Douglass v. Peck & Lines Co.

Wheeler, J. The Hubbell Company were general contractors engaged in alterations and repairs upon the premises of the defendant the Peck and Lines Company. They sublet the painting contract to one Douglass. The *627 Eastern Machinery Company was engaged, under a contract with the Peck and Lines Company, in installing an elevator in the progress of these alterations. The Hubbell Company, Douglass, and the Eastern Machinery Company were admittedly independent contractors. As a general rule, the contraetee or proprietor is not liable, for injuries caused by an independent contractor or his servants, to any one. Alexander v. Sherman’s Sons Co., 86 Conn. 293, 299, 85 Atl. 514. To this general rule there are exceptions, among them these: If the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contraetee negligently employ an incompetent or untrustworthy contractor, or if he reserve in his contract general control over, the contractor o.r his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, or if he is under a legal duty to see that the work is properly performed, the contraetee will be responsible for resultant injury. Norwalk Gas Light Co. v. Norwalk, 63 Conn. 495, 28 Atl. 32; Lawrence v. Shipman, 39 Conn. 586; Alexander v. Sherman’s Sons Co., 86 Conn. 293, 85 Atl. 514; St. Paul Water Co. v. Ware, 83 U. S. (16 Wall.) 566; Creed v. Hartmann, 29 N. Y. 591. So, too, the contraetee or proprietor will be liable for injury which results from his own negligence. Lawrence v. Shipman, 39 Conn 586, 590. Unless this case falls within one of these exceptions, or the injury resulted from the negligence of the Peck and Lines Company, that company cannot be held liable for the injury to the plaintiff. The real case of the plaintiff, upon the facts as claimed by him, was that before he went into the elevator shaft to work, the president of the Peck and Lines Company gave him assurance that the elevator *628 should not be operated while he was thus at work. If the jury found that this assurance had been given, and that the injury occurred through the operation of the elevator by Watson, the employee of the Eastern Machinery Company, there was ample ground for finding the Peck and Lines Company negligent; not because Watson had become the employee or agent of the Peck and Lines Company, but because that company had interfered with the work and assumed the duty of seeing that this elevator was not operated. The court repeatedly instructed the jury that the Peck and Lines Company owed to this plaintiff the primary duty of seeing to it that the place where the plaintiff was at work should be kept in a safe condition. Thus it charged: “It was the duty of the defendant the Peck and Lines Company, to afford a safe place for the plaintiff to do his work, and to use all reasonable care and prudence to see to it, that the premises remained in a safe condition so long as the plaintiff continued his work in this elevator shaft. . . . These two things, perhaps, it is important that you should keep in mind during all of your deliberations, as I have stated, that upon the Peck and Lines Company, the owner of these premises, there rested the primary duty of seeing to it that the place where the plaintiff was employed should be kept in a safe condition, and should do all that you could reasonably expect a prudent and cautious man would do under all of the circumstances, to see to it that the place was kept-in a safe condition, and that neither its own servants or employees nor any other person employed upon the premises should do anything that would endanger the plaintiff’s safety while he was there employed, that is, they were to exercise, in order to secure his safety, such caution and prudence and care as you would expect a man of ordinary prudence and care to exercise under the circumstances.” *629 The Peck and Lines Company owed the plaintiff no such duty. This rule of duty would have been applicable if the relation of master and servant had existed between the plaintiff and this company; but no such relation existed. Wilmot v. McPadden, 79 Conn. 367, 370, 65 Atl. 157; 1 Labatt on Master & Servant (2d Ed.) § 34. And no such duty was owed by this company to the plaintiff, an employee of an independent contractor of the general contractor. The place in which the plaintiff was working was not unsafe until the elevator was operated. Unless this defendant had promised the plaintiff not to operate the elevator, no duty rested upon it to see that the elevator was not operated. There was no basis for a claim of negligence against the Peck and Lines Company unless Watson was the servant of that company and it was responsible for his negligent act, or unless the Peck and Lines Company assumed the duty of seeing that the elevator was not operated, by its president, Mr. Peck, promising that it should not be run, and the plaintiff began work in reliance upon this assurance. The owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. But if the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is liable for resultant injury. The same rule applies to the servants of the contractor and to the subcontractor and his servants. Whether the owner remain in partial use of the premises or not, he is liable for injury caused to the contractor or his servants by his own negligence. So, too, he is liable for failure to perform any positive duty *630 imposed by law. If the failure to give this warning, or to refrain from negligent conduct, or to obey the law, makes the place where the contractor or his servant is working not a safe place, in this sense it may be said the owner owes the duty of keeping the place where the contractor or his servants are at work safe. The court’s charge had reference to none of these situations. It must have been understood as referring to the operation of the elevator as making the place unsafe. The Peck and Lines Company owed no duty to the plaintiff, irrespective of its assurance, to see that the elevator was not run and that the place he was at work was safe. It could not be held liable for the negligence of Watson, a servant of a subcontractor, resulting in making the place where the plaintiff was at work unsafe and causing him injury in consequence, since Watson was not the servant of the Peck and Lines Company. Wilmot v. McPadden, 79 Conn. 367, 370, 375, 65 Atl. 157; Wilmot v. McPadden, 78 Conn. 276, 61 Atl. 1069; Reilly v. Chicago & N. W. Ry. Co., 122 Iowa, 525, 528, 98 N. W. 464; Callan v. Pugh, 54 N. Y. App. Div. 545, 547, 66 N. Y. Supp. 1118; Thompson’s Commentaries on Negligence (White Supp.) § 979; Burke v. Norwich & W. R. Co., 34 Conn. 474, 481; Lawrence v. Shipman, 39 Conn. 586, 589; Sesler v. Rolfe Coal & Coke Co., 51 W. Va. 318, 322, 41 S. E. 216; Stevens v. United Gas & Electric Co., 73 N. H. 159, 60 Atl. 848. The charge in this particular was erroneous, and not adapted to the case before the jury. The court further charged that if the jury found that Watson operated the elevator at the request of a servant or agent of the Peck and Lines Company in order to facilitate its business, he was acting for and in behalf of that company, and if in so doing he was negligent, and the plaintiff was free from contributory negligence, he was entitled to, recover against that company. *631 The injuxy to the plaintiff admittedly occurred through the operation of the elevator by Watson when he knew the plaintiff was at work in the elevator shaft, at the request of a servant or agent of the Peck aixd Lines Company and for its benefit. This was practically equivalent to an instruction that that company was negligent, and was erroneous. The authority of the Peck and Lines Company’s servant or agent to request this service of Watson was not referred to by the court. There is nothing in the record to indicate that this servant or agent had authority to request such service. It appears to have been a voluntary act of Watson’s to accommodate the servant or agent of the Peck and Lines Company. This falls far short of making Watson in what he did either the servant or agent of this company. He was at that time engaged upon the work of the Eastern Machinery Company, and was not under the control or direction of the Peck and Lines Company, and did not cease to be the servant or agent of his own employer and become the servant or agent of the Peck and Lines Company. The plaintiff claimed that he was injured by the descending elevator weights crushing his foot as it rested upon the crosspiece of the runway enclosing the weights. The Peck and Lines Company claimed that as the -weights descended when the elevator was raised the plaintiff stepped off the crosspiece, and that afterward he stepped back upon the crosspiece, and as the elevator was lowered the weights ascended and caught and injured his foot. Upon the claim of contributory negligence the question of whether the plaintiff’s foot was caught by the descending or ascending weight was of consequence. If by the descending weight, he had little or no notice of the operation of the elevator and little or no opportunity to withdraw his foot. If by the ascending weight, he knew that the elevator had *632 just been operated, and whether it was negligent for him, immediately after the weight had descended, to step back upon the crosspiece and in the way of the weights if they should be raised, was a fair question for the jury. Concerning this divergence in the testimony the court charged: “I don’t know that you will find that difference in the testimony very important. It is not ultimately very important, because, if you find that there was negligence on the part of these defendants, that is, on the part of the Peck an'd Lines Company, in not furnishing a safe place and doing everything that reasonably prudent men' ought to have done, to continue the safety of the place, and if you shall find that Watson, as the agent of the Eastern Machinery Company, in the employ, and while engaged in some work of operation in behalf of his principal, the Eastern Machinery Company, was negligent in operating the elevator, whether the injury was caused by the weight ascending, or the weight descending, is perhaps not of very much moment.” This reference to whether the weight was ascending or descending occurs in a part of the charge devoted to the issue of the contributory negligence of the plaintiff, and in no other part of the charge is it otherwise referred to or explained. We fear the jury must have regarded the court’s statement as applicable to the issue of contributory negligence; if so, it removed from their consideration a fact whose determination was of great weight upon this issue. We think this was error, and may have prejudiced the Peck and Lines Company. It is unnecessary to consider the other grounds of the appeal. There is error and a new trial is ordered. In this opinion the other judges concurred.