States is that a munici- 
 pality which is charged with the 
 duty of keeping certain highways 
 in safe condition for public travel, 
 and which has either authorized, 
 or has been constrained by the 
 operation of statute to permit, 
 the performance of work which, 
 in the absence of certain precau- 
 tions, will necessarily render one 
 
 of these highways abnormally 
 dangerous for the time being, is 
 liable for injuries caused by the 
 absence of these precautions what- 
 ever may be its relation to the 
 party who is actually engaged in 
 doing the work. The municipal- 
 ity lies in this regard under a 
 primary, absolute, or non-dele- 
 gabie duty, in the performance of 
 which it is bound to use reason- 
 able care and diligence." ["See, 
 generally. Turner v. Newburgh, 
 supra; Brusso v. Buffalo (1882), 
 90 N. Y. 679; and the cases cited 
 in the following notes."] Note 
 to Anderson v. Fleming (1903, 
 Ind.), 66 L. R. A. 126. "As the 
 city is the principal in the duty 
 imposed, it must occupy the same 
 position when damages are claim d 
 for a neglect of tliat duty. . . . 
 A corporation, like individuals, is 
 required to exercise its rights and 
 powers and with such precautions 
 as shall not subject others to in- 
 jury." Springfield v. LeClaire 
 (1869), 49 Ills. 476.
 
 244 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 that a city will be liable for the negligence of a contractor 
 in its employ where the work is performed under the direct 
 control of the city's own officers/^ If otherwise liable, 
 a city will continue liable although it has no control over 
 the workmen of a contractor and although it has, in its 
 agreement with the contractor, stipulated that he shall be 
 liable for accidents occasioned by his neglect.'^^ If the work 
 be done by an independent contractor, the city will not be 
 answerable where the injury is through some negligence of 
 the contractor or his servant, not amounting to a failure 
 of a duty which the city itself owes to the person injured; 
 otherwise it would be liable for his neglects in like manner 
 as where the work is executed by its own officers.'^'^ In 
 England the liability of a municipality, or other public body 
 having charge of highways, for injuries due to unsafe 
 conditions caused by the negligence of an independent con- 
 
 " Smith V. Seattle (1899), 20 
 Wash. 613; 58 Pac. 389; Penny 
 V. Wimbledon, etc., Council 
 (1898), 2 Q. B. Div. 212; 7 Am. 
 Neg. R. 158, n. That the contract 
 between the city and the con- 
 tractor in a given case was not 
 executed in due form will not re- 
 lieve the city from liability. 
 Hepburn v. Philadelphia (1892), 
 149 Penn. St. 335; 24 Atl. 279; 
 33 Amer. St. 482; 15 L. R. A. 
 821. 
 
 "Wilson v. Wheeling (1882), 
 19 W. Va. 323; 42 Amer. Rep. 
 780. From the responsibility to 
 which a municipality is ordinarily 
 subjected it cannot relieve itself 
 by inserting in the contract a pro- 
 vision requiring the contractor to 
 see that third persons are ade- 
 quately protected while the work 
 is in progress. Brooks v. Somer- 
 
 ville (1871), 106 Mass. 271; 
 Russell v. Columbia (1881), 74 
 Mo. 480; 41 Amer. Rep. 325; 
 Pettengill v. Yonkers (1889), 
 116 N. Y. 558; 22 N. E. 1095;. 15 
 Amer. St. Rep. 442. 
 
 " Fink v. St. Louis, etc., R. 
 (1872), 71 Mo. 52; Barry v. St. 
 Louis (1852), 17 Mo. 121, fol- 
 lowed in Schweickardt v. St. 
 Louis (1876), 2 Mo. App. 571; 
 disapproved in Welch v. St. 
 Louis (1880), 11 Mo. 71; Hani- 
 ford V. Kansas City (1890), 103 
 Mo. 172; 15 S. W. 753; Balti- 
 more V. O'Donnell (1879), 53 
 Md. 110; 36 Amer. Rep. 395. For 
 city's liability under statute, see 
 Seattle v. Buzby (1880), 2 Wash. 
 Terr. 25 ; 3 Pac. 180 ; St. Paul v. 
 Seitz (1859), 3 Minn. 297; 74 
 Amer. Dec. 753.
 
 EMPLOYER'S EXCEPTIONAL LLVBILITY. 
 
 245 
 
 tractor, has never, it seems, been discussed with specific 
 reference to the conception of an absolute duty or obliga- 
 tion ; and the cases, as they stand, appear to be rather un- 
 favorable to the inference that an action is maintainable 
 on this basis.'^^ 
 
 Sec. 140. Same, Jointly with Contractor. 
 
 Whether the city will be jointly liable with a contractor 
 must depend on the circumstances of the case; if, for ex- 
 ample, an excavation is left unguarded or unlighted by the 
 contractor during the progress of the work, and the city 
 has notice of its dangerous condition, express or implied, 
 then the city will be liable to a traveler who, without fault 
 on his part, is injured by driving or falling into it, because 
 it would be liable if the excavation were made by a 
 stranger.''' It may be said generally that it is as much the 
 duty of a municipality to remove or guard against an ob- 
 struction to a public highway placed there by a third person, 
 as if it was so placed by the city itself; provided the city 
 
 "Taylor v. Greenhalgh (1876). 
 24 Week. Rep. 311, reversing L. 
 R., 9 Q. B. 487. 
 
 "McAllister v. Albany (1890), 
 18 Ore. 426; 23 Pac. 845; Scan- 
 Ian V. Watertown (1897), 14 
 App. Div. (N. Y.), 1; 43 N. Y. 
 Supp. 618; 1 Am. Neg. R. 487; 
 Beattie v. Detroit (1901), 129 
 Mich. 20; 88 N. W. 71; Burger 
 V. Philadelphia (1900). 196 Penn. 
 St. 41; 46 Atl. 262. "The dis- 
 tinction seems to be that if the 
 work which the contractor en- 
 gages to do is in itself unlawful, 
 or so inherently dangerous as to 
 constitute a public nuisance and 
 
 to be for that reason unlawful, 
 then both the city and the con- 
 tractor are liable as joint tort 
 feasors, just as a master and his 
 servant may be liable for a tres- 
 pass or other positive wrong 
 ordered by the master and done 
 by the servant to the injury of a 
 third person ; whereas, if the 
 work itself is not unlawful or in- 
 herently dangerous, but if the 
 danger to the public springs from 
 the unlawful or negligent manner 
 in which tlie contractor executes 
 the work, he and not the city will 
 be liable therefor." 5 Thomps. 
 Neg., 289.
 
 246 INDEPENDENT CONTRACTORS AND THEIR LIABIIJTY, 
 
 has actual or implied notice." The duty of the city to 
 erect barriers and to establish signals in case of dangerous 
 defects, etc., in the highway is not discharged by engaging 
 a contractor to perform it. A city is liable for negligent 
 injuries to a person traveling over a sidewalk in the course 
 of construction, where the permit for the work stated that 
 it should be done "under the superintendence of the city en- 
 o-ineer." "^ But where the negligence relates to a matter 
 with reference to which the corporation is under no special 
 obligation, the liability rests on the contractor alone.'^'^ 
 
 "Vincennes v. Specs (1905), 35 
 Ind. App. 389; 74 N. E. 277, re- 
 versing 72 N. E. 531. Ci., 
 McEvoy V. Sault Ste. Marie 
 (1904), 136 Mich. 172; 98 N. W. 
 1006. 
 
 "McClammy V. Spokane (1904), 
 36 Wash. 339; 78 Pac 912. An 
 Ontario statute authorized a city 
 to enter into an agreement for 
 the construction of a street rail- 
 way, and to pass by-laws for the 
 purpose of carrying any such 
 agreement into effect; under it, a 
 city courxil passed a by-law pro- 
 viding that the strip between the 
 rails and adjacent thereto should 
 be kept in repair by the company 
 constructing the railway, that the 
 company should remove all ice 
 and snow from the tracks under 
 the direction of the city commis- 
 sioner, that the company should 
 be liable for all damages occa- 
 sioned to any person by reason 
 of the construction, repair or 
 operation of the railway or by 
 reason of any default in repair- 
 ing those parts of the streets 
 which the company was required 
 to keep in repair; and that the 
 
 city should be indemnified by the 
 company from all liability in re- 
 spect to such damages. During 
 one winter the company had re- 
 moved the ice and snow from its 
 tracks and laid these in the cen- 
 ter of the street, resulting in 
 forming a deep depression at the 
 tracks. Phintiflf's sleigh was 
 thereby overturned and he was 
 injured. The court held that not- 
 withstanding the legislation, agree- 
 ment and by-law above referred 
 to, the defendant city was liable 
 to the plaintiff. Carty v. London 
 (1889), 18 Ont. R. 122. In a 
 dictum, probably correct, the court 
 said the defendant had a right of 
 reimbursement against the rail- 
 way company. 
 
 '*> Elliott Pub. Corps., p. 270, 
 citing Harvey v. Hillsdale (1891), 
 86 Mich. 330; 49 N. W. 141; 
 Van Winter v. Henry Co. (1883), 
 61 Iowa, 684; 17 N. W. 94. See, 
 also, Harrington v. Lansing- 
 burgh (1888), 110 N. Y. 145; 17 
 N. E. 728; 6 Amer. St. Rep. 348; 
 Depot v. Simmons (1886), 112 
 Penn. St. 384; 5 Atl. 434; 56 
 Amer. Rep. 317.
 
 employer's exceptional llvbility. 247 
 
 "The judgment on its merits in the contractor's favor in 
 appellee's action against him conclusively adjudged that he 
 was not liable to appellee, or any person claiming under 
 her, for the same cause of action. If appellee was not en- 
 titled to recover for said injury against the contractor, she 
 is not entitled to recover therefor against appellant (city). 
 The contractor had the right, if duly notified by appellant, 
 to appear and set up said former judgment in his favor 
 against appellee, and appellant has the same right; other- 
 wise the contractor would have to defend the same cause 
 twice on its merits." *" One L. was injured by falling over 
 a plank negligently placed over a sidewalk by laborers build- 
 ing houses for one S. He sued the city and later by amend- 
 ment S. was made a defendant. Judgment was rendered 
 in favor of S. under plea of limitations and against the city 
 for $1,000, which it paid and then sought to recover from 
 S. Judgment was entered for S. The evidence showed 
 that "S., a general builder and contractor, was erecting for 
 himself four buildings on a lot owned by him, . 
 and that he did all the carpenter work by his employees, 
 that J. and G. were general contractors and 
 brick-layers, and as such . . . did all the brick-work 
 on said houses and they. were competent, . . . they 
 employed and paid for all labor necessary for the fulfill- 
 ment of their contract, and exercised entire supervision over 
 same, and over their employees; . . . that a plank 
 was so placed by them or their employees for the 
 use of their laborers in carrying brick, etc., into the build- 
 ings." The court held that the judgment in favor of L. 
 was not conclusive in the action pending while conceding 
 that in some cases a city may recover over against a wrong- 
 doing property owner, "in such an action to recover back 
 
 "Anderson v. Fleming (1903), R. A. 119; 16 Am. Neg. R. 606. n.. 
 160 Ind. 597; 67 N. E. 443; 66 L. citing numerous authorities.
 
 248 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the damages the city has been compelled to pay for his 
 assumed neglect, it is competent for the defendant to show 
 that he was under no obligation to keep the street in safe 
 condition and that it was not through his fault that the 
 accident happened." ^^ 
 
 Sec. 141. Same, Safety of Streets. 
 
 If the act or omission of the independent contractor is 
 a violation of some primary or inalienable duty of the city, 
 such as that of keeping its streets in a reasonably safe con- 
 dition for public travel, the city will be liable therefor.^^ 
 The duty of a city to exercise reasonable care to the end 
 that its highways, streets, sidewalks, etc., shall be rea- 
 sonably safe for ordinary travel, is absolute in the sense 
 that it is primary and can not be delegated so as to absolve 
 it.^^ The duty rests on a municipal corporation to keep 
 
 "Richmond v. Sitterding 
 (1903), 101 Va. 354; 43 S. E. 
 562; 99 Amer. St. 879; 65 L. R. 
 A. 445; 16 Am. Neg. R. 609, n., 
 citing Boston v. Worthington 
 (1858), 10 Gray, 496; 71 Amer. 
 Dec. 678; Catterlin v. Frank- 
 fort (1881), 79 Ind. 547; 41 
 Amer. Rep. 627; the court held 
 the brick contractors to be inde- 
 pendent contractors on the au- 
 thority of Emmerson v. Fay 
 (1896), 94 Va. 60; 26 S. E. 386. 
 
 "'Anderson v. Fleming (1903), 
 160 Ind. 597 ; 67 N. E. 443 ; 66 L. 
 R. A. 119; 16 Am. Neg. R. 606, n. ; 
 Glasgow V. Gillenwater (1902), 
 23 Ky. Law Rep. 2375; 67 S. W. 
 381 ; contra and unsound, Ho- 
 warth v. McGugan (1893), 23 
 Ont. R. 396; 47 Amer. & Eng. 
 Corp. Gas. 133. 
 
 "^ Beatrice v. Reid (1894), 41 
 
 Nebr. 214; 59 N. W. 770. Gf., 
 Turner v. Newburgh (1888), 109 
 N. Y. 301 ; 16 N. E. 344; 4 Amer. 
 St. Rep. 453; Kirk v. Homer 
 (1894), 77 Hun (N. Y.). 459; 28 
 N. Y. Supp. 1000; Jefferson v. 
 Ghapman (1889), 127 Ills. 438; 
 20 N. E. 33; 11 Amer. St. Rep. 
 139; Sterling v. Schiffmacher 
 (1892), 47 Ills. App. 141; South- 
 well V. Detroit (1899), 74 Mich. 
 438; 42 N. W. 118; Welsh v. St. 
 Louis (1880), 73 Mo. 71; Kol- 
 lock V. Madison (1893), 84 Wise. 
 458; 54 N. W. 725; Hill v. Tot- 
 tenham (1898), 79 Law T. (N. 
 S.), 495. "It is the duty of a 
 municipal corporation, vested by 
 law with authority over the 
 streets, whilst dangerous works, 
 such as sewers, etc., are being 
 constructed across a street, to 
 have proper precautionary meas-
 
 employer's exceptional liability. 
 
 249 
 
 its streets in a safe and passable condition and where a con- 
 tractor with the city failed to place proper guards about an 
 excavation, thereby causing injury to a passerby, the city 
 was held liable.^^ And the city is nevertheless liable for 
 
 ures taken to prevent accidents to 
 passengers during such construc- 
 tion, whether the same is being 
 done by the corporation through 
 its own servants or by contract, 
 or by subcontractors under a pri- 
 mary contractor. Such duty, at 
 least in the cases of independent 
 contractors or subcontractors, is 
 not founded on the principle of 
 respondeat superior but is de- 
 ducible from the authority in the 
 corporation over the streets and 
 the obligation flowing therefrom 
 to protect the public against 
 nuisances or dangerous obstruc- 
 tions in the highways of the city." 
 Savannah v. Waldncr (1873), 49 
 Ga. 316, syllabus by court. Cf., 
 Nashville v. Brown (1871), 9 
 Heisk. 1; 24 Amer. Rep. 289. 
 Contra, as to purely private cor- 
 porations, Lanc.\ster Avenue, 
 ETC., Co. V. Rhoads (1887), 116 
 Penn. St. 377; 9 Atl. 852; 2 
 Amer. St. 608. An attempt by 
 legislative charter to exempt Mil- 
 waukee from liability for work 
 done in streets by contract with 
 its public board, was held invalid 
 as against a general rule of law 
 applicable to all other cities, in 
 HiNCK v. Milwaukee (1879). 46 
 Wise. 559; 1 N. W. 230; 32 Amer. 
 Rep. 735. The employer is bound 
 to see that the precautions are 
 taken, in every case where the 
 law, whether statute or common 
 
 law, imposes a special duty on the 
 employer, such as the duty of 
 municipal corporations to keep 
 their streets in a reasonably safe 
 condition for those entitled to use 
 them, and it cannot escape liabil- 
 ity simply by letting the work to 
 a careful or skillful contractor. 
 Burd. Torts, p. 143, citing Mayor, 
 etc., V. McCary (1887), 84 Ala. 
 ^469; 4 So. 630; Wiggin v. St, 
 Louis (1896), 135 Mo. 558; 2,7 
 S. W. 528; Omaha v. Jensen 
 (1892), 35 Nebr. 68; Z7 Amer. 
 St. Rep. 432. 
 
 ®* Storks v. City of Utica 
 (1858), 17 N. Y. 104; 72 Amer. 
 Dec. 437; City of Ironton v. 
 Kelley (1882), 38 Ohio St. 50; 
 Wilson v. City of Troy (1892), 
 60 Hun (N. Y.), 183; 14 N. Y. 
 Supp. 721; 135 N. Y. 96; 32 N. 
 E. 44; 31 Amer. St. Rep. 17; 18 
 L. R. A. 449; City of Sterling v. 
 Schififmacher (1892), 47 Ills. App. 
 141 ; City of Beatrice v. Reid 
 (1894), 41 Nebr. 214; 59 N. W. 
 770; Kollock v. City of Madison 
 (1893), 84 Wise. 458; 54 N. W. 
 725; Hepburn v. City of Phila- 
 delphia (1892). 149 Penn. St. 
 335; 24 Atl. 279; Ray v. City of 
 Poplar Bluff (1897), 70 Mo. App. 
 252. The duty of a munic'pal 
 corporation to keep its streets 
 safe is of such an absolute nature 
 that the city cannot exonerate 
 itself by showing that it had con-
 
 250 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 the unsafe condition of its streets even where it exercises no 
 control over the contractor in respect of the manner of 
 doing the work except to see that it is done according to 
 certain specifications.^^ It is on sound principle that a city 
 is responsible for injuries proceeding from dangerous and 
 unguarded excavations left in its highways by an indepen- 
 dent contractor and the very fact of the contract charges 
 the city with notice that the street is being dug up and puts 
 it on inquiry as to whether any excavation made by the con- 
 tractor is properly guarded and lighted.^*'' Nor can a 
 
 tracted with a contractor to take, 
 in excavating a certain public 
 park, the precautions the want of 
 which caused the injury. Storks 
 V. Utica, supra; Baltimore v. 
 O'DONNELL (1879), 53 Md. 110; 
 36 Amer. Rep. 395, in which a 
 hack driver sustained an injury 
 by coming in contact with a rope 
 stretched across the street by the 
 superintendent of a contractor of 
 street repairs, acting on his own 
 responsibility, to guard an ex- 
 cavation, of which rope such 
 driver had no warning, it being 
 night, and the lamp which had 
 been suspended to it having been 
 broken and extinguished by boys. 
 Groves v. Rochester (1886), 39 
 Hun (N. Y.). 5. The city's pri- 
 mary duty regarding the safe con- 
 dition of its streets for travel 
 cannot be delegated to an inde- 
 pendent contractor. Patterson v. 
 Austin (1895). 15 Tex. Civ. App. 
 201; 29 S. W. 1139. 
 
 *» Circleville v. Neuding (1885), 
 41 Ohio St. 465, horse falling into 
 cistern which the city's contractor 
 was digging in one of its streets, 
 by reason of the lack of sufficient 
 
 guards around the cistern. Nor 
 does the rule of exemption apply 
 where a public duty is imposed 
 by law upon an officer or public 
 body, and the officer or body 
 charged with the duty commits its 
 performance to another ; for in- 
 stance, a municipal corporation 
 charged by statute with the duty 
 to keep the streets in repair can 
 not escape liability for the negli- 
 gent performance of this duty on 
 the ground that the immediate 
 negligence was that of a con- 
 tractor who had been intrusted 
 with its performance. Tififany 
 Dom. Rels., p. 510, citing King v. 
 Railroad Co. (1876), 66 N. Y. 
 181; 23 Amer. Rep. 37; Storrs v. 
 City of Utica (1858), 17 N. Y. 
 104; 72 Amer. Dec. 437. 
 
 *' Drake v. Seattle (1902), 30 
 Wash. 81; 94 Amer. St. Rep. 
 844; 70 Pac. 231, city held bound 
 to see that the signals were in 
 place on each recurring night. A 
 city cannot shift the burden of 
 keeping a street safe for public 
 travel upon the contractor em- 
 ployed in grading and paving it, 
 on the ground that he is an in-
 
 employer's exceptional ll\bility. 
 
 251 
 
 municipality claim exemption from liability for defects in 
 a street by reason of its not accepting the work of the con- 
 tractor, where the defect has existed long enough to charge 
 its officials with knowledge.**" A city is chargeable with 
 notice of the existence of a dangerous obstruction in one 
 of its streets where such defect is the result of the negli- 
 gence of contractors under the city, so as to dispense with 
 the necessity of giving it express notice of its existence.^* 
 In a group of cases the municipality has been held respon- 
 sible for the negligence of a party who had undertaken, 
 
 dependent contractor, and that the 
 rule of rest^ondcat superior does 
 not apply between him and the 
 citv. Birmingham v. McCreary 
 (1887), 84 Ala. 469; 4 So. 630; 
 27 Cent. L. J. 598. A Pennsyl- 
 vania case holds that no liability 
 rests upon the city by reason of 
 an excavation in the street that 
 caused injury to one using the 
 street, where' the excavation was 
 made by one under an indepen- 
 dent contract with the abutting 
 owner and in pursuance of a city 
 permit. Levenite v. Lancaster 
 (1906\ 215 Penn. 576; 64 Atl. 
 782. Where an excavation in the 
 public street is temporarily and 
 loosely filled by the independent 
 contractor under the supervision 
 of the city's representative and 
 pending the arrival of materials, 
 it is held that the city must ex- 
 ercise a continuing duty to keep 
 it safe for travel. Newman v. 
 New York (1908), 57 Misc. (X. 
 Y.). 636; 108 N. Y. Supp. 676. 
 
 "Turner v. Newburgh (1888), 
 109 N. Y. 301; 16 N. E. 344; 49 
 Amer. St. Rep. 453. Where pav- 
 
 ing materials are placed in a 
 street by the paving contractor 
 with the city's express permission 
 it is liable for the contractor's 
 negligent failure to properly 
 guard and light the obstruction, 
 since by giving the permit, it be- 
 came charged with the positive 
 duty to see that the proper pre- 
 cautions were taken, which ap- 
 parently cannot be delegated by 
 the contract providing that the 
 contractor shall maintain proper 
 guards, etc. Godfrey v. New 
 York (1905). 104 App. Div. 357; 
 93 N. Y. Supp. 899, affirmed 
 
 (1906). 185 N. Y. 563; 77 N. E. 
 
 1187. 
 
 '^^ Smith V. St. Joseph (1890), 
 42 AIo. App. 392; Indianapolis v. 
 
 Marold (1900). 25 Ind. App. 428; 
 
 58 N. E. 512; Atchison Co. v. 
 
 Sullivan (1898). 7 Kans. App. 
 
 152; 53 Pac. 142; 4 Amer. Neg. 
 
 Rep. 149; Brusso v. Buffalo 
 
 (1882). 90 N. Y. 679. Cf., Omah..\ 
 
 V. Jensen (1892), 35 Nebr. 68; 
 
 52 N. W. 833; 37 Amer. St. Rep. 
 
 432.
 
 252 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 for a specific period, to keep the whole or a part of the 
 highway in repair; e. g., where the work of making repairs 
 was let out by contract, and the injury was caused by a 
 defective bridge ; ^^ where a canal company had bound 
 itself to keep a certain bridge in repair and had failed to ; ®° 
 where a county having charge of a certain market house, 
 and charged with the duty to repair it, left an opening 
 (into which plaintiff fell) unguarded and unlighted, in a 
 street adjoining the market place.^^ "If the corporation 
 permits something to exist in its streets and public ways, 
 
 *• Jacksonville V. Drew (1882), 
 19 Flor. 106; 45 Amer. Rep. 5. 
 
 *° Eyler v. Alleghany Co. 
 (1878), 49 Md. 257; 33 Amer. 
 Rep. 249. 
 
 "Blake v. St. Louis (1867), 40 
 Mo. 569. "The absolute quality 
 of the duty of a municipality to 
 keep the highways under its con- 
 trol in safe condition may be 
 further illustrated by the decisions 
 in which an action has been held 
 maintainable for injuries caused 
 by the negligence of persons au- 
 thorized to perform some work 
 which rendered the highway's sur- 
 face abnormally insecure, and had 
 omitted to protect the public 
 against dangers known to be the 
 natural and necessary conse- 
 quence of what they had under- 
 taken to do." Note to Anderson 
 V. Fleming (1903, Ind.), 66 L. R. 
 A. 132, citing Badenhap v. Sand- 
 hurst (1864, Vict.), 1 W. W. & 
 A. B. 136; King v. Cleveland 
 (1885), 28 Fed. 835, plaintiff 
 drove into materials left on street 
 by contractor erecting house; Ma- 
 gee V. Troy (1888), 48 Hun (N. 
 Y.), 383, 1 N. Y. Supp. 541, same 
 
 facts. "This duty {i. e., as to 
 safety of streets, etc.) may be 
 further illustrated by the decisions 
 sustaining actions to recover for 
 injuries caused by abnormal dan- 
 gers which resulted from building 
 operations carried on by a con- 
 tractor in an abutting landowner's 
 employ; and for injuries received 
 by travelers, owing to the exist- 
 ence of abnormally dangerous 
 conditions produced in highways 
 by the operations of railway com- 
 panies acting under legislative 
 authority." Note to Andeson v. 
 Fleming, supra, citing inter alia. 
 Currier v. Lowell (1834), 16 
 Pick. (Mass.), 170; Willard v. 
 Newbury (1850), 22 Verm. 458; 
 Batty V. Duxbury (1852), 24 
 Verm. 155 ; Phillips v. Veazie 
 (1855), 40 Me. 98; Elliott v. Con- 
 cord (1853), 27 N. H. 204. The 
 city is entitled to recover over 
 against the negligent railway com- 
 pany. Willard v. Newbury, supra. 
 For a municipality's liability con- 
 cerning work on highways, see 
 cases cited in 65 L. R. A. 650, 
 et seq.
 
 employer's exceptional liability. 
 
 253 
 
 by license or otherwise, which constitutes a nuisance and 
 which may seriously interfere with a reasonable use of 
 such ways by travelers in the ordinary modes, no good 
 reason can be advanced to excuse municipal liability, in 
 event of damage resulting directly from such nuisance." ^"^ 
 In jurisdictions, where there is no duty resting upon the 
 corporation to keep the streets in proper repair, there is 
 no liability for acts of negligence of a public officer engaged 
 in the construction of a street. °^ The act of a person under 
 a contract to deliver lumber to a city, in piling the lumber 
 in a street, is not the act of the city, and in the absence of 
 notice of the presence of the lumber, it is not liable in 
 damage to one injured thereby.^"* In Pennsylvania it has 
 
 "- McQuillan's M u n i c. Ordi- 
 nances, Sec. 437, where the sub- 
 ject is exhaustively discussed and 
 numerous cases cited. Defendant 
 city had an independent contractor 
 build a subway, requiring the 
 shifting of a railway track; this 
 the contractor did without negli- 
 gence and placed planks between 
 the tracks, and turned same over 
 to the city; passing vehicles wore 
 off the planks and a bicyclist was 
 injured; the city was held liable, 
 it being its duty to keep its streets 
 in repair. Riml^y v. Philadelphia 
 (1904, Penn.), 57 Atl. 347; 16 
 Amer. Neg. R. 608, n. 
 
 "Jensen v. Waltham (1895), 
 166 Mass. 344; 44 N. E. 339, as- 
 sistant superintendent of streets; 
 McCann v. Waltham (1895), 163 
 Mass. 344; 40 N. E. 20, laborer 
 employed by superintendent of 
 streets. The principal employer 
 was held not to be responsible 
 where plaintiff had fallen into an 
 open trench which had been dug 
 
 in a street by permission of the 
 authorities (and hence was not 
 per se a nuisance). See Smith 
 V. Simmons (1883), 103 Penn. 
 32; 49 Amer. Rep. 113. In a 
 later case growing out of the 
 same accident, the municipality 
 which had granted the license was 
 held not responsible, and the gen- 
 eral rule was laid down that such 
 a corporation when it grants to 
 one a license for a purpose proper 
 and lawful is not liable to one 
 injured by reason of the misuse 
 or abuse of that license whether 
 the same be by an independent 
 contractor for the work from the 
 licensee, or by the licensee him- 
 self. Susquehanna Depot v. 
 Simmons (1886), 112 Penn. 384; 
 5 Atl. 434; 56 Amer. Rep. 317. 
 
 "^EVANSVILLE V. SeNHENN 
 
 (1897), 151 Ind. 42; 47 N. E. 634; 
 51 N. E. 88; 41 L. R. A. 728; 68 
 Amer. St. Rep. 218. A rope at- 
 tached to a building being moved 
 through a street, with the city's
 
 254 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 been held that a city may delegate its duty to keep its streets 
 in a reasonably safe condition, so as to escape liability.®^ 
 
 Sec. 142. Same, Constructing Sewers. 
 
 A city is liable for injuries sustained by reason of the 
 lack of suitable barriers around a sewer trench, although 
 the sewer is being constructed under a contract which made 
 it the duty of the contractor to erect such barriers.^" The 
 plaintiff has been held entitled to recover, in numerous cases, 
 damages for injuries received through the contractor's 
 negligence in excavating for sewers, etc.'*' On the ground 
 
 consent, was left stretched one and 
 a half feet above the street, while 
 not in use, for half an hour in the 
 evening; plaintiff passing along 
 fell over it and was injured. It 
 was held that the city would be 
 liable only when it had reason- 
 able notice of such defect or 
 might have known of it by proper 
 diligence and that this was not 
 shown. Craig v. Inhabitants, etc. 
 (1908, Mass.), 85 N. E. 855. 
 
 '^Hepburn v. City (1892), 149 
 Penn. St. 335; 24 Atl. 279; 33 
 Am. St. 482; 152 R. A. 821; 
 Painter v. Mayor (1863), 46 
 Penn. St. 213. The Newfound- 
 land courts hold that in the ab- 
 sence of a statute the municipal 
 Board of Works was not obliged 
 to keep a certain road in rcp.iir. 
 and hence was not liable to one 
 who drove against a gravel pile 
 negligently left in the road by a 
 contractor employed to rep ;ir the 
 road. Duchemin v. Board, etc. 
 (1880), Newf. R. 236. 
 
 '•""Omaha v. Jensen (1892), 35 
 Nebr. 68; 52 N. W. 883; Zl Amer. 
 St. Rep. 432. 
 
 " DooLEY V. Sullivan (1887), 
 112 Ind. 451; 14 N. E. 566; 2 
 Amer. St. Rep. 209; Wilson v. 
 Wheeling (1882), 19 W. Va. 
 323; 42 Amer. Rep. 780; Butler 
 V. Bangor (1877), 67 Me. 385. 
 The fact that an injury received 
 by a person who fell into a sewer 
 trench which crossed the street 
 along which he was walking re- 
 sulted from the momentary fail- 
 ure of the servants of a street 
 railroad company to replace the 
 barriers which they were in- 
 structed to remove whenever a 
 car passed, does not relieve the 
 defendant from liability; for if 
 the municipality sees fit to in- 
 trust to them the duty of keeping 
 the trench properly guarded, it is 
 answerable for their negligence, 
 momentary or otherwise. Bles- 
 sington v. Boston (1891), 153 
 Mass. 409; 26 N. E. 1113. Where 
 one who iiad contracted with the 
 water board of a city to build 
 a sewer was required, by the terms 
 of the contract to remove the 
 sheath-piling, and in consequence 
 of doing so an adjacent house
 
 employer's exceptional llvbility. 
 
 255 
 
 that the work of dredging out a canal for a city was done 
 by an independent contractor, the city was held not liable 
 to one for the flooding of his fields thereby, by the building 
 of a dam without constructing a by-pass to carry off the 
 water, though tlie city had an inspector of the work who 
 located the dam.^'^ 
 
 Sec. 143. Same, Grading Street. 
 
 Where a contractor raised the grade of a street, in ac- 
 cordance with an ordinance and the plans and specifications 
 thereunder and as a consequence dirt and sand were de- 
 posited on the plaintiff's lot, the city was held liable for the 
 damage, notwithstanding the employment of a contractor; 
 since the injur}' was caused, not by the contractor's method 
 of doing the work, but by his following the instructions 
 given him.^^ A municipal corporation can not escape lia- 
 bility for injury caused by refuse left piled in the street 
 upon the completion of the work of re-setting a curb, upon 
 the theory that the work being done by the abutting owner 
 at its direction, was by an independent contractor for whose 
 
 settled and was injured, the city 
 was held liable for the damages. 
 Lockwood V. New York (1858), 
 2 Hilt. (N. Y.), 66. In England 
 it is held that a district council, 
 in the construction of a sewer, 
 owes the duty to an abutting 
 owner of doing the work so as 
 not to injure a gas main and 
 cause the escape of gas into his 
 house so as to cause an explosion 
 therein, and it cannot escape lia- 
 bility for such an injury under 
 the plea that it had delegated the 
 work to an independent con- 
 tractor. Hardaker v. Idle Dis- 
 trict Council (C. A.. 1896). 1 Q. 
 
 B. D. 335; 65 L. J., Q. B. (N. S.), 
 363. Where there was evidence 
 that a fifteen-year-old boy while 
 on an errand at night and at- 
 tempting to cross a street di- 
 agonally fell into an excavation 
 for a sewer and was injured, the 
 city was held liable, and it was 
 no defense that the work was 
 done by a contractor. Baker v. 
 Grand Rapids (1897. Mich.), 1 
 Amer. Xeg. Rep. 90, citing cases. 
 
 •* White V. Philadelphia (1902). 
 201 Penn. 512; 51 Atl. 332. 
 
 " East St. Louis v. Murphy 
 (1899), 89 Ills. App. 22.
 
 256 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 acts it was not responsible. "Property owners, engaged 
 in work on a city street, in obedience to the requirements 
 of an ordinance, are not contractors exercising an inde- 
 pendent employment, over whom the municipal authorities 
 have no control." ^"^ When a city, acting within its gen- 
 eral powers to improve streets, makes a contract for grad- 
 ing a street, by which the contractors in consideration of 
 doing such grading are to receive and appropriate to their 
 own use all the stone in the street, and the contractors ac- 
 cordingly proceed to remove the stone, the city is respon- 
 sible for their acts in the premises. ^"^ On the other hand, 
 it was declared that where a contractor in paving a street 
 unnecessarily deposits earth upon an abutting lot, the 
 corporation is not liable to the lot owner. ^*^- 
 
 ""■ Meyers v. City of Philadel- 
 phia (1907), 217 Penn. 159; 66 
 Atl. 251; 10 L. R. A. (N. S.), 
 678, citing Trego v. Honeybrook 
 (1894), 160 Pa. St. 76; 28 Atl. 
 639. Where the excavation work 
 incident to carrying out a con- 
 tract for the grading of a street 
 was so negligently done that a 
 large amount of water was col- 
 lected against plaintiff's wall, the 
 defendant city was held liable on 
 the ground that the work was 
 done under the directions of its 
 surveyor, in accordance with a 
 power expressly reserved in the 
 contract. Lacour v. New York 
 (1854), 3 Dner (N. Y.), 4C6. 
 
 "'Rich v. Minne.\polis (1887). 
 37 Minn. 423; 35 N. W. 2; 5 
 Amer. St. Rep. 861. 
 
 '"■Fuller V. Grand Rapids 
 (1895), 105 Mich. 529; 63 N. W. 
 530. So, also, the fact that a 
 city fails to include in a contract 
 
 for the grading of a street, a 
 provision that the contractor shall 
 care for and remove all surface 
 water, sewage and drainage which 
 would be interfered with by such 
 grading, does not render the city 
 liable for the negligence of the 
 contractor in failing to provide 
 for the removal of surface water 
 and sewage. White v. New York 
 (1897), 15 App. Div. (N. Y.), 
 440; 44 N. Y. Supp. 454. Where 
 a city in grading a street finds it 
 necessary to build a retaining 
 wall and the work is done by a 
 contractor, it is liable for an en- 
 croachment upon an adjoining 
 owner's land and for damages 
 caused by using poor material, 
 where the contract provided that 
 the wall should be placed where 
 indicated on the plans prepared 
 by the city and the materials used 
 should be subject to the inspec- 
 tion of the commissioner of street
 
 employer's exceptional liability 
 
 257 
 
 Sec. 144. Same, as to Bridges, 
 
 A municipality has been held not liable fur injuries 
 occasioned by the collapse of a bridge while it is under con- 
 struction by an independent contractor. ^^^ But a city was 
 held liable where an injury was due to the dangerous con- 
 dition of a highway bridge under repair owing to its not 
 having been barricaded. ^^* 
 
 Sec. 145. Same, Necessity as to Notice. 
 
 In those cases in which the person doing the work in 
 question was a contractor employed by the city itself and 
 in which the danger, which resulted in the injury was a 
 necessary incident of the operations, it is not prerequisite 
 to recovery that the city should have received special notice 
 of the dangerous conditions. ^^^ So also where the dan- 
 gerous conditions were inseparably connected with work 
 performed with the city's express sanction, though not by 
 one contracting with it, e. g., a gas company laying pipe 
 through the streets, and leaving an excavation therefor 
 uneuarded.^^" On the other hand, it is sometimes said that 
 if the tortious act which created the danger was collateral 
 in its nature, the city is not chargeable with responsibility 
 
 improvements and it appeared that 
 the wall was built under a city 
 inspector's supervision. The fail- 
 ure of such owner to protest at 
 the time of building the wall will 
 not estop him from claiming dam- 
 ages. Goldschmid v. Maj-or, etc. 
 (1897, N. Y. App. Div.), 1 Amer. 
 Neg. Rep. 508. 
 
 '"'Wood V. Watertown (1890), 
 58 Hun (N. Y.), 298; 11 N. Y. 
 Supp. 864. 
 
 '" Hawxhurst v. New York 
 
 (1887), 43 Hun. 588. As to coun- 
 ties, see Sec. 147. 
 
 '"°Brusso V. Buflfalo (1882), 90 
 N. Y. 679 ; Birmingham v. 
 McCrary (1887), 84 Ala. 469; 4 
 So. 630; 27 Cent. Law J. 598; 
 Om.\ha v. Jensen (1892), 35 
 Neb. 68; 52 N. W. 833; Z7 Amer. 
 St. Rep. 432; Sterling v. Schff- 
 macher (1893). 47 Ills. App. 141. 
 
 '""Russell v. CoLUMBI.^ (1881), 
 74 Mo. 480; 41 Amor. Rep. 325.
 
 258 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 unless notice, actual or constructive, is established.^^' A 
 municipal ordinance duly enacted, requiring an abutting 
 owner to build a sidewalk in front of his premises, subject 
 to the city's supervision and obligating the city to pay part 
 of the cost, was held not to render the city liable for the 
 negligence of the owner's contractor in so placing a barri^er 
 around the walk that a passerby fell over it. The city, it 
 was said, would be liable only for failing to put the walk 
 in condition after due notice.^*'^ 
 
 Sec. 146. Same, Contractor's Trespasses. 
 
 A city council, empowered to abate nuisances and also 
 to improve the channel of a river within the city limits, 
 passed an ordinance declaring a part of the river in the 
 city limits a public nuisance, and providing for its abate- 
 ment by excavating a new channel across plaintiff's lot. 
 Afterwards, under a contract duly let. acts were done by 
 the contractor constituting a trespass on plaintiff's land. 
 The city was held liable, the council's action being within 
 
 "'Pettengill v. Yonkers by reason of leaving the abrupt 
 
 (1889), 116 N. Y. 558; 22 N. E. 
 1095; 15 Amer. St. Rep. 442; 
 Turner v. Neweurgh (1888), 109 
 N. Y. 301 ; 16 N. E. 344; 4 Amer. 
 St. Rep. 453; Ev.nnsville v. Sen- 
 HENN (1898), 151 Ind. 42; 47 N. 
 E. 634; 51 N. E. 88; 41 L. R. A. 
 728; 68 Amer. St. Rep. 218, in 
 which case a person who had con- 
 tracted to deliver lumber had 
 piled it insecurely in a street; 
 Sweet V. Gloversville (1877), 12 
 Hun (N. Y.), 302, in which plain- 
 tiff was injured by stepping in a 
 sidewalk depression caused by 
 uneven grading and he claimed 
 the injury was caused not by 
 negligence in doing the work but 
 
 descent unguarded ; the court held 
 the lack of evidence authorizing 
 the jury to find that the city had 
 notice of the defect was fatal to 
 the plaintiff's claim. 
 
 ^"^ Thompson v. Vv'est Bay City 
 (1904), 137 Mich. 94; 100 N. W. 
 280; 16 Amer. Neg. R. 607, n. 
 Cf., Wright v. Muskegon (1905), 
 140 Mich. 215; 103 N. W. 558, 
 wherein the failure of one build- 
 ing a sidewalk under a county 
 contract, to place guards and 
 lights, was held not negligen.ce 
 for which the city was respon- 
 sible, where it exercised no super- 
 vision over the work.
 
 employer's exceptional liability. 
 
 259 
 
 its general powers and taken in the belief that it was exer- 
 cising a lawful power for the public good.^"^ 
 
 Sec. 147. Counties. 
 
 The liability of cities for dangerous condition of their 
 streets being constructed or repaired by independent con- 
 tractors, has been applied to counties and shires.^"* And 
 where a contractor turns over a bridge to the proper county 
 authorities and they accept it as a discharge of his contract, 
 they thereby become responsible to the traveling public for 
 its safe condition; and if a traveler is injured by reason of 
 its defective condition, he has an action against the county, 
 provided such an action is given by the statute under other cir- 
 cumstances. ^^^ In Pennsylvania a county was held not liable 
 where an injury was received by a person who turned aside 
 to avoid a pile of earth on a pavement and fell into a trench, 
 dug for the purpose of laying a curbstone. ^^^ 
 
 ^•^ Hamilton v. Fond du Lac 
 (1876), 40 Wise. 47. 
 
 '^"Park V. Adams Co. (1891), 3 
 Ind. App. 536; 30 N. E. 147; but 
 see Board, etc., v. Allman (1895), 
 142 Ind. 573; 42 N. E. 206. 
 Anne Arundel Co. v. Duvall 
 (1880), 54 Md. 350; 39 Amer. 
 Rep. 393; Bell v. Poriland (1876), 
 2 Vict. L. R. 197. Thus, a county 
 was held liable where the danger- 
 ous condition complained of aro:?e 
 from not guarding a bridge the 
 floor of which was being laid. 
 Park V. Adams Co., supra; contra, 
 Board, etc., v. Allman, supra. 
 
 •"Vickers v. Cloud Co. (1898), 
 59 Kans. 86; 52 Pac. 73. As to 
 the liability of the county for the 
 acts of subordinate agents, see 
 Abbett V. Johnson Co. (1887), 
 114 Ind. 61. 
 
 "-Eby V. Lebanon Co. (1895), 
 166 Penn. 632; 31 Atl. 332. A 
 highway board instructed its sur- 
 veyor to employ a certain con- 
 tractor to repair a road. In the 
 course of the work, with which 
 the board did not interfere, the 
 contractor's servants left stones 
 on the highway at night, without 
 placing a light to show where 
 they were and a traveler drove 
 again.st the obstruction and was 
 injured. The court held there 
 was no evidence of negligence on 
 the part of the highway board or 
 its surveyors, but did not touch 
 upon the duty of the board to 
 keep the highway safe for travel 
 as being primary and non-dele- 
 gable. Rcid V. Darlington, etc.. 
 Board (1877), 41 J. P. 581, Q. 
 B. D.
 
 260 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 148. Public Utilities Companies. 
 
 In a head note by the court, it has recently been stated : 
 "As a municipal corporation would itself be liable to a 
 citizen for injuiy sustained by reason of its reducing a 
 sidewalk to a dangerous condition, it is evident that the 
 privilege, granted by it to a public utility company, of mak- 
 ing excavations therein can not authorize such company to 
 leave the excavations so made unguarded, and to dispense 
 with all precautions whereby those who are rightfully using 
 the sidewalk may be warned of their existence. Nor can 
 the company, in such case, escape liability on the plea that 
 an excavation made under the authority conferred on it 
 and for its account and benefit has been made by an inde- 
 pendent contractor." ^^^ Where a gas company was licensed 
 to distribute heavy gas pipes in the street it was held 
 charged with the duty of blocking them so as to avoid 
 injury to children playing in the street, and it can not dele- 
 gate such duty to an independent contractor.^^^ 
 
 Sec. 149. Public Charities. 
 
 A very eminent authority ^^^ has stated that "there are 
 these diverse holdings, upon the question whether a public 
 charitable corporation or trust is liable for the negligence 
 or other torts of its agents and servants," (1) . , .; 
 
 "'Rock v. American Con- 
 struction Co. (1908), 120 La. 
 831; 45 So. 741; 14 L. R. A. (N. 
 S.), 653. The non-delegable qual- 
 ity of a carrier's duties is the 
 basis of certain rulings to the 
 effect that a steamship company 
 is liable for the negligence of 
 stevedores in regard to bringing 
 on board and placing in a certain 
 part of the ship a passenger's 
 baggage, and for an assault on a 
 
 passenger committed by one con- 
 tracting with it to carry their 
 baggage by tugs to its steamers. 
 The Dresden (1894), 62 Fed. 438; 
 Barrow Steamship Co. v. Kane 
 (1898), 88 Fed. 197. 
 
 "* 0'Har.\ v. Laclede, etc., Co. 
 (1903). 131 Mo. App. 428; 110 S. 
 W. 642. 
 
 "'Huffcut on Agency, 2d ed., 
 Sec. 261.
 
 employer's EXCEPTIONAIi LIABILITY. 
 
 261 
 
 "(2) The doctrine that the charitable funds can not be 
 reached in payment of damages for torts, has been doubted 
 or repudiated by other courts, but there has been no agree- 
 ment as to the nature and extent of the liabihty of the 
 charity, (a) The general doctrine of respondeat superior 
 has been applied and the charity held like any other master 
 for the torts of servants. ^^" (b) This general doctrine has 
 been admitted but it has been held that one accepting the 
 services or bounty of the charity is a mere licensee and 
 must take the service as he finds it, that is 'that there is 
 no liability on the part of the charitable corporations, aris- 
 ing out of the administration of the charity, to those who 
 accept their bounty.' ^^^ Under this doctrine there is a 
 further divergence of opinion as to whether one who pays 
 for the service is a recipient of the bounty. One case holds 
 that he is, treating the payment as a mere contribution to 
 charity. ^^^ Other cases seem to regard the payment as 
 imposing a special duty toward the payer for breach of 
 which an action will lie.'^^ (c) The general doctrine of re- 
 spondeat superior has not been admitted, and recovery is lim- 
 ited to those cases where it is shown that the administrators of 
 the charity were themselves negligent in the appointment 
 of incompetent servants or in the discharge of some other 
 corporate or specially imposed duty.^^° The theory of this 
 
 "' Citing Glavin v. Rhode 
 Island Hospital (1879), 12 R. I. 
 411; 34 Amcr. Rep. 675; Foreman 
 V. Mayor (1871), L. R.. 6 Q. B. 
 214. "See, also, Donaldson v. 
 Commissioners (1890), 30 New 
 Bninsw. 279." 
 
 "' Citing Powers v. Massachu- 
 setts, etc., Hospital (1899), 101 
 Fed. 896. "And see Gooch v. 
 Association (1872), 109 Mass. 
 558." 
 
 ^ Same cases last cited. 
 
 "•Citing Ward v. St. Vincent's 
 Hospital (1899), 39 N. Y. App. 
 Div. 624; 57 N. Y. Supp. 784; 
 Richardson v. Carbon, etc., Co. 
 (1893), 6 Wash. 52; 10 Wash. 
 648; 20 L. R. A. 338. "See 
 Glavin V. Rhode Island Hospital, 
 supra." 
 
 '* Citing McDoN.\LD v. Massa- 
 chusetts, ETC., Hospital (1876), 
 120 Mass. 432; 21 Amcr. Rep. 
 529; Union, etc., R. v. Artist 
 (1894). 60 Fed. 365; Joel v.
 
 262 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 class of cases seems to be the one most generally acceptable, 
 namely, that while a charitable corporation may be liable 
 for negligence in the performance of a corporate duty, the 
 doctrine of respondeat superior is not applicable to it so 
 as to render it liable for the torts of its servants.^^^ This 
 is merely an extension to charities of a doctrine sometimes 
 applied, that officers or trustees for public purposes are ex- 
 empt from liability for torts of servants but not for their 
 own torts ; qualified by the further consideration that some 
 duties are imposed upon public bodies in such a way that 
 they can not rid themselves of liability by putting the per- 
 formance of the duty into hands of servants. ^^^ Under 
 this view a charitable hospital, for example, has imposed 
 upon it the duty to use due care to provide safe and suit- 
 able hospital appliances and skilled and competent physi- 
 cians, surgeons and nurses, and for a failure to fulfill this 
 duty it would be liable to one injured thereby; but having 
 fulfilled this duty, it is not liable for the negligence of such 
 attendants or servants. ^^^ It is further to be noted that 
 physicians and surgeons are not the servants of the hospital 
 or other body that furnishes them and that in any event 
 liability can attach only for negligently furnishing incom- 
 petent practitioners.^^* Two classes of corporations or 
 agencies must be distinguished. First, where a corporation 
 or board of managers exercises governmental powers as an 
 
 Woman's Hospital (1895), 89 
 Hun (N. Y.), 7Z; VanTassell v. 
 Manhattan, etc., Hospital (1891), 
 39 N. Y. St. R. 781; 15 N. Y. 
 Supp. 620; He.xrns v. Waterbury 
 HospiT.'^L (1895), 66 Conn. 98; 33 
 Atl. 595; 31 L. R. A. 224; 
 EiGHMY V. Union Pacific R. 
 (1895), 93 Iowa, 538; 61 N. W. 
 1056; 27 L. R. A. 296; Richardson 
 V. Carbon, etc., Co., supra. 
 
 '^ "See the ver}^ full and able 
 discussion of Hammersley, J., in 
 Hearns v. Waterbury Hospital," 
 supra. 
 
 '" Citing Mersey Docks v. Gibbs 
 (1864), L. R., 1 H. L. 93. 
 
 ^^ Citing Union Pacific Railway 
 V. Artist, supra; Hearns v. Water- 
 bury Hospital, supra. 
 
 '^Citing Huff. Agcy., 2d ed.. 
 Sec. 232.
 
 employer's exceptional llvhilitv. 
 
 263 
 
 agent of the state or municipality, it falls under the head 
 of public agencies. ^-^ Second, private corporations orga- 
 nized for the protection of some interest of their supporters, 
 as a 'protective association,' supported by insurance com- 
 panies, are not public charities merely because they inci- 
 dentally render aid gratuitously to outsiders." ^~'' 
 
 The funds and property of a university organized as a 
 private corporation without power to declare dividends and 
 dependent on the income from its property and upon gifts 
 and endowments to carry out its purposes of disseminating 
 learning to all persons of good character and suitable pro- 
 ficiency, are held in trust and can not be diverted to pay 
 damages to a student losing an eye through the negligent 
 act of a professor while discharging his duties. ^^'' In a very 
 
 ^^ Citing City of Richmond v. 
 Long (1861), 17 Gratt. (Va.), 
 375; 94 Amer. Dec. 461; Benton 
 V. Trustees (1885), 140 Mass. 
 13; 54 Amer. Rep. 436; William- 
 son V. Louisville, etc., School 
 (1894), 95 Ky. 251; 44 Amer. St. 
 Rep. 243. 
 
 ""Citing Newcomb v. Boston, 
 ETC., Dep.\rtment (1890), 151 
 Mass. 215; 24 N. E. 39; 6 L. R. 
 A.. 778. Cf., Fire Insurance 
 P.\TR0L V. Boyd (1888), 120 Penn. 
 St. 624; 6 Amer. St. 745; 15 Atl. 
 553; Chapin v. Holyokc. etc., 
 Association (1896), 165 Mass. 
 280; 42 N. E. 1130; see, also, 
 Wabash, etc., R. v. Kelly (1899), 
 153 Ind. 119. 
 
 "'Parks v. Northwestern 
 University (1905), 218 Ills. 381; 
 75 N. E. 991; 4 Amer. & Eng. 
 Ann. Cas. 103. "The only case 
 we find in tliis country express- 
 ing a contrary view is Glavin v. 
 
 Rhode Island Hospital (1879), 
 12 R. I. 411; 34 Amer. Rep. 675, 
 and since tliat decision the legis- 
 lature of Rhode Island has, by 
 appropriate enactment, created the 
 exemption here contended for by 
 the appellee university as to all 
 hospitals whose funds are exclu- 
 sively devoted to charitable pur- 
 poses. Gen. Laws of Rhode Island, 
 Chap. 177, Sec. 38." Per Boggs, 
 J. "The view taken in the Rhode 
 Island decision was approved in 
 Donaldson v. Hospital (1890), 30 
 New Brunsw. 279. See, also, 
 Brcux v. Montreal (1896), 9 
 Queb. (S. C), 503." Note in 4 
 Amer. & Eng. Ann. Cas. 106. 
 
 ^™F.\RRiGAN V. Peve.\r (1906), 
 193 Mass. 147, 151; 78 N. E. 865; 
 8 Amer. & Eng. Ann. Cas. 1109; 
 118 Amer. St. Rep. 484, citing 
 inter alia. Heriot's Hospital v. 
 Rose (1846), 12 CI. & F. 507; 
 Perry v. House of Refuge (1884),
 
 264 INDEPENDENT CONTRACTORS AND THEIR LIABILITY 
 
 recent case, defendants, trustees, "were serving without 
 compensation in the supervision of a home for indigent 
 boys, which was established for the purpose of enabhng 
 them to become self-supporting and efficient members of 
 society; their duty to plaintiff in the exercise of this posi- 
 tion did not extend beyond the requirements of using rea- 
 sonable care to select competent servants, and the demands 
 of substantial justice are met, if as charitable trustees they are 
 not charged with the negligence of those so employed." ^^^ 
 In another more recent case a church owned and possessed 
 certain real estate on which it was erecting a building for 
 church purposes, and caused to be erected a scaffolding 
 therein for its employees and others engaged in erecting 
 the church ; plaintiff was employed by a contractor, who had 
 contracted with defendant to tint the ceiling and walls, and 
 in such service, while properly using the scaffolding, plain- 
 tiff was, because of its defective condition, thrown to the 
 floor and injured. The defense was that being a charity, 
 defendant was not liable, but the court said, after review- 
 ing and distinguishing very many cases : "The defendant 
 corporation is a legal entity with which the law has to deal. 
 It uses, in the accomplishment of its objects, property 
 which it owns and manages and in such management it 
 acts by and through chosen agents. Incident to such man- 
 agement are duties which, unperformed or badly performed, 
 may support corporate obligations. Property conveyed to 
 it, generally, is presumed to be conveyed for the statute 
 purposes of its organization, and is subject to the risks of 
 corporate management." ^'^'-^ 
 
 63 Md. 20; Downes v. Harper to be clearly correct." Note to 
 
 Hospital (1894), 101 Mich. 555; 8 Amer. & Eng. Ann. Cas. 1111. 
 
 60 N. W. 42; 45 Amcr. St. Rep. ^ Bruce v. Central M. E. 
 
 427; Pepke v. Grace Hospital Church (1907), 147 Mich. 230; 
 
 (1902), 130 Mich. 493; 90 N. W. 110 N. W. 951; 11 Amer. & Eng. 
 
 278. "This decision would seem Ann. Cas. 151 (per Ostrander, J.,
 
 employer's exceptional llvbility. 
 
 265 
 
 "A majority of the recent cases deciding the question of 
 the liabih'ty of a private charitable institution for the negli- 
 gence of its employers uphold the rule that it is not liable 
 
 Blair, J., concurring) ; citing 
 inter alia, Donnellj' v. Boston, 
 etc., Cemetery (1888). 146 Mass. 
 163; 15 N. E. 505; Shepard v. 
 Creamer (1884), 160 Mass. 496; 
 36 N. E. 475; McAllister v. Bur- 
 gess (1894), 161 Mass. 271; 37 N. 
 E. 173; Davis v. Central Congre- 
 gational Society (1880), 129 Mass. 
 367; 37 Amer. Rep. 368; Church, 
 etc.. V. Buckhart (1842). 3 Hill 
 (N. Y.), 193; contra, Haas v. 
 Missionary Society (1893), 6 
 Misc. (N. Y.), 281; 20 N. Y. 
 Supp. 868. In a separate opinion 
 by Carpenter, J., in which five 
 other justices concurred, it is' 
 said. p. 250: "We are compelled 
 to hold that funds devoted to a 
 religious purpose are charitable 
 trust funds. I conclude, there- 
 fore, that we cannot hold the 
 principle in Downes v. Harper 
 Hospital (1894). 101 Mich. 555, 
 60 N. W. 42, 45 Amer. St. Rep. 
 427, inapplicable, upon the ground 
 that the church funds are not 
 charitable trust funds." (The 
 court distinguished the Downes 
 case from the one at bar, on the 
 ground that in the former he was 
 a beneficiary of the charity and 
 in the latter an employee of de- 
 fendant's contractor.) "We re- 
 ceive great aid (in determining the 
 principle underlying the Downes 
 case) by examining similar de- 
 cisions made by other courts. 
 Among those decisions are Rich- 
 mond V. Long (1867), 17 Gratt. 
 
 (Va.), 375; 94 Amer. Dec. 461; 
 Collins v. New York, etc., Medi- 
 cal School (1901), 59 N. Y. App. 
 Div. 63; 69 N. Y. Supp. 106; 
 Connor v. Sisters, etc. (1900), 10 
 Ohio Dec. 86; 7 Ohio (N. P.), 
 514," and others cited in this con- 
 nection in this work. Continuing, 
 the court says (page 253) : "The 
 ground on which liability is 
 denied in nearly all the foregoing 
 cases is that ... it would 
 oppose the will of the founder of 
 the trust to pay from the trust 
 funds damages caused by an 
 agent's torts. . . . But I can 
 see no ground upon which it may 
 be held that the rights of those 
 who are not beneficiaries of a 
 trust can in any way be affected 
 by the will of its founders. The 
 rights of such persons are those 
 created by general laws and the 
 duties of those administering the 
 trust to respect those rights are 
 also created by general laws. . . 
 I conclude from this reasoning 
 that corporations administering a 
 charitable trust, like all other 
 corporations, are subject to the 
 general laws of the land and can 
 not. therefore, claim exemption 
 from responsibility for the torts 
 of their agents, unless that claim 
 is based on a contract with the 
 person injured by such tort. . . 
 The principle of non-liability de- 
 clared in the Downes case is 
 limited to those who are bene- 
 ficiaries of a trust fund."
 
 266 INDEPENDENT CONTRACTORS AND THEIR LIABILITY . 
 
 where it has exercised reasonable care in selecting its em- 
 ployees." ^^" "Some cases, however, hold that a private 
 charitable institution is not liable for the negligence of its 
 servants in any event, as the funds of a charitable trust can 
 not be thus diverted from the purposes of a donor." ^^^ 
 
 The question of the personal liability of a superior officer 
 of an eleemosynary institution maintained by the state for 
 the tort of his subordinate seems to be passed on for the first 
 time, in a recent Kentucky case ^^^ holding that the super- 
 intendent of a state lunatic asylum is not, under the doc- 
 trine of respondeat superior, responsible for injuries in- 
 flicted upon inmates of the asylum by employees whom he 
 appointed. 
 
 Sec. 150. Public Exhibitions. 
 
 A street railway company was held liable for an injury 
 received by a spectator at an exhibition of markmanship 
 given at a pleasure resort owned and advertised by it, al- 
 though the performance was provided and conducted by 
 an independent contractor. ^^^ The Court of Queen's Bench 
 
 '*° Note to Bruce v. Central M. 
 E. Church, supra, in 11 Amer. & 
 Eng. Ann. Cas. 160, citing Illinois, 
 etc., Railroad v. Buchanan (1907), 
 103 S. W. 272; 31 Ky. L. R. 722; 
 Noble V. Hahneman Hospital 
 (1906), 112 N. Y. App. Div. 663; 
 98 N. Y. Supp. 605. "See, also, 
 Louisville University v. Ham- 
 mock (1907, Ky.), 106 S. W. 219; 
 Gitzenhoffcn v. Sisters, etc.. Asso- 
 ciation (1907), 32 Utah, 46; 88 
 Pac. 691." 
 
 '^ Bruce v. Centr.vl M. E. 
 Church, supra, citing in same 
 note Forclyce v. Woman's, etc.. 
 Association (1906), 79 Ark. 559; 
 
 96 S. W. 155; Adams v. Univer- 
 sity Hospital (1907), 122 Mo. 
 675; 99 S. W. 453; Ahston v. 
 Waldon Academy (1907), 118 
 Tenn. 24; 102 S. W. 351; contra, 
 Hewett V. Woman's, etc., Associa- 
 tion (1906), 73 N. H. 556; 64 
 Atl. 190, holding, under statute, 
 a hospital liable for its manager's 
 negligent injury to its servant. 
 
 "'"Ketterer v. Kentucky State 
 Board, etc. (1909, Ky.), 115 S. 
 W. 200; 20 L. R. A. (N. S.), 274. 
 
 "* Thompson v. Lowell Street 
 R. (1898), 170 Mass. 577; 49 N. 
 E. 913; 40 L. R. A. 345; 64 Amer. 
 St. Rep. 323. Where portions of
 
 employer's exceptional liability. 267 
 
 has ruled that when a man causes a building to be erected 
 for viewing a public exhibition and admits persons on pay- 
 ment of money, the contract between him and the persons 
 admitted is analogous to the contract between a carrier and 
 his passengers, that there is implied in such a contract a 
 warranty not only of due care on the part of himself and 
 his servants, but also of due care on the part of any inde- 
 pendent contractor who may have been employed by him 
 to construct the means of conveyance or support. The 
 plaintiff, who had paid admission, it was held, could recover 
 against the defendant for damages sustained by reason of 
 the stand having been negligently and improperly con- 
 structed, although not to the knowledge of defendant who, 
 personally, was free from all negligence and had employed 
 a competent person to erect the stand. ^^^ On the other 
 hand, a street railway company, owning a park, was recently 
 held not liable to a visitor for injuries due to negligence in 
 shooting off rockets, where all the work in connection with 
 sending off the fireworks was done by another person under 
 a contract with the street railway company to give the ex- 
 hibition, and the street railway com.pany had no control 
 over the details of the work nor over the men who per- 
 formed it.^^^ 
 
 Sec. 151. "Profit" Corporations. 
 
 It has been said that the immunity wdiich in certain cases 
 is enjoyed by municipal corporations in respect of liability 
 for the negligence of independent contractors of public 
 
 a platform and staircase used at Buffalo Park (1897), 21 App. Div. 
 
 a public exhibition gave way and 321 ; 47 N. Y. Supp. 788. 
 
 injured plaintiff, he was held en- *** Francis v. Cockrell (1870), 
 
 titled to recover though it ap- L. R., 5 Q. B. 184. affirmed, p. 
 
 peared they were erected by an 501. 
 
 independent contractor. Fox v. ^^ Dej'o v. Kingston, etc., R. 
 
 (1904), 88 N. Y. Supp. 487.
 
 268 INDEPENDENT CONTRACTORS AND THEIR LIABILITY 
 
 work, is not enjoyed by corporations for profit, such as 
 turnpike companies. But it is questionable whether there 
 is any such distinction.^^" 
 
 "° Lancaster Avenue, etc., Co. 
 V. Rhoads (1887), 116 Peiin. St. 
 377; 9 Atl. 852; 2 Amer. St. Rep. 
 608. "But when certain powers 
 and privileges have been .specifi- 
 cally conferred by the public upon 
 an individual or corporation, for 
 private emolument, in considera- 
 tion of which certain duties af- 
 fecting public health or the safety 
 of the public travel have been ex- 
 pressly assumed, the individual in 
 
 receipt of the emoluments cannot 
 be relieved of liability by com- 
 mitting the performance of these 
 duties to another. In such cases 
 liability cannot be evaded by 
 showing that the injury resulted 
 from the fault or neglect of a 
 third person employed to perform 
 these public duties." Clark, J., in 
 Lancaster, etc., Co. v. Rhoads, 
 supra, quoted in Barrows on Neg., 
 165.
 
 CHAPTER VI. 
 
 Employer's Exceptional Liability — III. Conduct of 
 
 Employer. 
 
 SECTION 
 
 SFX'J 
 
 160. 
 
 Liability under express con- 
 tract. 
 
 169. 
 
 161. 
 
 Same — Effect of statute. 
 
 170. 
 
 162. 
 
 Same — Duty to contract. 
 
 171. 
 
 163. 
 
 Contract for defective plans. 
 
 172. 
 
 164. 
 
 Selecting contractor, gener- 
 
 
 
 ally. 
 
 173. 
 
 165. 
 
 Same — Degree of care. 
 
 174. 
 
 166. 
 
 Same — Incompetency known. 
 
 175. 
 
 167. 
 
 Identity of employer and 
 
 
 
 contractor. 
 
 176. 
 
 168. 
 
 Employer wrongfully inter- 
 
 
 
 fering. 
 
 177. 
 
 Same — What amounts to in- 
 terference. 
 
 Employer reserving control. 
 
 Same — Partly doing work. 
 
 Same — Permitting use of 
 defective appliances. 
 
 Employer accepting work. 
 
 Same — What is acceptance. 
 
 Same — Knowledge of condi- 
 tion. 
 
 Same — Work abandoned by 
 contractor. 
 
 Contractor generally ex- 
 empt. 
 
 Sec. 160. Liability Under Express Contract. 
 
 The principle of exemption can not be appealed to to 
 enable one to violate express contracts into which he has 
 entered. One who enters into a valid contract to do a cer- 
 tain thing must do it or pay damages for its breach ; and he 
 can not ordinarily excuse himself from paying damages by 
 pleading inevitable accident, vis major, or the like. In 
 general, nothing but the wrong of the opposite contracting 
 party can be invoked to excuse non-performance.^ An in- 
 corporated company undertook to lay water pipes in a city, 
 agreeing with the city "to protect all persons against dam- 
 
 'Gray v. Pullen (1864), 5 Best. & S. 985; 7 Am. Neg. R. 158, n. 
 
 269
 
 270 INDEPENDENT CONTRACTORS AND THEIR LIABILITi'. 
 
 ages 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 employees in the premises." 
 The company let out the work to a contractor. The latter 
 used a steam drill in such manner as to frighten a traveler's 
 horse and injure the traveler. An action by the traveler 
 against the company was supported upon the plain ground 
 that they could not evade a liability which they assumed 
 by contract, by shifting over to another the work which they 
 had undertaken to perform.^ The employer may bargain 
 with the contractor that he shall perform a non-delegable 
 duty and stipulate for an indemnity from himself if it is 
 not properly performed ; but the employer can not thereby 
 relieve himself from liability to those injured by the con- 
 tractor's failure to perform it.'^ A contract providing that 
 said "contractor should maintain the sidewalks along said 
 street during the construction of said improvement safe for 
 
 * Water Co. v. Ware (1872), 16 negligent manner in which a con- 
 Wall. (U. S.). 566. '"If the em- tractor conducts the work where 
 ployer by express contract has the city contracts with the owner 
 agreed to do an act efficiently and of the property for a right of way 
 safely, he cannot, by sub-letting and agrees to pay all damages 
 the work to an independent con- occasioned by the construction, 
 tractor, relieve himself from lia- Leeds v. Richmond (1885), 102 
 bility under his express contract. Ind. 372; 1 N. E. 71. 
 Thus, where a company under- * Dalton v. Angus (1881), L. 
 took to lay water pipes in a city, R., 6 App. C. 740, 829; 7 Am. 
 and agreed with the city to pro- Neg. R. 157, n. ; Hughes v. Per- 
 tect all persons from damages cival (1883), L. R., 8 App. C. 
 and to be responsible for dam- 443. Contra, Osborn v. Union, 
 ages to all persons, and after- etc. (1869), 53 Barb. (N. Y.), 629, 
 wards sub-let the work to a con- holding such stipulation relieves 
 tractor, who, in using a steam the employer, relying on Buffalo 
 drill injured a passenger, it was v. Holloway (1852), 7 N. Y. 
 held that the company was liable." 493 ; 57 Amer. Dec. 550, and 
 Huff. Agcy., 2d ed.. Sec. 223, Storrs v. Utica (1858), 17 N. Y. 
 citing Water Co. v. Ware, supra. 104; 72 Amer. Dec. 437. But this 
 But the city will be liable to the is criticised. See note to Jacobs 
 owner of property injured by the v. Fuller (1902), 65 L. R. A. 841.
 
 employer's exceptional llvbility. 
 
 271 
 
 travel by the general public and that he should properly 
 guard all places of danger along said street during the con- 
 struction of said improvement," does not absolve the city 
 from injuries resulting directly from the acts the contractor 
 agreed and was authorized to do, and from work of such 
 character as to render the sidewalk unsafe for public travel.^ 
 "Under a contract between a city and a water company, 
 by which the latter agrees to supply the city with water 
 sufficient for fire purposes, an individual citizen whose prop- 
 erty has been destroyed by fire, through the alleged neglect 
 of the water company in complying with the terms of the 
 contract, has no right of action against the company as there 
 is no privity of contract between them." ^ In a Michigan 
 case it is said that an employer ought not to be held re- 
 sponsible on the ground that the injury was the natural 
 and probable result of his contract, where the contract itself 
 expressly provides that the stipulated work shall be care- 
 fully done, and the injury complained of would not have 
 occurred had that provision been observed.^ 
 
 Sec. 161. Same, Effect of Statute. 
 
 In California it is held that a statutory provision requir- 
 ing a municipality to let contracts regarding its streets, 
 etc., to the lowest bidder is such compulsion as to absolve 
 
 * Anderson v. Fleming (1903), 
 160 Ind. 597; 67 N. E. 443; 66 
 L. R. A. 119; 16 Am. Neg. R. 
 606, n. If in a case wherein a 
 railroad company has been com- 
 pelled to pay a property owner 
 for materials appropriated by its 
 independent contractor, the con- 
 tractor has agreed with the com- 
 pany to furnish the materials at 
 his own expense, the company 
 
 may have an action over against 
 him for what it has thus been 
 compelled to pay for them. 
 Thomps. Neg., p. 615, note 132. 
 
 ' Note to Earl v. Lubbock 
 (1905), 1 K. B. 253, in 1 Amer. 
 & Eng. Ann. Cas. 755. 
 
 'Samuelson v. Cleveland, etc., 
 Co. (18^2). 49 Mich. 164; 13 N. 
 W. 499; 43 Amer. Rep. 465.
 
 272 INDEPENDENT CONTRACTORS AND THEIR LIABIIITV. 
 
 the city from liability for the acts of the contractor.' So 
 also, under the Georgia Code, sec. 671, a bond taken by 
 a county from a contractor erecting a bridge for the county, 
 to keep it in repair, exempts the county from liability for 
 damages, during the period covered, for injuries in conse- 
 quence of its defective condition.^ But a Pennsylvania 
 statute directing that the township supervisor shall award 
 a contract for making and repairing a road therein to the 
 lowest and best bidder, was held not to exempt the township 
 from liability for defects in the road due to the contractor's 
 acts or acts or omissions." 
 
 Sec. 162. Same, Duty to Contract. 
 
 In a California case, the plaintiff contended it was the 
 defendant's duty to expressly stipulate with his independent 
 contractor that the work should be so conducted and com- 
 pleted as to leave undisturbed the soil on plaintiffs adjoin- 
 ing lot, and that failing so to provide, defendant was liable, 
 the work having been done according to contract. The 
 court held: "When a contract provides for doing a thing 
 which may be, and generally is, done in a lawful manner 
 and is silent as to the mode of doing it, the contract is to 
 be construed as requiring it to be done in a lawful manner. 
 As the injury was caused by the contractor while doing 
 work which it must be assumed, could have been done with- 
 
 ' James v. San Francisco bond docs not make the county 
 
 (1856), 6 Cal. 528; 65 Amer. Dec. liable. Dougherty Co. v. New- 
 
 526. unlighted excavation; O'Hale som (1899), 107 Ga. 811; 33 S. E. 
 
 V. Sacramerto (1874), 48 Cal. 212, 660. 
 
 same facts ; Krause V. Sacramento " Mahanoy Township v. Sholly 
 
 (1874), 48 Cal. 222, defective (1877), 84 Penn. 135. Cf., De- 
 
 sidewalk. tkoit v. Corey (1861). 9 Mich. 
 
 ''Alappin v. Washington Co. 165; 80 Amer. Dec. 7S, Campbell, 
 
 (1893), 92 Ga. 130; 17 S. E. J., dissenting. 
 1009. But failure to take such
 
 employer's exceptional ll\.bility. 
 
 273 
 
 out causing- it, and the contractor had agreed to do it, the 
 injury was done in violation of his contract." Judgment 
 was rendered fur defendant. ^^^ 
 
 Sec. 163. Contract for Defective Plans. 
 
 "The owner can not dictate that his building be con- 
 structed of improper materials or upon an unsafe plan, and 
 escape liability for injuries occasioned thereby, because he 
 made a contract with a third person to build it ; nor can he, 
 with knowledge of a w-eakness or defect threatening the 
 strength of the building, set a man at work immediately 
 under it, and shift all responsibility upon the builder." ^^ 
 Where the negligence, in erecting a wall abutting against 
 a party wall which, by reason of insufficient support, fell 
 on plaintiff's building, was not in the workmanship or ma- 
 terials used by contractors, but in the plans and specifica- 
 tions, the owners of the building are liable.^- And where 
 a defectively planned bridge fell on workmen while it was 
 in the course of being constructed by an independent con- 
 
 '» Aston V. Nolan (18S3). 63 
 Cal. 269. 
 
 "Meier v. Morgan (1892), 82 
 Wise. 289; 52 N. W. 174; 33 
 Amer. St. Rep. 39, per Winslow, 
 J.; Whitney v. Clifford (1879), 
 46 Wise. 138; 32 Amer. Rep. 703; 
 Trainor v. Philadelphia, etc., R. 
 (1890), 137 Penn. St. 148; 20 
 Atl. 632. 
 
 '- Lancaster v. Connecticut 
 ETC., Insurance Co. (1887), 92 
 Mo. 460; 5 S. W. 23; 1 Amer. St. 
 Rep. 739. A person who eon- 
 tractcd with another for the 
 building of a house on his own 
 land was held liable for the con- 
 
 sequences of the erection of a 
 wall of insufficient strength where 
 he reserved the right to alter or 
 modify the plans and specifica- 
 tions, and to make an\' deviation 
 in the construction, detail, or 
 execution of the contract, with- 
 out in either case invalidating the 
 contract. McMillan v. Walker 
 (188n, 21 X. B. 31. Cf., Horner 
 V. Nicholson (1874), 56 Mo. 220. 
 For other cases of liability where 
 the work was done according to 
 the employer's methods, see those 
 cited in note to 65 L. R. A., pp. 
 755-757.
 
 274 INDEPENDENT CONTRACTORS AND THEIR LIABIL3TV- 
 
 tractor the employer, the county, was held liable.^^ An 
 independent contractor is liable, in exoneration of the em- 
 ployer, only for defects in the doing of the work and not for 
 defects in the designing of such work.^"* But it is said 
 that the owner can not be held liable for pefsonal injuries 
 resulting from the failure of an independent contractor to 
 conform to the plans and specifications because the owner 
 failed to employ an architect to supervise the work of the 
 contractor as contemplated by the contract. ^^ 
 
 Sec. 164. Selecting Contractor, Generally. 
 
 It has been held that an employer is liable, not only where 
 he knowingly employs an incompetent person to do public 
 work but also in failing to exercise due and reasonable care 
 to select such as are skillful and competent. ^^ "The master 
 may be responsible for the negligent conduct of an inde- 
 pendent contractor if he has failed to use reasonable care 
 in selecting him." The same authority says further: "It 
 is c|uite evident that an employer may be guilty of negli- 
 gence in intrusting the work to an unskillful or incompetent 
 person and in such event he is liable for resulting injury."^'^ 
 
 "Cloud Co. V. Vickers (1900), 
 62 Kans. 25; 61 Pac. 391. Cf., 
 Tyler v. Tehama Co. (1895), 109 
 C'al. 618; 42 Pac. 240, where a 
 bridge abutment was so built as 
 to divert water from the river 
 on to lands of plaintiff. 
 
 " Church, etc., v. Paterson, 
 ETC., R. (1902), 68 N. J. L. 399; 
 53 Atl. 449, in which the retain- 
 ing wall on a railway failed to 
 furnish adequate support to land 
 abutting on the railway. See, 
 also, Atlanta, etc, R. v. Kim- 
 BERLEY (1891), 87 Ga. 161; 13 S. 
 
 E. 277; 27 Amer. St. Rep. 231; 
 67 L. R. A. 701. 
 
 "Hawke v. Brown (1898), 50 
 N. Y. Supp. 1032. 
 
 " Norwalk. etc., Co. v. Nor- 
 walk (1893), 63 Conn. 495, 529; 
 28 Atl. 32; Brannock v. Elmore 
 (1892), 114 Mo. 55; 21 S. W. 451. 
 
 " Barrows on Nd., 162, citing 
 Berg V. Parsons (1896), 84 Hun, 
 60; 31 N. Y. Supp. 1091 (the 
 author does not note reversal of 
 this case) ; Norwalk, etc., Co. v. 
 Norwalk, supra. "See, also," Ar- 
 desco v. Gilson (1S70), 63 Penn.
 
 employer's exceptional liability. 
 
 275 
 
 In a leading- case it is said: "Although the relation of 
 master and servant does not exist between a hospital and 
 the physicians and surgeons engaged by it, the hospital im- 
 pliedly undertakes to exercise reasonable care in selecting 
 persons who are skillful and trustworthy in their profes- 
 sion; and if a patient receives injury through its neglect to 
 exercise such care, such patient is entitled to recover of the 
 hospital, unless it enjoys some extraordinary exemption 
 from liability." ^^ It has been strongly intimated in a 
 recent New York case that, if a person is not competent 
 to plan or carry out a piece of work, and yet attempts to 
 
 St. 146; Sturges v. Society 
 (18S1), 130 Mass. 414; 39 Amer. 
 Rep. 463; Brannock v. Elmore, 
 supra; Cuff v. Railroad Co. 
 (1870), 35 N. J. L. 17; 10 Amer. 
 Rep. 201 ; 16 Am. Neg. Cas. 668, 
 n. ; Connors v. Hennessey (1873), 
 112 Mass. 96. "There are occa- 
 sional dicta to the effect that if 
 one did not use reasonable care 
 to select a competent contractor 
 he may be liable for such con- 
 tractor's negligence (Lawrence v. 
 Shipman, 1893, 39 Conn. 586); 
 and perhaps one or two cases in- 
 volving to some extent an af- 
 firmation of the doctrine." Huff. 
 Agcy., Sec. 219. It is sometimes 
 stated that a person may be liable 
 for the negligence of an inde- 
 pendent contractor if he did not 
 use reasonable care to select one 
 competent to perform the work 
 contracted for. Huff. Agcy., 2d 
 ed.. Sec. 219, citing Berg v. Par- 
 sons (1896), 90 Flun (N. Y.). 
 267, overruled (1S98), in 156 N. 
 Y. 109; 50 N. E. 957; 41 L. R. A. 
 391; 66 Amer. St. Rep. 542; 4 
 
 Am. Neg. R. 432, three judges 
 dissenting; Norwalk, etc., Co. v. 
 NoRWALK (1893), 63 Conn. 495, 
 528; 28 Atl. 321; Brannock v. 
 Elmore (1892), 114 Mo. 55; 21 
 S. W. 451 ; Sebeck v. Platt- 
 
 DEUTSCHE, ETC., VerEIN (1900), 64 
 
 N. J. L. 624; 46 Atl. 631; 50 L. 
 R. A. 199; 81 Amer. St. Rep. 512. 
 ^ Gl.win v. Rhode Island Hos- 
 pital (1879), 12 R. I. 411, 424; 
 34 Amer. Rep. 675. See, general- 
 ly. Sec. 149, ante. In the opinion 
 of one learned writer, the deci- 
 sions "furnish a sufificient body 
 of authorities to warrant the con- 
 clusion that an employer may be 
 held liable on the ground of neg- 
 ligence in selecting a contractor 
 who does not possess that meas- 
 ure of skill and experience which 
 the stipulated work demands. 
 That no objection can be mide 
 on the score of principle to such 
 a doctrine seems to be indisput- 
 able." C. B. Labatt, in note to 
 Louisville, etc., R. v. Low 
 (1901, Ky.), in 66 L. R. A. 944, 
 citing and discussing many cases.
 
 276 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 do one of these thing-s, he should be held responsible for 
 an injury resulting- from his having undertaken the charge 
 of the work ; and that it is his duty to devolve the planning 
 and execution of the work upon persons possessing sufficient 
 knowledge and skill to accomplish what is contemplated 
 without endangering the workmen and the public.^® 
 
 In Minnesota it has been distinctly held that an employer 
 can be held liable because he engaged an independent con- 
 tractor, only in those cases where the work itself is intrinsi- 
 cally dangerous.2" q^l-,e doctrine of independent contractor 
 makes it the duty of the proprietor to exercise reasonable 
 care in the selection of the contractor engaged to perform 
 services for him and where this care has been exercised he 
 will not be liable for negligence of the contractor, that he, 
 the proprietor, could not have anticipated by ordinary 
 care.^^ Thus, one who has employed a competent architect 
 to erect a dam is not responsible for injuries caused by its 
 bursting while the work is in progress.^^ 
 
 There are some cases squarely denying the doctrine of 
 one's liability for the negligence of an independent con- 
 tractor even though the employer did not use reasonable 
 care in selecting one competent to perform the work con- 
 tracted for.-^^ It is urged that the exception to the general 
 
 "Burke v. Ireland (1901), 166 
 N. Y. 305; 59 N. E. 914. 
 
 ^ Schipp V. Pabst Brewing Co. 
 (1896), 64 Minn. 22; 66 N. W. 
 3, the court refusing to follow the 
 dicta in Deford v. State (186S), 
 30 Md. 204, and Lawrence v. 
 Shipman (1873), 39 Conn. 589. 
 
 ^ White V. Green (1904, Tex.), 
 82 S. W. 329. 
 
 ^^'^BoswELL V. Laird (1857), 8 
 Cal. 469; 68 Amer. Dec. 345. 
 "Where a contractor takes entire 
 control of a work, the employer 
 having no right of supervision or 
 
 interference, the employer, if he 
 is not negligent in his selection, 
 is not liable to third parties for 
 his contractor's want of care in 
 the performance of it." L.\n- 
 CASTER Ave., etc., Co. v. R ho ads 
 (1887), 116 Penn. 377; 9 Atl. 852; 
 2 Amer. St. Rep. 608. As to ef- 
 fect of employing incompetent 
 contractor, see, further, Schnurr 
 V. Huntington County (1899). 22 
 Ind. App. 188; 53 N. E. 425. 
 
 ^Berg v. Parsons (1898), 156 
 N. Y. 109; 50 N. E. 957; 41 L. 
 R. A. 391 ; 66 Amer. St. Rep. 542 ;
 
 employer's exceptional ll\bility, 277 
 
 rule, if once admitted, would run counter to business cus- 
 toms under which a contractor may estimate and contract 
 for work and afterwards sublet it to others who are spe- 
 cialists, would go far toward destroying the whole doctrine 
 applicable to independent contractors and would "open a 
 new and unlimited field for actions for negligence." 2"* 
 
 Sec. 165. Same, Degree of Care. 
 
 "Difficulty arises, however, in determining what degree 
 of care in the selection is sufficient to exonerate the employer 
 from the charge of negligence and the cases afford no satis- 
 factory rule. It would seem that each case must be decided 
 upon its own circumstances, the character of the work, and 
 the corresponding degree of skill required in its accom- 
 plishment, the probable attendant dangers, and the general 
 reputation of the contractor for skill and efficiency." ^^ It 
 is said by another author that the only duty resting upon 
 one who supplies a physician, if the latter is, in the given 
 case, an independent contractor, is to use proper care in 
 selecting him.^" The competency of the contractor is, as a 
 
 4 Am. Neg. R. 432; 47 Cent. L. employing careless persons, Lord 
 J. 237; Schipp v. Pabst Brewing Mackenzie said: "It is perfectly 
 Co. (1896), 64 Minn. 22; 66 N vain to say that any such blame 
 W. 3. can attach to a man who employs 
 ^ Huflf. Agcy., 2d ed.. Sec. 219, responsible tradesmen to execute 
 citing Berg v. Parsons, supra, and harmless repairs on his house (in 
 Schipp V. Pabst Brewing Co., this case plastering), or in those 
 supra. It is urged, on the other persons contracting with another 
 hand, that the exception imposes to do part of the work." 
 on one having work performed M'Lean v. Russell (1850). 12 Sc. 
 only a duty which he fairly owes Sess. Cas., 2d series, 887. 
 to the public or to adjoining ^ Barrows on Neg., p. 162. The 
 owners; dissenting opinion in author refers to the section on 
 Berg v. Parsons, supra. Regard- "Negligence of Master in Select- 
 ing the contention of plaintiff ing Competent Co-employees." 
 that there was, in the case before ^ Burdick on Torts, p. 135. 
 the court, a constructive culpa in "The principle is well settled that
 
 278 INDEPENDENT CONTRACTORS AND THEIR LIABILITY 
 
 general rule, admissible as tending to show the employer's 
 freedom from negligence, but it will not per sc exonerate 
 the employer.^' If a railroad company exercises reasonable 
 diligence in the selection of surgeons, nurses, etc., who are 
 of good repute in their profession, it is not answerable on 
 the footing of negligence for the result of the treatment 
 which the professional persons so employed by them may 
 bestow on the employee.^® 
 
 Where plaintiff sued a landowner for injuries resulting 
 from blasting done by an independent contractor it was 
 held, that in order to recover, the plaintiff should have 
 shown, inter alia, that the independent contractor was a 
 negligent and careless man, within the knowledge or means 
 
 a private charitable institution 
 which has exercised due care in 
 the selection of its employees can 
 not be held liable for injuries re- 
 sulting from their negligence." 
 Note to Parks v. Northwestern 
 University (1905, Ills.), in 4 
 Amer. & Eng. Ann. Cas., p. 104, 
 citing numerous cases. 
 
 ^Toledo, etc., R. v. Beggs 
 (1877), 85 Ills. 80; 28 Amer. Rtp. 
 613; Illinois, etc., R. v. Phillips 
 (1868), 49 Ills. 234. Compare, 
 Losee v. Buchanan (1873), 51 
 N. Y. 476; 10 Amer. Rep. 623; 
 Chase's Cas. Torts, Supp. 15; 
 Columbus, etc., R. v. Arnold 
 (1869), 31 Ind. 177. "If all the 
 other facts alleged in McPadden's 
 second defense were found to be 
 true it would manifestly be im- 
 material to the sufficiency thereof 
 whether the jury were satisfied 
 that McPadden used due and 
 proper care in selecting H., whom 
 they find to have been, in fact, a 
 competent person, to perform the 
 
 work he undertook to perform 
 as an independent contractor." 
 Wilmot v. McPadden (1906), 79 
 Conn. 367; 65 Atl. 157; 19 L. R. 
 A. (N. S.), 1101, citing cases. 
 
 ^ Pittsburgh, etc., R. v. Sul- 
 livan (1895), 141 Ind. 83; 40 N. 
 E. 138; 50 Amer. St. Rep. 313; 
 27 L. R. A. 840; Quinn v. Rail- 
 road (1895), 94 Tenn. 713; 45 
 Amer. St. Rep. 767; 30 S. W. 
 1036; 28 L. R. A. 552. A steam- 
 ship company engaging a reason- 
 ably competent and skillful sur- 
 geon, although upon the payment 
 of a salary, to attend upon its 
 passengers during its voyages, 
 whether in pursuance of a statute 
 or not, and providing such sur- 
 geon with reasonable medical 
 stores and surgical appliances, is 
 not answerable for such sur- 
 geon's malpractice. Laubheim v. 
 Royal, etc., Steamship Co. 
 (1887). 107 N. Y. 228; 13 N. E. 
 781 ; 1 Amer. St. Rep. 815.
 
 employer's exceptional liability. 
 
 279 
 
 of knowledge of the defendant.^^ In the lower court, in 
 a leading New York case, it was stated that the employer's 
 inquiry must be with reference to the contractor's ability 
 to perform the service for which he is employed; hence, 
 one employing a contractor to do blasting for a cellar was 
 held not to have performed this duty by making inquiry of 
 a law clerk who claimed to have seen a piece of blasting 
 done by the contractor and said it was reasonably well done, 
 but did not inquire as to his ability to do this particular 
 kind of blasting.^'^ 
 
 Sec. 166. Same, Incompetency Known. 
 
 There are many dicta to the effect that the employer is 
 under a legal duty to exercise due care in selecting a con- 
 tractor and that he will be answerable for the contractor's 
 torts if the latter is known to him to be unfit or incompetent 
 for the proper execution of the work in hand or if his 
 manner of doing the work is known to the employer to 
 
 *Hunt V. McNamee (1905), 
 72 C. C. A. 441; 141 Fed. 293. 
 In a New York case it was held 
 that the plaintiff was improperly 
 non-suited, since the defendant 
 had not exonerated himself from 
 liability, by showing that he em- 
 ployed a skilled and competent 
 architect, and that he could right- 
 fully rely upon him both for the 
 preparation of plans and the su- 
 perintendence and inspection of 
 the work and that he did not in- 
 terfere with the architect in the 
 discharge of the duties the latter 
 assumed to perform for the 
 owner. The architect could not 
 be said to be skilled in the busi- 
 
 ness, because the defendant con- 
 sidered him such or the architect 
 represented himself to be such, as 
 by signing the plans. Nor was it 
 enough for the defendant to say 
 that he relied upon the approval 
 of the plans by the building de- 
 partment, as a certificate of ca- 
 pacity or competency of the 
 architect he employed. Fox v. 
 Ireland (1900), 46 App. Div. 541; 
 61 N. Y. Supp. 1061. 
 
 »"Berg v. P.vrsons (1896), &4 
 Ilun (N. Y.), 60; 31 N. Y. Supp. 
 1091 ; reversed on other grounds 
 (1898), 156 N. Y. 109; 50 N. E. 
 957 ; 41 L. R. A. 391 ; 66 Amer. St. 
 Rep. 542; 4 Am. Neg. R. 432.
 
 280 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 be negligent.^^ One case has expressly approved the doc- 
 trine that an employer is liable for the torts of a contractor 
 whom he employs knowing him to be unfit or incompetent 
 for the work or knowing that his manner of doing the work 
 is negligent.^^ But the fact that a building contractor was 
 negligent in respect of the work docs not create a presump- 
 tion that the owners of the property were guilty of negli- 
 gence in having employed him so as to render them liable 
 to a third person for an injury caused by his negligence. ^^ 
 One case apparently expressly rejects the doctrine that an 
 employer of an incompetent independent contractor is liable 
 for the latter's torts, if he knew his unfitness, incompetency 
 or habitual negligence. ^^ 
 
 Sec. 167. Identity of Employer and Contractor. 
 
 The obvious principle that the proprietor will continue 
 liable for his own negligence in any event covers the case 
 where there is a substantial identity between the contractor 
 and his employer, c. g., where the work of a corporation 
 
 '^ Burd. Torts, p. 144, citing 
 Dillon V. Hunt (1884), 82 Mo. 
 155; Brannock v. Elmore (1892), 
 114 Mo. 55; 21 S. W. 451, and 
 cases cited therein, in which case 
 it was held that the employer 
 is liable if he contracts with one 
 to do blasting whom he knows to 
 be in the habit of blasting in vio- 
 lation of an ordinance. 
 
 *" Norwalk Gaslight Co. v. Nor- 
 walk (1893), 63 Conn. 495; 28 
 Atl. 32, cited in Burd. Torts, 
 p. 144. 
 
 *'Hawke v. Brown (1898), 28 
 App. Div. (N. Y.). 37; 50 N. 
 Y. Supp. 1032. 
 
 ='Berg v. Parsons (1898), 156 
 N. Y. 109; 50 N. E. 957; 41 L. 
 
 R. A. 391; 66 Amer. St. Rep. 
 542; 47 Cent. Law J. 237; Burd. 
 Cas. Torts, 406, n. ; 4 Amer. Neg. 
 R. 432, reversing (1895), 84 Hun, 
 60; 51 N. Y. Supp. 1091, where 
 it was expressly held that the 
 employer is bound to select a 
 suitable and competent contractor 
 for blasting. In another New 
 York case it was ruled in the 
 trial court that evidence that the 
 contractor was notoriously incom- 
 petent was inadmissible, without 
 proof that the defendant's con- 
 tracting agents knew of such 
 incompetency. The case was re- 
 versed on appeal. Kelly v. New 
 York (1854), 4 E. D. Smith, 291; 
 11 N. Y. 432.
 
 employer's exceptional LL\.B1L1TY. 
 
 281 
 
 is performed by an operating- company, whose personnel 
 is substantially identical with that of the corporation itself.""*^ 
 
 Sec. 168. Employer Wrongfully Interfering. 
 
 The proprietor may make himself liable by interfering 
 with the contractor and assuming control of the w^ork, 
 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.^'^ Thus, if the proprietor interferes with the 
 
 ^'Jas. McNeil, etc., Co. v. Cru- 
 cible, etc., Co. (1904), 207 Penn. 
 St. 493; 56 Atl. 1067. See ante. 
 Sees. 30, 76, 124. 
 
 *> Gilbert v. Beach (1855). 16 
 N. Y. 423; Hefferman v. Ben- 
 hard (1863), 1 Robt. (N. Y.), 
 432; Jones v. Chantry (1874), 4 
 N. Y. Sup. Ct.. T. & C. 63 ; Butts 
 V. Mackey Co. (1893), 72 Hun, 
 562; 25 N. Y. Supp. 531; (1895), 
 147 N. Y. 715; 42 N. E. 722; 
 Nevins v. Peoria (1866). 41 Ills. 
 502; 89 Am. Dec. 392; Cooper v. 
 Seattle (1897), 16 Wash. 462; 47 
 Fac. 887; 58 Amer. St. Rep. 46; 
 Harding v. Boston (1895), 163 
 Mass. 14; 39 N. E. 411; Lar- 
 son V. Metropolitan Street R. 
 (18921, 110 Mass. 234; 16 L. R. 
 A. 330; 33 Amer. St. Rep. 439; 
 NoRWALK Gas Co. v. Norwalk 
 (1893), 63 Conn. 495; 28 Atl. 
 321; Crenshaw v. Ullman (1893), 
 113 Mo. 633; 20 So. 1077; Birb 
 V. Norfolk, etc., R. (1891). 67 
 Va. 711; 14 S. E. 167; 47 Amer. 
 & Eng. R. Cas. 651; Welsh v. 
 Parrish (1892), 148 Penn. St. 
 599; 24 Atl. 85; Casement v. 
 Brown (1893). 148 U. S. 615; 37 
 
 Law Ed. 582; Smith v. Milwau- 
 kee, ETC., Exchange (1895), 91 
 Wise. 360 ; 64 N. W. 1041 ; 30 L. 
 R. A. 504; 51 Amer. St. Rep. 
 912: Weber v. Buffalo, etc., R. 
 (1897), 20 App. Div. 292; 47 N. 
 Y. Supp. 7; Kelly v. New York 
 (1854), 11 N. Y. 432; Fitzpatrick 
 V. Chicago, etc., R. (1888), 31 
 Ills. App. 649; Burmeister v. New 
 York, etc., R. (1831), 47 N. Y. 
 Super. Ct. 264. Contra, Harper 
 V. Mikwaukee (1872), 30 Wise. 
 365. Cf.. Blake v. Ferris (1851), 
 5 N. Y. 48; 55 Amer. Dec. 304. 
 If the employer interferes with 
 the performance of the work or 
 assumes to assist therein, he may 
 thereby incur liability. Burgess 
 V. Gray (1845), 1 Man. G. & S. 
 578; Fisher v. Rankin (1894), 78 
 Hun, 407; 29 N. Y. Supp. 143; 
 Norwalk Gaslight Co. v. Nor- 
 walk (1893). 63 Conn. 495; 28 
 Atl. 32; Woodman v. Metropoli- 
 tan, etc.. R. (1889), 149 Mass. 
 335; 21 N. E. 482; 4 L. R. A. 
 213: 14 Amer. St. Rop. 427; 6 
 Rail. & Corp. Law J. 72; 12 Am. 
 Neg. Cas. 80; King v. Railroad 
 Co. (1876), 66 N. Y. 181; 23
 
 282 INDEPENDENT CONTRACTORS AND THEIR LIABILiV Y. 
 
 work of the contractor and directs a particular thing to be 
 done, from which injury results, obviously he will be liable, 
 for it is his own personal act.^" "If an owner modifies, in 
 any respect, his contract with those contracting to erect a 
 building, so that in doing any particular act they are obeying 
 the directions of the owner, if that act is negligent and 
 damage ensues, the owner is liable. In such a case it is 
 his duty to see that what is done under his special orders 
 is not negligently done." ^* 
 
 Sec. 189. Same, What Amounts to Interference, 
 
 Even if the contract did so show {%. e., that the employee 
 was an independent contractor) still if the proof in the case 
 showed, as a matter of fact, that the appellant was con- 
 trolling in whole or in part the work and blasting which 
 
 Amer. Rep. 37; Eaton v. Railroad 
 Co. (1871), 59 Me. 520, 532; 8 
 Amer. Rep. 430; Cl.-vrk v. Fry 
 (1858), 8 Ohio St. 358; 72 Amer. 
 Dec. 590; Robinson v. Webb 
 (1875), 11 Bush (Ky.), 464; 
 Hughes V. Railway Co. (1883), 
 39 Ohio St., 461 ; 15 Am. & Eng. 
 R. Cas. 100. See, also, Chicago, 
 etc., Co. V. Myers (1897), 168 
 Ills. 139; 48 N. E. 66. But see, 
 Weber v. Railroad Co., supra; 
 Burke v. Ireland (1901), 26 App. 
 Div. 487; 50 N. Y. Supp. 369; 
 Bohrer v. Harness Co. (1898), 19 
 Ind. App. 489; 45 N. E. 66S; 49 
 N. E. 296. See ante, Sees. 18, 19, 
 52, 65. 
 
 "•Jones V. Chantry (1874), 4 
 N. Y. Super. Ct.. T. & C. 63; 
 Davie v. Levy (1887), 39 La. 
 Ann. 551 ; 2 So. 395; 4 Amer. St. 
 Rep. 225; Reynolds v. Braith- 
 
 waite (1889), 131 Penn. St. 416; 
 18 Atl. 110; Meier v. Morgan 
 (1892), 82 Wise. 289; 52 N. W. 
 174; 33 Amer. St. Rep. 39. 
 
 ^ Bosworth, J., in Hefifernan v. 
 BerJiard (1863), 1 Robt. (N. Y.), 
 436. If the employer, having re- 
 served no right to interfere, does 
 in fact interfere, and the injury 
 complained of is the natural re- 
 sult of such interference, the 
 employer is liable. Huflf. Agcy., 
 2d ed.. Sec. 226, citing Lawrence 
 V. Shipman (1873), 39 Conn. 
 586, 590; Berg v. Parsons (1898), 
 156 N. Y. 109; 50 N. E. 957; 41 
 L. R. A. 391; 66 Amer. St. 542; 
 47 Cent. Law J. 237; Burd. Cas. 
 Torts, 406, n. ; Atlanta, etc.. 
 Railroad v. Kimberley (1893), 87 
 Ga. 161. 168; 13 S. E. 277; 27 
 Amer. St. Rep. 231.
 
 employer's exceptioNxVL liability. 
 
 283 
 
 resulted in tlie injuries complained of, it would be responsi- 
 ble therefor if the negligence was such as to render it in 
 any manner responsible.^" The mere fact that the agent 
 of a proprietor, when asked by an employee of the contrac- 
 tor what he should do, told him to go to a certain portion 
 of the premises and engage in a certain line of work, and 
 the employee was injured in such work, has been held not 
 to show a masterful direction by the proprietor to the em- 
 ployee to work at a place which the proprietor was legally 
 bound to provide as safe.-**^ A mere request by the pro- 
 prietor that the contractor hasten the w^ork wall not be re- 
 garded as an interference wdth the work under the rule.^^ 
 
 Sec. 170. Employer Reserving Control. 
 
 In a leading work,"*- it is said: "One court has gone 
 so far as to hold that where a proprietor contracts for the 
 erection of a building and by the terms of the contract retains 
 control by an architect, under whose direction the contractor 
 agrees to do the work, and also retains the power to change 
 the plan of the work, he will be answerable for the negli- 
 gence of the contractor.-*^ This, however, is not the sound 
 
 "* Louisville, etc., Railroad y. 
 Low (1901), 23 Ky. L. R. 408; 
 63 S. W. 27; 66 L. R. A. 941; 21 
 Am. & Eng. R. Cas. (N. S.), 441, 
 in which the question was held 
 properly submitted to the jury. 
 
 "Glaser v. Michelson (1904), 
 86 N. Y. Supp. 286. Under the 
 New York statute, which im- 
 poses the duty of furnishing or 
 erecting safe and suitable scaf- 
 foldings upon a person directing 
 another to perform labor in alter- 
 ing a building, it was held that a 
 proprietor employing an indepen- 
 dent contractor to instal machin- 
 
 ery and furnishing workmen to 
 assist was not made liable for 
 injuries caused by an insufficient 
 scaffold by the mere fact that one 
 of his foreman in the course of 
 the work directed the workmen 
 of the independent contractor to 
 erect the scaffold. Wingert v. 
 Krakauer (1904), 87 N. Y. Supp. 
 261. 
 
 "Eldred v. Mackle (1901), 178 
 Mass. 1; 59 N. E. 673. 
 
 ''-Thompson on Neg., Sec. 662. 
 
 ''Citing Schwartz v. Giimore 
 (1867). 45 Ills. 455; 92 Am. Dec. 
 227.
 
 284 INDEPENDENT CONTRACTORS AND THEIR LIABILITb^ 
 
 view of the usual building contract. The contractor stipu- 
 lates 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 method and detail, for this might destroy his 
 power so to order the work as to make his contract a profit- 
 able one. The proprietor usually retains control by a skilled 
 architect, not for the purpose of controlling the contractor 
 in his methods, but for the purpose of assuring himself that 
 the results enumerated in the specifications of the contract 
 are reached by the contractor step by step, as the work 
 progresses. There is no sound view under which such a 
 contract can be construed as creating the relation of master 
 and servant between the proprietor and contractor, and the 
 conclusion of the Illinois court can not be upheld and the 
 great weight of authority is to the contrary." '^^ Where 
 the employer is exercising, over the premises on which the 
 stipulated work is done, a right of control which is co- 
 ordinate and concurrent with that vested in the contractor, 
 the owner may be liable, for under such circumstances the 
 nature and extent of the employer's responsibility is de- 
 termined by the principle that a person "must not suffer a 
 nuisance to continue on his premises to the injury of others, 
 although he is not responsible for its creation." ^^ 
 
 ""This question is well gone '' Vogel v. New York (1883), 
 
 over in Rol)inson v. Webb (1875), 92 N. Y. 19; 44 Amer. Rep. 349. 
 
 11 Bush (Ky.), 464, with a resu'.t In one case (reserving control) 
 
 the reverse of that in Schwartz the employer is still the master 
 
 V. Gilmore, supra. To the same and liable as such for the negli- 
 
 efifect are" many cases cited. gence of his servants; in the 
 
 Thomps. Neg., Sec. 662, n. 63. other case (interference) he is
 
 employer's exceptional ll^bility. 
 
 285 
 
 Sec. 171. Same, Partly Doing Work. 
 
 The proprietor himself may become liable for an injury 
 happening through his personal negligence in performing 
 some particular part of the work. If he performs some part 
 of the work and another part is let out to a contractor, then 
 the rule applies that, when several persons are engaged in 
 the same work, in which the negligence or unskillful per- 
 formance of his part by one causes danger to others, in 
 which each must necessarily depend for his safety upon the 
 good faith, skill and prudence of each other in doing his 
 part of the work, it is the duty of each, to the others en- 
 gaged in the work, to exercise the care and skill ordinarily 
 employed by prudent men under similar circumstances."*" 
 The owner of premises who assumes control of building 
 stones as they are delivered, or directs the contractor where 
 to put them, may be held responsible for negligence in hav- 
 ing them placed in an exposed position in the street where 
 they are liable to fall or be thrown down and injure passersby, 
 although the contractor alone would have been responsible 
 except for his interference.^^ The rule exempting contrac- 
 tors from liability for the negligence of a subcontractor 
 or of his servant, is without application where the original 
 
 himself the actor and liable for 
 the natural and probable results 
 of his own acts. Huff. Agcy., 2d 
 ed. Sec. 226. 
 
 "Griffiths V. Wolfram (1875), 
 22 Minn. 185; 16 Am. Neg. Cas. 
 219, n. 
 
 *'Mahar v. Steur (1898), 170 
 Mass. 454; 49 N. E. 741. As in 
 other cases, the negligence may 
 consist in the direct intervention 
 or acts, or omissions of the rail- 
 road company itself, or of its 
 own servants. Thus, it has been 
 
 held that where a contractor lays 
 a railroad track under an agree- 
 ment that those in charge of the 
 construction train shall be em- 
 ployed and paid by tlic company 
 and not by himself, and that he 
 shall have no control of the train, 
 in any manner, the company is 
 liable for injuries to a person em- 
 ployed by him resulting from 
 negligence of tliose in charge of 
 the train. Chicago, etc., R. v. 
 Clark (1889), 26 Nebr. 645; 42 xN. 
 W. 703.
 
 286 INDEPENDENT CONTRACTORS AND THEIR LTAliTLITY. 
 
 contractor and his subcontractor have joint supervision 
 over the work, and co-operation between them is necessary 
 to its completion. Under these circumstances, they are 
 jointly liable to persons injured by reason of their negli- 
 gence.^^ It has been held that the fact that, under the con- 
 tract, the work is to be done under the supervision of the 
 railroad company's chief engineer does not take the case 
 out of the rule of exemption, since this supervision is re- 
 served merely for the purpose of securing direct results and 
 not for the purpose of controlling the contractor in his 
 methods of procedure.'*^ 
 
 Sec. 172. Same, Permitting Use of Defective Appliances. 
 
 It has been said in several Kentucky cases that the em- 
 ployer of an independent contractor consenting to the use 
 of a defective appliance belonging to him by the servants 
 of the contractor is not liable for injuries caused thereby 
 where he is under no obligation to furnish the appliance. ^*^ 
 
 Sec. 173. Employer Accepting Work. 
 
 If the proprietor employs a contractor to do work, not in 
 its nature a nuisance, but which when completed is so by 
 reason of the manner in which the contractor has done it 
 and he accepts the work in this condition, he becomes at 
 once responsible for the existence of the nuisance, upon a 
 principle very similar to that which makes a principal re- 
 sponsible for the unauthorized wTongs committed by his 
 
 ** Baumeister v. Markham untenable. Thomps. Neg., 672, n. 
 
 (1897), 101 Ky. 122; 39 S. W. 133. 
 
 844; 41 S. W. 816; 2 Amer. Neg. '^^ Bush v. Grant (1901), 22 Ky. 
 
 Rep. 363; 72 Amer. St. Rep. 397. L. R. 1766; 61 S. W. 363; Cen- 
 
 '"McKinley v. Chicago, etc., R. tral, etc., Co. v. Grider (1903), 
 
 (1890), 40 Mo. App. 449, which 115 Ky. 745; 74 S. W. 1053; 65 
 
 decision Judge Thompson declares L. R. A. 455; 16 Am. Neg. R. 
 
 610, n.
 
 employer's exceptional llvbility. 
 
 287 
 
 agent, by ratifying them.^* In Pennsylvania it is held that 
 if the employer, at the time he resumes possession of the 
 work, from an independent contractor, knew or ought to 
 have known, or from a careful examination could have 
 known, that there was any defect in the work, he is re- 
 sponsible for any injury caused to a third person by de- 
 fective construction. '^- If independent contractors make 
 a defective railroad crossing over a public highway and 
 the railroad company accepts the work, and in consequence 
 of the defect a third person is killed, the railroad company 
 must pay damages. ^^ 
 
 Sec. 174. Same, What is Acceptance. 
 
 Whether the work has been accepted in such sense as to 
 render the employer responsible thenceforward for the con- 
 
 "BoswELL V. Laird (1857), 8 
 Cal. 49. per Field. J., 68 Amer. 
 Dec. 345 : Beberich v. Ebach 
 (1890). 1.31 Tcnn. St. 165; 18 Atl. 
 1008; Khron v. Brock (18S7), 144 
 Mass. 516; 11 N. E. 748. 
 
 ** First Presbyteri.^n Congre- 
 gation V. Smith (1894), 163 
 Penn. St. 561; 30 Atl. 279; 43 
 Amer. St. Rep. 808; 26 L. R. A. 
 504; 39 Cent. Law J. 452. Ci., 
 Beberich v. Ebach. supra, in 
 which it was stated that if the 
 general contractor for the erec- 
 tion of a building accepts a por- 
 tion of the work from subcon- 
 tractor, with a knowledge of its 
 condition, and the work thus ac- 
 cepted is so defective that it 
 afterwards causes the building, 
 while still in course of erection, 
 to fall upon an adjoining prop- 
 erty, the general contractor will 
 
 be liable for the damages, since 
 an original proprietor would be 
 liable under like circumstances. 
 After the contractor has com- 
 pleted the work and turned i t 
 over to the proprietor, and the 
 proprietor has accepted it in dis- 
 charge of the contract, then, if 
 by reason of the negligent man- 
 ner in which the work has been 
 done, a third person suffers in- 
 jury, the liability, if any. will rest 
 upon the proprietor and not upon 
 the contractor. Curtin v. Somer- 
 set (1891), 140 Penn. .St. 70; 21 
 Atl. 244; 12 L. R. A. 322; 23 
 Amer. St. Rep. 220; Fitzmaurice 
 V. Fabian (1892). 147 Penn. St. 
 199; 23 Atl. 444. 
 
 ^ Taylor, etc.. R. v. Warner 
 (1895)', 88 Tex. 642; 31 S. W. 
 66; 32 S. W. 868.
 
 288 INDEPENDENT CONTRACTORS AND THEIR LIABILLTY. 
 
 dition of the subject-matter is to be determined from the 
 circumstances in evidence; thus, where the general contrac- 
 tor, for the construction of a building, has sublet the work 
 of building the walls, the fact that he used the walls for 
 the purpose of doing the wood-work upon the building and 
 paid the subcontractor for the material furnished and for 
 work done by him, is strong evidence to sliow that he ac- 
 cepted the walls as a performance of the subcontract and 
 that the character of both work and materials was satis- 
 factory to and sanctioned by him.^^ Acts from which the 
 assumption of a practical control over the subject matter 
 of the contract, in its completed state is inferable, will 
 render the employer chargeable with the same measure of 
 responsibility as a formal acceptance of the results ; and on 
 this ground one who had filled and used a stand-pipe for 
 supplying water to his customers was held liable for the 
 flooding of the premises of an adjoining owner on the 
 collapse of the stand-pipe, although the contractor was, at 
 the time, trying to remedy a defect therein so as to make 
 it acceptable to the employer.^^ 
 
 "Bast V. Leonard (1870), 15 
 Minn. 304. Where a laborer was 
 injured by the derailment of a 
 construction train resulting from 
 defects in the track and in rolling 
 stock, the railroad company was 
 held not liable. The decision 
 turned largely on the question 
 whether the particular section of 
 the road on which the accident 
 occurred had been turned over to 
 the company so as to bring the 
 construction train under its con- 
 trol. St. Louis, etc., R. v. WilHs 
 (1888), 38 Kans. 330; 16 Pac. 728; 
 33 Am. & Eng. R. Cas. 397. 
 
 "Read v. East Providence 
 ETC., District (1898), 20 R. L 
 
 574; 40 Atl. 760; 4 Amer. Neg. 
 Rep. 589. When the acceptance 
 and use of a building will con- 
 stitute the acceptance of the work 
 in its construction or repair is a 
 question frequently arising. Au- 
 thorities on it are considered in 
 a note to the recent Maryland 
 case of Pope v. King (1903, Md.), 
 69 Atl. 417; 16 L. R. A. (N. S.), 
 489, in which case a contract for 
 repairs provided that payments 
 should be made on a certificate 
 from the architect, and it was 
 held that use of the building did 
 not make the owner liable to 
 make the payments except when 
 the stipulated certificate was pre-
 
 employer's exceptional LL^BILITY. 
 
 289 
 
 Sec. 175. Same, Knowledge of Condition. 
 
 "In several cases in which the rule (holding the em- 
 ployer liable after acceptance) has been applied, it has been 
 expressly declared or assumed by the courts that the impu- 
 tation of liability is conditional upon the production of 
 evidence which shows that the employer had either actual 
 or constructive knowledge of the dangerous conditions 
 which caused the injury." ^'^ 
 
 Sec. 176. Same, Work Abandoned by Contractor. 
 
 If after an independent contractor to whom the construc- 
 tion or repair of its roadbed has been committed by a rail- 
 road company, abandons the contract to the company, the 
 company completes the work, the company is clearly liable 
 for such work.''^ To a note to a recent case it is said that 
 "it is clear that the immunity" by a general rule "conceded 
 is predicable only in respect to those cases in which the in- 
 jury was received while the stipulated work was in progress. 
 As soon as the control of the subject matter of the contract has 
 
 sented. To somewhat broader 
 effect are many of the cases cited, 
 showing that in general mere oc- 
 cupancy and use will not amount 
 to an acceptance of the work of 
 building or repairing the structure, 
 nor amount to waiver of defects 
 therein, although the circum- 
 stances may be sufficient in a par- 
 ticular case to show that the 
 owner accepts the work. 
 
 " Note to Choctaw, etc., R. v. 
 WiLKER (1906). 16 Okla. 384; 84 
 Pac. 1086 : 46 Am. & Eng. R. Cas. 
 759, in 3 L. R. A. (N. S.), 601, 
 citing First Presbyterian Con- 
 gregation V. Smith (1894), 163 
 Penn. St. 561; 30 Atl. 279; 26 L. 
 
 R. A. 504; 43 Amcr. St. Rep. 
 808; 39 Cent. Law J. 452 (sewer) ; 
 Beberich v. Ebach (1889), 131 
 Penn. St. 165; 18 Atl. 1003 (stone 
 foundation ") : Chart'ers, etc., Co. 
 V. T>ynch (18S8), 118 Pa. 362; 12 
 Atl. 435; BoswELL v. Laird 
 (1857), 8 Cal. 469; 68 Amer. Dec. 
 345; Fanjoy v. Scales (1865), 29 
 Cal. 243 ; Neuman v. Greenleaf, 
 etc., Co. (1898), 73 Mo. App. 326. 
 Contra, as to notice to city of 
 defect in highway, the charter 
 providing for notice in some cases, 
 see Houston v. Isaacs (1387), 68 
 Tex. 116: 3 S. W. 693. 
 
 °' Savannah, etc.. R. v. Phill'ps 
 (1892), 90 Ga. 829; 17 S. E. 82.
 
 290 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 been transferred to the employer, as a result either of the com- 
 pletion or stoppage of the work, he incurs the responsibilities 
 which the law attaches to the exercise of the control ; and the 
 mere fact that the dangerous conditions which caused the in- 
 jury were originally created by the negligence or other torti- 
 ous act of a contractor will not afford him any protection if he 
 permits them to continue after it is in his power to remedy 
 them.^'^ Upon this ground the employer is held liable in 
 the two following classes of cases: (1) Where the danger- 
 ous conditions resulted from the execution of a contract 
 which was essentially one for the construction or formation 
 of a thing which had previously no existence; ^^ (2) Where 
 the dangerous condition arose from the performance of a 
 contract which provided for repairing, or otherwise altering, 
 a thing which had previously existed and had constituted 
 a part of the employer's property." "•* 
 
 "' Citing VoGEL V. New York 
 (1883), 92 N. Y. 10; 44 Amer. 
 Rep. 349. 
 
 °'' Citing cases under (a) post, 
 note 60. 
 
 ^'' Note to Choctaw, etc., R. v. 
 WiLKER (1906), 16 Okla. 384; 84 
 Pac. 1086; 46 Am. & Eng. R. Cas. 
 759, in 1 L. R. A. (N. S.), 596, 
 citing (a) Cleghorn v. Taylor 
 (1856). 18 Sc. Sess. C, 2d series, 
 664; Mclntyre v. Gallach (1883), 
 11 Sc. Sess. C, 4th series, 64; 
 Philadelphia, etc., R. v. Philadel- 
 phia, etc., Co. (1859), 23 How. 
 (U. S.), 209; GoRHAM v. Gross 
 (1878), 125 Mass. 232; 28 Amer. 
 Rep. 234; Mulchey v. Methodist, 
 etc., Society (1878), 125 Mass. 
 487; 15 Am. Neg. Cas. 661, n. ; 
 Khron v. Brock (1887), 144 Mass. 
 516; 11 N. E. 748; Cork v. Blos- 
 som (1894), 162 Mass. 330; 38 
 
 N. E. 495; 26 L. R. A. 256; 44 
 Amer. St. Rep. 362; Sturges v. 
 Theological, etc., Society (1881), 
 130 Mass. 414; 39 Amer. Rep. 
 463 ; McCamus v. Citizens,- etc., 
 Co. (1863), 40 Barb. (N. Y.), 
 381 ; Wilkinson v. Detroit, etc., 
 Works (1889), 7Z Mich. 405; 41 
 N. W. 490; Carey v. Courcelle 
 (1865), 17 La. Ann. 108, sub- 
 contractor's negligence ; Skelton 
 V. Larkin (1894), 82 Hun (N. 
 Y.), 388; 31 N. Y. Supp. 234; 
 (1895), 146 N. Y. 365; 41 N. E. 
 90; Bohrer v. Dienhart, etc., Co. 
 (1898), 19 Ind. App. 489; 49 N. 
 E. 296; Moore v. Townsend 
 (1899), 76 Minn. 64; 78 N. W. 
 880; Bailey v. New York (1842), 
 3 Hill (N. Y.), 532; 38 Amer. 
 Dec. 669; and citing {b) Tarry 
 V. Ashton (1876), L. R., 1 Q. B. 
 D. 314; 7 Am. Neg. R. 157, n. ;
 
 employer's exceptional LIABiLlTi. 291 
 
 Sec. 177. Contractor Generally Exempt. 
 
 The general rule is that after the contractor has turned 
 the work over and it has been accepted by the proprietor 
 the contractor incurs no further liability to third persons by 
 reason of the condition of the work; but the responsibility, 
 if any, for maintaining- or using it in its defective condition, 
 is shifted to the proprietor. Hie contractor remains liable, 
 if at all, only to the proprietor for a breach of his contract."^ 
 
 Silverton v. Marriott (1888), 59 tractors after the work is com- 
 
 L. T. (N. S.). 61; Bebcrich v. pleted, turned over and accepted, 
 
 Ebach (1890), 131 Penn. 165; 18 applies at least if such work is 
 
 Atl. 1008. not per se imminently dangerous. 
 
 Ul 
 
 For note, see 26 L. R. A. 504. Swan v. Jackson (1889), 55 Hun 
 The general rule exempting con- (N. Y.), 194; 7 N. Y. Supp. 821.
 
 CHAPTER VII. 
 
 Employer's Liability to His Own Servants. 
 
 SECTION 
 
 180. General rule as to liability 
 for independent contrac- 
 tor's act. 
 
 Whether person injured was 
 servant or independent 
 contractor. 
 
 Negligence of contractor. 
 
 Same — Supplying appliances. 
 
 Same — Supplying scaffolds. 
 
 Same — Supplying elevators. 
 
 Same — Supplying derricks. 
 
 Same — Supplying railroad 
 bridges. 
 
 Employer's duty to inspect. 
 
 Assuring safety of place. 
 
 Defect known to employer. 
 
 181. 
 
 182. 
 183. 
 184. 
 185. 
 186. 
 187. 
 
 188. 
 189. 
 190. 
 
 SECTION 
 
 191. Question for jury. 
 
 192. Relation between employer 
 
 and contractor. 
 
 193. Same — Master's duty to fur- 
 
 nish contractor safe tools, 
 etc. 
 
 194. Same — Discharge of fran- 
 
 chise. 
 
 195. Negligence of contractor's 
 
 servants. 
 
 196. Same — Whether fellow-serv- 
 
 ants. 
 
 197. Negligence of servants of 
 
 lessors and others. 
 
 198. Liability regarding subcon- 
 
 tractors. 
 
 Sec. 180. General Rule as to Liability for Independent 
 Contractor 's Acts. 
 
 "It is apparent that the rule that a master is not negli- 
 gent in omitting to test apphances if he purchases them from 
 a reputable dealer or manufacturer, virtually creates an ex- 
 ception pro tanto to the operation of the doctrine of non- 
 delegable duties ; for although the rationale of the decisions 
 is the absence of negligence, the rule virtually amounts to 
 an assertion that a master may, to some extent, evade re- 
 sponsibility for the non-performance of one of these duties 
 (supplying proper instrumentalities) by procuring them 
 from an independent contractor. Singularly enough, this 
 292
 
 employer's liability to nis own servants. 293 
 
 aspect of the rule does not seem to have thus far attracted 
 the attention of the courts. As rej[^ards the cases in which 
 the master's Habihty for the default of an independent con- 
 tractor in discharging a non-delegable duty is in question, 
 they are so conflicting as to render it impossible to formu- 
 late any definite doctrine on the subject." ^ The theory that 
 a master is entitled, as a matter of law, to rely on the quality 
 of appliances obtained from a reputable manufacturer should 
 be rejected because such theory is essentially inconsistent 
 with the doctrine of the master's own non-delcgable duties, 
 for as between master and servant, this doctrine should al- 
 ways be regarded as controlling whenever it comes in con- 
 flict with that which declares that the employer of an 
 independent contractor is not liable for his negligence, the 
 situation then being materially different from that presented 
 when a stranger is the injured party, inasmuch as the former 
 of those doctrines has no application to such cases, except 
 where statutory duties are involved. Another reason for 
 rejecting the theory stated, is that, according to the rule 
 adopted by most of the authorities, the injured servant has 
 ordinarily no right of action against the manufacturer and, 
 if he can not recover from the master, he can not recover 
 at all. Assuming the defect which caused the injury to have 
 been discoverable by the exercise of proper care, some one 
 ought, in fairness, to be held responsible for its exercise, and 
 it is a mere mockery of justice to absolve the master simply 
 on the ground that he was justified in trusting to the skill 
 and diligence of a person who, if that skill and diligence 
 were, as a matter of fact, not exercised, is not liable to the 
 servant because there is no privity of contract between 
 them.- In a number of Missouri cases it is asserted that 
 
 'Labatt on Master & S., p. 1630, "Labatt, Master & S.. pp. 327- 
 
 from whose most excellent discus- 8, citing Ci-F-velaxd. etc., R. v. 
 
 sion this chapter is largely de- Berry (1899), 152 Ind. 607; 53 
 
 rived. N. E. 415; 46 L. R. A. 3S, and
 
 294 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 a master can not relieve himself of the duty of exercising 
 ordinary care to provide reasonably safe appliances for his 
 servants, by the employment of superintendents or inde- 
 pendent contractors to provide such appliances.^ Contrary 
 to what is probably the general rule, it has been held in a 
 Virginia case that where it is the custom of railroad compa- 
 
 note. In a Federal case the 
 master has been held, unqualified- 
 ly, not relieved of a positive per- 
 sonal duty by letting the work to 
 a contractor ; the plaintiff having 
 been injured by the fall of a 
 heavy beam due to the negligence 
 of the contractor's servants in 
 leaving it loose while repairs 
 were being made. Toledo, etc., 
 Co. V. Bosch (1900), 41 C. C. A. 
 482; 101 Fed. 530. An employer 
 has been held liable for defects 
 in a scaffold which had been con- 
 structed by a contractor for the 
 brick work on a building, and 
 which gave way under a stone 
 setter, and the general principle 
 was laid down that it does not 
 matter whether the instrumental- 
 ity furnished to an employee was 
 constructed by the master himself 
 or was olitained by gift or 
 through a right arising from an 
 established custom. McBeath v. 
 Rawle (1901), 93 Ills. App. 212. 
 See, also, Sec. 99, ante. 
 
 ' Herder v. Buck, etc., Co. 
 (1896). 136 Mo. 3; 37 S. W. 115; 
 Burnes v. Kansas City, etc., R. 
 (1895), 129 Mo. 41 ; 31 "s. W. 347; 
 Bartley v. Trorlicht (1892), 49 
 Mo. App. 214, citing Northern, 
 etc., R. V. Herbert (1886). 116 
 U. S. 647; 29 Law Ed. 758; 6 
 Sup. Ct. 590. Cf., Sackewitz v. 
 
 American, etc., Co. (1899), 70 
 Mo. App. 144; Leslie v. Rich 
 Hill, etc., Co. (1892), 110 Mo. 
 31; 19 S. W. 308, under statute. 
 "For a general review of the 
 cases bearing upon the question 
 whether a master can, by employ- 
 ing a contractor to perform one 
 or more of the duties which he 
 owes to his servants, relieve him- 
 self from liability for their non- 
 performance, the reader is referred 
 to Sees. 558 and 559 of Labatt on 
 Master and Servant. The deci- 
 sions are conflicting, but the 
 weight of authority would seem 
 to be distinctly in favor of the 
 doctrine that a master cinnot 
 escape his responsibility by such 
 a delegation of his duties. This, 
 it is submitted, is the only doc- 
 trine v/hich is logically tenable, 
 and which can be reconciled with 
 general principles. Below are 
 collected a few more cases which 
 support that doctrine, but which 
 were overlooked when the above 
 mentioned work was being com- 
 piled." Note by Mr. Labatt to 
 Anderson v. Fleming ( 1903, 
 Ind.), 66 L. R. A. 153, citing 
 inter alia, The Magdaline (1898), 
 91 Fed. 798, shipmaster liable to 
 servant injured by negligence of 
 contractor engaged in repairing 
 ship.
 
 employer's liability to his own servants. 295 
 
 nies to have certain work, not essentially hazardous, done 
 by independent contractors, and ordinary care is used in se- 
 lecting such contractors, the railroad companies can not be 
 held responsible for injuries resulting to its employees 
 through the negligence of such independent contractors 
 since the railroad company is not an insurer of the safety 
 of its employees, but is bound only to exercise ordinary care 
 for their safety.'* 
 
 Sec. 181. Whether Person Injured was Servant or Inde- 
 pendent Contractor. 
 
 The question whether the wrong-doing or injured person 
 was an independent contractor or a servant has arisen in 
 quite a few cases. Thus, a city which held title to, and right 
 of, possession of a cemetery within its limits, which was 
 under the control and management of trustees chosen by 
 the citizens, and removable for cause by the city council, 
 was held liable to an employee working under the order of a 
 superintendent, who, with the employee, was appointed by 
 the trustees, subject to the approval of the city council, for 
 an injury caused by the negligence of the superintendent 
 and trustees.^ Minor children and their father, who hires 
 them to work in a mine under a contract that the children 
 shall cut coal at a specified price, the father to furnish the 
 tools, powder, etc., and the bank boss to have control of 
 the work, are held employees of the mine operator and not 
 independent contractors and the mine operator is lial^le under 
 the Alabama Employer's Liability Act.*' Where a city was 
 
 * Norfolk, etc.. R. v. Stevens * Toledo v. Cone (1884), 41 
 
 (1899), 97 Va. 631; 34 S. E. 525; Ohio St. 149. See. generally, 
 
 46 L. R. A. 367, which decision Sees. 31. 110, ante. 
 
 has been criticised as being "con- ' Drennan v. Smith (1896), 115 
 
 trary to sound principle and not Ala. 396; 22 So. 442. 
 worthy to be cited." Thomps. 
 Neg., Sec. 3737, note 49.
 
 296 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 constructing a water-pipe trench and a laborer, employed 
 under the direction of the city's inspector and superinten- 
 dent, was assigned to the excavation of a twelve-foot section 
 of the trench, but he had no authority or discretion as to 
 his work, he was not an independent contractor and the city 
 was bound to exercise reasonable care to provide for his 
 safety against the caving in of the banks while he was at 
 work."^ 
 
 Sec. 182. Negligence of Contractor. 
 
 Whether the employer is liable to his own servants for 
 injury, growing out of the negligence of the contractor, is 
 a much-mooted question. Perhaps no general rule can be 
 laid down. A few examples and authorities are given in 
 this and the succeeding sections. Thus, where a hogshead 
 thrown from a truck in charge of an independent contractor, 
 injured the plaintiff who had been sent with the horse, the em- 
 ployer was held not liable.^ The position of the South Caro- 
 lina Supreme Court is not clear, though apparently the master 
 is not absolved from liability for the contractor's negligence.^ 
 
 Sec. 183. Same, Supplying Appliances. 
 
 In New York the doctrine is established that an employer 
 is not liable to a servant for the condition of a structure 
 erected for the use of the servant by an independent con- 
 tractor. "While recognizing the antagonism between this 
 doctrine and that of the non-delegable quality of certain 
 duties, the New York Court of Appeals contents itself with 
 declaring the master's non-liability and gives no reason for 
 
 ' Fort Wayne V. Christie (1901), Silv. Ct. App. (N. Y.), 575, re- 
 156 Ind. 172; 59 N. E. 385. versingr 37 Hun, 642. 
 
 *Brophy v. Bartlett (1888), 1 " Conlin v. Charleston (1868), 
 
 15 Rich. L. 201.
 
 employer's liability to his own servants. 297 
 
 its opinion." ^*^ The same distinguished author states ex- 
 pressly that "he has no hesitation in saying that he con- 
 siders the cases absolving the master from responsibility for 
 the negligence of an independent contractor in this connec- 
 tion (i. e., as to safe appliances furnished by such contractor) 
 have been decided upon a false theory of the circum- 
 stances involved. It is a contradiction in terms to speak of 
 an absolute duty as being susceptible of delegation. If it 
 can be delegated in any particular instance, it ceases, ex 
 hypotlicsi, to be absolute. That this is a necessary corollary 
 of the theory that a duty is absolute has been fully recog- 
 nized in many English and American cases, where the com- 
 plainant was a stranger: (a) Why a different principle 
 should be applied where the injury is received by a servant 
 of the party subject to the duty is not apparent, and no court 
 has yet furnished any reason for making such a distinction. 
 On the other hand there is a consideration which points very 
 strongly, if not conclusively, to the conclusion that the case 
 of a servant is precisely the one in which the courts should 
 be most unwilling to allow the interposition of a contractor 
 to shield the master. ... A manufacturer who sup- 
 plies a chattel to another person, to be used in his business, 
 is not bound to indemnify the servants of the vendee for 
 injuries which they receive owing to defects in the chattel. 
 (b) Manifestly the result of applying concurrently both 
 this principle and also the principle that the master who 
 purchases an appliance from a manufacturer is, as regards 
 his servants, entitled to rely upon its being fit for the pur- 
 poses contemplated, unless there is something to put him on 
 inquiry as to its condition, is that those servants are usually 
 
 '^•Labatt, Master & S.. 1632-2, Wittenberg v. Friederich (1896), 
 
 citing Devlin v. Smith (18S1), 8 App. Div. 433; 40 N. Y. Supp. 
 
 25 Hun (N. Y.), , affirmed 895. But see, VVannamaker v. 
 
 (1882), 89 N. Y. 470; 42 Amer. Rochester (1892), 17 N. Y. Supp, 
 
 Rep. 311. To the same effect: 321.
 
 298 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 left remediless if they are injured by reason of some dan- 
 gerous property of the appliance. . . . Such a con- 
 clusion is simply preposterous and disgraceful to any system 
 of jurisprudence, (c) . . . Either the vendor should 
 no longer be allowed to shelter himself . . . or it 
 should be regarded as an implied term in the contract be- 
 tween the master and his servants that all appliances ob- 
 tained from parties not in his service are free from all 
 defects which can be prevented by the exercise of that de- 
 gree of care and skill which is required of persons follow- 
 ing the same line of business as the vendor. The latter 
 
 would seem to be the most desirable. 
 The master would still have his action over against the 
 vendor." ^^ 
 
 " Labatt, Master & S., Sec. 559, 
 citing under (a) Hole v. Sit- 
 
 TINGBOURNE, ETC., R. (1861), 6 
 
 Hurd. & N. 488; Tarry v. Ash- 
 ton (1876), L. R., 1 Q. B. D. 314; 
 Curtis v. Kiley (1891), 153 
 Mass. 123; 26 N. E. 421; Burd. 
 Cas. Torts, 403; Wilkinson v. 
 Detroit, etc.. Works (1889), 73 
 Mich. 405; 41 N. W. 490; 1 
 Shearm. & Redf. Neg., Sees. 14, 
 176; under (b) note to 46 L. R. 
 A. 38-45, 107-119; under (c) 16 
 L. Q. R. 189; 36 Can. L. J. 203. 
 The Pennsylvania cases are in 
 conflict regarding the employer's 
 Hability for the negligent con- 
 struction of appliances, etc., by an 
 independent contractor. The ear- 
 lier cases exempt the employer, 
 while the later cases say he is not 
 relieved of liability simply by rea- 
 son of his having delegated that 
 duty to an independent contractor. 
 Mr. Labatt says (p. 1634) : "The 
 more recent expressions of opin- 
 
 ion appear to embody the correct 
 doctrine." Ardesco, etc., Co. v. 
 Gilson (1870), 63 Pa. 146; Painter 
 V. Pittsburgh (1863). 46 Pa. 213. 
 Contra, Trainor v. Philadelphia, 
 etc., Co. (1890), 137 Pa. 148; 20 
 Atl. 632; Ortlip v. Philadelphia, 
 etc., Co. (1901), 198 Penn, St. 
 586; 48 Atl. 497. The rule that 
 a master discharges his duty to 
 a servant by furnishing an appli- 
 ance made by a reputable manu- 
 facturer is held, in Massachusetts, 
 applicable only where it appears 
 that the appliance was made for 
 the use to which it was put. 
 Slattery v. Walker, etc., Co. 
 (1901), 179 Mass. 307; 60 N. E. 
 782. Where the owner of a 
 machine, not in its nature dan- 
 gerous, turns it over to another's 
 use, in apparent good order, he 
 is not liable for injuries resulting 
 at a later date to such other's 
 employee, whether from undis- 
 covered defects in such machine,
 
 employer's liability to his own servants. 
 
 299 
 
 Sec. 184. Same, Supplying Scaffolds. 
 
 In an action by a workman against his employer for in- 
 juries caused by the falling of a staging on which he had 
 been sent to work by his employer, where it appeared that 
 the staging was insecure because constructed of poor ma- 
 terial and that it was built by those who afterwards became 
 plaintiff's fellow-servants but not under defendant's direct 
 supervision, although he superintended the work generally, 
 the defendant was held liable.^- In Devlin v. Smith ^^ 
 the lower court says: "The employer can not escape the 
 responsibility of exercising due care by delegating that duty 
 to an agent but he can employ a competent and unexcep- 
 tionable contractor to construct tools, machinery, etc., and 
 such conduct would be the exercise of that care which the 
 law requires. The employment of a contractor is not a 
 delegation of the employer's duty. It is, when properly 
 done, an exercise of the care and a fulfillment of the duty 
 which the law exacts." On appeal, it was stated that the 
 one constructing the scaffold was not defendant's agent or 
 servant, "but an independent contractor for whose acts or 
 
 or from its misuse; and the case 
 is tlie same, though the one to 
 whom it is turned over is an in- 
 dependent contractor who uses it 
 in executing a contract with the 
 owner. Robideaux v. Herbert 
 (1907), 118 La. 1089; 43 So. 887; 
 12 L. R. A. (N. S.), 632 (head- 
 note by court, condensed), citing 
 under case note Gagnon v. Dana 
 (1898), 69 N. H. 264; 39 Atl. 982; 
 41 L. R. A. 389; 76 Amer. St. 
 Rep. 170; Coughlin v. Gillison 
 (1898), 68 L. J. Q. B. (N. S.), 
 147; Bl.'ik.more v. Bristol, etc., R. 
 (1858), 8 El. & Bl. 1035; McCar- 
 thy V. Young (1861), 6 Hurl. & 
 
 N. 329; cf., Erskine v. Chino, 
 etc., Co. (1895), 71 Fed. 270. 
 
 "Arkerson v. Denison (1875), 
 117 Mass. 407. Where a staging 
 was constructed as plaintiff's fel- 
 low-servant suggested to defend- 
 ants to which the defendants 
 assented, it was held to be their 
 duty to furnish proper material, 
 failing in which they were liable 
 for injuries to plaintiff by a fall 
 of the scaffold due to the de- 
 fective material. Dunleavy v. 
 Sullivan (1908, Mass.), 85 N. E. 
 866. 
 
 "(1881), 25 Hun, 206; (1882). 
 89 N. Y. 470; 42 Amer. Rep. 311.
 
 300 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 omissions defendant was not liable." ^^ The only English 
 decision directly in point seems to be one wherein Justice 
 Denman, sitting alone, held that a servant could not recover 
 where a staging, which gave way under him, had been put 
 up by an independent, competent contractor. ^^ 
 
 Sec. 185. Same, Supplying Elevators. 
 
 A New Jersey case holds that a servant injured by an 
 elevator which was in the course of construction by an inde- 
 pendent contractor on the master's premises could not re- 
 cover; "but here there was no delegation of a duty in the 
 proper sense of the phrase, and the circumstances were gov- 
 erned by the principle that the dangerous agencies were, 
 for the time being, quite out of the control of the plaintiff's 
 master." ^*' On the other hand, a Missouri case holds that 
 a building owner is not absolved from the exercise of ordi- 
 nary or reasonable care by entrusting the care of an elevator 
 in such building to an independent contractor through whose 
 negligence an injury happened to the owner's servant.^"^ 
 
 " Citing Blake v. Ferris 
 (1851), 5 N. Y. 48; 55 Amer. Dec. 
 304. 
 
 '•^ Kiddle v. Lovett (1885), L. 
 R.. 16 Q. B. D. 605 ; 34 Wkly. R. 
 518. But see, Wilson v. Merry 
 (1868), L. R. 1 H. L. 326; 19 
 L. T. (N. S.), 530; Hardaker v. 
 Idle District, etc. (1896), 1 Q. B. 
 335; Groves v. Wimborne (1893), 
 2 Q. B. 402. In Scotland it is 
 held that if the defect in an ap- 
 pliance (a scaffold) could have 
 been discovered by the exercise 
 of reasonable care, a master is 
 answerable for injuries caused by 
 
 its unsafe condition, even though 
 the master, himself unskilled, in- 
 trusted the furnishing of the ap- 
 pliance to an independent con- 
 tractor. MacDonald v. Wyllie 
 (1898), 1 Sc. Sess. Cas., 5th series, 
 339. And see, Stephens v. Thurso 
 Police Commissioners (1876), 3 
 Sc. Sess. Cas., 4th series, 542. 
 
 ''Conway v. Furst (1895), 57 
 N. J. L. 645; 32 Atl. 330; there 
 is also an attempt to classify this 
 danger with ,the "assumed risks." 
 
 "Bartley v. Trorlicht (1893), 
 49 Mo. App. 214. See Sec. 38a.
 
 employer's liaijility to nis own servants. 
 
 301 
 
 Sec. 186. Same, Supplying Derricks. 
 
 In a leading case in Rhode Island an independent con- 
 tractor negligently so constructed a crane that the hauling 
 chains were not properly insulated from the current of elec- 
 tricity which operated it ; the employer was held responsible 
 although the appliance became dangerous after being put 
 into use.^^ In a Texas case it is declared that a railroad 
 company's duty to an employee to furnish safe appliances 
 can not be affected by a contract between it and a third 
 person, to which such employee was not a party, the con- 
 tract giving such person control of its cars and requiring 
 him to make all repairs and such company has also been 
 held liable where a derrick used by a contractor to unload 
 stones from a car was inadequately secured and fell on a 
 brakeman.^^ 
 
 Sec. 187. Same, Supplying Railroad Bridges. 
 
 The New York court has rejected the contention that a 
 railroad company acquiring, by purchase, an additional line 
 already built and in operation, of which an existing bridge 
 
 ^ MoRAN V. Corliss, etc., Co. 
 (1899), 21 R. I. 386; 45 L. R. A. 
 267; 43 Atl. 874. 
 
 '°Gulf, etc., R. V. Shearer 
 (1892), 1 Tex. Civ. App. 343; 21 
 S. W. 133. See, also, Gulf, etc., 
 R. V. Delaney (1900), 22 Tex. 
 Civ. App. 427; 55 S. W. 538, in 
 which case a contract for ballast- 
 ing a railroad track provided that 
 "the contractor will carry on and 
 prosecute the work in such a 
 manner"' as the engineer of the 
 railroad company shall direct, and 
 that such engineer had a right to 
 have discharged any workman not 
 doing his work properly, and the 
 
 company was held liable for the 
 death of one of its employees, 
 caused by a defect in the attach- 
 ments of a derrick used by the 
 contractor in performing such 
 work, allowing a wire cable to 
 sag down over the track. A Min- 
 nesota case holds that the erec- 
 tion, fastening and operation of a 
 material hoist constitutes a mere 
 detail of the general work, and 
 the apparatus is not an appliance, 
 and hence a servant assumes the 
 risk incident to its operation. 
 Gittcns V. Wni. Porter Co. (1903), 
 90 Minn. 512; 97 N. W. 378.
 
 302 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 forms a part, owes no obligation to its employees running 
 trains over such bridge, except to keep it in as good con- 
 dition as when it was bought ; and has a right, without neg- 
 ligence, to assume the sufficiency of its original plan and 
 construction; and denied the application of the doctrine of 
 Devlin v. Smith ^° for two reasons: (1) Because the de- 
 fendant here bought the bridge of another railroad Company 
 and without any selection or choice of the builder, such as was 
 made in the scaffold case, and (2) because the bridge, unlike 
 the scaffold, was not a temporary but a permanent structure, 
 intended for continuous use through the years. The court 
 said : "Assuming, as we must, what the jury could have 
 found from the evidence, . . . that the bridge, when 
 purchased, was unsafe and dangerous by reason of defects 
 in its original plan and construction, and which defects were 
 obvious to the eye of a skilled inspector, and easily and 
 surely ascertainable by a structural analysis determining 
 its factor of safety — it was negligence on the part of the 
 defendant to continue its use in the face of such obvious 
 defects without ascertaining their effect upon its strength 
 and capacity. The defects pointed out by the evidence were 
 almost all obvious to the eye of a competent examiner. The 
 learned counsel for appellant insists that the defendant did 
 employ suitable and competent persons to inspect the bridge, 
 who did make the usual and customary examinations, and 
 that there is no dispute about that in the evidence. But it 
 is plain that the inspection described in the proofs as cus- 
 tomary is that made by a company which has built its own 
 bridges. In such case it already knows the plans and mode 
 of construction and is already responsible for the lack of 
 reasonable care in either the design or its execution. The 
 subsequent inspection is directed only to its perfect repair, 
 and to indications of weakness. But where the company 
 
 ="(1882), 89 N. Y. 470; 42 Amer. Rop. 311.
 
 employer's liability to his own servants. 303 
 
 does not know either the safety of the plan or the prudence 
 of the construction, because it has purchased it completed 
 and in use, and knows nothing of the skill or want of skill 
 of the builder, an inspection which takes no heed of that 
 inquiry when defects are obvious, and lack of safety is indi- 
 cated and may be easily ascertained, is not sufficient. Of 
 course, the test of actual previous use goes for something. 
 It might justify a continuance of that use until a competent 
 inspection could reasonably be made, but would not justify 
 a neglect when it was made to observe and remedy obvious 
 defects and elements of danger, because existing in the 
 original plan and an omission to learn, by a well-understood 
 process, whether in view of its apparent defects, it had the 
 ordinary surplus of strength." -^ 
 
 In a Virginia case, a train went through one of the spans 
 owiner to the fact that the falsework had been removed too 
 soon. On the general ground that the reconstruction of a 
 railroad bridge, without the interruption of traffic, is not an 
 essentially hazardous undertaking, but may be effected with 
 entire safety if ordinary care is used, the company was held 
 not liable for such negligence of the reputable contractor 
 employed to do the work.^^ 
 
 Sec. 188. Employer's Duty to Inspect. 
 
 Similar principles (of non-liability) are sometimes ap- 
 plied in favor of a person who engages the services of an 
 independent contractor to erect a structure, the rule being 
 that one who, having no knowledge of scaffold building, 
 employs a builder whom l-.e knows to be skillful and ex- 
 perienced to erect a scaffold for the use of his employees, 
 does not owe them a duty of inspection, the proper per- 
 
 =^VosBURGH V. Lake Shore, *= Norfolk, etc.. R. v. Stevens 
 
 ETC., R. (1884V 94 N. Y. 374; 46 (1899), 97 Va. 631; 46 L. R. A. 
 Amer. Rep. 148. 367; 34 S. E. 925.
 
 304 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 formance of which would have disclosed the defect. ^^ In 
 a Michigan case, in which the extent of the employer's duty 
 to test the strength of a chain was discussed, the court first 
 laid down the general rule to the same effect that railroad 
 companies "can not be held responsible for hidden defects 
 in tools and appliances, if they have used reasonable care 
 in procuring them ; but they are not absolved from the duty 
 of testing or inspecting because they bought in the open 
 market of reputable dealers, or employed competent work- 
 men to construct them. If any defect exists which a careful 
 inspection or test would have discovered, the master must 
 be held to have knowledge of such defect and to be respon- 
 sible for it." The court then says: "It is urged that a 
 railroad has done all it can do, when it buys of reputable 
 dealers material and machinery for use by its employees; 
 that it can not, when buying, inspect, personally, every link 
 of a chain to see whether it is properly welded. But it 
 can do this personally, as well as it can personally do any 
 act involved in the operation of its road. It not only can, 
 but its duty requires that it shall, before it is placed on a 
 car, cause every link of every chain used by its employees, 
 in places or under circumstances involving danger in case 
 the chain should break, to be carefully tested and inspected 
 by some one competent to judge of its fitness for the utmost 
 strain that is likely to come upon it. If this duty had been 
 performed in this case, the cold weld in the chain would 
 
 ^ 1 Labatt, Master & S., p. 326. 
 citing Devlin v. Smith (1882), 
 89 N. Y. 470; 42 Amer. Rep. 311, 
 "as explained in"' Vosburgh v. 
 Lake Shore, etc.. R. (1884), 94 
 N. Y. 374; 46 Amer. Rep. 148; 
 followed in Butler v. Townsend 
 (1891), 126 N. Y. 105; 26 N. E. 
 1017. Where an appliance, as a 
 float, has been constructed b}- a 
 
 skillful and experienced builder, 
 the master is not liable to his 
 servant for an injury received in 
 its construction, and is at liberty 
 to accept the same w^ithout in- 
 spection, was laid down in Wit- 
 tenberg V. Friederich (1896), 8 
 App. Div. 433: 40 N. Y. Supp. 
 895; cited in note 8, Labatt, Mas- 
 ter & S.. p. 326.
 
 employer's liabimty to his own servants. 
 
 305 
 
 very likely have been discovered, and the chain condemned 
 as unfit for its intended use." ^"* 
 
 Sec. 189. Assuring Safety of Place. 
 
 The duty of a master to provide his servant with a safe 
 place to work, it is said in a recent Illinois case, is a primary 
 and absolute duty such as can not be delegated or assigned 
 so as to exonerate the master from exercising care to see 
 that it is properly performed. It cannot, therefore, be 
 assigned to an independent contractor.^-"' But in the same 
 state, where a street car conductor was thrown against a 
 pile of stones negligently left near the track by a contractor 
 engaged to repair the pavement between the rails, the con- 
 ductor was not entitled to damages from his employer for 
 resulting injuries.-" In England it has been held that 
 
 *' Morton v. Detroit, etc., R. 
 (1890), 81 Mich. 423; 46 N. W. 
 Ill, cited and quoted in Labatt. 
 Master & S., p. 327, note 10. The 
 United States Supreme Court 
 recognizes the obligation of the 
 master to make at least some 
 kind of an examination or inspec- 
 tion. It lays down the rule that 
 if a railroad company after pur- 
 chasing an engine from a manu- 
 facturer of recognized standing, 
 made such reasonable examina- 
 tion as was possible without tear- 
 ing the machine to pieces, and 
 subjected it fully to all the ordi- 
 nary tests which are applied for 
 determining the efficiency and 
 strength of completed engines, 
 and such examination and tests 
 disclosed no defect, it could not, 
 in an action by an employee of 
 another company be adjudged 
 guilty of negligence because there 
 
 was a latent defect that subse- 
 quently caused the destruction of 
 the engine and injury to him. 
 Richmond, etc., R. v. Elliott 
 (1893). 149 U. S. 266; 37 Law 
 Ed. 728; 13 Sup. Ct. R. 837. 
 
 ■^ Chicago, etc., R. v. Eaton 
 (1902). 194 Ills. 441; 62 N. E. 
 784; 88 Amer. St. Rep. 161. 
 
 ^ North Chicago Street R. v. 
 Dudgeon (1896). 69 Ills. App. 57; 
 (1900), 184 Ills. 477; 56 N. E. 
 796. Several New York cases 
 seem to uphold the same doctrine. 
 Thus, a servant of the owners of 
 a building under construction can 
 not maintain an action where he 
 received an injury by reason of 
 the negligence of the employees 
 of contractors for the masonry of 
 the building in overloading one of 
 the upper floors with brick and 
 stone, McEnanny v. Kyle (1887), 
 14 Dalv, 268; where the servant
 
 306 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 neither the master himself nor an employee for whose acts 
 it is sought to hold him responsible can be held negligent 
 on the ground that they relied upon the assurance of an 
 independent contractor that the place of work into which 
 they were sending their servants was a safe one.^' 
 
 Sec. 190. Defect Known to Employer. 
 
 "Whichever of the antagonistic views of the nature of 
 the master's liability is taken, it is manifest that the general 
 principles, which determine the extent of the responsibility 
 of an employer for the acts of an independent contractor, 
 involve the corollary that the owner of premises can not 
 dictate that his building shall be constructed of improper 
 materials or upon an unsafe plan, and escape liability for 
 injuries caused thereby because he made a contract with a 
 third person to build it; nor can he, with knowledge of a 
 weakness or defect threatening the strength of the building, 
 set a man at work immediately under it and shift all re- 
 sponsibility upon the builder." ^^ 
 
 of the owners of a building being 
 constructed was injured by the 
 fall of a heavy post, the accident 
 being due to the negligent con- 
 struction of the building, he can 
 not recover against such owner, 
 Mickee v. Walter A. Wood, etc., 
 Co. (1894), n Hun (N. Y.), 559; 
 28 N. Y. Supp. 918. 
 
 =" Moore v. Gimson (1889), 5 
 Times L. R. 177; 58 L. J. Q. B. 
 169 ; Mclnnulty v. Primrose 
 (1897), 24 Sc. Sess. Cas., 4th 
 series, 442. Where a brakeman 
 was killed by reason of stepping 
 into a trench dug along a rail- 
 road track for the purpose of 
 putting in target signals, his em- 
 
 ployer railroad company was neg- 
 ligent although it may have been 
 dealing with an independent con- 
 tractor for putting in such signals. 
 Southern Railway Co. v. Newton 
 (1908), 108 Va.'ll4; 51 Am. & 
 Eng. R. Cas. (N. S.), 528; 60 
 S. E. 625. 
 
 ^ Meier v. Morgan (1892), 82 
 Wise. 289; 52 N. W. 174; 33 
 Amer. St. 39. A master may be 
 liable for injury to a servant 
 caused by an obstruction placed 
 l)y an independent contractor in 
 a walk which the servant was re- 
 quired to use if the master or 
 any servant whose duty it was to 
 look after the safety of the way,
 
 employer's liability to his own servants. 307 
 
 Sec. 191. Question for Jury. 
 
 In a Canadian case the court discussed the employer's 
 liability on the assumption that it was for the jury to de- 
 termine whether the handles of a box designed to sustain 
 a heavy weight should have been inspected by a competent_ 
 person before it was put into use.^'' 
 
 Sec. 192. Relation Between Employer and Contractor. 
 
 W hen a railroad company fails to exercise reasonable 
 diligence in furnishing its employees a safe place in which 
 to work, though the defects which make the place unsafe 
 exist in the appliances of an independent contractor, and an 
 employee of the railroad company is injured thereby, the 
 railroad company is liable; e. g., a contractor ballasting 
 a track by means of derricks on each side of the track, which 
 were insecurely anchored, thus allowed a wire cable, across 
 the track, to sag and injure an employee ; but, strictly, the 
 liability was placed on the ground that under the contract, 
 giving the chief engineer of the railroad company control 
 of the work, the contractor was not an independent 
 contractor.^" 
 
 Sec. 193. Same, Master's Duty to Furnish Contractor Safe 
 Tools, etc. 
 
 A Washington court holds that an employee can not hold 
 his master liable for injuries caused by the master's breach 
 
 had notice of it, or if it had been n. 10. A general discussion of the 
 
 there so long that reasonable care proposition of submitting a ques- 
 
 in the inspection of the way tion to the jury is to be found 
 
 would have disclosed it. Burnes elsewhere in this volume. See 
 
 V. Kansas City. etc.. R. (1895), Sees. 29, 72. 
 
 129 Mo. 41 ; 31 S. W. 347. "" Gulf. etc.. R. Co. v. Delancy 
 
 ="Sims V. Dominion Fish Co. (1900). 22 Tex. Civ. .\pp. 427; 55 
 
 (1901). 2 Ont. L. Rep. 69. cited S. \V. 538. 
 in Labatt. Master & S., p. 237.
 
 308 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 of duty to furnish to one. who has taken an independent 
 contract to perform a certain portion of the work in which 
 the master is engaged, safe apphances for the performance 
 of such work.^^ Opposed to this, it is said that it is the 
 obligation of the master to furnish an independent con- 
 tractor with safe appliances, or to see that those used by 
 the latter are safe, and so protect his own servants, and that 
 this grows out of his duty to provide his servants' a safe 
 place in which to work.^- A contractor is not exonerated 
 from liability to one of his employees by reason of a defect 
 in an appliance, because the other party to the contract was 
 to furnish suitable appliances, where the discretion was left 
 to the contractor with reference to the appliances to be 
 used.^^ 
 
 Sec. 194. Same, Discharge of Franchise. 
 
 In line with probably the better doctrine, it has been held 
 that w^here the rails of a street railway company are being 
 relaid under its charter and a permit granted to it by the 
 city, negligence therein is the negligence of the company 
 
 '' Miller v. Moran, etc., Co. 
 (1905), 39 Wash. 631; 81 Pac. 
 1089; 1 L. R. A. (N. S.), 283, 
 citing Steeples v. Panel, etc., Co. 
 (1903), 33 Wash. 359; 74 Pac. 
 475, not a parallel case. 
 
 ^-Note to Miller v. Moran, 
 ETC., Co. supra, in 1 L. R. A. (N. 
 S.), at p. 284, citing in support 
 of the doctrine: Trainor v. Phila- 
 delphia, etc., R. (1890), 137 Penn. 
 148; 20 Atl. 632; Gulf, etc., R. v. 
 Delanev. supra ; Toledo, etc., v. 
 Bosch '(1900), 41 C. C A. 482; 
 101 Fed. 530; Savannah, etc., R. 
 V. Phillips (1892), 90 Ga. 829; 17 
 S. E. 82, distinguished; Jacobs v. 
 
 Fuller, etc., Co. (1902), 67 Ohio 
 St. 70; 65 N. E. 617; 65 L. R. A. 
 833; 13 Am. Neg. R. 208; Conlon 
 V. Eastern, etc., R. (1883), 135 
 Mass. 195; 15 Am. & Eng. R. 
 Cas. 99; Devlin v. Smith (1882), 
 89 N. Y. 470; 42 Amer. Rep. 311, 
 liability limited; Norfolk, etc., R. 
 V. Stevens (1899), 97 Va. 631; 34 
 S. E. 525; 46 L. R. A. 367, fol- 
 lowing N. Y. ; referring also to 
 Conway v. Furst (1895), 57 N. 
 J. L, 645; 32 Atl. 380; Kennedy 
 V. Manhattan Railroad (1895), 
 145 N. Y. 288; 39 N. E. 956. 
 
 •-'McCall V. Pacific, etc., Co. 
 (1898), 123 Cal. 42; 55 Pac. 706.
 
 employer's liability to his own servants. 309 
 
 so as to make it liable to its employees injured tliereby, 
 though the work is being done for it by a contractor. "A 
 company seeking and accepting a special charter must take 
 the responsibility of seeing that no wrong is done through 
 its chartered powers by persons to whom it has permitted 
 their exercise." ^* A motorman employed by a street rail- 
 way company, while running his car at night, collided with 
 cars loaded with stone ballast, resulting in his injury; the 
 stone cars belonged to contractors who had contracted with 
 the railway company to ballast a portion of the road and 
 at the time of the accident were in charge and under con- 
 trol of the contractors' employees to whose negligence, in 
 failing properly to manipulate a block system of electric 
 signals, the accident was due. The railway company was 
 held liable for the negligence of the contractor's employees. 
 It could not shift its charter responsibility on to the 
 shoulders of others but was responsible for whatever was 
 done under its charter rights. The plaintiff had a right to 
 assume that the road, signals, etc., were being used by the 
 contractors under the supervision and control of the de- 
 fendant company, and in such a manner and under such 
 rules and regulations as to secure the safety of both.^^ 
 
 Sec. 195. Negligence of Contractor's Servant. 
 
 The question whether an employer is answerable to his 
 own servants for the negligence of the contractor's servants 
 occasionally arises. It has been said that a railway com- 
 
 *• Noitli Chicago Street R. v. independent onl}' as to the work 
 
 Dudgeon (1900), 184 Ills. 477; 56 of constructing the road bed; in 
 
 N. E. 796. See, generally. Sees. all matters incident to the use of 
 
 115-120. the track the contractors and 
 
 ** Ortlip V. Philadelphia, etc., their workmen represented the 
 Traction Co. (1901), 9 Pa. Dist. will of the company and its re- 
 Rep. 291; 198 Penn. St. 586; 48 sponsibility remained. 
 Atl. 497. Here the contract was
 
 310 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 pany which contracts for the erection of a train shed is 
 not under a duty to see that the workmen in the employ of 
 the contractor and subcontractor handle their tools with 
 reasonable care, and hence it is not liable when a workman 
 negligently allows a tool to fall upon one of the defendant's 
 trainmen.^*^ 
 
 Sec 196. Same, Whether Fellow-Servants. 
 
 "In order that the rule (i. e., the fellow-servant rule) 
 should apply it is necessary that the servant injured and the 
 servant at fault should be fellow-servants employed in the 
 same service. They must have a common master. . . . 
 This excludes from the category . . . the servants 
 of such (independent) contractor in their relation . . 
 to the servants of another independent contractor engaged 
 by the same employer."^' Under this rule one who, at the 
 time he was injured, did not know he had temporarily 
 passed into the service of the party from whom he is seek- 
 ing an indemnity is put upon the same footing as one who 
 had always remained outside that service.^^^ It has been 
 held that the fact of a workman's being an independent con- 
 tractor does not make him any the less a co-servant, in the 
 technical sense, of those who are working for wages under 
 the same master. But these decisions, one leading author 
 insists, are essentially, though not in terms, inconsistent with 
 the cases holding a master liable to a servant for the acts of 
 
 ^ Fitzpatrick v. Chicago, etc., R. 
 (1888), 31 Ills. App. 649. 
 
 ''Huff. Agcy., 2d td., Sec. 273, 
 citing Johnson v. Lindsay (1891), 
 A. C. 371. 
 
 =« Morgan v. Smith (1893), 159 
 Mass. 570; 35 N. E. 101; 15 Am. 
 Neg. Cas. 667, n. "It is far from 
 being a matter of regret that the 
 
 courts should have restricted the 
 defense of assumed risk of em- 
 ployment, to cases where the neg- 
 ligent and the injured servants 
 are hired by the same master." 
 The rule and the exception are 
 founded ultimately on public pol- 
 icy. Labatt, Master & S., Sec. 491.
 
 employer's liability to his own servants. 
 
 311 
 
 an independent contractor and the hitter's servants. "If 
 there is no common emj)loyment as between the servants 
 of an independent contractor and the servants of the con- 
 tractee. it is clear there can be no common employment 
 as between the latter servants and the independent con- 
 tractor himself." ^^ In brief, the doctrine of common em- 
 ployment applies only where the action is brought for an 
 injury to a servant or agent against the principal by whom 
 such servant was himself employed.''" The reason is that 
 a defense, which is based on the hypothesis that, as acces- 
 sory to the contract of hiring, there is implied on the serv- 
 ant's part an agreement to assume the risk of being in- 
 jured by the negligence of his co-employee, can not 
 properly be invoked where he is suing a person with whom 
 he has no contractual relations.^^ 
 
 In the cases cited below, the contractor's employee en- 
 gaged in constructing or operating railways, was held not 
 to be a fellow-servant of a regular employee of the rail- 
 road company itself;'*- likewise in the other cases cited 
 of loading and unloading freight, etC*^ A building 
 
 *Labatt, Master & S., 491a, 
 criticising Ford v. Oamaru (1883), 
 New Zeal. L. R., 1 Sup. Ct. 97. 
 
 '• Labatt, Master & S., Sec. 490, 
 citing numerous cases. 
 
 ^'Idem, p. 1341. 
 
 *- Union, etc., R. v. Billiter 
 (1890), 28 Nebr. 422; 44 N. W. 
 483; 16 Amer. Neg. Rep. 580, n. ; 
 Norman v. Middlesex, etc., Co. 
 (1905), 71 N. J. L. 652; 60 Atl. 
 936; Young v. New York, etc., R. 
 (1859), 30 Barb. (N. Y.), 229; 
 Brown v. Sullivan (1888), 71 
 Tex. 470 ; 10 S. W. 288 ; Sherman 
 V. Delaware, etc., Co. (1899), 71 
 Vt. 325 ; 45 Atl. 227. 
 
 "Robinson v. Pittsburgh, etc., 
 Co. (1904), 63 C. C A. 258; 129 
 Fed. 324; Ford v. Arbuckle 
 (1907), 107 App. Div. 221; 94 N. 
 Y. Supp. 1097; John Spry, etc., 
 Co. V. Duggan (1898), 80 Ills. 
 App. 394, afifd (1899), 182 Ills. 
 218; 54 N. E. 1002; Svenson v. 
 Atlantic, etc., Co. (1874), 82 App. 
 Div. 500; 81 N. Y. Supp. 544; 
 Crawford v. The Wells City 
 (1899), 38 Fed. 47; Kane v. 
 Mitchell, etc.. Co. (1895), 90 Hun 
 (N. Y.), 65; 35 N. Y. Supp. 581, 
 afifd 153 N. Y. 680; 48 N. E. 
 1105; Holmes v. Birmingham, 
 etc., R. (1904), 140 Ala. ^OS; 37
 
 312 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 owner's employees, constructing a scaffold for a contract- 
 ing plasterer's use, are not fellow-servants of such con- 
 tractor's employee injured because of the negligent con- 
 struction thereof."*"* That an independent contractor 
 instructed his foreman to obey a general superintendent's 
 directions, employed by the building owner to see that the 
 various contracts were complied with, does not affect the 
 relation of the contractor's employees so as to make them 
 co-employees within the rule regarding fellow-servants' 
 negligence. ^^ Employees of a subcontractor and of the 
 original contractor, who are working on the same building 
 but not for the same master or under the same supervision, 
 are not fellovz-servants.^*^ A contracting plumber's em- 
 ployee and the building owner's employee are not fellow- 
 servants."*'' Servants in a general employer's hire and serv- 
 ants of his subcontractor or of an independent contractor 
 are not fellow-servants unless the circumstances show that 
 the servant submitted himself to the control of another 
 person than his proper master and either expressly or im- 
 pliedly consented to accept that person as his master for 
 the purpose of the common employment.^^ Persons em- 
 ployed by different masters although engaged in a common 
 
 So. 338; Anderson v. Boyer 
 (1897), 13 App. Div. 258; 43 N. 
 Y. Supp. 87, reversed on other 
 grounds (1898), 156 N. Y. 93; 50 
 N. E. 976; Hopper v. Southern, 
 etc., Co. (1903), 133 N. C. 375; 
 45 S. E. 771. See, also, generally. 
 Lookout Mt., etc., Co. v. Lea 
 (1900), 144 Ala. 169; 39 So. 1017; 
 42 Am. & Eng. R. Cas. 10; Krul- 
 der V. Woolverton (1895), 11 
 Misc. 537; 32 N. Y. Supp. 742, 
 aff'd 152 N. Y. 633; 46 N. E. 
 1148. 
 
 ** Driscoll V. Humes, etc., Co. 
 (1908, R. L), 69 Atl. 766. 
 
 "Coates V. Chapman (1900), 
 195 Penn. 109; 45 Atl. 676. 
 
 '"Dale V. Hill, etc., Co. (1904), 
 108 Mo. App. 90; 82 S. W. 1092. 
 
 *' Fisher v. Minegaux (1906), 
 73 N. J. L. 424; 63 Atl. 902. 
 
 ^' Kelly v. Tyra (1908), 103 
 Minn. 176; 114 N. W. 750; 17 
 L. R. A. (N. S.), 334, head-note 
 by Jaggard, J.
 
 employer's liabflity to nis own servants. 
 
 313 
 
 work are not ordinarily fellow-servants.^^ The servants 
 of a contractor are the servants of the principal only where 
 the latter has the right to select and control them.^^ 
 
 Sec. 197. Negligence of Servants of Lessor and Others. 
 
 New Hampshire courts hold railroad companies liable 
 for injuries received by trainmen by reason of defects neg- 
 ligently permitted to exist in the track of another company 
 over which it has running powers, although the duty of 
 keeping it in repair devolved on the latter company and 
 the trainmen are aware of the arrangement between the 
 two companies. ^^ And it has been held that a railway com- 
 pany's servant assumes, as an ordinary peril, the risks of 
 injury through the negligence of the servants of another 
 company which is operating the same line under a lease. 
 But the application of the doctrine of assumed risk has 
 been criticised.^- On the theory that the licensees were 
 discharging a positive duty, owing by the master to his 
 servant, it has been held that persons who, under a license 
 from the master, put in new burners in a brick-kiln for 
 the purpose of testing their advantages, are in the position 
 of vice-principals, so far as relates to making such appa- 
 ratus safe and suitable for the employees or giving notice 
 
 "Head-note by Jaggard, J., in 
 Kelly v. Tyra, supra, citing Lar- 
 son V. American, etc., Co. 
 (1905), 40 Wash. 224; 82 Pac. 
 294; 111 Amer. St. Rep. 904; 
 Englar v. Seattle (1905), 40 
 Wash. 72; 82 Pac. 136; 19 Amer. 
 Neg. Rep. 49; Norman v. Middle- 
 sex, etc., Co. (1905), 71 N. J. L. 
 652; 60 Atl. 9.^6. See Dinon v. 
 Chicago, etc.. R. (1891), 109 Mo. 
 413; 19 S. W. 412; 18 L R. A. 
 
 792, as to "department rule of 
 fellow-servants." 
 
 "* Burke v. Norwich, etc., R. Co. 
 (1867), 34 Conn. 474: 13 Amer. 
 Neg. Cas. 662. 
 
 " Story V. Concord, etc., R. 
 ri900\ 70 N. H. 364; 48 Atl. 2S8. 
 
 '- Clark V. Chicago, etc.. R. 
 (1879^, 92 Ills. 43; Bauer v. St. 
 Louis, etc., R. (1885), 46 Ark. 
 388. Criticised by Labatt. Sec 
 49.
 
 31-i INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 of increased danger.^^ One railroad company permitting 
 another company to use a section of its main line to reach 
 a terminal point has been held liable to one of its own 
 employees for personal injuries from the latter company's 
 negligence in running its train over such section.^* 
 
 Sec. 198. Liability Regarding Subcontractor. 
 
 A general contractor employing a subcontractor to put 
 in some floors which are not to be delivered as complete, 
 is not liable for injuries to an employee from falling 
 through a repaired portion of the floor which had not 
 dried, as the subcontractor should have foreseen the likeli- 
 hood of using the floor by other employees and should 
 have protected the incomplete portion. ^^ Where by con- 
 tract between defendant and a transfer company for the 
 removal of defendant's boiler the transfer company had 
 nothinar to do with the removal of the brick foundation 
 of the boiler and defendant's servant while removing brick, 
 under the order of the defendant's foreman, was killed 
 by the boiler falling on him owing to the breaking of a 
 chain by which the transfer company had hoisted the boiler 
 and then had it suspended, the transfer company was not 
 liable since it was the removal of the brick under defen- 
 dant's order that caused the death. ^"^ 
 
 '^ Pullman, etc., Co. v. Laack 
 (1892), 143 Ills. 242; 18 L. R. A. 
 215; 32 N. E. 285. 
 
 "Central R. Co. v. Passmore 
 (1892), 90 Ga. 203; 15 S. E. 760; 
 Macon, etc., R. Co. v. Mayes 
 (1873), 49 Ga. 355; 15 Amer. 
 Rep. 678. 
 
 ^^ St. Louis, etc., Co. v. Dawson 
 (1902), 30 Tex. Civ. App. 261; 70 
 S. W. 450. The relation existing 
 
 between servants of an original 
 contractor and those of a sub- 
 contractor are in legal effect the 
 same as that between employees 
 of the principal and of the con- 
 tractor. Note to Kelly v. Tyra 
 (1908, Minn.), in 17 L. R. A. (N. 
 S.), 334. 
 
 ■■"' Chicago, etc., Co. v. Moren 
 (1900). 185 Ills. 571; 57 N. E. 
 733.
 
 CHAPTER VIII. 
 
 Employer's Liability to Contractors and Their 
 
 Servants. 
 
 SECTION 
 
 200. Employer's liability to con- 
 tractors, generally. 
 
 Same — Relation of parties. 
 
 Same — Liability on contract. 
 
 Liability, generally, to con- 
 tractors' servants. 
 
 Joint liability of employer 
 and contractor. 
 
 Relation of parties. 
 
 SECTION 
 
 206. 
 
 201. 
 202. 
 
 203. 
 
 204. 
 205. 
 
 Liability as to condition of 
 premises. 
 
 207. Same— Employer controlling 
 
 or directing work. 
 
 208. Same— Safety of premises. 
 
 209. Same — Employer accepting 
 
 work. 
 
 210. Same — Competency of co- 
 
 workers. 
 
 211. Contributory negligence. 
 
 Sec. 200. Employer's Liability to Contractors, Generally. 
 
 It is the rule that the owner of property owes to an in- 
 dependent contractor and his servants, at work thereon, 
 the duty of exercising reasonable care to have the premises 
 in a safe condition for the work, unless the defects occa- 
 sioning the injury were known to the contractor.^ Where 
 a proprietor engages an independent contractor to do work 
 upon his premises, the contractor, while executing the 
 work, will be there in pursuance of the invitation of the 
 proprietor and the proprietor will, under general principles, 
 be under the duty of exercising ordinary or reasonable 
 
 'John Spry, etc.. Co. v. Duggan 
 (1898), 80 Ills. App. 394; Sesler 
 V. Rolfe, etc., Co. (1902), 51 W. 
 Va. 318; 41 S. E. 216; Hoadley 
 V. International, etc., Co. (1899), 
 
 72 Vt. 79; 47 Atl. 169; Barowski 
 V. Sclniltz (1901), 112 Wise. 415; 
 88 N. W. 236. Cf., Sack v. St. 
 Louis, etc.. Co. (1905), 112 Mo. 
 App. 476; 87 S. W. 79. 
 
 315
 
 316 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 care to the end of promoting the contractor's safety.^ But, 
 it has been held, a house-owner is not liable where a con- 
 tractor, employed to put down a stone sidewalk, falls into 
 an unguarded excavation in the course of the operation.^ 
 
 Sec. 201. Same, Relation of the Parties. 
 
 An independent contractor, as such, is not deemed a 
 fellow-servant of the ordinary employees of the proprietor, 
 within the meaning of the rule exonerating a master from 
 liability for injuries done to one servant by the negligence 
 of another servant engaged in the same common employ- 
 ment. The independent contractor stands on the footing 
 of a stranger, or if he is injured through a defect in the 
 premises of the proprietor, he is entitled, equally with a 
 servant of the proprietor, to invoke the principle that the 
 proprietor stands under the absolute duty of taking reason- 
 able care and exercising reasonable skill to the end that the 
 premises, tools and appliances put in tlie hands of his serv- 
 ants are reasonably safe for the purposes intended. If the 
 contractor does not occupy this favorable position he,- at 
 least, occupies a position as favorable as that of one who 
 is invited to come upon another's premises and who is in- 
 
 ^ Gardner v. Friederich (1898), 
 25 App. Div. 521 ; 49 N. Y. Supp. 
 1077. For liability of owners of 
 a dry dock for letting a steamer 
 fall, injuring it, which they were 
 endeavoring to raise by their own 
 methods, see Norwich, etc., Co. 
 V. New York, etc., Co. (1884), 22 
 Fed. 672. See, generally, note 37, 
 Thomps. Neg., Sec. 625. "A. 
 owned a building on which B. 
 agreed for a lump sum to trim 
 certain stonework. B. should 
 have furnished his own scaffold 
 
 but as he did not, A. allowed him 
 to use one which had been hung 
 by painters over a rotten cornice 
 which gave way and injured B. 
 It was held that A. was not liable 
 to B.," citing Mathes v. Kerrigan 
 (1886), 53 N. Y. Super. 431. 
 
 "Schweikardt v. St. Louis 
 (1876). 2 Mo. App. 571. (The 
 possibility of the plaintiff's being 
 entitled to recover on the ground 
 of the intrinsic danger of the 
 work was not discussed. See 
 Sees. 65, 66, 72, 115, ante.)
 
 employer's liability to contractors and servants. 317 
 
 jured in consequence of a dan^^crous pitfall therein.^ 
 Where two independent contractors are engaged for one 
 employer upon the same job (c. g., one to do mason work 
 and another carpenter work) and in consequence of the 
 negligence of one the other or his work is injured, he can 
 not recover of the employer unless he was in fault in se- 
 lecting the wrong-doing contractor.*^ It is to be observed 
 that the owner is not charged with the absolute duty of 
 having the premises safe; his duty is discharged by the 
 exercise of reasonable care.^ 
 
 Sec. 202. Same, Liability on Contract. 
 
 The ordinary rules as to legality of contract, construc- 
 tion of its terms, performance of conditions precedent, 
 measure of damages, public policy, and the like, govern in 
 cases involving the liability of the employer to one under- 
 
 * See Thomps. Neg., Sees. 679, 
 967. When a ladder hole had 
 been cut in a platform to a mine 
 while the mine was in active op- 
 eration, iw the direction of the 
 superintendent of the mine, and 
 an employee of the mme owners 
 fell through the hole and was in- 
 jured, because it was not guarded 
 or lighted and he had not been 
 warned, the mine owners were 
 held responsible, and it was held 
 immaterial whether plaintiff was 
 a servant or independent con- 
 tractor. Mayhew v. Sullivan 
 (1S84), 76 Me. 100. It has been 
 held that one engaged in selling 
 and delivering wood to a mill pro- 
 prietor at so much per cord is not 
 the proprietor's employee so as 
 to put him in the situation of one 
 
 who takes the risk upon himself 
 of the negligence of those run- 
 ning the mill. The court says 
 that as to the proprietor, he 
 stands "precisely as any other 
 man stands who, in consequence 
 of his business wants, had occa- 
 sion to visit the mill." Wads- 
 worth V. Duke (1873), 50 Ga. 91. 
 The repairer of apparatus in a 
 paper mill was steamed to death 
 owing to the negligence of the 
 defendant in failing properly to 
 protect him while at work, and 
 the proprietor was held liable. 
 Hoadley v. International, etc., Co. 
 (1899),' 72 Vt. 79; 47 Atl. 169. 
 
 "Tread well v. New York (1851), 
 1 Daly (N. Y.), 123. 
 
 ° McKeon v. Louis Weber, etc., 
 Co. (1903), 84 N. Y. Supp. 913.
 
 318 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 taking to perform a given work as an independent 
 contractor/ 
 
 Sec. 203. Liability, Generally, to Contractor's servants. 
 
 "The proprietor does not owe to a person, employed 
 on his premises in the service of an independent contractor, 
 the duty to furnish a safe place to work or safe appliances, 
 and is not liable in damages for injuries occasioned by 
 his failure to do so. This duty belongs to the servant's 
 master." ^ "The decisions under this head do not seem 
 to be ver}^ clear or harmonious, but the governing princi- 
 ple is not difficult of ascertainment. Roundly stated, it 
 is that the relation of master and servant does not subsist 
 between the proprietor and the servants of the contractor 
 and therefore those obligations which the law imposes upon 
 the master for the protection of one injured while in his 
 service, do not rest upon the proprietor but on the con- 
 tractor." ^ In the absence of any evidence tending to show 
 
 ' As illustrative cases, see Tal- 
 bott V. Board, etc. (1908, Ind.), 
 85 N. E. 376; Hunt v. Boston, 
 etc., R. Co. (1908, Mass.), 85 
 N. E. 446; National, etc., Co. v. 
 Foster, etc.. Co. (1908, Ind.), 85 
 N. E. 489. 
 
 ' White's Supp. to Thomps. Neg., 
 p. 101, citing Omaha, etc., Co. v. 
 Hargadine (1904, Nebr.), 98 N. 
 W. 1071 ; 36 Am. & Eng. Ry. Cas. 
 (N. S.), 827; Callan v. Pugh 
 (1900), 66 N. Y. Supp. 1118; 54 
 App. Div. 545 ; Southern Oil Co. 
 V. Church (1903), 32 Tex. Civ. 
 App. 325; 74 S. W. 797; 75 S. 
 W. 317; 16 Am. Neg. R. 611, n.; 
 co)itra, Kentucky, etc., Co. v. 
 Bryan (1905, Ky.), 84 S. W. 537. 
 The proprietor does not owe the 
 
 same duty to a servant of an in- 
 dependent contractor for the con- 
 struction of a building upon the 
 premises of the proprietor, which 
 he would owe to his own servants 
 if he were doing the work by 
 means of his own servants ; but 
 such duty devolves upon the con- 
 tractor. Humpton v. Unterkircher 
 (1896), 97 Iowa, 509; 66 N. W. 
 776; 14 Am. Neg. Cas. 595. 
 
 "Thomps. Neg., Sec. 680. The 
 owner of real property does not 
 owe to a person employed on his 
 premises in the service of an in- 
 dependent contractor the duty to 
 furnish a safe place to work and 
 for omission to do so he is not 
 liable in damages. He merely 
 owes the duty to commit no act
 
 employer's liability to contkactors and servants. 319 
 
 bad faith in a subcontract for the construction of a rail- 
 road track, the question of barl faith should not be sub- 
 mitted to a jury in an action to hold the contractor liable 
 for injuries to an employee of the subcontractor.^'^ A 
 railroad company must take notice of the fact tliat work- 
 men of its contractor are at work on its trestles and run 
 its trains with care proportionate to the danger of the men so 
 employed." 
 
 Sec. 204. Joint Liability of Employer and Contractor. 
 
 If a contractor undertakes to place a structure on foun- 
 dations to be furnished by the landowner and the land- 
 owner knowingly furnishes an insufficient foundation, and 
 the contractor knowing of such insufficiency, directs his 
 employees to work on the structure and they are injured 
 in consequence of the giving way of the foundation, a 
 joint recovery may be had against the owner and the 
 contractor. ^- 
 
 of affirmative negligence. Callan 
 V. Pugh (1900). 54 App. Div. (N. 
 Y.), 545; 66 N. Y. Supp. 1115. 
 In Vincennes, etc., Co. v. White 
 (1890). 124 Ind. 376, 380, the 
 court says : "It appears from the 
 evidence in this cause that the ap- 
 pellee (a contractor's servant) 
 was injured by the caving in of 
 a ditch wlyph he was assisting to 
 construct through a soil com- 
 posed largely of sand and gravel. 
 The liability of the trench to cave 
 in by reason of the peculiarity of 
 the soil and the danger attending 
 the work were open alike to the 
 observation of all the parties. It 
 has been repeatedly held that 
 under such circumstances there 
 
 can be no recovery." Citing cases. 
 
 '"Good v. Johnson (1907), 38 
 Colo. 440; 8S Pac. 439: 8 L. R. 
 A. (N. S.), 896. 
 
 " Interstate, etc., R. Co. v. Fox 
 (1889), 41 Kans. 715; 39 Amcr. 
 & Eng. Ry. Cas. 318; 21 Pac. 797. 
 
 '- Consolidated, etc., Co. v. 
 Keifer (1890), 134 Ills. 481; 25 
 N. E. 799; 10 L. R. A. 696; 20 
 Amcr. St. Rep. 688. The father 
 of contractors engaged in the re- 
 moval of cinders from the yard 
 of an electric company was killed 
 by a shock of electricity com- 
 municated through a metal hoe 
 wl-.ich he hung over a wire while 
 raking down a pile of cinders 
 thereunder. The electric com-
 
 320 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 205. Relation of Parties. 
 
 Circumstances may exist which create or estabhsh the 
 relation of master and servant between one employer and 
 his contractor's servant, for examples of which see the 
 cases cited in the foot note.^^ X. contracted with prison 
 directors for convict labor on a building being erected, 
 the convicts to remain in the custody of the guards while 
 at work; plaintiff, a convict, was assigned to operate an 
 elevator and while on duty was hurt; it was held that the 
 relation of master and servant so far existed between X. 
 and the plaintiff that X. was liable for any injury result- 
 ing from his failure to exercise reasonable care in provid- 
 ing safe machinery. ^^ A railway news agent, riding on 
 a train in the usual course of his employment, whose trans- 
 portation is merely an incident to a contract between his 
 employer and the railway company permitting the em- 
 ployer to sell certain goods on the train, is not a passenger 
 within the meaning of a Pennsylvania statute providing 
 
 pany was not liable since it was 
 the duty of the sons as con- 
 tractors to have warned their 
 father of the danger from this act. 
 Proctor V. San Antonio Street R. 
 (1901), 26 Tex. Civ. App. 148; 62 
 S. W. 939. 
 
 ''Chicago V. Robbins (1862), 2 
 Black (U. S.), 418; Solomon 
 Railroad v. Jones (1833), 30 
 Kans. 601; 2 Pac. 657; 15 Am. & 
 Eng. R. Cas. 201 ; Good v. John- 
 son (1907), 38 Colo. 440; 88 Pac. 
 439; 8 L. R. A. (N. S.), 896 
 See. also. Chap. I, ante. 
 
 " Baltimore, etc., Co. v. Jamar 
 (1901), 93 Md. 404; 49 Atl. 847; 
 86 Amer. St. Rep. 423. A person 
 employed by one who has entered 
 into a contract with a railroad 
 
 company to do a job of work on 
 its road, is obviously entitled to 
 reasonable care, and this, although 
 the contractor ma}' have entered 
 into an agreement with the rail- 
 road company whereby the latter 
 is released from all chims for in- 
 juries to subcontractors, workmen, 
 and others, by reason of the neg- 
 ligence of the servants of the 
 railroad company. Such an agree- 
 ment is inoperative as against the 
 employee of the contractor unless 
 he is made privy to it in some 
 other way than by the mere fact 
 of leing employed by the con- 
 tractor. Ominger v. New York, 
 etc.. R. (1875), 4 Hun (N. Y.), 
 159.
 
 employer's liability to contractors and servants. 321 
 
 that "when any person shall sustain personal injury or 
 loss of life while lawfully engaged or employed on or about 
 the premises of a railroad company or in or about any 
 train or car therein or thereon, of which said person is 
 not an employee, the right of action against the company 
 shall be such only as would exist if such person were an em- 
 ployee," but further providing that the statute shall not 
 apply to passengers. ^'^ Where a railroad company fur- 
 nished and hauled a car loaded with concrete for a con- 
 tractor, who was building piers in the company's yard for 
 an overhead highway bridge, the car being loaded and un- 
 loaded by the contractor's employees, such employees were 
 rightfully about the car while unloading and as well en- 
 titled to safetv from anv unusual danger in being- near it 
 as a consignee unloading and taking away freight at a 
 depot. ^"^ The owner or lessee of a mine who has made a 
 
 " Smallwood v. Baltimore, etc., 
 R. (1905), 215 Penn. St. 540; 64 
 Atl. 732; 7 Am. & Eng. Ann. Cas. 
 525, in which latter report the 
 annotater says: "The reported 
 case seems to be the onlj' one in 
 which the fellow-servant rule has 
 been adopted with regard to news, 
 agents, the few other cases on the 
 sul)ject uniformly regarding such 
 persons as passengers," citing 
 cases. It has been held, under 
 statute, that the presumption of 
 negligence imposed upon railroad 
 companies in all cases where in- 
 jury ensues by reason of the run- 
 ning of cars, etc., arises in favor 
 of an employee whenever it is 
 affirmatively shown that he has 
 been injured "by the running of 
 the locomotives, cars, or other 
 machinery" of the company, and 
 that he himself was without fault. 
 
 This general rule applies though 
 at the time of the injury to a 
 fireman neither the engine nor the 
 fireman is engaged in the usual 
 or ordinary business of the com- 
 pany as a common carrier, they 
 having been lent by the railroad 
 company to a contractor, under 
 whose directions they are engaged 
 in constructing an extension of 
 the road, so that, where the en- 
 gine is derailed by reason of its 
 defective condition, injuring the 
 fireman, the presumption is that 
 such defective condition was due 
 to the negligence of the railroad 
 company. Savannah, etc.. Rail- 
 road V. Phillips (1892), 90 Ga. 
 829; 17 S. E. 82. 
 
 "R\an V. New York, etc., R. 
 (1902), 115 Fed. 197. Employees 
 of a railroad company's contractor 
 working on a passage track con-
 
 322 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 contract for its operation by another person npon such 
 a footing- that the latter is put in full control of the work, 
 and charged with the duty of seeing that the appliances, 
 which are used, are kept in safe condition, is not liable to 
 the servant of the contractor who is injured by the break- 
 ing of the rope by which the cage is lowered and hoisted. ^^ 
 The lessor of a railroad is not liable, as master, for in- 
 juries to the employees of the lessee. ^^ A city contracted 
 with X. to take down and rebuild a bridge used as a high- 
 way over a railroad's track. In doing so, as more men 
 were needed, temporarily, on one side the bridge than 
 were there at work, they were called across to that side ; 
 had a larger force been employed they need not have 
 crossed the track. Held : An action would not lie against 
 the railroad company for an injury to a workman by being 
 struck by a locomotive while so crossing the track. ^® 
 
 structed on the right of way of a 
 railroad company are not tres- 
 passers while leaving a dirt train 
 on the passage track and crossing 
 the main track, where the pas- 
 sage track was located by the rail- 
 road company for the contractor's 
 use and such use was by the 
 permission of the railroad com- 
 pany. Southern Railroad v. Drake 
 (1902), 107 Ills. App. 12. 
 
 "Shaw V. West, etc., Co. (1872, 
 Ct. of Sess.), 9 Scot. L. R. 254; 
 Lendberg v. Brotherton, etc., Co. 
 (1889), 75 Mich. 84; 42 N. W. 
 675. It has been held that the 
 control given to a mine owner by 
 the English Coal Mines Regula- 
 tion Act of 1887, and rules there- 
 under, over persons working in 
 the mine, for the purpose of car- 
 rying on the mining operations 
 without danger, does not make 
 
 "sinkers" employed by indepen- 
 dent contractors to sink a shaft 
 in the mine, "workmen" in the 
 employ of the owners, within the 
 meaning of the English Employ- 
 ers' Liability Act, so as to make 
 the owners liable for injuries to 
 the sinkers. Marrow v. Flimby, 
 etc., Co. (1898), 2 Q. B. 588. 
 
 '^ East Line, etc., R. v. Cul- 
 berson (1888), 72 Tex. 375; 10 
 S. W. 706; 13 Am. St. Rep. 805; 
 3 L. R. A. 567. 
 
 ^* Sweeney v. Boston, etc., R. 
 (1878). 128 Mass. 5; 1 Amer. & 
 Eng. R. Cas. 138. "While in the 
 majority of cases in which the 
 question. Who are independent 
 contractors? is involved, the ulfi- 
 m-itc inquiry is the liability for 
 some act of negligence on the 
 part of the contractor or his 
 servant, it should be noted that
 
 employer's liability to contractors and servants. 323 
 
 Sec. 206. Liability as to Condition of Premises. 
 
 In almost every case where a proprietor engages an in- 
 cle])enclent contractor to do work upon his premises, there 
 is the further implication that if the contractor brings third 
 persons, his own employees, his partners or assistants, to 
 help him in executing the contract, such persons are pre- 
 sumably upon the premises by the invitation of the owners, 
 and he owes them the same measure of care, to the end of 
 promoting- their safety, that he owes to the contractor him- 
 self and this though no contractual relation exists between 
 himself and them. But the cases are not uniform.-*^ The 
 owner can not be held liable to an employee of a subcon- 
 tractor for failure to furnish personally a copy of the plans, 
 
 the question also arises in con- 
 nection witii an inquiry into the 
 liability to the contractor's serv- 
 ant for negligence on the part of 
 the principal or his employee, in 
 which case it becomes a branch 
 of the question as to which of two 
 parties is to be deemed the master 
 of the servant of one of them 
 and of the question when servants 
 of the principal employer and 
 (of) the contractor are to be 
 deemed fellow-servants." Note to 
 Knicely v. R. Co. (1908, W. Va.), 
 17 L. R. A. (N. S.), 371. 
 
 ™ John Spry, etc., Co. v. Duggan 
 (189S), 87 Ills. App. 394; Web- 
 ster, etc., Co. V. Mulvanny (1897), 
 68 Ills. App. 607; 168 Ills. 311; 
 48 N. E. 168; Liebold v. Green 
 (1897), 69 Ills. App. 527; Ma.on 
 v. Tower, etc., Co. (1895), 83 
 Hun (N. Y.), 479; 32 N. Y. Supp. 
 36; Drenncn v. Grady (1897), 167 
 Mass. 415; 45 N. E. 741; S.xm- 
 
 UELSON V. ClE\'EL.\ND, ETC., Co. 
 
 (1882), 49 Mich. 164; 13 N. W. 
 499; 43 Amer. Rep. 456; Powers 
 v. Harlow (1884), 53 Mich. 507; 
 51 Amer. Rep. 154; Evansville, 
 ETC., R. V. Griffin (1885), 100 
 Ind. 221; 50 Amer. Rep. 783; 
 Welch v. McAllister (1884), 15 
 Mo. App. 492; Bennett v. Louis- 
 ville, etc.. R. (1880), 102 U. S. 
 577; Indemaur v. Dames (1866), 
 L. R., 1 C. P. 274; Heaven v. 
 Pender (1883), L. R.. 11 Q. B. 
 503. "On the other hand, the 
 servant of the contractor must be 
 deemed to be upon the premises 
 of the proprietor by his invita- 
 tion, express or implied ; and. 
 therefore, he owes him the same 
 duty of guarding him against the 
 consequences of hidden dangers 
 on the premises, that a proprietor 
 would in any case owe to a guest, 
 a customer, or other person com- 
 ing by invitation upon his prem- 
 ises." Thomps. Neg.. Sees. 680, 
 979.
 
 324 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 etc., as approved by him. That duty devolves on the con- 
 tractor.2i Recovery was denied in a case where a bridge 
 gave way under a train, while it was being constructed, 
 resulting in the death of a servant of the contractor con- 
 structing the bridge. ^^ Where the owner of a building 
 contracts with a builder to re-arrange the buildirtg accord- 
 ing to certain plans, and while he is in possession, the 
 plaintiff, in the employ of a company doing some electric 
 work in the building, falls through a hole in the floor 
 which is concealed by rubbish, the owner is held not re- 
 sponsible for the resulting injury.^^ Where the owner of 
 a building damaged by fire employed a contractor to make 
 repairs, he was held not liable for injuries to his contrac- 
 tor's servants, due to his unfamiliarity with its interior 
 arrangement.^"* Where a servant of a contractor engaged 
 
 =*Hawke v. Brown (1898), 50 
 N. Y. Supp. 1032. Circumstances 
 under which a defect in the de- 
 sign of a steam plant in failing 
 to provide for a drip or trap to 
 allow the escape of water formed 
 by the condensation of steam, did 
 not render the owner liable for 
 injuries to an employee of a sub- 
 contractor who was hit by the 
 cap of a steam pipe which was 
 blown ofif. James v. Philadelphia 
 Traction Co. (1898), 185 Penn. 
 St. 75; 39 Atl 889. 
 
 *^BiBB V. Norfolk, etc., R. 
 (1891), 87 Va. 711; 14 S. E. 163; 
 47 Amer. & Eng. Ry. Cas. 651. 
 An action for injuries received by 
 the giving way of the floor of a 
 building which the plaintiff's 
 employer (an independent con- 
 tractor) was taking down, was 
 held to have been properly dis- 
 missed, although the plaintiff's 
 
 counsel offered to prove that the 
 defendant knew of the contractor's 
 incompetency. Schipp v. Pabst 
 Brewing Co. (1896), 64 Minn. 
 22; 66 N. W. 3. 
 
 ^-''Hogan V. Arbuckle (1902), 73 
 App. Div. (N. Y.), 591; 11 N. 
 Y. Supp. 22, following Murphy v. 
 Altman (1898), 28 App. Div. (N. 
 Y.), 472; 51 N. Y. Supp. 106. 
 
 =^ Butler V. Lewman (1902), 115 
 Ga. 752; 42 S. E. 98, also holding 
 that one contracting for the repair 
 or tearing down of a building 
 destroyed by fire is under the 
 duty of guarding the servant of 
 an independent contractor against 
 the danger of his employment. 
 The owner of premises who had 
 contracted for the erection of a 
 building thereon, was held not 
 responsible where a wall fell on 
 the servant of a person who had 
 taken a subcontract for excava-
 
 employer's liability to contractors and servants. 325 
 
 in sinking an airshaft in a mine was injured by an explo- 
 sion of gas, the mine-owner has been held not liable.-^ 
 The licensees of a mine contracting with a third person to 
 mine the ore and divide the products, were held obligated 
 to see that the mine was in a reasonably safe condition.^" 
 A statute requiring the contractors or owners of a building 
 in course of construction to enclose the openings in each 
 floor on which a hoisting apparatus is operated, places this 
 duty on the owner of the building as to an employee of 
 an independent contractor as well as on the contractor, 
 and this though all the work on the building is being done 
 by independent contractors, and the hoisting machine is 
 installed by a company which is paid by the contractors.^^ 
 
 tion work. Hale v. Johnson 
 (1875), 80 Ills. 185; 14 Am. Neg. 
 Cas. 417, n. Where the roof of 
 a drift, which was left unsup- 
 ported, fell on a laborer in the 
 employ of a person operating 
 the mine under a contract, the 
 owner's liability was denied. 
 Smith V. Belshaw (1891), 89 Cal. 
 427; 26 Pac. 834. Cf., Samuel- 
 son V. Cleveland, etc., Co. (1882), 
 49 Mich. 164; 13 N. W. 499; 43 
 Amer. Rep. 456. 
 
 "* Welsh V. Lehigh, etc., Co. 
 (1886, Penn.), 5 Atl. 48; Welsh 
 V. Parrish (1892), 148 Penn. 599; 
 24 Atl. 86. A railway company 
 was held not liable where the 
 servant of the contractor for the 
 construction of a railway was in- 
 jured through breathing the ex- 
 halations from a poisonous mix- 
 ture which the contractor had 
 applied to some timber to prevent 
 its decaying. West v. St. Louis, 
 etc., R. (1872), 63 Ills. 545. 
 
 ="Rice V. Smith (1902), 171 Mo. 
 331; 71 S. W. 123. See, as to 
 licensees, generally, ante, Sees. 
 38g, 91, 126-134. A mine owner 
 was held not responsible where 
 the mouth of a pass leading from 
 a higher to a lower level in a 
 mine was left uncovered and un- 
 lighted through the negligence of 
 the person operating the mine 
 under an independent contract. 
 Martin v. Sunlight, etc., Co. 
 (1896), 17 New South Wales L. 
 R. 364. 
 
 ^ Rooney v. Brogan, etc., Co. 
 (1905), 95 N. Y. Supp. 1. In 
 another New York case, defend- 
 ant owned a marble sawing yard. 
 He let some of his saws to X., 
 who conducted an independent 
 business in defendant's yard. 
 Decedent, who was in X.'s em- 
 ploy, together with some co- 
 servants, undertook to move some 
 marble slabs belonging to X. In 
 doing so, a slab was swung
 
 326 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 The rule is the same between contractor and subcon- 
 tractor as between owner and contractor, and such con- 
 tractor will be liable to the servant of a subcontractor for 
 injuries due to a failure to exercise a reasonable degree of 
 care as to the condition of the premises upon which he is 
 employed. ^^ 
 
 Sec. 207. Same, Employer Controlling or Directing Work. 
 
 In an early case the defendants were held liable on the 
 following facts : Defendants, in order to remove some flour 
 in barrels from their warehouse, employed W., a master 
 porter, who used his own tackle and brought and paid his 
 own men; W. employed T., a master carter, to carry the 
 barrels away ; T. sent his own carts and his own men, among 
 them the plaintiff who was injured by having a barrel fall 
 on him in consequence of part of W.'s tackle falling while 
 being used by W.'s men. Recovery was apparerntly al- 
 lowed on the theory that the person engaged to do the 
 work, and his servants, were deemed servants of the de- 
 fendants while the work was in progress and under his 
 
 against a piece of marble belong- 
 ing to the defendant, knocking it 
 down on the decedent and kiUing 
 him. The defendant was held not 
 liable, as the piece of marble be- 
 longing to him which fell on 
 decedent, was held to have been 
 lawfully in its place and secure 
 from ordinary interference and 
 further as the proximate cause of 
 decedent's death was the negli- 
 gence of his co-employee. Con- 
 nelly V. Rist (1897), 45 N. Y. 
 Supp. 321. 
 
 ^Norman v. Dowd (1903), 83 
 N. Y. Supp. 693. The negligence 
 
 for which the contractor will be 
 
 liable must be some act of per- 
 sonal negligence on his part 
 which caused the accident, inde- 
 pendently of all other causes. 
 Thus, in a case of injuries to an 
 employee of a subcontractor by 
 the fall of a building, it was held 
 competent to show knowledge of 
 the dangerous condition by the 
 coiitractor long before the hap- 
 pening of the accident. Nelson 
 V. Young (1904), 91 App. Div. 
 (N. Y.), 457; 87 N. Y. Supp. 69; 
 affirmed 180 N. Y. 523; 72 N. E. 
 1146.
 
 employer's liability to contractors and servants. 327 
 
 control.-'' Where a mining company, contracting for the 
 removal of ore, reserves to itself such arrangements as 
 are necessary for the protection of workmen, it is liable 
 for such injuries as happen to employees of the contractor 
 without the fault of the employees.^'' 
 
 A proprietor who personally interferes in the work is 
 responsible for any injury to a servant of the contractor 
 occasioned by such interference whether such contractor 
 is independent or not."'^ If the owners of a building em- 
 ploy a contractor to alter and improve it and forbids the 
 contractor to take down a dangerous wall where he is to 
 build a stack near it, and the dangerous character of the 
 wall is open and obvious, and in consequence of the neces- 
 sary digging by the contractor, to obtain a foundation for 
 the stack, the wall falls and injures a servant of the sub- 
 contractor, the proprietor will 1)l' liable ; because in such 
 case he would have been liable, as for a nuisance, if it had 
 fallen outward and injured a stranger on the sidewalk.^- 
 
 *Randleson v. Murray (1838), 
 8 Ad. & El. 109. Cf., Milligan 
 V. Wedge (1840), 12 Ad. & EI. 
 737; criticised in Murphy v. 
 Caralli (1864), 3 Hurst., etc., 462. 
 If the employer (a vessel master) 
 retains control of the work in 
 whole or in part, and through his 
 interference or orders an injury 
 happens to a servant of the in- 
 dependent contractor (a master 
 stevedore), or to a third party, 
 tlie employer is liable. Morrcll 
 V. Rheinfrank (1885), 24 Fed. 94; 
 Kilroy v. Delaware, etc., Co. 
 (1890). 121 N. Y. 22; 24 N. E. 
 192. 
 
 " Lake Superior, etc.. Co. v. 
 Erickson (1878), 39 Mich. 492; 
 33 Amer. Rep. 423. Cf., Callan 
 
 V. Pugh (1900), 54 App. Div. (N. 
 Y.), 545; 66 N. Y. Supp. 1118. 
 
 ='Faren v. Sellers (1887),. 39 
 La. Ann. 1011; 3 So. 363; 4 
 Amer. St. Rep. 256. A corpora- 
 tion with which a person contracts 
 to do work at a specified price 
 per piece, using the corporation's 
 machinery and power, the con- 
 tractor employing and paying the 
 hands, is liable as employer for 
 an injury to one of the hands so 
 employed where it exercises con- 
 trol over the hands, or the manner 
 in which the work is done, or 
 the means by which it is done. 
 Wallace v. Southern, etc., Co. 
 (1897). 91 Tex. 18; 40 S. W. 399. 
 
 '^ Fender v. Raggo (1896). 178 
 Penn. St 337; 35 Atl. 1115.
 
 328 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 208. Same, Safety of Appliances. 
 
 Where the owner of a building caused a stage to be 
 erected for use by one who had contracted with him to 
 supply the building with fire extinguishing apparatus, and 
 the staging was constructed in a negligent manner in con- 
 sequence of which an employee of the contractor was 
 killed, the owner was liable for the employe's death al- 
 though no contractual relation existed between them.^^ An 
 employee, of a contractor employed by the owner of a 
 sawmill to do the manual work required to manufacture 
 blocks into shingles, while the owner furnishes and operates 
 the machinery for the purpose, may recover of the owner 
 for injuries caused by a failure to furnish reasonably safe 
 machinery, since the relation of master and servant exists 
 between such employee and the owner.^^ A manufacturer 
 contracting with a third person for the manufacture of his 
 product and furnishing a dangerous machine without in- 
 structions, was held liable for injury to an employee of 
 such third person.^^ One who contracts for the sinking of 
 
 ^ Bright v. Barnett, etc., Co. 
 (1894), 88 Wise. 299; 60 N. W. 
 418; 26 L. R. A. 524. The owner 
 of a building in which there is a 
 dumb waiter operated by hand, 
 owes no duty of inspection to one 
 who is not his servant, but who 
 is employed by the janitor of the 
 building, and who is not an em- 
 ployee of the owner. Sellers v. 
 Dempsey (1898), 49 N. Y. Supp. 
 765 ; a decision which is declared 
 by Judge Tliompson to be un- 
 sound. Thomps. Neg., p. 899. In 
 a Texas case, a proprietor was 
 held not liable for injuries to the 
 servant of his contractor l)y rea- 
 son of the defective condition of 
 
 a derrick furnished by him in the 
 absence of proof that it was in- 
 herently dangerous. Southern Oil 
 Co. V. Church (1903), 32 Tex. 
 Civ. App. 325; 74 S. W. 797; 75 
 S. W. 817; 16 Am. Neg. R. 611, n. 
 
 '*Niemeyer v. Weyerhauser 
 (1895), 95 Iowa, 497; 64 N. W. 
 416; contra, Reier v. Detroit, 
 ETC., Works (1896), 109 Mich. 
 244; 67 N. W. 120; 16 Am. Neg. 
 Cas. 30, n. ; 4 Amer. & Eng. Corp. 
 Cas. (N. S.), 459, which see. Cf., 
 Anderson Bros. Co. v. Burns 
 ( ), 22 Ohio C. C. 437. 
 
 *" Jacobs v. Fuller, etc., Co. 
 (1902), 67 Ohio St. 70; 65 N. E. 
 617; 65 L. R. A. 833; 13 Am.
 
 employer's liability to contractors Axn ?;ervants. 329 
 
 a shaft on his property, agreeing to furnish the necessary 
 tools, including a hoist, while the other party is to furnish 
 the labor, is not answerable to laborers for the continued 
 safety of the machinery furnished ; so that no recovery can 
 be had against him for injuries to an employee through 
 the breaking of a rope used on the hoist which is sufficient, 
 when furnished, but is allowed by the contractor to become 
 defective.^*'* A shipowner who undertook to furnish and 
 put in place a span to be used in connection with the dis- 
 charge of a cargo by the contractor, was required to exer- 
 cise reasonable care to furnish one fit for the work for 
 which it was to be used, and was liable to a servant of the 
 contractor for failure to exercise such care.-"^^ An employe 
 of a coal company, who has an arrangement with his em- 
 ployer to ride upon empty cars while they are being 
 switched, for the purpose of loading them with coal, and 
 to apply brakes to stop them at the right place, it is held, 
 has no right of action against a railroad company for an 
 injury caused by a defective brake upon a car furnished 
 by the company, where the company had no knowledge 
 
 Neg. R. 208; 16 Id. 611, n. In 
 Kentucky it was held that a per- 
 son owning and operating . ma- 
 chinery is required to use reason- 
 able care to make it safe for the 
 protection of persons working in 
 its vicinity, regardless of whether 
 the person is an employee of the 
 owner or is at work under an 
 independent contractor. Kentucky, 
 etc., Co. V. Bryan (1905), 27 Ky. 
 L. R. 136; 84 S. W. 537. 
 
 '"Central Coal & Iron Co. v. 
 Grider's Admr. (1903), 115 Ky. 
 745; 74 S. W. 1058; 65 L. R. A. 
 455; 16 Am. Neg. R. 610, n. An 
 employer who furnishes a con- 
 tractor with a safe appliance will 
 
 not be liable for injuries to the 
 servants of the contractor result- 
 ing from defects due to wear in- 
 cident to its use. Central, etc., 
 Co. V. Bailey (1903). 28 Ky. L. 
 R. 873; 76 S. W. 842. 
 
 *' Mason v. Tower Hill Co. 
 (1895), 83 Hun (N. Y.), 479; 32 
 N. Y. Supp. 36. Although the 
 relation of master and servant 
 may not exist between the ship 
 owner or charterer and the serv- 
 ants of the stevedore, yet this 
 does not negative the implication 
 of law that such owner or char- 
 terer, inviting the stevedore's 
 servarts to come upon his ship 
 and to do work thereon with
 
 330 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 of the arrangement.^'^ One on whose building a roof was 
 being raised was held to owe no duty to barricade the side- 
 walk or give warning to protect against falling brick, one 
 who had previously been employed on the work in progress 
 and therefore occupied a different position from that of a 
 passerby using the sidewalk in the usual way. 
 
 39 
 
 Sec. 209. Same, Employer Accepting Work. 
 
 A religious society's agents contracted with plaintiff's 
 employer to do certain painting for a gross sum and not 
 subject to the society's control. The defendant society 
 undertook to erect and remove a staging to be used by 
 plaintiff's employer, and through its agents selected and 
 employed a carpenter for a gross sum and not subject to 
 its control to erect and remove the scaffold and to 
 furnish the material and labor therefor. The plaintiff's 
 
 appliances furnished by him, is 
 bound to see that the vessel and 
 appliances are reasonably safe for 
 the purposes indicated ; he owes 
 this duty to the master stevedore 
 and he owes a commensurate duty 
 to such stevedore's servants. 
 Thomps. Neg., Sec. 636, citing 
 The Rheola (1884), 19 Fed. 926. 
 ^ Broslin v. Kansas City, etc., 
 R. (1897), 114 Ala. 398; 21 So. 
 475; 9 Amer. & Eng. Ry. Cas. 
 CN. S.). 99. "The company had 
 knowledge that the cars were 
 being used by the coal company 
 and that the coal company was 
 necessarily using them through 
 the instrumentality of its em- 
 ploj'ees, and that was enough to 
 raise a duty towards the em- 
 ployees of the coal company to 
 see that they were reasonably 
 
 safe for the purposes for which 
 they were supplied." Thomps. 
 Neg., p. 899, note 156. Where 
 a street railway company entered 
 into a contract with another com- 
 pany, by which the latter was en- 
 titled to use of the poles of the 
 former, it was not liable for an 
 accident to an employee of the 
 latter company caused by ihe 
 ])reaking of an unsafe pole, where 
 the company furnishing the pol>= 
 had no knowledge of the employ- 
 ment in the service of which he 
 was engaged. San Antonio, etc., 
 Co. v. Dixon (1897), 17 Tex. 
 Civ. App. 320; 42 S. W. 1009, 
 criticised as unsound in Thomps. 
 Neg., 900, note 156. 
 
 ^ Smith v. H u m p h r e y v il 1 e 
 (1907, Tex. Civ. App.), 104 S. 
 W. 495.
 
 employer's llvbility to contractors and servants. 331 
 
 employer did not and could not know from the appearance 
 or from examining- the staging whether it was or was not 
 strong enough for his workmen to go upon. The staging, 
 being defective, fell, injuring ])laintiff. There was no 
 evidence that the defendant society or its agents took any 
 part in erecting the staging or in directing its erection 
 beyond making the contract with the carpenter, or that 
 they were guilty of any negligence in employing the car- 
 penter to erect it. But the society was held liable to the 
 plaintiff by reason of having accepted the staging and in- 
 duced the carpenter's workmen to come thereon; but that 
 the agents were not jointly liable with the society.**^ 
 
 Sec. 210. Same, Competency of Co-workers. 
 
 A master owes to his servants the duty of exercising 
 ordinary and reasonable care to the end that the fellow- 
 servants with whom he is engaged to work are fit, competent 
 and sober men ; but the proprietor of a building who employs 
 an independent contractor to tear it down does not be- 
 come liable to a servant of such contractor for an injury 
 received through the contractor's incompetency, although 
 such incompetency may have been known to the proprietor 
 at the time of letting the contract.^^ The decisions are 
 
 "Mulchey v. Methodist, etc., 
 Society (1878), 125 Mass. 487; 
 6 Reporter, 756; 15 Am. Neg. 
 Cas. 661, n. A railroad company 
 entered into a contract with X. to 
 do the mason work of a round- 
 house, the contractor to build his 
 own scaffolding, the railroad com- 
 pan}' furnishing the material; 
 the master mechanic of the com- 
 pany arranged with the contractor 
 that the railroad company should 
 build the scaffold for the car- 
 
 penters and that after they were 
 done using it, the contractor 
 might use it if he wished, but on 
 his own responsibility as to its 
 safety for his work; while the 
 contractor was so using it, it fell, 
 hurting one of his employees; the 
 railroad company was held not 
 liable for the injury. Larock v. 
 Ogdensburgh, etc., R. (1882), 26 
 Hun (N. Y.), 382. 
 
 " Schipp V. Pabst Brewing Co. 
 (1896), 64 Minn. 22; 66 N. W. 3.
 
 332 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 not uniform as to the liability of an employer for the incom- 
 petency or negligence of his own servants resulting in injury 
 to the servants of the independent contractor. Thus, a dock- 
 owner who let to a stevedore an engine and an engineer to 
 run it, has been held liable for an injury to such stevedore's 
 employee through the engineer's negligence.^^ In a lead- 
 ing Georgia case a track-layer in the contractor's employ 
 was held entitled to recover from the railroad company 
 for injuries received while he was traveling as a passenger 
 on a train operated by the contractor.'*^ The owner of a 
 building in exclusive possession of an elevator therein, is 
 responsible for the negligence of the operator in injuring 
 the servant of a contractor who has undertaken to paint 
 the shaft, when the work is being done at the bottom of 
 the shaft below the car, although prior thereto the car had 
 been used by the contractor as a movable staging for the 
 use of his men."*^ It is the duty of the operatives of trains 
 to exercise due care to avoid injury to employees of con- 
 tractors who are lawfully on the railroad premises.^^ The 
 
 *'Coyle V. Pierrepont (1885), 
 37 Hun (N. Y.). 379. But a 
 ship owner is not liable for in- 
 juries received by a servant of a 
 stevedore through the negligence 
 of his fellow-servants in failing 
 to replace a grating over a hatch- 
 way, or in exposing a trimming 
 hatch by the removal of dunnage. 
 Dwyer v. National Steamship Co. 
 (1880), 17 Blatchf. 472; 4 Fed. 
 493; In re the Wm. F. Babcock 
 (1887), 31 Fed. 418. Cf., Riley 
 v. State Line Steamship Co. 
 (1877), 29 La. Ann. 791; 29 
 Amer. Rep. 349. 
 
 "Macon, etc., R. v. Mayes 
 (1873), 49 Ga. 355; 15 Amer. Rep. 
 678. 
 
 *^ Perry v. Payne (1907), 217 
 Penn. 252; 66 Atl. 553; 11 L. R. 
 A. (N. S.), 1173. 
 
 " Sheltrawn v. Michigan, etc., 
 R. (1901), 128 Mich. 669; 87 N. 
 W. 893. It is the duty of the 
 servants of a switch company 
 operating trains in its yards to 
 keep a lookout for car repairers 
 who are permitted by the switch 
 company to repair the cars of 
 their employers in the switch 
 yard. Kentucky, etc., Co. v. 
 Sydor (1904). 119 Ky. 18; 82 S. 
 W. 989; 68 L. R. A. 183. It has 
 been held that a person at work 
 on an elevated railroad structure 
 as an employee of a subcontractor 
 thereon was a licensee to whom
 
 employer's liability to contractors and servants. 333 
 
 owner of premises upon which there is a private railroad 
 track owes to one employed by a contractor on his premises 
 near the track the duty to exercise ordinary care to avoid 
 injury to him from cars passing on the track. ^^' 
 
 Sec. 211. Contributory Negligence. 
 
 The duty to use reasonable care is reciprocal and the 
 servant of a contractor can not recover for injuries the 
 result of an accident to which his negligence contributed, 
 e. g., where the servant of an ice company, employed to 
 ice cars, ventured onto the roof of a car to be iced at a 
 time when it was slippery with ice, and it was held he 
 assumed the danger of an obvious risk.'*^ An employee of 
 a contractor may become a trespasser by venturing on 
 premises to which he has not been invited, as where a 
 painter on a freight depot, without any invitation from the 
 railroad company, attempted to cross between the parts of 
 a broken train and was injured by their suddenly coming 
 too-ether.^'^ 
 
 'b 
 
 the elevated railroad compan}- uniforml}' recurring occasions 
 owed the duty of using reason- given up to the business of 
 able care to prevent his being in- switching cars, by a railroad com- 
 jured from exposure to unusual pany defendant, and who was on 
 dangers not known to him that such occasions directed to cease 
 might be caused by the negligent work until the switching opera- 
 running of the defendant's surface tions were completed, and who, 
 cars beneath the platform on notwithstanding notice that switch- 
 which he was at work. Wagner ing was in progress, voluntarily 
 V. Boston, etc., R. (1905), 188 assumed a position of danger, 
 Mass. 437; 74 N. E. 919. where he was injured by being 
 
 *" Sack v. St. Louis Car Co. pinched between a car, which 
 
 (1905), 112 Mo. App. 476; 87 S. was suddenly moved, and a bum- 
 
 W. 79. per. Johnson v. Minneapolis, etc., 
 
 ''Baker v. Louisville, etc., Co. R. (1904), 140 Mich. 292; 103 N. 
 
 (1901), 106 Tenn. 490; 61 S. W. W. 594. 
 
 1029; S3 L. R. A. 474. Contribu- '"Furey v. New York, etc., R. 
 
 tory negligence was imputed to a (1902), 67 N. J. L. 270; 51 Atl. 
 
 servant of a lime company work- 505. 
 ing in a yard which was upon
 
 CHAPTER IX. 
 
 Contractor's Liability — Subcontractors. 
 
 SECTION 
 
 215. Contractors' liability, gener- 
 
 ally. 
 
 216. Same — Relation of parties. 
 
 217. Same — Statutory right. 
 
 218. Same — Negligent perform- 
 
 ance of work. 
 
 219. Same — Following defective 
 
 plans, etc. 
 
 220. Same — Acts of employer. 
 
 221. Same — Injury to wrongdoer. 
 
 222. Same — Injury to his own 
 
 servant. 
 
 223. Same — Between contractors 
 
 and their servants. 
 
 SECTION 
 
 224. Same — Injury to vendee's 
 
 servant. 
 
 225. Same — Condition of em- 
 
 ployer's premises. 
 
 226. Same — Contractor's legal 
 
 representative. 
 227.' Same — Injury to employer's 
 tenant. 
 
 228. Same — Acceptance by em- 
 
 ployer. 
 
 229. Same — Indemnity to em- 
 
 ployer. 
 
 230. Subcontractors. 
 
 Sec. 215. Contractor's Liability, Generally. 
 
 The contractor, like any one else, is liable for the conse- 
 quences of his own negligent acts without reference to the 
 doctrine of independent contractors.^ He must answer for 
 his own wrongs and those of his servants in the course of 
 the work.^ He is especially liable for his own acts when 
 he as.sumes this liability in his contract of employment.^ 
 Where a contractor under the charter of a turnpike com- 
 
 ' Schutte V. United, etc., Co. 
 (1902), 68 N. J. L. 435; 53 Atl. 
 204; 16 Am. Neg. R. 614, n.; 
 Bill V. New York, etc., Co. (1901), 
 69 N. Y. Supp. 989; Straus v. 
 Buchanan (1904), 89 N. Y. Supp. 
 226. 
 334 
 
 'Holt V. Wheatly (1874), 51 
 Ala. 569: Shaw v. Crocker (1871), 
 42 Cal. 435. 
 
 * Chicago, etc., Co. v. LaMantia 
 (1904), 112 Ills. App. 43.
 
 CONTRACTOR 'S LIABILITY — SUBCONTRACTORS. 
 
 335 
 
 pany entered another's enclosed land and took materials 
 therefrom for the construction of the highway, and by 
 reason of the fence on the premises being left open, cattle 
 entered and destroyed the crop thereon the contractor is 
 the proper party defendant in an action for the damages."* 
 Where parties enter into a contract which is in itself 
 lawful, and the contractor in carrying on his work, does 
 anything injurious to another he alone is responsible.^ 
 Contractors are neither entitled to tlie benefits conferred, 
 nor subject to the burdens imposed, by statutes which, upon 
 a reasonable construction, must be held applicable only to 
 servants.^ Several cases have held that an independent 
 
 'Crawford v. Maxwell (1842), 
 3 Humph. (Tenn.), 476. 
 
 "Woodhill V. Great Western 
 Railroad (1885). 4 U. C. C. P. 
 449. In an action apainst a con- 
 tractor by a third person for in- 
 juries received b}' falling into a 
 ditch dug by the defendant, the 
 jury was instructed that if the 
 defendant had control of the 
 ditch he would be responsible for 
 any negligence connected there- 
 with, but if he was merely en- 
 gaged to do the work under the 
 superintendence and direction of 
 another he was not liable, and 
 this was held correct on appeal. 
 Jessup V. Sloneker (1891), 142 
 Penn. St. 527 ; 21 Atl. 988. When 
 the work of the construction, re- 
 pair or alteration of a street rail- 
 way track in a city's streets is 
 authorized by law and excava- 
 tions are made in such work 
 which are to be kept open at 
 night, the duty is incuml ent on 
 those performing the work under 
 
 a contract with the street railway 
 company to exercise reasonable 
 care to guard such excavations to 
 protect those using the streets. 
 Fox V. Wm. Wharton, etc., Co. 
 (1900. N. J. L.), 7 Amer. Neg. 
 Rep. 467. To the same effect : 
 Tatje V. Frawley (1900. La.), 27 
 So. 339, cited in note, 7 Amer. 
 Neg. Rep. 467. 
 
 "Hardy v. Ryle (1829), 4 
 Mann. & R. 295; Macfie v. Hutch- 
 inson (1887). 12 Ont. Pr. Rep. 
 167; Ingram v. Barnes (1857), 7 
 El. & Bl. 115, 132. Cf.. Sleeman 
 v. Barrett (1864). 2 Hurls. & C. 
 934. An independent contractor 
 cannot be considered the agent or 
 servant of the person employing 
 him, and hence the principle oT 
 respondeat superior cannot be in- 
 terposed for the contractor's pro- 
 tection in a suit by a third person 
 injured by his negligence. Fish 
 v. Dodge (1862). m Barb. (N. 
 Y.), 163.
 
 336 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 contractor can not be convicted of embezzlement simply as 
 such.'^ 
 
 Sec. 216. Same, Relation of Parties. 
 
 In New York, one contracting with the State to enlarge 
 the State's canal is answerable for any direct injury to an 
 individual in the nature of a trespass; as by blasting rock, 
 whereby a person lawfully at work on adjacent premises, 
 is hurt. The contractor can not justify an act of this kind 
 on the ground that he was the State's agent and proceeding 
 under the immunity of public authority, for he was not 
 an agent but was an independent contractor. But it is held 
 that even though he were an agent of the State it would 
 make no difference, for the State can not clotlie its agents 
 with immunity in the exercise of acts invasive of private 
 right without formal legislative act.^ Mere advertisers, 
 who are licensed to go onto the roof of a building to place 
 advertisements upon a sign which is a fixture on the build- 
 ing and which does not belong to them such advertisers 
 having no right of possession of any part of the building, 
 are not liable for the signs I'dllin^- from the building in a 
 high wind.^ 
 
 'Regina v. Hall (1875), 13 Cox 
 C. C. 49; Regina v. Clifford 
 (1878), 3 New Zeal. J. R. (N. 
 S.), 1. 
 
 'St. Peter v. Denison (1874), 
 58 N. Y. 416; 17 Amer. Rep. 258. 
 See, also, the following more or 
 less analogous English cases : 
 Ward V. Lee (1857), 7 El. & Bl. 
 426; Clothier v. Web.ster (1862), 
 12 C. B. (N. S.), 798; Jones v. 
 Bird (1822), 5 Barn. & Aid. 837. 
 
 'Reynoujs v. Van Beuren 
 (1898), 155 N. Y. 120; 49 N. E. 
 
 763; 42 L. R. A. 129. A con- 
 tractor engaging to manufacture 
 a certain article who constructed 
 it so negligently that it broke and 
 damaged adjacent property, was 
 held liable for such damages, in, 
 Erie City, etc.. Works v. Barber 
 (1883), 102 Penn. St. 156. A 
 livery stable keeper, and not one 
 who hires a carriage, horses and 
 driver from him is held, in 
 h'RERKER V. Nicholson (1907), 41 
 Colo. 12, 92 Pac. 224, 13 L. R. 
 A. (N. S.), 1122, to be liable for
 
 CONTRACTOR 's LIABILITY — SUBCONTRACTORS. 
 
 337 
 
 Sec. 217. Same, Statutory Right. 
 
 A corporation authorized by statute to insure and also 
 to inspect steam boilers and stationary engines and to issue 
 certificates stating their maximum working pressure, which 
 certificates should be accepted by the city's chief inspector, 
 was held liable to a third person from a negligent inspec- 
 tion and a false certificate.^" 
 
 Sec. 218. Same, Negligent Performance of Work. 
 
 Where an injury springs from the negligent manner in 
 which the contractor has executed the work, and not from 
 the fact of the work being wrongful per se, the contractor 
 will be primarily liable and it is immaterial whether he be 
 deemed an independent contractor or a servant. ^^ W'here 
 a ditch contractor so negligently constructed a ditch that 
 instead of draining water off the plaintiff's land, it carried 
 water onto the land, the contractor is liable for the damages 
 resulting from his negligent act.^- 
 
 injuries to a third person by the 
 negligence of the driver, where 
 the hirer exercises no control 
 over the latter other than telling 
 him in a general way where to go. 
 '"Bradley v. Hartford, etc., In- 
 surance Co. (1883). 19 Fed. 246. 
 An English statute regulating the 
 construction of certain public 
 works provided a special mode 
 of assessing damages to land ; a 
 contractor of the public board 
 having such work in charge was 
 nevertheless liable to pay damages 
 sustained by an occupier, in 
 consequence of his negligence and 
 want of skill. Clothier v. Web- 
 ster (1862), 12 C. B. (N. S.), 790. 
 Cf., Lawrence v. Great Northern 
 R. ( ), 16 Q. B. 643; Brine 
 
 V. Great Western R. (1862), 2 
 Best. & S. 402; Bartlett v. Baker 
 (1864), 3 Hurls. & C 153; 34 L. 
 J. Exch. 8. 
 
 "Kollock V. Madison (1893), 
 84 Wise. 458; 54 N. W. 725. 
 For irrelevant discussion as to 
 whether wrong-doer was servant 
 or independent contractor, see 
 Charlock v. Freel (1891). 125 N. 
 Y. 357; 26 N. E. 262. 
 
 '=^Fromme v. Ide (1891), 14 N. 
 Y. Supp. 802; (1893), 23 N. Y. 
 Siipp. 56; (1895), 144 N. Y. 630; 
 39 N. E. 493. Cf., Pasquini v. 
 Lowry (1892), 63 Hun (N. Y.), 
 632; 18 N. Y. Supp. 284; Geer v. 
 Darrow (1891), 61 Conn. 230; 23 
 Atl. 1087.
 
 338 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 219. Same, Following Defective Plans, etc. 
 
 Wliere the contractor follows designs and plans fur- 
 nished him by his employer, the liability is placed on the 
 employer. ^^ A brick contractor has been held not liable 
 where, notwithstanding the fact that the work was done in 
 a workmanlike manner in accordance with the plans and 
 under the direction of the architect, the building fell and 
 caused the injuries complained of, by reason of a defect 
 in the architect's plans, which was not known to the con- 
 tractor.^^ ''If the negligence of a proprietor and not that 
 of the contractor is the proximate cause of the injury, the 
 former will be liable to the one injured. Thus, if a con- 
 tractor merely engages to do a certain work on a building 
 (e. g., the brick-work) under the direction of the pro- 
 prietor's agent (e. g., the architect) and the building falls, 
 in consequence of a defect in the plans furnished by the 
 architect, the contractor will not be liable to the one in- 
 jured, for this would reverse the rule (of respondeat su- 
 perior) and make the inferior liable for the superior's 
 acts." ^^ In case of plans so defective that even a person 
 not skilled in architecture would know them to be dan- 
 
 " Board, etc., v. VIckers (1900), 
 62 Kans. 25 ; 61 Pac. 391 ; Rector, 
 etc., V. Paterson, etc., R. (1902), 
 68 N. J. L. 399; 53 Atl. 449, 1079; 
 16 Am. Neg. R. 614, n. 
 
 "Daegling V. Gilmore (1868), 
 49 Ills. 248; 16 Am. Neg. Cas. 
 416. For liability of a steel com- 
 pany which has constituted an- 
 other its agent, to put up a brid^5e 
 out of material which it has con- 
 tracted to furnish to the em- 
 ployees of such agent, for failure 
 to take care to comply with the 
 requirements of the contract, in so 
 
 far as is necessary for the safety 
 of such employees, see Bross v. 
 
 Carnegie Steel Co. ( ), 28 
 
 Pitts. L. J. (N. S.), 318. Whether 
 the floor of a building fell in con- 
 sequence of its negligent construc- 
 tion by the contractors or by 
 reason of its being overloaded 
 with building materials, was held 
 in an action against the con- 
 tractor to be a question for the 
 jury. Gardner v. Friedrich (1898), 
 25 App. Div. 521 ; 49 N. Y. Supp. 
 1077. 
 '" Thomps. Neg., Sec. 647.
 
 contractor's LIAHH.ITY — SUBCONTRACTORS. 339 
 
 geroiis, the independent contractor might be hable for in- 
 juries occasioned by complying with them.^" Hence, one 
 contracting for the construction of a lift bridge and agree- 
 ing to pay all legal damages caused by negligence in guard- 
 ing it during construction, is liable for the death of one 
 falling through an unguarded hole left in the floor of the 
 adjacent viaduct after the removal therefrom of a derrick 
 by a subcontractor undertaking the construction work, 
 since the work required by the contract necessarily rendered 
 the viaduct unsafe.^"^ 
 
 Sec. 220. Same, Acts of Employer. 
 
 When building material is hauled onto the ground by the 
 owner of the property, the contractor does not become 
 liable for inujries caused by defective piling until he has 
 taken control of the timbers and entered upon the erection 
 of the structure. ''* In a recent Illinois case building-owners 
 are held liable for the death of a contractor's servant, who, 
 while at work removing a stack from the building and ex- 
 ercising due care for his safety, broke through the roof 
 and was killed, the accident being due to a hidden defect 
 of which the owners knew but of which they failed to warn 
 him.'^ A person whO' built a bridge on a railroad com- 
 pany's land for the company's use in transporting baggage 
 from its station to his hotel and to another railroad, was 
 held not liable for a personal injury caused by the bridge 
 getting out of repair.^'' 
 
 "Daegling v. Gilmore, supra; v. Calvert (1907), 231 Ills. 290; 
 
 Pejton V. Richards (1856), 11 83 N. E. 184; 14 L. R. A. (N. 
 
 La. Ann. 62; Horner v. Nichol- S.), 782. 
 
 son (1874), 56 Mo. 220. ^nVatson v. Oxanna Land Co. 
 
 "Chicago, etc., R. v. LaMantia (1891), 92 Ala. 320; 8 So. 770. 
 
 (1904), 112 Ills. App. 43. See, generally, as to employer re- 
 
 " MacDonald V. O'Reilly (1904), serv'ing control or interfering, 
 
 45 Ore. 589; 78 Pac. 753. Chap. VI., ante. 
 
 '" Si'RiNGFiELD Light, etc., Co.
 
 340 INDEPENDENT CONTRACTORS AND THEIR LI.iBILITY. 
 
 Sec. 221. Same, Injury to Wrong-doer. 
 
 The obligation of an independent contractor to tres- 
 passers and licensees on the premises on which he is at 
 work is no greater than that of the property owner, though 
 the trespasser or licensee is the servant of the proprietor; 
 his own duty, it is said, is to refrain from doing any willful 
 injury and from setting traps.^^ Contractors employed 
 in constructing a railroad can not avoid their liability to a 
 third person working on the same road, who is injured 
 by their negligence, by claiming that the right of way on 
 which he was working was their own.^^ 
 
 Sec. 222. Same, IrjiLry to His Own Servant. 
 
 The fact that the proprietor may be liable does not neces- 
 sarily negative the conclusion that the contractor is liable. 
 The general rule will be that the independent contractor 
 will occupy the relation of master and servant as between 
 himself and his own employees and that such employees 
 will not be regarded as servants of the proprietor. It must 
 follow that in any such case of a negligent injury, where 
 the proprietor becomes liable on the ground that the negli- 
 gence is that of an independent contractor or his servants, 
 the contractor will be liable.^^ 
 
 ^ Blackstone v. Chelmsford, etc., for the owner, under a percentage 
 
 Co. (1898), 170 Mass. 321; 49 N. contract by which it is to furnish 
 
 ■£ 535_ materials and labor and be paid 
 
 ^Cameron V. Vandegrifif (1892 j, its cost with a percentage added, 
 
 53 Ark. 381 ; 13 S. W. 1092. is an independent contractor and 
 
 =* Charlock v. Freel (1891), 125 is liable for an injury to one of 
 
 N. Y. 357; 26 N. E. 262; Doran the laborers so employed and paid 
 
 V. Flood (1891), 47 Fed. 543; by such corporation caused by the 
 
 Geer v. Darrow (1891), 61 Conn. negligence of the foreman of such 
 
 220; 23 Atl. 1087; Wilson v. corporation. Whitney, etc., Co. 
 
 Chicago (1890), 42 Fed. 506. A v. O'Rourke (1898), 172 Ills. 177; 
 
 corporation erecting a building 50 N. E. 242. A contractor em-
 
 contractor's LIAFULITY — SUBCONTRACTORS. 341 
 
 Sec. 223. Same, Between Contractors and Their Servants. 
 
 The question of the liability of a contractor to do iron- 
 work on a building for damages caused by the negligence 
 of his servants in removing and failing to replace certain 
 braces, erected by a contractor of the mason-work, to sus- 
 tain a wall, the wall being blown down by a wind of ex- 
 traordinary violence, arose where the contractor foi the 
 mason-work, on quitting work on Saturday, left the work 
 properly braced and not returning to work until Monday 
 afternoon, he failed to examine the braces, and it was held 
 that the iron contractor was not liable by reason of such 
 failure to examine since he was not bound to anticipate 
 their removal by the other contractor. ^'^ A person in the 
 employ of one contractor in working on a railroad, is not 
 deprived of the right to recover for a personal injury 
 visited on him by the negligence of another contractor in 
 blasting, by reason of the fact that his own employer failed 
 to notify him a blast would be fired. ^^ Building contrac- 
 tors employed to erect a scaffold to be used by the em- 
 ployees of an independent contractor, having work to do 
 
 ploying laborers in and about his is due to poor material, defective 
 
 . work is liable to his employees workmanship or bad management. 
 
 for any injury sustained by them Jones v. Philadelphia Traction 
 
 in tlie prosecution thereof, the in- Co. (1898), 185 Penn. 75; 39 Atl. 
 
 jury being tlie result of his neg- 889. 
 
 ligence or that of his agent. * Cameron v. Vandegriff (1892), 
 
 Sullivan V. Louis, etc., Co. (1872), 53 Ark. 381 ; 13 S. W. 1092. For 
 
 9 Bush (Ky.), 81; 15 Amer. Ncg. circumstances under which the 
 
 Cas. 147. question whether or not the driver 
 
 ^ Pasquini v. Lowery (1892), of a horse by which an elevator 
 
 18 N. Y. Supp. 284; 63 Hun, 632. was operated was guilty of neg- 
 
 Where the cap blows out of the ligence rendering his employer, a 
 
 end of a steam supply pipe which su'icontractor, liable for injuries 
 
 is being put in by one contractor to the servants of another sub- 
 
 and injures the servant of another contractor, see Eckman v. Lauer 
 
 contractor, the owner of the build- (1897). 67 Minn. 221; 69 N. W. 
 
 ing is not liable, if the accident 893.
 
 342 INDEPENDENT CONTRACTORS AND THEIR LIABILiITY. 
 
 on the building are liable in damages to the employees of 
 such other contractor if they are injured in consequence of 
 the scaffolding having been defectively constructed.^^' 
 Where a contractor, being short of laborers, borrowed a 
 gang of men from a third party, and under such third 
 party's foreman one of such laborers was put in a danger- 
 ous place at which he was injured, the contractor and the 
 third party were both held liable.-^ \Miere an engineer 
 of a train collided with a car negligently left upon a cross- 
 ing by contractors of another company, he was held en- 
 titled to recover against the contractors.^® 
 
 Sec. 224. Same, Injury to Vendee's Servant. 
 
 "As a general rule, a contractor, manufacturer or vendor 
 is not liable to third parties, who have no contractual re- 
 lations with him for negligence in the construction, etc., 
 of the articles which he handles, whereby such parties are 
 injured. Such was the principle applied in the following 
 cases with respect to the articles furnished :" ^^ A defective 
 chain furnished to draw stone ; •^'^ an improperly hung 
 chandelier ; "^ a defective valve in an oil-car ; ^^ a defective 
 
 '"Hoffner v. Prettyman (1897), 
 6 Pa. Super. Ct. 20. A contractor 
 erecting a scafifold for his own 
 work is not liable for the death, 
 due to its unsafe construction, of 
 an employee of another con- 
 tractor, who goes thereon without 
 invitation, express or implied, for 
 the purpose of accomplishing the 
 work of his own employer. 
 Mauer v. Ferguson (1892), 17 N. 
 Y. Supp. 349. 
 
 ^ Rook V. New Jersey, etc., 
 Works (1894), 76 Hun (N. Y.), 
 54; 27 N. Y. Supp. 623. See, also, 
 Jehle V. Ellicott, etc., Co. (1898), 
 
 31 App. Div. (N. Y.), 336; 52 N. 
 Y. Supp. 366. 
 
 ^Albert V. Sweet (1889, N. Y.), 
 42 Am. & Eng. Ry. Cas. 216; 22 
 N. E. 762. 
 
 ^ Note to Earl v. Lubbock 
 (1905), 1 K. B. 253, in 1 Amer. 
 & Eng. Anno. Cas. 756, citing the 
 cases referred to in the following 
 notes. 
 
 ™ Bhikemore v. Bristol, etc., R. 
 (1858), 8 El. & Bl. 1035. 
 
 ■•"Collis V. Seldeh (1868), L. R., 
 3 C. P. 495. 
 
 ^" Goodlander v. Standard Oil 
 Co. (1894), 63 Fed. 401.
 
 CONTRACTOR S LIABILITY — SUBCONTRACTORS. 
 
 343 
 
 side-saddle ; ^^ a defective wall which fell on a pedestrian ; ^* 
 a railroad car supplied with defective brakes ;^^ a defective 
 cylinder in a threshing machine ;'"' a defective bridge f^ 
 a defective rim in a balance wheel ; ^^ a defective steam 
 boiler ; ^^ a defective land roller ; '''^ a defective rope on a 
 derrick; "*' a defective shelf for a workman to stand on in 
 placing ice in a box;^" a defective hoisting rope of an 
 elevator; ^^ shelves in a dry goods store whose fall injured 
 a customer ; ^^ a porch on a hotel ; *^ a defective hook hold- 
 ing a heavy weight in a drop press ; "*'' defective wheels.^" 
 A master wheelwright who contracts to keep in repair a 
 number of vans owned by a firm is under no duty to a 
 driver employed by the firm, and hence is not liable in 
 damages to such driver for the personal injuries sustained 
 
 °* Bragdon v. Perkins, etc., Co. 
 (1898), 87 Fed. 109. 
 
 " Daugherty v. Herzog (1896), 
 145 Ind. 255; 44 N. E. 457; 57 
 Amer. St. Rep. 204; 32 L. R. A. 
 837. 
 
 '"Roddy v. Missouri, etc., R. 
 (1891), 104 Mo. 234; 15 S. W. 
 1112; 12 L. R. A. 746; 24 Amer. 
 St. Rep. 237. 
 
 "* Heizer v. Kingsland, etc., 
 Co. (1892), 110 Mo. 605; 19 S. 
 W. 630; 33 Amer. St. Rep. 482; 
 15 L. R. A. 821; Huset v. Case, 
 etc., Co. (1903), 120 Fed. 865. 
 
 "' Marvin, etc., Co. v. Ward 
 (1883), 46 N. J. L. 19. 
 
 "Loop V. Litchfield (1870), 
 42 N. Y. 351; 1 Amer. Rep. 543. 
 
 *LosEE V. Clute (1873), 51 N. 
 Y. 494; 10 Amer. Rep. 638; 
 Chase Cas. Torts (Supp.), 14. 
 
 "Kuelling v. Roderick, etc., Co. 
 
 (1903), 88 N. Y. App. Div. 309; 
 84 N. Y. Supp. 622. 
 
 " Burke v. DeCastro, etc., Co. 
 (1877), 11 Hun (N. Y.), 354. 
 
 *-S\van V. Jackson (1889), 55 
 Hun (N. Y.), 194: 7 N. Y. Supp. 
 821. 
 
 " Barrett v. Singer, etc., Co. 
 (1865), 1 Sweeny (N. Y.), 545. 
 
 " BuRDicK V. Cheadle (1875), 
 26 Ohio St. 393; 20 Amer. Rep. 
 767. 
 
 " CuRTiN V. Somerset (1891), 
 140 Penn. St. 70; 21 Atl. 244; 12 
 L. R. A. 322; 23 Amer. St. Rep. 
 220. 
 
 *" McCaffrey v. Mossberg. etc., 
 Co. (1901), 23 R. L 381; 50 Atl. 
 651 ; 91 Amer. St. Rep. 637 : 55 
 L. R. A. 822. 
 
 " Case, etc.. Works v. Niles, 
 etc., Co. (1895). 90 Wise. 590; 63 
 N. W. 1013.
 
 344 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 by him because of the faikire of the contractor properly to 
 inspect and repair one of the vans.'*^ 
 
 As long as an elevator or other machine is under the 
 control of and being operated by the manufacturer or 
 vendor, the latter is liable for injuries to third persons, 
 irrespective of any privity of contract between the parties.'*^ 
 In a number of cases it has been held that elevator compa- 
 nies which place elevators in buildings, under contracts 
 with the owners guaranteeing their safety, are not liable 
 for injuries resulting to third persons from defects in the 
 
 same 
 
 50 
 
 Sec. 225. Same, Condition of Employer's Premises. 
 
 The contractor, on his part, having possession of his 
 employer's premises is required to exercise a reasonable 
 deeree of care with reference to the employees of the 
 owner of the premises engaged in necessary work thereon. ^^ 
 
 ^Eakl v. Lubbock (1905), 1 
 K. B. 253 ; 1 Amer. & Eng. Annot. 
 Cas. 753, citing and following 
 Winterbottom v. Wright (1842), 
 10 Mees. & W. 109. 
 
 "Empire, etc., Co. v. Brady 
 (1896), 164 Ills. 58; Necker v. 
 Harvey (1883), 49 Mich. 518; 
 
 PiTTSFIELD, ETC., Co. V. PiTTSFIELD, 
 
 ETC., Co. (1902), 71 N. IT. 522; 
 53 Atl. 807; 60 L. R. A. 116; 50 
 Amer. St. Rep. 313; Cox v. Mason 
 (1903), 89 N. Y. App. Div. 219. 
 "Field V. French (1898), 80 
 Ills. App. 78; Simons v. Gregory 
 (1905, Ky.), 85 S. W. 751; 
 Necker v. Harvey, supra; Zieman 
 V. Kieckhefer Elevator Co. (1895), 
 90 Wise. 497; 63 N. W. 1021. 
 Contra, Kahner v. Otis Elevator 
 
 Co. (1904), 96 N. Y. App. Div. 
 169; 89 N. Y. Supp. 185. 
 
 °' Kitchen v. Riter-Conley, etc., 
 Co. (1904), 207 Penn. St. 558; 56 
 Atl. 1083; Gile v. J. W. Bishop 
 Co. (1903), 184 Mass. 413; 68 N. 
 E. 837. For circumstances under 
 which a contractor was exoner- 
 ated from liability for the death 
 of a painter, employed by the 
 owner of the building, who was 
 killed by falling from a high scaf- 
 fold, erected by the contractor's 
 employee, see Maguire v. Magee 
 (1888. Penn.), 13 Atl. 551. Al- 
 though the relation of master and 
 servant does not exist between a 
 master stevedore and the member 
 of a vessel's crew, yet there is an 
 implied obligation resting upon
 
 CONTRACTOR 'S LIABILITY — SUBCONTRACTORS. 
 
 345 
 
 Sec. 226. Contractor's Legal Representatives. 
 
 There is no right of action against the personal repre- 
 sentatives of a deceased contractor who engaged to erect 
 a building that would bear a stipulated weight, the contrac- 
 tor having died before completing the building, where, 
 after his death, it fell under a less weight and injured an- 
 other's building, the fall being occasioned by the use to which 
 it was put after the contractor's death and not by the defective 
 construction of the wall by the deceased contractor.^^ 
 
 Sec. 227. Same, Injury to Employer's Tenant. 
 
 One contracting with a landlord to heat a building is liable 
 in tort for the breach of a legal duty to a tenant for damage 
 to him proximately arising from the bursting of a water pipe 
 due to freezing because of his negligence in permitting the 
 fires to go out.^^ A contractor employed to replace an old 
 elevator with a new one has been held liable for injuries 
 to a boy employed by a telegraph company, having a right 
 to use a hall in the building, from falling over materials 
 left in the hall by such contractor, without lights or suitable 
 safeguards, in reliance upon the lighting of the hall by the 
 owner of the building.^^ 
 
 the former to keep the machinery 
 used by him in a reasonably safe 
 and secure condition and to oper- 
 ate the same carefully so as not 
 to injure members of the crew 
 engaged about the vessel ; failure 
 to do so renders the stevedore 
 liable to the latter. Minor v. 
 Clark (18S9), 8 N. Y. Supp. 616. 
 Plaintiff, a hotel dish washer, was 
 required by his employer to go 
 upon the hotel roof to assist in 
 placing signs there and was in- 
 jured by being shocked by coming 
 
 in contact with defendant's wires 
 negligently fixed on the roof. 
 Giraudi v. Electric, etc., Co. 
 (1895), 107 Cal. 120; 13 Amer. 
 Neg. Cas. 517, n. 
 
 °- Methodist Episcopal Church 
 V. Rensh (1857), 7 Ohio St. 369. 
 
 5» PiTXSFIELD, ETC., Co. V. PlTTS- 
 FIELD. ETC., Co. (1902), 71 N. H. 
 
 522; 53 Atl. 807; 60 L. R. A. 116. 
 " Crane Elevator Co. v. Lippert 
 (1894), 63 Fed. 942; 11 C. C. A. 
 521. Contractors who make re- 
 pairs on a house are responsible
 
 346 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 Sec. 228. Same, Acceptance by Employer. 
 
 An independent contractor is not liable for injuries to 
 a third person, occurring after the contractor has com- 
 pleted the work and turned it over to the owner or em- 
 ployer and the same has been accepted by him, though the 
 injury result from the contractor's failure to properly carry 
 out his contract. ^^ In a note to the case referred to, it is 
 stated : ''That an independent contractor having a con- 
 tract for the doing of work, is not, as a general rule, liable 
 for an injury to the person or property of one not a party 
 to the contract, occurring after the contractor has com- 
 pleted the work and has turned it over to the owner or 
 employer and the same has been accepted by him, though 
 the injury result from the contractor's failure properly to 
 carry out his contract is, as stated in the reported case, 
 well settled." ^^ The contractor and not the owner is liable 
 for injuries due to negligence in the removal of materials 
 and appliances belonging to the contractor after the com- 
 
 for damages to furniture and ef- 
 fects therein, caused by their own 
 negligence or that of their em- 
 ployees. McDonald v. Morrison 
 (1898), 15 Queb. Sup. Ct. 143. 
 
 ^ Young v. Smith, etc., Co. 
 (1905), 124 Ga. 475; 4 Amer. & 
 Eng. Anno. Cas. 226 ; 14 Am. Neg. 
 R. 132, per Fish, C. J. See Sec. 
 177, ante. 
 
 ^4 Amer. & Eng. Anno. Cas. 
 228, citing Winterbottom v. 
 Wright (1842), 10 Mees. & W. 
 109; Heaven v. Pender (1883), 11 
 Q. B. D. 506; Sali.iotte v. King, 
 ETC., Co. (1903). 122 Fed. 378; 58 
 C. C. A. 466; 65 L. R. A. 620; 16 
 Am. Neg. R. 615, n; Albany v. 
 Cunliff (1849), 2 N. Y. 165; 
 Daugherty v. Herzog (1896), 145 
 
 Ind. 255; 44 N. E. 457; 57 Amer. 
 St. Rep. 204; 32 L. R. A. 837; 
 CuRTiN V. Somerset (1891), 140 
 Penn. St. 70; 21 Atl. 244; 12 L. R. 
 A. 322; 23 Amer. St. Rep. 220; 
 Fitzmaurice v. Fabian (1892), 147 
 Penn. St. 199; 23 Atl. 444; First 
 Presbyterian Church v. Smith 
 (1894), 163 Penn. St. 561; 30 Atl. 
 279; 43 Amer. St. Rep. 803; 26 
 L. R. A. 504; 39 Cent. Law J. 
 452. "Where the work is turned 
 over by the contractor so negli- 
 gently defective as to be immi- 
 nently dangerous to third per- 
 sons," the contractor is liable. 4 
 Amer. & Eng. Anno. Cas. 229, 
 citing Devlin v. Smith (1882), 
 89 N. Y. 470; 42 Amer. Rep. 311.
 
 CONTRACTOR 's LIAUIl JTY — SUBCONTRACTORS. 
 
 347 
 
 pletion of the work, in which act of removal the proprietor 
 does not participate.^" 
 
 But the work must be completed; it is not enough that 
 the time fixed for its completion, according to the contract, 
 has expired. ^^ The rule in this connection does not require 
 a formal acceptance of the work done by the contractor. 
 The liability of the contractor will cease with a practical 
 acceptance after completion of the work. Thus, where a 
 stand-pipe for a municipality collapsed, thereby flooding 
 the plaintiff's lands prior to its formal acceptance but after 
 the municipality had filled it with water, the municipality 
 was held liable.^'* \\'here an accident occurred after a 
 bridge was completed and turned over to and accepted by 
 the owners, the independent contractor was not lialile to 
 the one injured.*"' Where a traveler was injured by the 
 fall of material from a roof after a contractor employed to 
 repair it had completed his contract, the contractor was held 
 not answerable."^ As between a contractor and third 
 persons, the contractor is not liable where the injuries com- 
 plained of resulted after the work had been completed and 
 turned over to the owner.*^- 
 
 "The obvious reason" why a contractor is no longer 
 liable to third persons after the w^ork is completed and 
 turned over and accepted "is that by his contract, the con- 
 
 " Swart V. Justh (1904). 24 
 App. (D. C), 596. 
 
 " Blackstone v. Chelmsford, etc., 
 Co. (1898), 170 Mass. 321; 49 N. 
 E. 635. 
 
 "Rf-ad v. East Providemce, 
 ETC., Co. (1898), 20 R. I. 574; 4 
 Amer. Neg. Rep. 589; 40 At!. 760. 
 See. also, Daugherty v. Herzog 
 (1896), 145 Ind. 255; 44 N. E. 
 457: 32 L. R. A. 837; 57 Amer. 
 St. Rep. 204. 
 
 °" Salliotte v. King, etc., Co. 
 (1903), 122 Fed. 378; 58 C C. A. 
 466; 65 L. R. A. 620; 16 Am. 
 Neg. R. 615, n. 
 
 "Khron v. Block (1887), 144 
 Mass. 516; 11 N. E. 748. 
 
 •^Curtin v. Somerset (1891), 
 140 Perm. St. 70; 21 Atl. 244; 23 
 Amer. St. Rep. 220; 12 L. R. A. 
 322; Fitzmaurice v. Fabian (1892), 
 147 Penn. St. 199; 23 Atl. 444; 
 Daugherty v. Herzog, supra.
 
 348 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 tractor has assumed no duty to third persons, but only to 
 the other contracting party. The contract does not draw 
 him into privity with the stranger to it; ahhough if, while 
 executing the contract, he commits an injury upon a 
 stranger, he may be liable to him in damages, but as a mere 
 tortfeasor and independently of the contract." ^^ The 
 general rule exempting a contractor from liability after 
 the work is turned over and accepted by the proprietor, 
 is subject to the qualifications that the contractor continues 
 liable where the work is a nuisance per se and where it is 
 turned over by the contractor in a manner so negligently 
 defective as to be imminently dangerous to third persons.^^ 
 If a contract to build a fence along a railroad required by 
 statute is made with the plaintiff, and he fails in its per- 
 formance he can not, of course, recover for an injury to 
 his stock resulting from a defect consequent on such failure ; 
 in such a case he is guilty of contributory negligence. But 
 if he originally created the fence under such a contract, 
 and it was accepted by the railroad company and paid for, 
 the company can not afterwards plead a defective construc- 
 tion as contributory negligence, for by the acceptance they 
 assume responsibility for the defect.^ ^ 
 
 "•Thomps. Neg., Sec. 687. In 
 a leading English case, the de- 
 fendant had contracted with the 
 postmaster-general to provide mail 
 coaches for a certain post route. 
 A third party contracted to pro- 
 vide the horses for the coaches 
 along the same route and he also 
 emploA'Cd the plaintiff as one of 
 its drivers. The plaintiff was in- 
 jured by some defect in the coach, 
 the fault of the defendant. It 
 was held that the defendant wa? 
 not liable to the plaintiff. Win 
 
 terbottom v. Wright (1842), 10 
 Mees. & W. 109. 
 
 "Thomps. Neg., Sees. 652, 820. 
 
 *' Morris v. Androscoggin R. 
 Co. (1855), 39 Me. 274; 63 Amer. 
 Dec. 621. 
 
 '"Pfau V. WilHamson (1873), 
 63 Ills. 16. A contractor engaged 
 to repair a roof, by whose neg- 
 ligence the goods of the tenant 
 are damaged, is liable over to the 
 landlord for a reasonable amount 
 paid by him to the tenant in set- 
 tlement. Maloney v. Bradley
 
 CONTRACTOR S LIABILITY — SUBCONTRACTORS. 
 
 349 
 
 Sec. 229. Same, Indemnity to the Employer. 
 
 If the employer has had to pay damages on account of 
 the contractor's negligence, he may recover them from the 
 contractor.^*^ A bond given the employers provided that 
 the contractors "shall protect and keep harmless the said 
 (employers) . . . from damages arising from acci- 
 dents to persons employed in the construction of, or pass- 
 ing near, the said work;" and in construing it the court 
 held there could be no doubt that the damages contemplated 
 were such as would be done by the contractors or their 
 employees and not by the employer or his employees. The 
 employer had been held liable for negligence resulting in 
 injury to one of the contractor's servants and in a suit for 
 reimbursement on the bond in question the court held the 
 contractor not liable to the employer.^'^ "Whether X. was 
 an independent contractor or servant of the property owner, 
 he is liable for any sum which such owner may be 
 compelled to pay on account of injuries to plaintiff occa- 
 
 (1891), 18 N. Y. Supp. 757. 
 Where mail contractors negligent- 
 ly obstructed a sidewalk affording 
 access to a station whereby a 
 passenger was injured, who re- 
 covered a judgment against the 
 railroad company, the contractors 
 were held liable to indemnify the 
 company. Old Colony R. Co. v. 
 
 Slavcns ( ), 148 Mass. 363; 19 
 
 N. E. 372 ; 12 Amer. St. Rep. 5.S8. 
 •'Perry v. P.wne (1907), 217 
 Penn. 252; 66 All. 553; 11 L. R. 
 A. (N. S.), 1173, 1176; 10 Am. 
 & Eng. Anno. Cas. 589, citing 
 Mynard v. Syr.xcuse, etc., R. 
 (1877). 71 N. Y. 180; 27 Amer. 
 Rep. 28; Mitchell v. Southern R. 
 
 (1903). 24 Ky. L. R. 2388; 74 S. 
 W. 216; Perkins v. New York, 
 ETC., R. (1862), 24 N. Y. 196; 82 
 Amer. Dec. 281 ; Manhattan Rail- 
 road V. Cornell (1891), 130 N. 
 Y. 637; 29 N. E. 151; Johnson v. 
 Richmond, etc., R. (1890), 86 Va. 
 975; 11 S. E. 829, distinguishing 
 Woodbury v. Post (1893), 158 
 iMass. 140; 33 N. E. 86. See, also, 
 in support of the rule, Morton v. 
 Union Traction Co. (1902), 20 
 Pa. Super. Ct. 325 ; St. Louis, etc., 
 R. V. Arnold (1903), 32 Tex. Civ. 
 App. 272; 74 S. W. 819; New 
 York V. Brady (1893), 70 Hun 
 (N. Y.), 250; 24 N. Y. Supp. 296.
 
 350 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 sioned by the negligence of X. in performing the work he 
 had engaged to do." *^^ 
 
 Sec. 230, Subcontractors. 
 
 The subcontractor is hable to third persons and over 
 to his superior contractor, in those cases in which, under 
 similar circumstances, the superior contractor is himself 
 liable to his employer or to third persons.^^ Obviously if 
 the subcontractor, by his negligence, injures the owner's 
 property, he thereby becomes liable to such owner for 
 damages, and this wholly without reference to whether he 
 is to be regarded as an independent contractor or a sub- 
 contractor or as a servant of the chief contractor or of the 
 owner or as a mere stranger.'*^ 
 
 One who takes an independent contract to perform a 
 portion of the work which his employer has undertaken to 
 do is responsible for injuries caused to the employer's 
 servant by his negligent use of appliances in the per- 
 formance of his work.'^^ Merely because the wrong-doer 
 is a subcontractor does not per se render the primary con- 
 tractor liable.'^^ 
 
 When both contractor and subcontractor are negligent 
 
 **Kampman v. Rothwell (1908, 
 Tex.), 109 S. W. 1089; 17 L. R. 
 A. (N. S.), 758. The work here 
 was repairing a defective cement 
 sidewalk previously constructed by 
 X. and leaving it unguarded. 
 
 ™Holt v. Whalley (1874), 51 
 Ala. 569. 
 
 '" BicKFORD v. Richards (1891), 
 154 Mass. 163; 27 N. E. 1014; 26 
 Amer. St. Rep. 224. 
 
 " Miller v. Moran, etc., Co. 
 (1905), 39 Wash. 631; 81 Pac. 
 1089; 1 L. R. A. (N. S.), 283. 
 
 An original contractor sublet 
 part of the work to an independent 
 sulicontractor and informed him 
 be had the legal right to go on 
 the land ; the landowner's daughter 
 resisted and was injured; the 
 original contractor was held not 
 liable. Slingerland v. East Jer- 
 sey, etc., Co. (1896), 58 N. J. L. 
 411; 33 Atl. 843. 
 
 ''^Overton v. Ereeman (1852), 
 11 C. B. 867; 9 Am. Neg. R. 
 122, n.
 
 CONTRACTOR 's LIABILITY — SUBCONTRACTORS. 
 
 351 
 
 and the damage can not be distinguished, each is liable for 
 tlie whole.''^ A principal contractor who receives a struc- 
 ture in defective condition from a subcontractor makes it 
 his own work and is jointly liable with the subcontractor 
 for injuries caused by its defects.'^ If the materials fur- 
 nished by a contractor for a wall or the work done by him 
 were such that the v^^all was unsafe and unfit for its intended 
 purpose and the principal contractor knew this or by exer- 
 cising reasonable care might have known it, and went 
 on and made use of the wall, and incorporated his own 
 work on it, made payments to the subcontractor and ac- 
 cepted the work as it progressed; and if in consequence of 
 the character of material furnished and work done by the 
 subcontractor the building fell upon and injured plaintiff's 
 premises, the principal contractor is liable therefor."'' It 
 is held that it is the duty of an independent contractor, for 
 the construction of a building and not of the owner, to 
 furnish subcontractors and their subordinates a truthful 
 copy of the plans and specifications, as approved, for their 
 guidance.''' 1 he doctrine that the proprietor is liable when 
 full control is retained, applies as between the independent 
 
 " Van Steenburgh v. Tobias 
 (1837). 17 Wend. (N. Y.), 562; 
 31 Amcr. Dec. 310; Partenheimer 
 V. VanOrder (1855), 20 Barb. 
 (N. Y.), 479. 
 
 '"Carey v. Courcell (1865), 17 
 La. Ann. 108, dislinc:uishing Pej'- 
 ton V. Richards (1856), 11 La. 
 Ann. 62. as being a case in which 
 the work had not yet been de- 
 livered. 
 
 "Bast V. Leonard (1S70), 15 
 Minn. 304. As between the con- 
 tractor and the subcontractor, the 
 duty of shoring a building is held 
 
 to rest on the former in the ab- 
 sence of contrary proof. Nelson 
 V. Young (1904), 180 N. Y. 523; 
 72 N. E. 1146. The principal con-' 
 tractor was held liable where the 
 property of an abutting owner 
 was damaged as a result of the 
 grading of a street by a munici- 
 pal corporation. Sewall v. St. 
 Paul (1874), 20 Minn. 511. See 
 other cases cited in 65 L. R. A. 
 750. 
 
 "Hawke v. Brown (1898). 50 
 N. Y. Supp. 1032.
 
 352 INDEPENDENT CONTRACTORS AND THEIR LIABILITY. 
 
 contractor and his subcontractor as well.^^ In general, the 
 servants of a subcontractor can not recover from the prin- 
 cipal contractor damages for injuries resulting from the 
 negligence of their immediate superior, the subcontractor, 
 where the principal contractor has no control over the sub- 
 contractor as to the manner of doing his work."^® The mere 
 fact that a scaffolding, the fall of which caused the injuries 
 to a workman for which recovery was had against a sub- 
 contractor, was built by a contractor, did not render the 
 latter liable to the subcontractor, where he was under no 
 contract to furnish scaffolding for such workmen.'^^ "In 
 cases where the person injured has been invited, expressly 
 or impliedly, to use the article causing the injury the person 
 extending the invitation may be held liable even though 
 privity of contract does not exist. It is upon this principle 
 that owners of buildings, or contractors who have con- 
 structed scaffolds for the use of subcontractors, have been 
 held liable to the servants of the latter for injuries result- 
 ing from defective and negligent construction." ^" 
 
 "Slater v. Mersereau (1876), 
 64 N. Y. 138. 
 
 '"Mohr V. McKenziem (1895), 
 60 Ills. App. 575. It has been well 
 reasoned by a Pennsylvania Com- 
 mon Pleas Court that liability for 
 negligence cannot be shifted from 
 the contractor to an allegd sub- 
 contractor, unless the latter as- 
 sumed the entire charge and 
 control of the work; and, further, 
 that where one is chosen for the 
 purpose of enabling the proprietor 
 to escape liability, he ought not 
 to be regarded in law as an in- 
 dependent contractor or subcon- 
 tractor. Fox V. Porter (1895), 
 18 Pa. Co. Ct. 641. 
 
 "Sincer v. Bell (1895), 47 La. 
 Ann. 1548; 18 So. 755. 
 
 «"Earl v. Lubbock (1905, 1 K. 
 B. 253), in 1 Amer. & Eng. Anno. 
 Cas. 756, citing De\t.in v. Smith 
 (1882), 89 N. Y. 470 (Earl, J., 
 dissenting), 42 Amcr. R p 311; 
 CouGHTRY V. Globe, etc., Co. 
 (1874). 56 N. Y. 124; 15 Amer. 
 Rep. 387; Bright v. B.xrnett, 
 ETC., Co. (1874), 88 Wise. 299; 60 
 N. W. 418; 26 L. R. A. 524. 
 "But see Maguire v. j^la^ee (Pa., 
 1888), 13 Atl. 551." If the rela- 
 tion of master and servant exists 
 between tlie contractor and sub- 
 contractor, the former is liable 
 for the negligence of the latter,
 
 CONTRACTOR 's LIABn.ITY — SUBCONTRACTORS. 
 
 353 
 
 otherwise the responsibility rests 
 solely on the subcontractor, and 
 this general rule is subject to the 
 same exceptions that modify it in 
 its application between employer 
 and contractor. Thus, if one 
 authorizes the doing of an un- 
 lawful act, the responsibility 
 therefor attaches to him, no mat- 
 ter what subcontractor or deputy 
 may have actually committed the 
 wrong or injury; as if one, with- 
 out special authority, makes an 
 excavation in the sidewalk of a 
 public street whereby a pedes- 
 trian is injured, he is liable, al- 
 though the injury was caused by 
 the negligence of a subcontractor 
 in not properly guarding the ex- 
 cavation. Barrows on Neg., pp. 
 166-7, citing Creed v. Hartman 
 (1864), 29 N. Y. 591; 86 Amer. 
 Dec. 341. "See, also," Overton v. 
 
 Freeman (1853), 11 C. B. 867; 9 
 Am. Neg. Rep. 122, n. In a very 
 recent Minnesota case, plaintiff 
 was employed by a building con- 
 tractor; the servants of defend- 
 ant, a roofing subcontractor, using 
 the contractor's large planks with 
 his consent were about to take 
 them down from the girders 
 whereon they rested to the floor 
 below; one of them saw plaintiff 
 coming and called to him to re- 
 move his wheelbarrow and plain- 
 tiff went to do so when a plank 
 fell on him, injuring him, and it 
 was held that the verdict that he 
 was rightfully there should not 
 be disturbed and that defendant 
 was guilty for his servant's tort. 
 Kelly v. Tyra (1908), 103 Minn. 
 176; 114 N. W. 750; 17 L. R. A. 
 (N. S.), 334.
 
 INDEX. 
 
 [References are to sections.] 
 
 Abandonment of ^Vo^k, Effect, 58. 
 
 Absolute Duties — 
 
 Delegating to independent contractor, 51, 65-67, 85, 97. 
 
 As to cities, 53, 67, 139. 
 
 Limitations, 72. 
 
 Blasting, see. 
 
 Landlord and Tenant, see. 
 
 Acceptance- 
 Employer's liability after, 19, 58, 65, 76, 99, 173, 209, 228. 
 What constitutes, 58, 67, 174-5, 228. 
 Operating railroad before, 118. 
 Of benefits, estoppel, 124. 
 Ratification, 124 n. 
 County bridges, 147. 
 Knowledge of condition, 175. 
 Completing abandoned work, 176. 
 Contractor's liability after, 177, 228. 
 
 Agent- 
 Distinguished from servant, 2, 34 n. 
 Defined, 3. 
 
 Basis of principal's liability, 11. 
 
 Distinguished from independent contractor, 14, 34 d , 381. 
 Contractor as employer's agent, 17, 118. 
 Superintending contractor's work, 22. 
 
 Appliances — 
 
 Improper use, 70. 
 
 Employer furnishing, 99, 180, 183-7, 193. 
 Permitting use of defective, 172, 190. 
 Employer's duty to inspect, 188. 
 
 355
 
 356 INDEX. 
 
 [References are to sections.] 
 
 Appliances — Continued. 
 Question for jury, 191. 
 Duty to furnish contractor with, 193. 
 Duty towards contractor's servants, 208. 
 
 Apprentice, 4. 
 
 Appropriation, see Trespass. 
 
 Approval of AVork as Test, 22. 
 
 Architect- 
 Supervising or approving work, 23, 57 n., 170. 
 As independent contractors, 38c, 100. 
 Duty to employ, 97 n., 163. 
 Competency of, 165 n. 
 Furnishing defective plans, 219. 
 
 B 
 
 Balloon Ascension, 77. 
 
 Blacksmitli as Independent Contractor, 21. 
 
 Blasting — 
 
 Generally, 73. 
 
 Railroad construction, 22 n., 73. 
 
 By the day, 34 n. 
 
 Injuring traveler, 66 n., 76. 
 
 •City's liability, 72-3, 139 n. 
 
 Subcontract, 73 n. 
 
 Adjoining owner injured, 95, 216. 
 
 Competency of contractor, 165, 166 n. 
 
 Employer interfering, 169. 
 
 Bond- 
 Taking is not control, 20b. 
 Failure to take, 161 n. 
 
 Bridge- 
 Railroad, liability in constructing, 24, 29, 90. 
 City's liability, 70 n., 144. 
 Destroj'ed by logging, 78. 
 County's liability, 92 n., 163.
 
 INDEX. 357 
 
 [References are to sections.] 
 
 Bridge — Con tinned. 
 
 Landlord's liability, 107. 
 Carrier's liability, 132 n., 133 n. 
 Defectively planned, 163, 219. 
 Railroad's duty to employe, 187, 206. 
 Contractor liable for defective, 219, 220, 224. 
 
 Building Contract- 
 When independent, 23, 56. 
 
 Liability to adjoining o\vner, 35 n., 38a, 70, 73, 96. 
 Resultant nuisance, 67 n. 
 Wliether inherently dangerous, 72 n., 73, 100. 
 Injury to passerby, 79, 91 n, 92-3. 
 Statutory duty, 87 n., 90. 
 Repairing, etc., 100 n. 
 
 Landlord erecting additional stories, 109. 
 Reserving control, 170. 
 Injury t-o owner's servant, 189 n. 
 
 Burden of Proof — 
 
 To establish relation, 32. 
 
 To establish liability, 72, 74. 
 
 To establish license, 91 n. 
 
 To establish competency, 165. 
 
 To establish knowing acceptance, 175. 
 
 Bush V. Steiuman, 48, 72, 86 n., 100, 116 n. 
 
 Carpenters as Independent Contractors, 38a, 56, 95. 
 
 Carriers — 
 
 Suj)i)Iying physician, 38k. 
 
 Absolute duties, 85n., 118, 131-8, 148 n. 
 
 Contractor operating trains, 118, 120, 126, 137. 
 
 Lessee operating road, 126. 
 
 Condition of roadway, 131-133 n., 134. 
 
 Condition of premises, 132, 229 n. 
 
 Condition of vehicles, 133. 
 
 Sleeping cars, 133, 135. 
 
 Competency of operatives, 133 n.
 
 358 INDEX. 
 
 [References are to sections.] 
 
 Carriers — Con t iti ued. 
 
 Licensee's negligence, 134. 
 
 Baggage, 135. 
 
 Special contract as to freight, 136. 
 
 Under criminal statutes, 138. 
 
 Stevedores, 148 n. 
 
 Reimbursing carrier, 229 n. 
 
 Casual Tort, see Collatebal Negligence. 
 
 Cattle- 
 Railroad contractor killing, 122. 
 
 Character of Obligation, 85-110, 115-151. 
 Absolute duty, 85. 
 Statutory duty, 86-91. 
 Proprietor's duties, 92-99. 
 Building Contracts, see. 
 Landlord and Tenant, see. 
 Master and Servant, see. 
 Franchise Rights, see. 
 
 Character of 'Work — 
 
 Contract work a nuisance, 67. 
 
 Work unauthorized, 68. 
 
 Work unlawful, 65-69. 
 
 Work calling for injurious result, 65, 70, 74. 
 
 Result unforeseen, 71. 
 
 Dangerous Per Se, see. 
 
 Charities, 149. 
 
 See also Churches, Schools. 
 Selecting physicians, 164. 
 
 Church- 
 Liability in building, 23, 38a, 97 n., 149. 
 As public charity, 149. 
 
 Cities- 
 Liability of intermediate agents, 15 n., 38m. 
 Reserving control, 19, 20a, 21-2, 24, 139, 140. 
 Excavations, 20a, 24, 34 n., 88, 140, 142. 
 Supervising execution, 22, 24 n., 25 n., 86 n., 143 iv 
 Construction of contract, 27 n. 
 Employe as contractor's servant, 31 n., 181. 
 Burden of proof as to relation, 32 n.
 
 INDEX. 359 
 
 [References are to sections.] 
 
 Cities — Continued. 
 
 Contractor paid per diem, 34 n. 
 
 General rule of liability, 53, 70, 139-146, 160. 
 
 Liability for nuisance, 67, 70, 140 n. 
 
 Intrinsically dangerous work, 72-74, 92 n., 129, 140 n. 
 
 Statutory duty, 86 n., 88, 139 n. 
 
 Joint liability with contractor, 140. 
 
 Constructing sewer, 142. 
 
 Grading street, 143. 
 
 Bridges, 144. 
 
 Necessary notice, 145, 175 n. 
 
 Contractor's trespasses, 146. 
 
 Liable under contract, 160. 
 
 Liability to servants, 181. 
 
 Collateral Negligence — 
 
 Meaning, 13, 66, 70, 104 n. 
 
 Employer's liability for, 45, 66, 69-74, 92, 94, 97, 100, 124 n., 139, 
 
 140, 143, 162, 164, 206, 216. 
 Notice necessary, 145. 
 Contractor's liability, 215. 
 
 Compensation- 
 Manner of, as test, 21, 34. 
 Effect as to fire escaping, 74. 
 To public charity, 149. 
 
 Competency— 
 
 Of contractor, employer's liability, 19, 67 n., 73 n., 133, 164. 
 Of servant in public charity, 149. 
 Care in selecting, 164, 184. 
 Incompetency known, 165, 206 n., 210. 
 Of oo- workers, employer's liability, 210 
 
 Compulsory Service, 8, 38 n., 22. 
 
 Condemned Buildings, 94. 
 
 Conditional Undertaking, 90. 
 
 Conduct of Employer- 
 Express contract, 65, 160. 
 Under statute, 65, 68 n., 86-92, 161. 
 Duty to supervise, 97. 
 Duty to contract, 162.
 
 360 INDEX. 
 
 [References are to sections.] 
 
 Conduct of Bm.ployer— Continued. 
 
 Contract for defective plans, 65, 66, 70, 163. 
 
 Selecting Contractor, see. 
 
 Interference, see. 
 
 Retaining control, see Control. 
 
 Dangerous Work, see. 
 
 Landlord and Tenant, see. 
 
 Landowner, see. 
 
 Appliances, see. 
 
 Acceptance, see. 
 
 Duty to inspect, 188. 
 
 Assuring safety of place, 189, 193. 
 
 Defect known to employer, 190. 
 
 Relation of parties, 192. 
 
 Furnishing contractor tools, etc.. 193. 
 
 Discharge of franchise, 194. 
 
 Negligence of contractor's servants, 195. 
 
 Negligence of lessor's servants, 197. 
 
 Subcontractor, see. 
 
 Constmction of Employment Contract, 27. 
 
 Question for court or jury, 29, 45 n. 
 
 Contract of Employment- 
 Construction of, 27-29, 160. 
 Written contract, 28. 
 Question for court or jury, 28, 29. 
 Several contracts, 97. 
 When admissible, 101. 
 Carrier's special, as to freight, 136. 
 Effect on employer's liability, 139, 160, 205 n. 
 Duty to contract, 167. 
 
 Control- 
 As test of relation, 13, 18-27, 34, 45, 46, 52, 93, 215 n. 
 Respondeat superior, 15. 
 Necessity to relinquish, 19, 24 n. 
 Extent of retention, 20, 22 n., 23, 163 n., 170, 171. 
 City retaining, 20a. 
 Owner retaining possession, 20a, 26. 
 Reserved, but not exercised, 20a. 
 Effect of partial control, 20b, 121, 171. 
 Taking bond, 20b. 
 Right of dismissal, 21, 65.
 
 INDEX. 361 
 
 [References are to sections.] 
 
 Control^Co«<tn«e(/. 
 
 Purpose of retention, 25, 121, 103 n. 
 
 Controlling premises, 20, 93, 171. 
 
 Construing contract, 27, 28. 
 
 Liability when retained, 65, 170, 171. 
 
 Contractor in, of railroad, 119. 
 
 Contractor's competency, 164 n. 
 
 Distinguished from interference, 170 n. 
 
 Employer partly doing work, 171. 
 
 Joint control, 171. 
 
 Liable to contractor's servant, 207. 
 
 As between contractor and subcontractor, 230. 
 
 Couvicts as Servants, S. 
 
 Connty — 
 
 Liability as to bridges, 92 n., 147, 103. 
 General rule as to liability, 139, 147. 
 
 Conrt — 
 
 Construing employment contract, 28, 29, 45 n. 
 
 Crimes and Criminal Statutes, 36, 215. 
 
 Dangerons "Work Per Se— 
 
 General rule, 65, 66, 72, 115. 
 Erecting building, 69 n. 
 What is sucli work, 72, 90. 
 Blasting, see. 
 FiBES, see. 
 Excavations, see. 
 ExPLOSR'ES, see. 
 Balloon ascension, 77. 
 Logging, see Loggers. 
 Overhanging objects, 79, 92. 93. 
 Condemned buildings, 94, 95, 104. 
 Party walls, 103, 104. 
 Landlord's liability, 109. 
 City's liability, 139. 
 Contractor's competency, 164.
 
 362 INDEX. 
 
 [References are to sections.] 
 
 Dealers as Independent Contractors, 38 j. 
 
 Death— 
 
 As test of relation, 39. 
 Liability for, 105. 
 
 Department Supervisor as Independent Contractor, 29 n. 
 
 Derricks, 102, 110 n., 186, 206, 208 n. 
 
 Dismissal- 
 Right of, as test, 21. 
 Power of substitution, 21 n. 
 
 Dredger as Independent Contractor, 34 n. 
 
 Driver, Whose Servant, 7, 31 n.j 32 n. 
 
 Drover, Servant, 36. 
 
 Electric Light Companies, 115. 
 
 Elevators- 
 Manufacturers as independent contractors, 38a, 185, 224. 
 Operating derrick, 102. 
 Dumb waiter, defective, 109. 
 In owner's building, 210. 
 
 Employe- 
 Statutory meaning, 36, 181. 
 Liability to, 20 n. 
 
 Employer- 
 Liability of, 10-12, 15, 45-58, chaps. III-VIII, 228. 
 As principal, contractor as agent, 17. 
 Interference as test, 18, 19, 20b. 
 Selection of competent contractor, 19, 133, 164, 165. 
 Liability after acceptance, 19, 173-176. 
 Supervising or approving work, 22, 108. 
 Identified with contractor, 30, 76, 124, 167. 
 Burden of proof as to relation, 32, 101. 
 Early rule of liability, 47. 
 Present rule of liability, 51.
 
 INDEX. 363 
 
 [References are to sections.] 
 
 Employer— Con<tw«crf. 
 
 Exceptional Liability, see. 
 
 Supplying instrumentalities, 70, 99, 102. 
 
 Liability to contractor's employee, 70 n., 99. 
 
 Fatal results, 105. 
 
 Unskilled, duty to employ contractor, 164. 
 
 Liability to Own Servant, see. 
 
 Liability to Contractor, see. 
 
 Liability to Contracotb's Servant, see. 
 
 Employment- 
 Character of, as test, 35. 
 
 Engineers- 
 Supervising work, 24, 
 Competency of, carrier's duty, 133 n. 
 
 Estoppel, Servant By, 5. 
 
 Excavations^ 
 
 Landowner controlling, 19 n., 20 n., 56. 
 
 City retaining control 20a, 24, 72, 140, 142. 
 
 Lateral support, liability, 29 n., 66 n., 70, 95 n. 
 
 Compensation per diem, 24 n. 
 
 Adjoining owner's rights, 35 n., 67, 70, 75, 87, 88, 95. 
 
 City liable for, in street, 67, 70 n. 72 n., 75, 88, 140, 142. 
 
 Blasting, 73. 
 
 In highways, etc., 75, 87, 91-93, 125, 161 n. 
 
 Shoring excavation, 88, 142 n., 230 n. 
 
 Landlord's liability, 106 n. 
 
 Railroad's liability, 125. 
 
 Street railroads, 130, 215 n. 
 
 Contractor's liability, 215 n. 
 
 Exceptional Liability of Employe 
 
 Exceptions to general rule, 65. 
 Doctrine of collateral negligence, 66. 
 See also Collateral Negligence. 
 Character of Work, 67-79, see. 
 Character of Obligation, 85-151, see. 
 Conduct of Employer, 160-177, see.
 
 364 INDEX. 
 
 [References are to sections.] 
 
 Explosion — 
 
 Licibility in repairing leak, 31. 
 
 Blasting, see. 
 
 Natural gas, 76. 
 
 Dynamite, 76. 
 
 Boiler, 76. 
 
 Fireworks, 76. 
 
 Escaping gas, 142 n. 
 
 Extra-Hazardous, see Dangerous. 
 
 Fences Along Railroad, 118, 123, 124, 228. 
 
 Ferry- 
 Owner's liability under statute, 31 n., 38 n. 
 Carrier liable for negligence of, 133 n., 134 n. 
 
 Fire- 
 Escaping to another's land, 34, 38i!, 74, 95, 118 n. 
 Owner's liability after, 92 n., 95, 206. 
 Railroad, warehouseman, 129. 
 
 Fishermen— 
 
 As independent contractors, 30 n. 
 Garbage damaging fish nets, 53 n. 
 
 Fixed Property, 0\Fner's Liability, 65, 85 n. 
 
 Foreign Contractor, 57 n. 
 
 Franchise Rights — 
 
 Generally, 55, 75, 115-120, 194. 
 Railroads, see. 
 Street Railroads, see. 
 Carriers, see. 
 
 Gas— 
 
 Explosives, see. 
 Plumbers, see. 
 Inhaling, 206 n.
 
 INDEX. 365 
 
 [References are to sections.] 
 
 H 
 
 Hauling — 
 
 As iii(lfi)('n(l(Mit c<mtract, 29 n., 30, 34, 38d, 38f. 
 Obstructing higliway, 78, 92 n. 
 
 Highivays, see Stkeet.s. 
 
 Hireling, Not Independent Contractor, 36. 
 
 Hospitals, see Charities. 
 
 I 
 
 Identity of Employer and Contractor, 30, 7ti, 124, 167. 
 
 Independent Contractor — 
 
 Distinguislied from .-ervant, 13, 21, 24 n., 4t), 215. 
 
 Defined, 13, 16, 122. 
 
 Control as test, see Control. 
 
 Distingiiished from agent, 14. 
 
 Rule of respondeat superior, 15, 45, 215 n. 
 
 Subcontractor, see. 
 
 As employer's agent, 17, 121 n. 
 
 As servant, outside of contract, 20a, 124, 198. 
 
 When question for jury, 21, 28, 29, 219. 
 
 When question for court, 28. 
 
 Identified, with employer, 30. 
 
 Whose servant wrong-doer is, 31, 135, 196. 
 
 Employee operating machine hired out, 31 n. 
 
 Burden of proof as to relation, 32. 
 
 Compensation as test, 34. 
 
 Pleading the relation, 37. 
 
 Pauticulab Classes, see, 38. 
 
 Early rule, 47. 
 
 Distinction as to real and personal property, 50. 
 
 Present rule, 51. 
 
 Liability for unlawful work, 67. 
 
 Penal liability, 68. 
 
 Liability to employer, effect of, 118 n., 140, 229. 
 
 Joint Liability, see. 
 
 Liability after acceptance, 177, 228, 230. 
 
 Employer liable to servant for negligence of, 182. 
 
 Servants of difTerent contractors, 196, 223. 
 
 Fellow servant doctrine, 196, 201, 205 n. 
 
 Employer's liability to, 200-202.
 
 366 INDEX. 
 
 [References are to sections.] 
 
 Independent Contractor — Continued. 
 
 Liability to servant regarding premises, 203 n., 204 n., 206, 222. 
 
 Liability to third persons, 215, 218, 228. 
 
 Relation of parties, 216. 
 
 Exercising statutory right, 217. 
 
 Following defective plans, 219. 
 
 Liability for employer's acts, 220. 
 
 Injuring wrong-doer, 221. 
 
 Liability to own servant, 222. 
 
 Injury to vendee's servant, 224. 
 
 Liability as to owner's premises, 225, 227. 
 
 Survival of action against, 226. 
 
 Injury to employer's tenant, 227. 
 
 Indemnifying employer, 229. 
 
 Liability as between subcontractor and, 230. 
 
 Interference by Employer — 
 
 As test of relation, 18, 19, 52. 
 Effect of non-interference, 52, 168. 
 Liability for, 65, 169, 207. 
 Wrongful interference, 168. 
 What amounts to, 169. 
 Liable to contractor's servant, 207. 
 
 Invitees, Duties to, 98, 99 n. 
 
 Joint Liability— 
 
 Of employer and contractor, 67 n., 69, 70, 73 n., 75, 91 n., 95 n. 
 
 101, 140, 103, 171, 173 n., 204, 223. 
 Railroads and lessees, 122. 
 Cities, 140. 
 
 Contractor and subcontractor, 171, 230. 
 After acceptance, 173 n. 
 
 Jnry— 
 
 When relation question for, 21, 26 n. 
 Construing employment contract, 28, 29. 
 Employer's due care, 72, 190. 
 Employer interfering, 169 n. 
 What constitutes acceptance, 174, n. 
 Whose negligence caused injury for, 219n.
 
 INDEX. 367 
 
 [References are to sectlona.] 
 
 K 
 
 Knowledge of Danger, 72, 75, 76, 92 n. 
 
 "Laborer" Under Criminal Statute, 36. 
 
 Ijandlord and Tenant — 
 
 Lessess as servant, 27 n., 28 n., 106. 
 
 Railroad lessee as independent contractor, 38g, 89 n., IIG, 126. 
 
 Liability to tenant, 51 n., 106-109, 126. 
 
 Enjoining blasting, 73 n. 
 
 Liability to third persons, 92 n., 98 n., 106, 126. 
 
 Discharging legal duty, 107, 109. 
 
 Supervising work, 108. 
 
 Imminently dangerous work, 109. 
 
 Leasing railroads, 126, 197. 
 
 Negligence of lessor's servants, 197. 
 
 Contractor's liability to tenant, 227. 
 
 Reimbursing landlord, 229 n. 
 
 liandoYimer— 
 
 See Employee. 
 
 Controlling excavation, 19 n., 66 n., 71, 87, 88, 92, 93, 200. 
 
 Liability to public regarding building, 22 n., 104 n., 216. 
 
 Architect supervising, 23, 100. 
 
 Controlling premises, 26, 29 n.. 96. 
 
 Fire escaping, 34, SSI, 95. 
 
 Liability for roofing, 38a, n. 
 
 Sidewalk, 56, 66 n., 68, 90-93, 104 n., 229 n., 230 n. 
 
 Collateral torts, 66, 100. 
 
 Result unforeseen, 71. 
 
 Removing buildings, 94. 
 
 Adjoining owner's rights, 35 n., 67, 70, 75, 87, 88, 95, 163 n. 
 
 "Attractive nuisance," 96. 
 
 Duties to invitees, 98, 200, 206, 207. 
 
 Party walls, 103, 163. 
 
 Grading street, not independent contractor, 43. 
 
 Liability to contractor, 200. 
 
 Liability to contractor's servant, 206, 207. 
 
 Contractor reimbursing, 229 n. 
 
 Subcontractor's liability to, 230.
 
 368 INDEX. 
 
 [References are to sections.] 
 
 Ijessee, see Landlord and Tenant. 
 Railroad, operating road, 126. 
 
 liiability, Basis of, 
 
 Constituents, 10. 
 
 Of principals, 11, 15. 
 
 Of masters, 12, 15. 
 
 Of Employers, see. 
 
 Of contractor, see Independent Contractor. 
 
 Liability of Employer to Contractor— 
 
 Generally, 200. 
 Relation of parties, 201. 
 Condition of premises, 201. 
 On contract, 202. 
 
 Liability of Ei:i3?loyer to Contractor's Servant- 
 
 Generally, 203, 205 n. 
 Jointly with contractor, 204. 
 Relation of parties, 205. 
 Condition of premises, 206, 220. 
 Controlling work, 207. 
 Safety of appliances, 208. 
 After acceptance, 209. 
 Competency of co-workers, 210. 
 Contributory negligence, 211. 
 
 Liability of Employer to Own Servant— 
 
 Generally, thap. VII. 
 
 For contractor's acts, 180, 182. 
 
 Providing appliances, 180, 183-187, 193. 
 
 Relation of injured person, 181. 
 
 Duty to inspect appliances, 188. 
 
 Question for jury, 191. 
 
 Duty to furnish appliances to contractor, 193, 
 
 Discharge of franchise, 194. 
 
 Xegliffence of contractor's servant, 195. 
 
 Xegligence of lessor's servant, 197. 
 
 License — 
 
 Public employment, 8. 
 Disturbing street without, 68. 
 Exercising, 90 n.
 
 INDEX. 369 
 
 [References are to sections.] 
 
 Liicensee — 
 
 Railroad's liability, 29 n., 120, 128, 134. 
 
 As independent contractor, 38g. 
 
 Contractor's negligence, 90 n. 
 
 Liability to public, 91. 
 
 Using railroad tracks in common, 128. 
 
 Public charity, 149. 
 
 Servant of, negligent, 197. 
 
 lilveryman, as Independent Contractor, 38e, 107 n., 210 n., 224. 
 
 Loggers — "" 
 
 As independent contractors, 38f. 
 Logging as dangerous work. 78. 
 
 Lumber, Negligent Piling, 56. 
 
 M 
 
 Machinery — 
 
 Appliances, see. 
 
 Contractor operating, 102, 129. 
 
 Employer furnishing, 208. 
 
 Manufacturers — 
 
 As indept-ndont contractors, 3S/, 180, 216 n. 
 Liability for boiler exploding, 76. 
 Negligence of, carrier's liability, 133. 
 Liability to employer's servant, 180, 183-185. 
 Liable to vendee's servant, 224. 
 
 Mason as Independent Contractor, 38a, 140 n. 
 
 Master and Servant — 
 
 Defined, 4. 
 
 Servant of two masters, 6, 13, 15 n., 46. 
 
 Transfer of service, 7, 196. 
 
 Compulsory service, 8, 205. 
 
 Vohmteer servants, 9. 
 
 Basis of liability, 12, 15, 45, 46, 180. 
 
 Respondeat superior, 15. 
 
 Independent contractor as servant, 20a, 110. 
 
 Construction of contract, 27-29. 
 
 Question for court or jury, 28, 29. 
 
 Whose servant wrong-doer is, 31.
 
 370 INDEX. 
 
 [References are to sectlong.] 
 
 Master and Servant — Continued. 
 Compensation as test, 34. 
 Character of work as test, 35. 
 Xon-assignable duty, 110, 115, 180, 189. 
 Employer interfering, 168. 
 Liability for contractor's a«ts, 180. 
 Relation of injured person, 181, 184. 
 As between employer and contractor's servant, 203, 205. 
 
 Materials- 
 Contract for improper, 70. 
 Statutory duty, 86 n. 
 Authorized appropriation, 89, 124. 
 In street, 90. 
 Employer controlling disposal, 171. 
 
 Mechanic as Independent Contractor, 38a. 
 
 Merchant as Independent Contractor, 38f. 
 
 Mines and Mine-Ow^ners — 
 
 Leasing mine, control, 27 n., 206. 
 
 Compensation per diem, 34 n. 
 
 ]\Iiners as independent contractors^ 381. 
 
 Owner's duty to contractor, 201 n. 
 
 Owner's duty to contractor's servant, 205, 207. 
 
 Municipalities- 
 See Cities, Coitnties. 
 
 Public authorities as independent contractors, 38m. 
 General rule as to liability, 53, 139-147, 216. 
 Quasi-public corporations, 115, 126, 148-150. 
 State charities, 149. 
 "Profit" corporations, 151. 
 Compulsory contracts, 161. 
 
 N 
 
 Nuisances^ 
 
 Employer's liability, 65, 66 n., 67, 72, 96, 170, 173, 207. 
 Liability for public, 67. 
 Attractive nuisance, 96, 119 n. 
 Accepting, 173. 
 Contractor's liability, 228. 
 
 Nurses as Independent Contractors, 38k.
 
 INDEX. 371 
 
 [References are to sections.] 
 
 Ordinance, see Statute. 
 Overhanging Objects, 79, 92, 93. 
 
 Particular Instances of Independent Contractorc 
 
 Abchtects, see. 
 
 Blacksmith, see. 
 
 Carpenteb, see. 
 
 Gabbier, see. 
 
 Dealers, see. 
 
 Depabtment Supervisob, see. 
 
 Dredger, see. 
 
 Elevator Maker, see. 
 
 Ferry Owner, see. 
 
 Fisherman, see. 
 
 Hauling, see. 
 
 Lessee, see. 
 
 Licensee, see. 
 
 Liveryman, see. 
 
 Loggers, see. 
 
 Manufacturers, see. 
 
 Mason, see. 
 
 Mechanic, see. 
 
 Merchant, see. 
 
 MiNE-owNEB, see. 
 
 Municipalities, see. 
 
 NuBSES, see. 
 
 Physicians, see. 
 
 Pilots, see. 
 
 Plumbers, see. 
 
 PoBTER, see. 
 
 Railroad, see. 
 
 Railway Constbuctobs, see. 
 
 Roofer, see. 
 
 SiiiPOWNEB, see. 
 
 Steamboats, see. 
 
 Stevedobes, see.
 
 372 INDEX. 
 
 [References are to sections.! 
 
 Particular Instances of Independent Contractors — Continued. 
 Stkeet Railroad, see. 
 Transfer Agent, see. 
 Traveling Agent, see. 
 Truckmen, see Hauling. 
 Vessels, see. 
 
 Penalty- 
 Liability, owner, contractor, subcontractor, 68, 90. 
 Extent of liability, 86 n. 
 
 Personal Performance as Test, 33. 
 
 Physicians — 
 
 As independent contractor, 38k, 
 Competency in hospitals, 164, 165. 
 
 Pilots, 8. 
 
 Plans and Specifications — 
 
 Defective, 70, 88 n., 123 n., 143, 163, 206 n., 219. 
 
 Calling for dangerous work, 93, 95. 
 
 Duty to furnish, 206. 
 
 Contractor following defective, 219. 
 
 Pleading the Relation, 37, 70. 
 
 Plumber— 
 
 As independent contractor, 38a, 76 n., 100 n. 
 Landlord's liability for, 106 n. 
 
 Porter as Independent Contractor, 36 n. 
 
 Possession — 
 
 As evidence of control, 20a, 26, 29, 35 n. 
 Resuming, effect of, 173. 
 
 Presumption — 
 
 As to the relation, 32. 
 
 As to contractor's care, 97. 
 
 As to direction by employer, 121. 
 
 "Profit" Corporations, 151, 
 
 Property — 
 
 Rule as to real and personal, 50, 51. 
 
 Proprietor, see Landowner.
 
 373 
 
 INDEX. 
 
 [References are to sections.] 
 
 Public Exhibitions, 150. 
 
 See also Stkeet Kailboads. 
 
 Public Policy- 
 Basis of liability, 65 n., 126. 
 
 Public Utilities Companies, 148, 160. 
 
 Q 
 
 Quasi-Public Corporations, 115, 126, 151. 
 
 R 
 
 Railroads — 
 
 Liability for constructing contractor's act, 17, 24 n., 31 n., 34, 35, 
 55,' 66 n., 86 n., 93 n., 110 n., 116, 118-122, 125, 163 n., 210. 
 
 Reserving control, 20a, 20b, 21, 24. 
 
 Company running trains during operations, 20a, 118, 137, 171 n. 
 
 Blasting, 22 n. 
 
 Engineer supervising, 24. 
 
 Licensee's nuisance, 29 n. 
 
 Clearing right of way, 34, 74, 124. 
 
 As independent contractor, 38g, 75, 205. 
 
 Exercise of franchise rights, 55, 75, 90 n., 116-118, 123-125, 131 n., 
 134. 
 
 Statutory duty, 86 n., 87- 
 
 Master's non-assignable duty, 110 n., 187, 188. 
 
 Operating crossing-gate, 117, 118. 
 
 Carriers, see. 
 
 Fences, see. 
 
 Construction company in control, 119, 121. 
 
 Contractor killing cattle, 122. 
 
 Contractor's trespass, see Trespass. 
 
 Ratification, 124. 
 
 Lessee operating, 126, 197, 205. 
 
 Trustee operating, 127. 
 
 Using tracks in common, 128. 
 
 Liability as warehouseman, 129. 
 
 Accepting defective work, 173. 
 
 Negligence of lessor's servants, 197, 205. 
 
 Supplying defective car, 224.
 
 374 INDEX. 
 
 [References are to sections.] 
 
 RailT7ay Construction Company- 
 General rule, 17, 35 n., 38b, 67, 69, 86 n., 121, 122, 124, 174 n., 205. 
 Blasting, 73. 
 
 Statutory duty, 86 n., 121. 
 Operating road, 118-120, 171 n. 
 In control at time of injury, 119, 122, 174 n. 
 Completing abandoned work, 176. 
 Contractor's liability to subcontractor's servant, 203. 
 
 Reimbursement- 
 Employer from contractor, 140 n., 160 n., 183, 229. 
 
 Representation, 1, 10. 
 
 Respondeat Superior- 
 Application of doctrine, 15, 19, 67 n., 73 n., 94, 95, 131, 215 n. 
 Liability of municipality employing agents, 15 n. 
 Public charities, 149. 
 
 Result of "Work as Test, 18-20. 
 
 Rigger as Independent Contractor, 56. 
 
 Roofer as Independent Contractor, 38a n. 
 
 Scaffold- 
 Employer furnishing, 99, 180, 184, 200 n., 208, 209. 
 Statutory duty, 110 n., 169 n. 
 Employer's duty to inspect, 188. 
 
 One contractor providing, another's servant using, 223 n. 
 Contractor furnishing, subcontractor using, 230. 
 
 School District- 
 Superintending improvements, 22 n. 
 Work done on premises, 54, 
 As public charity, 149. 
 
 Selecting Contractor — 
 
 General rule, 65, 94, 106, 124, 164. 
 Competency, see. 
 Degree of care, 165. 
 Incompetency known, 168.
 
 INDEX. 375 
 
 [References are to sections.! 
 
 Servant- 
 Distinguished from agent, 2, 34 n. 
 Defined, 4, 13. 
 By estoppel, 6, 124 n. 
 Two masters, 6, 13, 15 n. 
 Transfer of service, 7, 196. 
 Compulsory service, 8. 
 Volunteers, who are, care due, 9. 
 Distinguished from independent contractor, 13, 21, 34 n., 35 n., 46, 
 
 215. 
 Whose servant wrong-doer is, 31, 32, 135. 
 Negligence of contractor's servant, 195. 
 Whether fellow servants, 196. 
 
 Sexrer— 
 
 City supervising construction, 24, 142. 
 Landowner's liability, 95 n. 
 Contractor negligent, 142. 
 Acceptance of, 175 n. 
 
 SMps— 
 
 Unloading, owner's liability, 29, 38h, 208. 
 
 Surgeon on, 165 n. 
 
 Owner liable for contractor's negligence, 180 n. 
 
 Sidewalk- 
 Proprietor's liability, 56, 66 n., 69 n. 
 Covered openings, 68, 91, 92. 
 Overhanging objects, 79, 92, 93. 
 
 Sleeping Cars, etc., 133, 135. 
 
 Statute — 
 
 Under criminal, 35 n., 36, 138. 
 Under civil, 36, 73, 136 n. 
 See Conduct of Employer. 
 Statutory duty, 86-91, 97, 161. 
 Governing public charities, 149 n. 
 Compulsory contract, 161. 
 Exercising statutory right, 217. 
 
 Steamboats — 
 
 Negligent operation, owner's liability, 31 n.
 
 376 INDEX. 
 
 [References are to sections.] 
 
 Stevedores — 
 
 Servants of, 7 n., 148 n. 
 
 Unloading ship, 29. 
 
 As independent contractors, 29 n., 34 n., 38h, 132 n., 207 n. 
 
 Street Railroads — 
 
 As independent contractors, 38g. 
 
 Liability in construction, 75 n., 91, 93, 102, 130. 
 
 Public exhibitions, 76, 77, 97 n., 150. 
 
 Obstructing street, 91 n. 
 
 Elevated road, franchise right, 115 n. 
 
 Leasing road, 126 n. 
 
 Excavations, 130, 142 n. 
 
 Liability to employee, 189. 104, 208 n. 
 
 Streets- 
 Obstructions, burden of proof, 32 n. 
 
 Obstructing, statutory liability, 36 n., 86 n., 91, 125, 143. 
 Duty of cities, 53, 72 n., 139 n. 
 
 Negligence in grading, 53 n., 70, 75, 95 n., 143, 230 n. 
 Unlighted obstruction, 56, 67, 70, 90-92. 
 Nuisance in, 66-69, 75, 78, 90, 95 n. 
 Overhanging objects, 79, 92, 93. 
 Railroad excavating, 125. 
 
 Subcontractors — 
 
 Relation of, 17, 28 n., 57, 101, 164, 230. 
 Employer supervising work, 19, 24. 
 Construction of employment contract, 28 n. 
 When contractor's servant, 31 n., 230 n. 
 
 General rule of liability, 57, 65, 92, 93 n., 95 n., 124, 198, 230. 
 Penal liability, 68. 
 Blasting, 73 n. 
 Landlord's liability, 107 n. 
 Contractor's competency, 164. 
 Joint control, 171, 230. 
 Acceptance from, 173 n., 176 n. 
 Liable to employee for negligence of, 198. 
 Contractor's liability to servant of, 203. 
 Right to copy of plans, etc., 206, 230. 
 Liable to own servant for negligence of another's, 223 n. 
 Liability to landowner, 230. 
 Liability to employer's servant, 230. 
 Joint liability of contractor, 230. 
 Servants of, rights against contractor, 230.
 
 INDEX. 377 
 
 [References are to sections.] 
 
 Substitution, Power of, as Test, 21 n., 33. 
 
 Supervision of W^ork — 
 
 As test of relation, 18 n., 20b, 22, 23. 
 
 Of subcontractor, 19. 
 
 By employer, 22, 97, 108. 
 
 By architect, 23, 57 n., 05. 
 
 By engineer, 24, 171. 
 
 Purpose of supervising, 25. 
 
 Duty to supervise, 97, 163. 
 
 Tests of Relation — 
 
 Control as test, 13, 18-23. 
 Result, not means, 18. 
 Right of dismissal, 21. 
 Compensation, 21. 34. 
 Supervision or approval, 22, 23. 
 Personal performance, 33. 
 Character of work, 35. 
 Death as test, 39. 
 
 Timber Cutting, 72 n. 
 
 Time of Injury, 72. 
 
 Transfer Agents, 28. 
 
 Transfer of Servants, 7, 20, 29, 31, 32. 
 
 Traveling Agents, 38i. 
 
 Trespass — 
 
 Work involving, 67, 69, 70, 88, 89, 95, 124, 146. 
 
 Killing cattle, 122. 
 
 Authorized appropriation, 124. 
 
 Exemplary damages, 124. 
 
 Contractor's servant trespassing, 205 n., 215. 
 
 Contractor injuring trespasser, 221. 
 
 Contractor liable for subcontractor's, 230 n. 
 
 Truckmen, see Hauling. 
 
 Trustee Operating Railroad, 127.
 
 378 INDEX. 
 
 [References are to sections.] 
 
 u 
 
 Unantliorized "Work, Employer's Liability, 68. 
 
 Unlawful Work- 
 Employer's liability, 65-69, 72, 85 n., 86 n., 92, 230 n. 
 Statutory duty, 86 n. 
 Conditional undertaking, 90, 92. 
 
 V 
 
 Vessels- 
 Charterer as independent contractor, 38h. 
 Unauthorized harbor lights, 68 n. 
 
 Volunteers, 9. 
 
 w 
 
 ■Walls- 
 Party walls, 103, 163. 
 Removing dangerous, 104. 
 Defective wall falling, 224. 
 
 Warekouseman, Railroad as, 129. 
 
 W^ater— 
 
 Obstructing flow, 22 n. 
 Flooding land, 53 n. 
 
 Work- 
 Character of as test, 35. 
 Abandoned by contractor, 58. 
 
 Written Contract — 
 
 Construction of, 28, 29. 
 Whether admissible, 73 n.
 
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