A stipulation by which an employer assumes sole responsibility or liability for any damage to third persons proximately resulting from the joint negligence of himself and the contractor, while the latter is engaged in the performance of the work, will not operate so as to deprive a third person of his right to proceed against the contractor, and hold him accountable for the effect of his own negligence. bury v. Chicago, M. & P. S. R. Co. (1914) 77 Wash. 464, 137 Pac. 1044; Hundhausen v. Bond (1874) 36 Wis. 29; Kirk v. Toronto (1904) 8 Ont. L. Rep. 730-C. A.

8

5 Renwick v. Vermilion Centre School Dist. (1910) 3 Alberta L. R. 291 (earth deposited so as to turn water on to adjacent premises).

6 Consolidated Ice Mach. Co. v. Keifer (1890) 134 Ill. 481, 10 L.R.A. 696, 23 Am. St. Rep. 688, 25 N. E. 799.

7 Jackson v. London County Council (1912) 10 L. G. R. (Eng.) 348, 76 J. P. 217, 28 Times L. R. 359, 56 Sol. Jo. 428 -C. A., affirming (1911) 76 J. P. 37, 28 Times L. R. 66, 10 L. G. R. 75 (agents of defendant failed to remove from school playground materials dangerous to children, which a building contractor had deposited there); Englert v. New Orleans R. & Light Co. (1911) 128 La. 473, 54 So. 963 (street railway company failed to provide a suitable place for the deposit of certain articles which were to be unloaded from barges, by a contractor, and which were placed by him so near the track as to be dangerous to street cars); Egan v. Hotel Grunewald Co. (1910) 129 La. 163, 55 So. 750 (building settled as a result of the driving of piles on adjacent premises in accordance with plans and specifications of the employer); Ramsey v. National Contracting Co. (1900) 49 App. Div. 11, 63 N. Y. Supp. 286 (principal con

$ 6. Circumstances under which the personal liability of contractors is predicable.

A large number of cases, showing the circumstances under which negligence or other misconduct has been imputed to contractors, are reviewed in the earlier monographs, specified in §§ 4 and 5, supra, which deal with the liability of employers. In §§ 7-11, infra, the reader will find a general summary of the effect of numerous cases not referred to in those monographs. In the later sections of this monograph the extent of the contractor's liability is discussed with relation to such special factors as the terms on which the stipulated work was performed, the subject-matter of the contract, and the class of persons to which the injured party belonged.

Both on principle and authority it tractor failed to inspect rails defectively piled by a subcontractor in a street); Quanah, A. & P. R. Co. v. Goodwin (1915) Tex. Civ. App. 177 S. W. 545 (rider thrown from a horse which was frightened by rails deposited near a railroad crossing, in compliance with the directions of the railroad company's agent). See also cases cited in § 3 of the monograph in 30 A.L.R. pp. 1502 et seq.

In United States v. Standard Oil Co. (1919) 258 Fed. 697, affirmed in (1920) 12 A.L.R. 1404, 264 Fed. 66, where oil on the surface of water was ignited by hot ashes thrown upon it by the fireman of the engine of a pile driver used for the construction of a pier, the consequence being that several barges were burned, the employer, the Standard Oil Company, was declared to be jointly liable with the Raymond Company, the contractor for the work, for the reason that it had acquiesced in the continuance of the dangerous practice of thus disposing of the ashes. But, in view of the specific agreement of the parties that the cost of insurance and other expenses incurred in connection with any accident or damage to person or property was to be paid by the employer, it was held that the "decree should be so drawn as to make the Standard, as between itself and the Raymond, primarily liable."

8 Dow v. Oroville (1913) 22 Cal. App. 215, 134 Pac. 197.

is clear that a contractor who by his own negligence creates dangerous conditions during the progress of the stipulated work may be held responsible for an injury occasioned by those conditions, although a party who was a stranger to the contract was under a concurrent obligation in respect of seeing that they did not supervene.1

In Oregon-Washington R. & Nav. Co. v. Branham (1919) 170 C. C. A. 517, 259 Fed. 555, where the plaintiff, when crossing, at night, a bridge which the defendant was repairing in pursuance of a contract with a city, had stepped into a hole in the sidewalk, the trial judge "submitted to the jury the question whether or not there was a sufficient barrier to warn the public against the use of the walk, and charged that, if there was a sufficient barrier, the railroad company would not be responsible." It was objected that this was error, because, under the contract of repair, the duty of keeping the bridge closed to traffic during the period of construction was imposed upon the city. But the court said the railroad company, being an independent contractor, could not "avoid liability for injuries sustained to a third person, where such injuries have been inflicted because of conditions brought about by its negligent action."

an

In Cummings v. C. W. Noble Co. (1910) 143 Wis. 175, 126 N. W. 664, where a switchman riding on engine was killed by coming into collision with timbers which a contractor engaged in constructing a sewer had piled close to the track, it was held that a demurrer had been properly overruled. A special point taken by the defendant was thus disposed of: "If the [contractor] was negligent in the first instance, it is not relieved from liability to the person injured. because the employer of the decedent was also negligent by reason of its assent to the act, or because it failed to remove the danger."

In Gardner v. Smith (1859) 7 Mich. 410, 74 Am. Dec. 722, where a contractor, when engaged in constructing a railroad through certain premises, had taken away the fences across the line for that purpose, and sheep of the owner of the premises escaped through the opening so made, and were lost, it was held that the contractor was liable to the owner for the loss. The

7. Liability in respect of work pertaining to the construction or operation of railroads.

The effect of the cases involving the liability of contractors employed to perform work of this description is stated in the footnote.1

court said: "By assuming the control of this section of the road, he assumed the responsibilities which the law imposed upon the company respecting its use, and the liabilities which the law imposed for its improper use. In letting down Smith's fence, he rendered himself liable for the consequences, to the same extent that the company would have been, had the act been done by their servants and laborers; for he, as contractor, has no greater rights, nor other exemptions from liability for his wrongful acts, than the company would have. Without taking the proper precautions, either by erecting temporary fences, or otherwise, he was, as to Smith, a tort-feasor-not to the extent of liability for damages in entering upon the line of the road, it is true, but to that of liability for damages directly attributable to the neglect of those precautions. As a contractor, in undertaking to do the work, he undertook to do it in a lawful manner, and it was his duty thus to execute it." The fact that the owner of the sheep had turned them into the field through which the line ran, after the route had been taken possession of, and while the contractor was constantly throwing down the fences for his purposes, was held not to affect his liability. It was laid down that, under the General Railroad Act, the liability of corporations organized under it, and their agents, for damages which may result from the neglect of the corporations to erect and maintain fences on the sides of the line of the road, attaches as soon as they have possession of the route for the purpose of constructing the road.

For other cases in which the liability of contractors has been affirmed, see Cary Bros. v. Morrison (1904) 65 L.R.A. 659, 63 C. C. A. 267, 129 Fed. 177, 16 Am. Neg. Rep. 287 (passenger on ferryboat killed by rock thrown up by blast on right of way); Rinker v. Galveston-Houston Electric R. Co. (1915) Tex. Civ. App. 176 S. W.

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$ 8. of work with respect to buildings.

The decisions under this head affirm the liability of the contractor for injuries sustained by an occupant

737 (child injured in playing with push car left unguarded on track which was being constructed on a street); Union P. R. Co. v. House (1871) 1 Wyo. 27 (injury to person conveyed as passenger on construction train).

For cases in which lessee railroad companies were held liable for negligence in respect of the operation or maintenance of the leased roads, see Central R. Co. v. Whitehead (1885) 74 Ga. 441; Central R. Co. v. Brinson (1880) 64 Ga. 475; Martin v. Chicago, R. I. & P. R. Co. (1909) 81 Kan. 344, 27 L.R.A. (N.S.) 164, 105 Pac. 451.

For cases in which such companies were held liable for damages caused by a breach of statutes requiring the maintenance of fences, see Pittsburgh, C. & St. L. R. Co. v. Bolner (1877) 57 Ind. 572; Pittsburgh, C. & St. L. R. Co. v. Hunt (1880) 71 Ind. 229; Indianapolis Traction & Terminal Co. V. Springer (1911) 47 Ind. App. 35, 93 N. E. 707; Stewart v. Chicago & N. W. R. Co. (1869) 27 Iowa, 282; Clary v. Iowa Midland R. Co. (1873) 37 Iowa, 344; Downing v. Chicago, R. I. & P. R. Co. (1876) 43 Iowa, 96; Pierce v. Concord R. Co. (1872) 51 N. H. 593; Hall v. Brown (1874) 54 N. H. 495; Tracy v. Troy & B. R. Co. (1868) 38 N. Y. 433, 98 Am. Dec. 54; McGrath v. New York C. & H. R. R. Co. (1876) 63 N. Y. 522; McCall v. Chamberlain (1861) 13 Wis. 637; Cook v. Milwaukee & St. P. R. Co. (1874) 36 Wis. 45.

In Clement v. Canfield (1856) 28 Vt. 302, the ratio decidendi was that a lessee company was the "agent" of the lessor, within the meaning of a provision declaring that, until the fences and cattleguards, the maintenance of which is prescribed by it, "shall be duly made, the corporation. and its agents shall be liable for all damages which shall be done by their agents, or engines, if occasioned by the want of such fences and cattle guards."

An Illinois statute (Rev. Stat. chap. 114, § 63) declares it to be the "duty of all railroad corporations to keep. their right of way clear from all dead grass, dry weeds, or other dangerous combustible material." Section 103

of the building with respect to which the stipulated work was being performed; by an occupant of premises adjacent to the building on which the work was performed; 2 by an emprovides that in actions for damages on account of injury "occasioned by fire communicated by any locomotive engine," the fact that the fire was so communicated "shall be taken as full prima facie evidence to charge with negligence" those in use and occupation of the railroad as owners, lessees, or mortgagees, and those having at the time the care and management of the engine. In Chicago & E. R. Co. v. Neilson (1905) 118 Ill. App. 343, a lessee company was held liable under this statute.

In Wasner v. Delaware, L. & W. R. Co. (1880) 80 N. Y. 212, 36 Am. Rep. 608, where the injury complained of was caused by maintaining along a highway a track the rails of which projected more than 4 inches above the surface, the lessee was held liable on the ground of nuisance.

1 Donnelly v. Hufschmidt (1889) 79 Cal. 74, 21 Pac. 546 (tenant of lodging house injured by stumbling over materials left on pathway by contractor employed to make repairs); Carey v. Baxter (1909) 201 Mass. 522, 87 N. E. 901 (plaintiff injured by stepping out of a doorway from the front of which the steps had been removed with the view of constructing others); Charles R. Robin v. Winslow (1918; Sup. Ct. App. T.) 171 N. Y. Supp. 55 (action was held to be maintainable for damage caused to the goods of a tenant by the negligence of a steam company in turning on steam before the pipes were properly connected); McDonald v. Morrison (1898) Rap. Jud. Quebec 15 C. S. 143 (person employed to decorate plaintiff's house replaced a mirror so carelessly that it fell and damaged furniture).

2 White v. Peto (1888) 58 L. T. N. S. (Eng.) 710 (walls of adjoining house cracked as a result of negligence in underpinning); Hedstrom v. Union Trust Co. (1908) 7 Cal. App. 278, 94 Pac. 386 (negligence in respect of supporting the wall of a building adjacent to premises on which the contractor was making an excavation); Smith v. Howard (1923) 201 Ky. 249, 256 S. W. 402 (contractor alone liable for damage caused by collapse of building on adjacent lot, as a result of his negli

gence in excavating the foundations for a new building); Brown v. Werner (1874) 40 Md. 15 (party wall fell while cellar in adjoining house was being excavated); Bast v. Leonard (1870) 15 Minn. 304, Gil. 235 (fall of wall held to be fact tending to show negligence in respect of its construction); Slater v. Mersereau (1876) 64 N. Y. 138 (defendant failed to provide proper means for carrying off rain water from the roof of a building which he was erecting, the result being that water was diverted into the adjacent building and injured plaintiff's property); Jacoby v. Browning (1918; Sup. Ct. App. T.) 105 Misc. 312, 173 N. Y. Supp. 7 (failure to protect roof of building adjacent to one under construction).

In Bast v. Leonard (1870) 15 Minn. 304, Gil. 235, where a wall built by a subcontractor fell on the plaintiff's premises, the principles with reference to which the liability of the general contractor was determinable were thus stated: "Under the contract ... the defendants were bound to construct the building, furnishing materials for the same, of the best quality generally used for such purposes, and doing the work in the most workmanlike manner. This obligation is found in the express terms of the contract. If the defendants sublet any part of the contract, whether to an independent subcontractor or not, it was their right and duty to see that the materials used by the subcontractor were of the best quality generally used for such purposes, and that the work performed by him was done in the most workmanlike manner. This obligation also follows from their contract. If the materials furnished, or the work done by such subcontractor, were of such a character that the walls in this case were unsafe and unfit for the purposes for which they were intended, and the defendants knew this, or might have known it in the exercise of reasonable care and diligence, and went on and made use of the walls, and incorporated their own work with them, and made payments to the subcontractor, and accepted the work as it proceeded, and if, in consequence of the unsafe and imperfect character of the materials so furnished and the work so done by the subcontractor, the building fell

upon and injured the premises and property of the plaintiff, the defendants are chargeable with negligence and liable for the damage resulting. This proposition is a logical_consequence of those preceding it. The use of the walls by the defendants for the purpose of doing the woodwork upon the building, and their payment of the subcontractor for the material furnished and work done by him, would be strong evidence to show that the defendants accepted the same as performance, pro tanto, of the subcontract, and that the character of both work and materials was satisfactory to and sanctioned by them."

In Brennan v. Gellick (1892; Super. Ct.) 30 Abb. N. C. 168, note, 21 N. Y. Supp. 1023, note, it was intimated that the contractor, who had damaged the plaintiff's house by blasting, might be restrained altogether from prosecuting the work, if there was "sufficient evidence of a persistence on his part to carry on the work in a heedless and reckless manner."

In Locklin v. Beckwith (1887; Sup. Ct. Gen. T.) 6 N. Y. S. R. 583, a subcontractor was held to be liable in trespass for injuries caused to plaintiff's land by rocks thrown upon it during blasting operations.

3 In Crane Elevator Co. v. Lippert (1894) 11 C. C. A. 521, 244 U. S. App. 176, 63 Fed. 942, it was held that the plaintiff, an employee of a telegraph company occupying an office in a building, was entitled to recover for

injuries caused by stumbling over a

mass of materials left in the main hall by the defendant company, near the door of the office, in the course of its performance of the work of taking down an old elevator, and putting up a new one in its place. It was not shown whether these materials were placed in the hall with the previous consent of the owner of the building, or not, but they had remained there for such a length of time before the accident happened that he was chargeable with knowledge of their presence. They had been left in the hall without any guard rail around them, and unlighted except by such lights as were maintained by the owner of the building. The court said: "The defendant in error, as the employee of the telegraph company, had the right to use the hall for the purpose of travel to and from his place of employment,

use.

free from dangerous obstructions, as against the owner of the building or his licensee, as well as against one obstructing it without any claim of right. The plaintiff in error, in obstructing the hall, was guilty of an invasion of the right of the defendant in error to its free and unobstructed Having placed obstructions in the hall, the duty rested upon the plaintiff in error to exercise reasonable care and prudence to protect from injury those having lawful occasion to use it, by means of lights or other suitable safeguards. This duty required the exercise of care and diligence on its part in proportion to the danger occasioned by the presence of these obstructions. It saw fit wholly to neglect the performance of this duty. It relied upon the lighting of the hall by the owner of the building as the sole means of protection against injury from these obstructions. Having intrusted to another the discharge of a duty resting upon itself, the plaintiff in error is responsible for a failure in its performance. The evidence touching the manner of the performance of this duty was conflicting, and, under instructions as favorable to the plaintiff in error as it was entitled to ask, the jury have found that there was negligence."

In Kimber v. Gaslight & Coke Co. [1918] 1 K. B. (Eng.) 439, 9 B. R. C. 674-C. A., two workmen of the defendant company were altering the gas fittings in a house which had been let to a tenant, who was converting it into two flats, one of which he proposed to let. In doing this the workmen had taken up a board on a dark landing. While the workmen were still in the house and the board was up, a lady to whom the tenant had given an order to view the top flat knocked at the door. One of the workmen opened it; she showed her order to view, and passed in up the stairs. The workman did not tell her of the hole where the board was up. She passed it once, but fell into it on her return, and injured her knee. She sued the gas company. The jury found there was no negligence in leaving the hole open, but that there was negligence in not warning the plaintiff that the hole was there, and that the plaintiff was not guilty of contributory negligence. The trial judge, to whom other questions were left, found that

the hole was a trap, i. e., a danger which could not be avoided by a person previously ignorant of it, but who used reasonable care, and entered judgment for the plaintiff. Scrutton, L. J., made the following remarks: "I leave out of question any liability of the gas company based on invitation, for I think it is clear that the workmen had no authority from the gas company to invite people to walk about the house. The case is, in my view, the same as if the door had been open, and the workmen had seen a person lawfully on the premises going towards the hole, and had not warned him, or had known that persons lawfully there might be passing along the landing, and had given no warning.

It is clear that persons lawfully doing a work which interferes with a public right, as contractors opening the highway, must use reasonable care not to injure persons lawfully using the highway, which would include taking reasonable precautions to warn such persons of dangers created by the contractor, which the passerby could not with reasonable care discover. But it is said the case is different when the work is done on private premises, in which the contractor has no proprietary or possessory interest, and on which he is only a licensee of the owner. The contractor's duty, it was said, was only not actively and negligently to injure other persons on the premises, as by carelessly dropping hammers on their heads; and included no duty to warn them of dangers, even hidden ones, which the contractor's work had created, as holes in dark passages. There are, of course, cases where there is moral culpability, but no legal liabil ity. A sees a blind man walking along the highway straight into a pond, and gives him no warning; A is not legally liable, for he is under no legal duty to B. But if A has himself made the hole in the highway, he is under legal liability at once. Penny v. Wimbledon Urban Dist. Council [1899] 2 Q. B. (Eng.) 72, 68 L. J. Q. B. N. S. 704, 63 J. P. 406, 47 Week. Rep. 565, 80 L. T. N. S. 615, 15 Times L. R. 348-C. A. I cannot see that it makes any difference that B is a person lawfully on private premises where A has made the hole, or that A is under a duty as to his acts towards B, such as not to hit him with his tools, different from