It is true there was testimony for the defendants to the effect that the roof was not steep,-that a wheelbarrow could be rolled about on it. But the testimony for the plaintiff was to the contrary; and the plan of the roof in evidence refutes this contention of the defendants, as will appear from the following tracing of the elevation of such roof as shown from the front of the south gable (on which the location of the scaffold and route of the plaintiff aforesaid are also indicated by the solid and dash lines):

had gone through the dormer window A, shown on the above sketch, he would have reached the roof on the same level as by the scaffold route, the testimony for the defendant being that the scaffold was on the same level as the sills of the south gable and the sills of the dormer windows. But the testimony for the plaintiff was in direct conflict with that of the defendants on that point, and was very positive and definite to the effect that the scaffold level was about halfway up on the south gable windows, and that the level thereof, when projected around on the roof, was the same elevation above the sills of the dormer windows aforesaid.

And just here is the turning point in the case, as I see it, on the question of whether the route or way taken by the plaintiff was a reasonably necessary route to his place of work, namely, the question whether the scaffold was or was not on the same level with the dormer-window sills; for, if so, as contended by the defendants, the plaintiff by going through the dormer window A would have been, when emerging from that window and as he stood on its sill, at its south corner, within 3 or 4 feet from a point directly underneath the vent pipe, and on the same level as he was when he stood on the scaffold at the cornice aforesaid, and he could have thus stepped to the board aforesaid on the roof leading to the vent pipe, and thence reached such pipe as readily as he could have done so by using the scaffold route. But the testimony being in conflict, as aforesaid, on this point, this question of fact is concluded against the defendants by the finding of the court below; so that the fact must be regarded by us as being that by going through the window A, the plaintiff would not have been within reach of the vent pipe or of the board on the roof beneath it, but would have had to climb the steep roof from the window sill to a point within reach of the vent pipe, and the plaintiff expressly testified on this subject as follows:

When you got out there, the climbing of this steep part of the roof, you couldn't make it up there." (Record, p. 30.)

And, indeed, the testimony for the defendants is not that the route through the dormer window A was that provided for the plaintiff, but the route through the dormer window B, as shown on the sketch above, which, as aforesaid, is a far more circuitous, a farther and more difficult and dangerous, route on the roof than that by the scaffold, the latter requiring, as the plaintiff testified, only one step on the roof after reaching it from the scaffold ("just a step on the roof," page 30, record), and that step being on the board aforesaid, which ran "across there from the mansard" (page 36, record), by which he would have attained a point directly underneath his place of work and within reach of it by standing there on such board.

And, as tending to weaken the testimony for the defendants to the effect that the dormer-window B route was provided by them as the route or way to the roof for all workmen on the building, it was shown by the testimony for the plaintiff that the plumbers did not use that way in putting the collars on the vent or stack pipes, on the roof of the north gable (which preceded the work about which the plaintiff was engaged when the accident occurred), but used for that work a scaffold there erected. And further: One of the carpenters who had worked on the erection of the building, a witness for the defendants, disclosed in his testimony on

cross-examination that the scaffold which fell with the plaintiff had been theretofore frequently used by the carpenters, who were employees of the defendants, in descending from the roof. This witness testified that he himself had made such use of this scaffold "many a time." If so used for descending from the roof, no good reason is perceived why the same use of it should not have been made as a reasonably necessary use (and doubtless was made of it), for ascending to the roof, by all workmen on the building being at or near that end of the building, and having occasion, in the progress of their work, to go upon the roof. And it would seem that the most ordinary forethought and prevision of the defendants would have led them to anticipate this. Their consequent duty seems to me to have been plain, namely, to have exercised reasonable care that the scaffold in question should have been so constructed as to have been reasonably safe for such use.

3. The testimony of the plaintiff is very explicit on the point as to what the defect was in the construction of the scaffold which caused it to fall with the plaintiff. That was to the effect that it was not braced at all underneath the end of it which fell, and that such bracing was reasonably necessary to support the scaffold for the use of it aforesaid by the plaintiff and other workmen as a means of ascent to the roof.

Such being the case as shown by the record, I feel that there was no error in the action of the trial judge in finding for the plaintiff, and I am unwilling to disturb his decision.

L. Introductory:

§ 1. General doctrine stated, 405. § 2. Liability of a contractor for the torts of a subcontractor, 407.

I. continued.

§ 3. Liability of a contractor for the torts of an assignee of the contract, 409.

§ 10.

420.

- of work of other descriptions, 424.

§ 11. Liability of contractor, when not predicable, 427.

§ 12. Performance of contract in

the manner prescribed by the employer, how far a protection to the contractor:

a. Decisions affirming the liability of the contractor, 431.

b. Decisions denying the liability of the contractor, 433.

§ 13. Liability of contractors engaged in public work, 441.

§ 14. Extent to which such contractors are exempt from liability:

a. Contractors employed by the state, 442.

b. Contractors employed by subordinate governmental agencies, 443. 15. Same subject: effect of English decisions rendered with reference to special statutes, 451.

16. Liability of contractor performing work under a license granted by a municipality, 453.

17. Liability of contractor to servants of principal employer, 455.

II. continued.

§ 18. Liability

of contractor to servants of subcontractor employed by him, 461.

§ 19. Liability of a contractor to the servants of another contractor not employed by him, 471.

20. Liability of a contractor to persons authorized by the owner of land to enter thereon, 482.

§ 20a. Liability of a contractor to children playing in a street, 484.

III. Liability of contractor to third per

sons: subject considered with reference to the effect of agreements creating specific duties:

§ 21. In general, 487.

§ 22. Agreements made

with 8

1. General doctrine stated. In this monograph it is proposed to review the cases which illustrate the operation of the general doctrine that an independent contractor is respon

1 A contractor "is liable civilly, as well as criminally, for any wrong done by himself or his servants in the execution of the work contracted for." Maule, J., in Overton v. Freeman (1852) 11 C. B. 867, 138 Eng. Reprint, 717 (subcontractor held liable here).

In Creed v. Hartman (1864) 29 N. Y. 591, 86 Am. Dec. 341, where a contractor was held responsible for the negligence of a subcontractor, the court rejected the special defense relied upon, viz., that "the defendant, not being the owner of the premises, was not liable."

2 The defendant "was not in the employment, or under the direction, of the municipal authorities in any such sense as to exempt him from liability for the consequences of his negligent or unskilful acts, or of those of his employees." Charlock v. Freel (1891) 125 N. Y. 357, 26 N. E. 262, affirming (1888) 50 Hun, 395, 21 N. Y. S. R. 963, 3 N. Y. Supp. 226.

In Lund v. Griffiths & S. Stevedoring Co. (1919) 108 Wash. 220, 183 Pac. 123, where the servant of a stevedoring company was injured by timbers which swung against him while they were being hoisted into a ship, it was unsuccessfully contended that a verdict in favor of the shipowner, the codefendant of the company, operated as a release of the latter. The argument relied upon was that the company was

- in respect of construction work of other descriptions, 541.

- in respect of the towage of vessels, 543.

- in respect of medical attondance, 545.

§ 34. Indemnity agreements made with contractee:

a. Right of action denied,

545.

b. Right of action affirmed, 551.

sible for any wrongful acts that may be committed by himself or his servants while the stipulated work is in progress.1 In respect of the responsibility thus imposed upon him, there is an essential difference between his position and that of a servant.2

The

a mere agent of the owner with respect to the loading of the ship, and was not liable while it was acting within the scope of the agency, unless the principal was also liable. court said: "It is undoubtedly the rule that an intermediate servant is not liable for a negligent injury to a subordinate servant, where he is guilty of no independent wrong and is but carrying out the directions of the common master. But the record here shows something more than this. The appellant was an independent contractor. Its contract was entire. It undertook to load the boat, employing its own means and its own servants. For any negligent injury to its servants it is liable regardless of the question whether another party may be also liable. It is true that the winches which caused the particular injury were a part of the equipment of the boat, in place when the appellant entered into its contract. But they were nevertheless, as between the appellant and its servants, appliances furnished by the appellants to its servants with which to work, and the appellant owed the servants the same duty to see that they were in proper condition that it would have owed them had it procured the winches from some other source. It may be true, also, that the verdict of the jury in the light of the evidence is inconsistent-that there is no

The ground upon which this responsibility is based is the implied duty which the law casts upon him, as the person in control of the work, to see that the rights of other persons are not injuriously affected by its performance.3

The responsibility so imputed extends not only to the work specified in the contract itself, but also to any additional work which the contractor undertakes in compliance with a direction given by the employer, acting in the exercise of a right expressly reserved in the contract, or which he voluntarily agrees to execute in pursuapparent reason why they should have found against one defendant and in favor of the other; but this, while it might be ground for some other form of relief, is not a ground for holding the verdict equivalent to a verdict in favor of both defendants.

See also Casement v. Brown (1893) 148 U. S. 615, 37 L. ed. 582, 13 Sup. Ct. Rep. 672 (court said, arguendo, that the defendants, not being employees, were liable for their own negligence); Teller v. Bay & River Dredging Co. (1907) 151 Cal. 209, 12 L.R.A. (N.S.) 267, 90 Pac. 942, 12 Ann. Cas. 779 (tort-feasor held to be independent contractor, and therefore liable).

3 In Charlock v. Freel (1891) 125 N. Y. 357, 26 N. E. 262 (see note 4, infra), the court observed: "The principle of liability for such an occurrence as we have in this case is that the defendant, and not the city, was the master of the workmen. He had the control of the execution of the work which he had been directed to perform. A duty rested upon him, therefore, to use such precautions in doing the work as to make it reasonably safe against the possibility of accidents to the traveling public."

4 Charlock v. Freel (1891) 125 N. Y. 357, 26 N. E. 262, affirming (1888) 50 Hun, 395, 21 N. Y. S. R. 963, 3 N. Y. Supp. 226. In that case the defendant, a contractor for the construction of a sewer, was ordered by the city engineer, after it had been completed, to raise the grade of the street at a certain place. The work was so done as to produce a hole, into which a pedestrian fell. Held, that the defendant was liable for the resulting injury. The court said: "It is true

ance of an agreement, while the contract is in course of performance.1

The doctrine that the independent status of a contractor is not destroyed by the employer's reservation of a right to exercise over the performance of the work a degree of control which does not extend to direction in respect of details (see §§ 4 to 8 monograph in 20 A.L.R. pp. 684 et seq.) obviously involves the corollary that a contractor must answer for his own tortious acts and those of his servants, although an agent was deputed by the employer to superintend the work, and that the contract primarily or principally related to the building of a sewer in the street, but by one of its provisions the power was reserved 'to vary, extend, or diminish the quantity of work during its progress,' and it was therein provided that 'the engineer shall also fix the price to be paid for all work that may be necessary to be done that is not included in the contract.' This provision may not have been obligatory upon the contractor as to work not related to, or in connection with, the principal plan of his agreement, but when, at the request of the chief engineer of the city, he undertook the work of raising the street grade, the contract was thereby extended so as to include it. Coming between the completion of the sewer and the repaving of the street, and being designed to make the drainage better, it was work which was cognate in its nature to the principal undertaking, and the effect of its assumption was to continue the contract relations between the parties, with all the obligations and responsibilities that contract imposed, expressly or by legal implication. Nor could it, in my opinion, affect the question of the defendant's liability if the department, or city engineer, had ordered him to do this particular work, and it could not be deemed to be comprehended within any of the provisions of his contract. The contractor assumed its performance and was doing it with workmen employed by him. The direction of the city officers had nothing to do with the manner of the performance, and there was no interference with the workmen engaged under the defendant in the detail work."