Harding v. City of Boston

Allen, J. The plaintiff’s count in contract may be disregarded, there being no evidence to support it; and no question was saved in regard to it. The count in tort was for trespass upon the plaintiff’s land, [18] consisting of or resulting from acts done by Gill and liis men, and by Ham and Carter. The only question is whether there was any evidence to show that the city was responsible for those acts, or for any of them. In our opinion there was not. Gill was a contractor, and he made a written contract with the city for the construction of certain sewers. The work to be done was settled in advance, and was to be according to plans and specifications which were furnished in advance for the entire work. The work was of a kind which did not necessarily or naturally involve any injury to the plaintiff’s land. Such injury was not within the reasonable contemplation of the defendant. The city did not employ the workmen or laborers, and had no power to dismiss them. The contractor was to do the work with his own men, and to have it done by a certain date. The work was to be done to the satisfaction and acceptance of the defendant’s agent, and supervision and superintendence were provided for, and the power of giving directions as to the work in certain particulars. These provisions appear to us to go no further than to enable the city to secure the proper performance of the work, and do not show that Gill and his men were servants of the city. Kelly v. New York, 1 Kernan, 432. Erie v. Caulkins, 85 Penn. St. 247. Erie School District v. Fuess, 98 Penn. St. 600. The directions which the superintendent of sewers and the inspector might give were in order that certain results should be accomplished, and did not enable those officers to take the control and direction of Gill’s men. Gill was still the contractor, in the responsible charge of his men. Looking at the contract as a whole, we think it clear that he should be regarded as an independent contractor, for the negligence of whose men the city was not responsible. An examination of the cases cited does not show any decision which appears to be in conflict with this view. Cases have often arisen, in this State and elsewhere, in which the general question has been considered, and in some of them the distinction is rather nice. The relation of master and servant was held to exist in Linnehan v. Rollins, 137 Mass. 123; Brooks v. Somerville, 106 Mass. 271; Brackett v. Lubke, 4 Allen, 138; and Railroad Co. v. Hanning, 15 Wall. 649; and was held or found not to exist in Conners v. Hennessey, 112 Mass. 96; Forsyth v. [19] Hooper, 11 Allen, 419; Hilliard v. Richardson, 3 Gray, 349; Pierrepont v. Loveless, 72 N. Y. 211; Harrison v. Collins, 86 Penn. St. 153; and Reedie v. London & Northwestern Railway, 4 Exch. 244. In some cases, other considerations came in, so that the decisions did not rest on the law of master and servant; as, for example, cases where one was under a statutory obligation in respect to the thing to be done, or where the work was intrinsically dangerous, so that in the natural course of things injurious consequences must have been expected to result. Such cases are to be distinguished. Gray v. Pullen, 5 B. & S. 970. Bower v. Peate, 1 Q. B. D. 321. Hole v. Sittingbourne & Sheerness Railway, 6 H. & N. 488. Hughes v. Percival, 8 App. Cas. 443. Joliet v. Harwood, 86 Ill. 110. So where, after the acceptance of the completed work, an injury occurs because it was badly done, the owner, having accepted the work, is thenceforth responsible, on the ground, perhaps, that he is maintaining a nuisance. Sturges v. Theological Education Society, 130 Mass. 414. Gorham v. Gross, 125 Mass. 232. Cork v. Blossom, 162 Mass. 330. The present case is governed by the law so often applied when work has been done through the employment of an independent contractor. The provision in the contract that none but citizens of Boston were to be employed on the work did not give to the city the selection of the laborers in any such sense as to make them its servants. Nor is the city responsible for the acts of Ham and Carter in leaving brick upon the plaintiff’s wharf, or in carting the brick across the plaintiff’s land. By their contract with the city, they were to deliver the brick “ upon the work on the line of the sewer,” and there was no evidence that there was any arrangement between them and any one representing the city that they should use the plaintiff’s wharf, or cross her land in delivering the brick. The city is not responsible for their trespass upon the plaintiff’s wharf and land. Exceptions overruled.