Hunt v. Pennsylvania Railroad

The opinion of the court was delivered, by Agnew, J. We agree with our brother who tried this cause at Nisi Prius, that the true interpretation of the contract between the railroad company and Allison, the contractor, did not make the company liable for the manner in which he performed his work. The word instructions used in the agreement, referred to the kind of structure, design, materials, combinations and all matters pertaining to the planning of the building to be erected. But as to the mode of accomplishing the work which the contractors undertook, he was left to his own skill and judgment. His contract was to do the work in a substantial and workmanlike manner; and he was bound, therefore, to bring to its execution the degree of skill and care necessary to perform his covenant. We may also remark upon the contract as bearing upon the other questions, that the persons employed upon the work were necessarily to be hired by the contractor, who undertook the whole. By its terms, the company were to be involved in the work or employment' of hands only, if upon his failure they availed themselves of the option given by the agreement, to treat his contract as forfeited, do the work and charge him with the cost. Now the declaration averred, and it was material to prove, that the deceased was employed by the company; for the gravamen alleged was the duty to provide sound materials and skilful persons in the erection of the building, and their neglect in this respect [482] thereby causing the injury and death of the deceased. Rut there was not a spark of proof of his employment by them, while the evidence showed that the work of setting up the iron rafters which fell and caused his injury was done by Allison the contractor. Now this fact, coupled with the contract which required this work to be done by him, left no doubt that the deceased was employed by him. Rut it is sufficient to say, the burthen of the proof to show his employment by the company devolved on the plaintiff, and she gave no evidence of. it. This brings us to the chief point in the argument of the plaintiff in error, to wit, that the company was bound to furnish sound materials, and a suitable and safe plan of constructing the support of the rafters; and that their fall afforded a presumption that either the materials or the design of the structure was insufficient to support the ponderous iron rafters when hoisted upon their columns. Upon this assumption of the fact, the judge, it is said, was asked to instruct the jury, that the company was answerable for negligence. This has two answers. It was most distinctly proved by the plaintiff, and without conflict of evidence, that the falling of the rafters was owing to their not being properly braced when hoisted. There was not a tittle of evidence to show that either the materials or the supporting structure was at fault. The next answer is, that the points did not call on the judge to instruct upon the inference as to materials and structure, hut that the falling was proof of negligence and unskilfulness on the part of the person performing the work; and that they must account for the falling by proof of some cause not arising in negligence or fault in the performance of it. The points, therefore, involved the character of Allison, the contractor, and his mode of performing the work; and are founded on the idea that both he and the deceased were employees under the same principal. Rut here the proof wholly failed ; for the plaintiffs had not proved that Allison and the deceased were employed under the defendants as a common principal, while the defendants had shown that Allison was a contractor, not a mere employee, and that the deceased, if employed by either, must have been employed by Allison. The learned judge refused the plaintiff’s points in view of the facts, and in this he did not err. I am not aware that it was ever held in any case, that one who employs a contractor to erect a building, or to do any other mechanical work, becomes a guarantor to all the employees of the contractor for his skill and care in performing the work. In such a case, the contractor is the principal of the persons whom he employs, and, if his character or skilfulness and carefulness are to be ascertained, it is for those he employs to inquire into it. These views render the other assignments of error of no consequence. Judgment affirmed.