Bailey v. Troy & Boston R. R.

The opinion of the court was delivered by Powers, J. The defendant’s evidence tended to show, that the steam shovel in use when and by which the plain [260] tiff’s injuries were occasioned, was operated by Munson, without any control or right of control over it, or the manner of its use by the defendant; that Munson was an independent contractor, who supplied the shovel and operated it by his own servants, although it was contemplated by the defendant that it should be used when the contract was made by the defendant with Munson. Upon this phase of the evidence, the defendant insisted and requested the court to charge, that Munson, if anybody, was solely liable for the plaintiff’s damages. In answer to this request the court charged the jury as follows: “ If you find that the defendant made the contract with Munson that he, Munson, should do this work of loading the gravel, and I do not understand that there is any controversy between the parties as to the facts with reference to the contract in this respect, — that such a contract did exist, or the terms of it with relation to the amount to be paid him for doing the work under this contract; and if you also find that this contract was made between Munson and the defendant with the agreement or understanding between them that a steam shovel should be used in doing this work, — that this gravel should be loaded with a steam shovel, then the court will tell you that the defendant would be liable in the same manner and to the same extent that Munson, who did the work and who put the shovel there and used it, would be liable; that the liability of the defendant in that respect would be the same as the liability of the contractor, who put the shovel there and did the work, if you find that there is any liability that attaches to them under the rule that I shall give you. ” The rule given the jury was this: if the shovel, while lying still, or in operation by its appearance or its noise, or the noise of the engine used in operating it was calculated to frighten horses of ordinary gentleness, the plaintiff should recover. In other words, the jury was told that the defendant’s liability was co-extensive with Munson’s, if it was part of [261] the agreement or understanding of the parties for doing the work that Munson should use a steam shovel. If the work contracted to be done was in itself unlawful, or the shovel a nuisance per se, the instruction given the jury would be unobjectionable. But the work was lawful, and the shovel was an appliance customarily employed by railroads in work of this kind. It could work injurious results to third persons only by its negligent use. The injury done in this case was not by its frightful appearance. The plaintiff’s horse passed by it without difficulty; but after passing it in safety its operation commenced; and in this the plaintiff avers negligence. Was this the negligence of Munson’s servants, or the servants of the defendant? The defendant cannot be made liable unless the legal relation of master and servant subsisted between it and the men operating the shovel. The fact that Munson was a contractor and employed these men does not of itself preclude the relationship of master and servant between the defendant and these men. The inquiry in the case is, who was the principal or master in this work, Munson or the defendant? A master is one who not only prescribes the end, but directs, or at any time may direct, the means and methods of doing the work. If he merely prescribes the end and contracts with another to accomplish the end by such means or methods as such other may in his discretion employ, the latter is as to such means and methods not a servant, but a master; and for negligencé therein is alone answerable. This rule of law is forcibly illustrated by the case of Rourke v. White Moss Colliery Co. L. R. 2 C. P. Div. 205. There the defendants, after partly sinking a shaft into their colliery, agreed with W. to finish the work for them on terms, among others, that defendants should provide engine power and engineers to work the engine. The engine, that had been used by the defendants in excavating the shaft, was thereupon handed over to W. The same [262] engineer remained in charge of it, and continued in the pay of the defendants as before, but was subject to the orders of W. It was held that the engineer was the servant of W., and not of the defendants; and that W. alone was. answerable for his negligence in operating the engine. Murray v. Currie, L. R. 6 C. P. 24, is another recent English case in point. The defend ant, a ship-owner, employed a stevedore to unload his vessel. The stevedore employed his own laborers, among whom was Davis, one of defendant’s-crew, whom the stevedore paid, and over whom he had entire control. The plaintiff was injured by the negligence of Davis; and it was held that the defendant was not liable. See, also, Wood Mas. & S. s. 313; Callahan v. R. R. Co. 23 Iowa, 562. The conflict in the cases upon this subject doubtless arises from inattention to the character of the work to be done. If the work to be done is committed to a contractor to be done in his own way, and is one from which, if properly done, no injurious consequences to third persons can arise, then the contractor is liable for the negligent performance of the work. If, however, the work is one that will result in injury to others unless preventive measures be adopted, the employer cannot relieve himself from liability by employing a con- • tractor to do what it was his duty to do to prevent such injurious consequences. In the latter case the duty to so conduct one’s own business as not to injure another continuously remains with the employer. Bower v. Peate, L. R. 1 Q. B. Div. 321. In this case, if the shovel became a nuisance merely because it was negligently operated, and such operation was controlled by Munson, he is the author of the nuisance, and answerable for the consequences; and the understanding between the parties that the shovel should be used in the work, does not change the liability to the defendant. This [263] understanding calls for the proper, not negligent, use of the shovel. Judgment reversed, and case remanded.