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with the instructions of the principal $ 6. Circumstances under which the employer, or with his consent. To personal liability of contractors is cases of this class the remark made

predicable. with regard to those specified in 1(a), A large number of cases, showing supra, is equally applicable.

the circumstances under which negli(d) Cases in which the failure of gence or other misconduct has been the principal employer to take such imputed to contractors, are reviewed precautions as were proper under the

in the earlier monographs, specified circumstances was contributory

in $$ 4 and 5, supra, which deal cause of the injury.7

with the liability of employers. In & A stipulation by which an employ

7-11, infra, the reader will find a gener assumes sole responsibility or lia

eral summary of the effect of numer

cases not referred to in those bility for any damage to third persons

monographs. In the later sections of proximately resulting from the joint

this monograph the extent of the connegligence of himself and the con

tractor's liability is discussed with tractor, while the latter is engaged in

relation to such special factors as the the performance of the work, will not terms on which the stipulated work operate so as to deprive a third person was performed, the subject-matter of of his right to proceed against the con- the contract, and the class of persons tractor, and hold him accountable for to which the injured party belonged. the effect of his own negligence.8

Both on principle and authority it bury v. Chicago, M. & P. S. R. Co. tractor failed to inspect rails defec(1914) 77 Wash. 464, 137 Pac. 1044; tively piled by a subcontractor in a Hundhausen v. Bond (1874) 36 Wis. street); Quanah, A. & P. R. Co. v. 29; Kirk v. Toronto (1904) 8 Ont. L. Goodwin (1915) Tex. Civ. App. Rep. 730-C. A.

177 S. W. 545 (rider thrown from a 5 Renwick v. Vermilion Centre School horse which was frightened by rails Dist. (1910) 3 Alberta L. R. 291 (earth deposited near a railroad crossing, in deposited so as to turn water on to compliance with the directions of the adjacent premises).

railroad company's agent). See also 6 Consolidated Ice Mach. Co. v. Kei

cases cited in § 3 of the monograph in fer (1890) 134 Ill. 481, 10 L.R.A. 696,

30 A.L.R. pp. 1502 et seq.

In United States v. Standard Oil Co. 23 Am. St. Rep. 688, 25 N. E. 799.

(1919) 258 Fed. 697, affirmed in (1920) 7 Jackson v. London County Council 12 A.L.R. 1404, 264 Fed. 66, where oil (1912) 10 L. G. R. (Eng.) 348, 76 J. P. on the surface of water was ignited 217, 28 Times L. R. 359, 56 Sol. Jo. 428 by hot ashes thrown upon it by the -C. A., affirming (1911) 76 J. P. 37, fireman of the engine of a pile driver 28 Times L. R. 66, 10 L. G. R. 75 used for the construction of a pier, (agents of defendant failed to remove

the consequence being that several from school playground materials dan

barges were burned, the employer, the gerous to children, which a building Standard Oil Company, was declared contractor had deposited there); Eng- to be jointly liable with the Raymond lert v. New Orleans R. & Light Co.

Company, the contractor for the work, (1911) 128 La. 473, 54 So. 963 (street (

for the reason that it had acquiesced railway company failed to provide a in the continuance of the dangerous suitable place for the deposit of cer- practice of thus disposing of the tain articles which were to be unload- ashes. But, in view of the specific ed from barges, by a contractor, and agreement of the parties that the cost which were placed by him so near the of insurance and other expenses intrack as to be dangerous to street curred in connection with any accars); Egan v. Hotel Grunewald Co. cident or damage to person or prop(1910) 129 La. 163, 55 So. 750 (build- erty was to be paid by the employer, ing settled as a result of the driving it was held that the “decree should be of piles on adjacent premises in ac- so drawn as to make the Standard, as cordance with plans and specifications between itself and the Raymond, priof the employer); Ramsey v. National marily liable." Contracting Co. (1900) 49 App. Div. 8 Dow v. Oroville (1913) 22 Cal. 11, 63 N. Y. Supp. 286 (principal con- App. 215, 134 Pac. 197.


is clear that a contractor who by his $ 7. Liability in respect of work perown negligence creates dangerous con

taining to the construction or operaditions during the progress of the

tion of railroads. stipulated work may be held responsi

The effect of the cases involving the ble for an injury occasioned by those conditions, although a party who was

liability of contractors employed to a stranger to the contract was under perform work of this description is a concurrent obligation in respect of stated in the footnote." seeing that they did not supervene.

1 In Oregon-Washington R. & Nav. court said: “By assuming the conCo. v. Branham (1919) 170 C. C. A. trol of this section of the road, he as517, 259 Fed. 555, where the plaintiff, sumed the responsibilities which the when crossing, at night, a bridge law imposed upon the company rewhich the defendant was repairing in specting its use, and the liabilities pursuance of a contract with a city, which the law imposed for its imhad stepped into a hole in the side- proper use. In letting down Smith's walk, the trial judge "submitted to fence, he rendered himself liable for the jury the question whether or not the consequences, to the same extent there was a sufficient barrier to warn that the company would have been, the public against the use of the walk, had the act been done by their servand charged that, if there was a suffi- ants and laborers; for he, as cient barrier, the railroad company tractor, has no greater rights, nor would not be responsible.” It was ob- other exemptions from liability for jected that this was error, because, his wrongful acts, than the company under the contract of repair, the duty would have. Without taking the proper of keeping the bridge closed to traffic precautions, either by erecting temduring the period of construction was porary fences, or otherwise, he was, imposed upon the city. But the court as to Smith, a tort-feasor-not to the said the railroad company, being an extent of liability for damages in independent contractor, could not entering upon the line of the road, it "avoid liability for injuries sustained is true, but to that of liability for to a third person, where such injuries damages directly attributable to the have been inflicted because of con- neglect of those precautions. As a conditions brought about by its negligent tractor, in undertaking to do the work, action."

he undertook to do it in a lawful manIn Cummings v. C. W. Noble Co. ner, and it was his duty thus to (1910) 143 Wis. 175, 126 N. W. 664, execute it." The fact that the owner where a switchman riding on of the sheep had turned them into the engine was killed by coming into col- field through which the line ran, after lision with timbers which a contractor the route had been taken possession engaged in constructing a sewer had of, and while the contractor was conpiled close to the track, it was held stantly throwing down the fences for that a demurrer had been properly his purposes, was held not to affect overruled. A special point taken by his liability. It was laid down that, the defendant was thus disposed of: under the General Railroad Act, the "If the contractor] was negligent in liability of corporations organized unthe first instance, it is not relieved der it, and their agents, for damages from liability to the person injured which may result from the neglect of because the employer of the decedent the corporations to erect and maintain was also negligent by reason of its fences on the sides of the line of the assent to the act, or because it failed road, attaches as soon as they have to remove the danger."

possession of the route for the pur? In Gardner v. Smith (1859) 7 Mich. pose of constructing the road. 410, 74 Am. Dec. 722, where a con- For other cases in which the liatractor, when engaged in constructing bility of contractors has been affirmed, a railroad through certain premises, see Cary Bros. v. Morrison (1904) 65 had taken away the fences across the L.R.A. 659, 63 C. C. A. 267, 129 Fed. line for that purpose, and sheep of the 177, 16 Am. Neg. Rep. 287 (passenger owner of the premises escaped through on ferryboat killed by rock thrown up the opening so made, and were lost, by blast on right of way); Rinker v. it was held that the contractor was Galveston-Houston Electric R. Co. liable to the owner for the loss. The (1915) — Tex. Civ. App. -, 176 S. W.


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$ 8. of work with respect to buildings. of the building with respect to

which the stipulated work was being The decisions under this head affirm

performed; 1 by an occupant of premthe liability of the contractor for ises adjacent to the building on which injuries sustained by an occupant the work was performed; 2 by an em737 (child injured in playing with provides that in actions for damages push car left unguarded on track on account of injury "occasioned by which was being constructed on fire communicated by any locomotive street); Union P. R. Co. v. House engine," the fact that the fire was so (1871) 1 Wyo. 27 (injury to person communicated “shall be taken as full conveyed as passenger on construction prima facie evidence to charge with train).

negligence" those in use and occupaFor cases in which lessee railroad tion of the railroad as owners, lessees, companies were held liable for negli- or mortgagees, and those having at gence in respect of the operation or the time the care and management of maintenance of the leased roads, see the engine. In Chicago & E. R. Co. v. Central R. Co. v. Whitehead (1885) 74 Neilson (1905) 118 Ill. App. 343, a Ga. 441; Central R. Co. v. Brinson lessee company was held liable under (1880) 64 Ga. 475; Martin v. Chicago, this statute. R. I. & P. R. Co. (1909) 81 Kan. 344, In Wasner v. Delaware, L. & W. R. 27 L.R.A.(N.S.) 164, 105 Pac. 451. Co. (1880) 80 N. Y. 212, 36 Am. Rep.

For cases in which such companies 608, where the injury complained of were held liable for damages caused was caused by maintaining along a by a breach of statutes requiring the highway a track the rails of which promaintenance of fences, see Pittsburgh, jected more than 4 inches above the C. & St. L. R. Co. v. Bolner (1877) 57 surface, the lessee was held liable on Ind. 572; Pittsburgh, C. & St. L. R. the ground of nuisance. Co. v. Hunt (1880) 71 Ind. 229; Indian- 1 Donnelly v. Hufschmidt (1889) 79 apolis Traction & Terminal Co. v. Cal. 74, 21 Pac. 546 (tenant of lodging Springer (1911) 47 Ind. App. 35, 93 house injured by stumbling over maN. E. 707; Stewart v. Chicago & N. W. terials left on pathway by contractor R. Co. (1869) 27 Iowa, 282; Clary v. employed to make repairs); Carey v. Iowa Midland R. Co. (1873) 37 Iowa, Baxter (1909) 201 Mass. 522, 87 N. E. 344; Downing v. Chicago, R. I. & P. 901 (plaintiff injured by stepping out R. Co. (1876) 43 Iowa, 96; Pierce v. of a doorway from the front of which Concord R. Co. (1872) 51 N. H. 593; the steps had been removed with the Hall v: Brown (1874) 54 N. H. 495; view of constructing others); Charles Tracy v. Troy & B. R. Co. (1868) 38 R. Robin v. Winslow (1918; Sup. Ct. N. Y. 433, 98 Am. Dec. 54; McGrath App. T.) 171 N. Y. Supp. 55 (action v. New York C. & H. R. R. Co. (1876) was held to be maintainable for dam63 N. Y. 522; McCall v. Chamberlain age caused to the goods of a tenant by (1861) 13 Wis. 637; Cook v. Milwaukee the negligence of a steam company in & St. P. R. Co. (1874) 36 Wis. 45. turning on steam before the pipes

In Clement v. Canfield (1856) 28 were properly connected); McDonald Vt. 302, the ratio decidendi was that v. Morrison (1898) Rap. Jud. Quebec a lessee company was the "agent" of 15 C. S. 143 (person employed to the lessor, within the meaning of a decorate plaintiff's house replaced a provision declaring that, until the mirror so carelessly that it fell and fences and cattleguards, the main- damaged furniture). tenance of which is prescribed by it, 2 White v. Peto (1888) 58 L. T. N. S. "shall be duly made, the corporation (Eng.) 710 (walls of adjoining house and its agents shall be liable for all cracked as a result of negligence in damages which shall be done by their underpinning); Hedstrom v. Union agents, or engines, if occasioned by Trust Co. (1908) 7 Cal. App. 278,94 the want of such fences and cattle Pac. 386 (negligence in respect of supguards."

porting the wall of a building adjacent An Illinois statute (Rev. Stat. chap. to premises on which the contractor 114, § 63) declares it to be the “duty was making an excavation); Smith v. of all railroad corporations to keep Howard (1923) 201 Ky. 249, 256 S. W. their right of way clear from all dead 402 (contractor alone liable for damgrass, dry weeds, or other dangerou age caused by collapse of building on combustible material.” Section 103 adjacent lot, as a result of his negli



ployee of a tenant of a portion of the building; 3 by a person entering the gence in excavating the foundations upon and injured the premises and for a new building); Brown v. Werner property of the plaintiff, the defend(1874) 40 Md. 15 (party wall fell ants are chargeable with negligence while cellar in adjoining house was and liable for the damage resulting. being excavated); Bast v. Leonard This proposition is a logical conse(1870) 15 Minn. 304, Gil, 235 (fall of quence of those preceding it. The use wall held to be fact tending to show of the walls by the defendants for the negligence in respect of its construc- purpose of doing the woodwork upon tion); Slater v. Mersereau (1876) 64 the building, and their payment of the N. Y. 138 (defendant failed to provide subcontractor for the material furproper means for carrying off rain nished and work done by him, would water from the roof of a building be strong evidence to show that the which he was erecting, the result be- defendants accepted the same as pering that water was diverted into the formance, pro tanto, of the subconadjacent building and injured plain- tract, and that the character of both tiff's property); Jacoby v. Browning work and materials was satisfactory (1918; Sup. Ct. App. T.) 105 Misc. to and sanctioned by them." 312, 173 N. Y. Supp. 7 (failure to pro- In Brennan v. Gellick (1892; Super. tect roof of building adjacent to one Ct.) 30 Abb. N. C. 168, note, 21 N. Y. under construction).

Supp. 1023, note, it was intimated that In Bast v. Leonard (1870) 15 Minn. the contractor, who had damaged the 304, Gil. 235, where a wall built by a plaintiff's house by blasting, might be subcontractor fell on the plaintiff's restrained altogether from prosecutpremises, the principles with refer- ing the work, if there was “sufficient ence to which the liability of the gen- evidence of a persistence on his part eral contractor was determinable were to carry on the work in a heedless thus stated: "Under the contract and reckless manner.”

.. the defendants were bound to In Locklin v. Beckwith (1887; Sup. construct the building, furnishing ma- Ct. Gen. T.) 6 N. Y. S. R. 583, a subterials for the same, of the best quali

contractor was held to be liable in ty generally used for such purposes,

trespass for injuries caused to plainand doing the work in the most work

tiff's land by rocks thrown upon it manlike manner. This obligation is

during blasting operations. found in the express terms of the con

3 In Crane Elevator Co. v. Lippert tract. If the defendants sublet any

(1894) 11 C. C. A. 521, 244 U. S. App. part of the contract, whether to an in

176, 63 Fed. 942, it was held that the dependent subcontractor or not, it was

plaintiff, an employee of a telegraph their right and duty to see that the

company occupying an office in a materials used by the subcontractor

building, was entitled to recover for were of the best quality generally

injuries caused by stumbling over a

mass of materials left in the main used for such purposes, and that the

hall by the defendant company, near work performed by him was done in the most workmanlike manner.

the door of the office, in the course This

of its performance of the work of takobligation also follows from their con

ing down an old elevator, and putting tract. If the materials furnished, or

up a new one in its place. It was not the work done by such subcontractor,

shown whether these materials were were of such a character that the

placed in the hall with the previous walls in this case were unsafe and un

consent of the owner of the building, fit for the purposes for which they

or not, but they had remained there were intended, and the defendants

for such a length of time before the knew this, or might have known it in accident happened that he was chargethe exercise of reasonable care and able with knowledge of their presence. diligence, and went on and made use They had been left in the hall without of the walls, and incorporated their any guard rail around them, and unown work with them, and made pay- lighted except by such lights as were ments to the subcontractor, and ac- maintained by the owner of the buildcepted the work as it proceeded, and ing. The court said: “The defendant if, in consequence of the unsafe and in error, as the employee of the teleimperfect character of the materials graph company, had the right to use so furnished and the work so done by the hall for the purpose of travel to the subcontractor, the building fell and from his place of employment, building as an invitee of the owner; . and by a person lawfully using the free from dangerous obstructions, as the hole was a trap, i. e., a danger against the owner of the building or which could not be avoided by a perhis licensee, as well as against one son previously ignorant of it, but who obstructing it without any claim of used reasonable care, and entered right. The plaintiff in error, in ob- judgment for the plaintiff. Scrutton, structing the hall, was guilty of an L. J., made the following remarks: "I invasion of the right of the defendant leave out of question any liability of in error to its free and unobstructed the gas company based on invitation, use.

Having placed obstruc- for I think it is clear that the worktions in the hall, the duty rested upon men had no authority from the gas the plaintiff in error to exercise company to invite people to walk about reasonable care and prudence to pro- the house. The case is, in my view, tect from injury those having lawful the same as if the door had been open, occasion to use it, by means of lights and the workmen had seen a person or other suitable safeguards. This lawfully on the premises going toduty required the exercise of care and wards the hole, and had not warned diligence on its part in proportion to him, or had known that persons lawthe danger occasioned by the presence fully there might be passing along the of these obstructions. It saw fit landing, and had given no warning. wholly to neglect the performance of

It is clear that persons law. this duty. It relied upon the lighting fully doing a work which interferes of the hall by the owner of the build- with a public right, as contractors ing as the sole means of protection opening the highway, must use reasonagainst injury from these obstruc- able care not to injure persons lawfultions. Having intrusted to another ly using the highway, which would the discharge of a duty resting upon include taking reasonable precautions itself, the plaintiff in error is respon- to warn such persons of dangers creatsible for a failure in its performance. ed by the contractor, which the passerThe evidence touching the manner of by could not with reasonable care disthe performance of this duty was con- cover. But it is said the case is flicting, and, under instructions as different when the work is done on favorable to the plaintiff in error as private premises, in which the conit was entitled to ask, the jury have tractor has no proprietary or possesfound that there was negligence.” sory interest, and on which he is only

4 In Kimber v. Gaslight & Coke Co. a licensee of the owner. The con[1918] 1 K. B. (Eng.) 439, 9 B. R. C. tractor's duty, it was said, was only 674-C. A., two workmen of the de- not actively and negligently to injure fendant company were altering the other persons on the premises, as by gas fittings in a house which had been carelessly dropping hammers on their let to a tenant, who was converting it heads; and included no duty to warn into two flats, one of which he pro- them of dangers, even hidden ones, posed to let. In doing this the work.

which the contractor's work had creatmen had taken up a board on a dark ed, as holes in dark passages. There landing. While the workmen were are, of course, cases where there is still in the house and the board was moral culpability, but no legal liabilup, a lady to whom the tenant had ity. A sees a blind man walking along given an order to view the top flat the highway straight into a pond, and •knocked at the door. One of the work. gives him no warning; A is not legally men opened it; she showed her order liable, for he is under no legal duty to to view, and passed in up the stairs. B. But if A has himself made the The workman did not tell her of the hole in the highway, he is under legal hole where the board was up. She liability at once. Penny v. Wimblepassed it once, but fell into it on her don Urban Dist. Council [1899] 2 Q. return, and injured her knee. She B. (Eng.) 72, 68 L. J. Q. B. N. S. 704, sued the gas company. The jury found 63 J. P. 406, 47 Week. Rep. 565, 80 L. there was no negligence in leaving the T. N. S. 615, 15 Times L. R. 348—C. hole open, but that there was negli- A. I cannot see that it makes any gence in not warning the plaintiff that difference that B is a person lawfully the hole was there, and that the plain- on private premises where A has made tiff was not guilty of contributory neg- the hole, or that A is under a duty as ligence. The trial judge, to whom to his acts towards B, such as not to other questions were left, found that hit him with his tools, different from

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