Taute v. J. I. Case Threshing Machine Co.

Bruce, J. (after stating the facts as above). There are but two questions for decision in this case: 1. Was the witness Kerr, who moved the machinery, an independent contractor? 2. Even if an independent contractor, was the moving of the engine in its then condition so intrinsically dangerous a transaction or guilty of such negligence in relation thereto that he would be liable for the losses occasioned thereby ? We are satisfied that the witness Kerr, who moved the engine, was an independent contractor. There was no right of control reserved by the defendant. Kerr hired and controlled his own men, and was free to haul or run the engine as he saw fit, and at any time and in any manner, provided that the work was done before October 20. 1 Thomp. Neg. §§ 622, 639; 26 Cyc. 1546; Leavitt v. Bangor & A. R. Co. 89 Me. 509, 36 L.R.A. 382, 36 Atl. 998, 1 Am. Neg. Rep. 605 ; Note to 65 L.R.A. 445 ; Shearm. & Redf. Neg. 5th ed. § 164. Counsel for appellant, we know, relies upon the decision of this court in Ruehl v. Lidgerwood Rural Teleph. Co. 23 N. D. 6, — L.R.A. (N.S.) —, 135 N. W. 793, as tending to support a contrary rule. We do not, however, so interpret the opinion in that case. In it we did not place our decision upon the proposition that the man who dug the post holes might not possibly have been an independent contractor, but upon the theory that the telephone company had contracted to place a telephone in the house, and that a part of that undertaking was the implied contract to do the work in a reasonably safe way and with the exercise of such ordinary care that the occupants of the house would not be in danger. The liability in such cases would be the same whether the work was done by a servant or agent, or by an independent contractor. In the case at bar, however, the injury was not done to the second party to the contract, nor was the action brought by him. The action is based upon an injury done to an outsider merely, and the liability, if any, must be based upon a duty and obligation to that outsider which is not contractual in its origin. [107] But appellant insists that, under the holding in the Buehl Case, a liability could be based upon the theory that the injury was occasioned by the subject of the contract, and that where the negligence or ■defect which occasioned the injury results directly from the acts which the contractor agrees, and is authorized, to do, the pei-son who employs a contractor and authorizes him to do such acts is liable to the injured party. He cites in support of this proposition both the cases of Ruehl v. Lidgerwood Rural Teleph. Co. supra, and the cases of Whitney v. Clifford, 46 Wis. 138, 32 Am. Rep. 703, 49 N. W. 835 ; Robbins v. Chicago, 4 Wall. 675, 18 L. ed. 431 ; Ellis v. Sheffield Gas Consumers’ Co. 2 El. & Bl. 769, 2 C. L. R. 249, 23 L. J. Q. B. N. S. 42, 18 Jur. 146, 2 Week. Rep. 19, 19 Eng. Rul. Cas. 180. The rule is, in the main, correctly stated by him; and it is no doubt the law that an owner of property can be held liable in damages in certain cases ■even where the work is intrusted to an independent contractor, and where the work ordered to be done or the structure ordered to be erected is, in itself, intrinsically dangerous or a nuisance. The origin and reason of this rule is the duty of due consideration which one in a ■civilized community owes to his fellows and to the public, and that such a duty precludes the ordering of that which, if done, will be inherently dangerous. These considerations are hardly applicable to the ■case at bar. It can hardly be said as a matter of law that the machine was a nuisance, or that the moving of it was an essentially dangerous transaction. City & Suburban R. Co. v. Moores, 80 Md. 348, 45 Am. St. Rep. 345, 30 Atl. 643 ; St. Louis, I. M. & S. R. Co. v. Yonley, 53 Ark. 503, 9 L.R.A. 604, 13 S. W. 333, 14 S. W. 800. Under the facts disclosed by the record, it was for the trial judge, who acted as a jury in this case, to decide these questions. It may also be the rule, as appellant suggests, that where a person contracts with an independent contractor for the performance of that which, in its nature, is dangerous unless due care is taken in the transaction, the principal will be liable for injuries which result from a lack of such care. Robbins v. Chicago, 4 Wall. 675, 18 L. ed. 431. The fact of this danger, however, is one primarily for the jury, and not for the court, or, where a jury is waived, for the trial judge. In such cases, also, there must be some measure of proof that the lack of care necessary to overcome the dangerous condition of the instru uent or the dangerous character of [108] the work; was a proximate cause of the injury. Whether the evidence would justify such an inference in this case was primarily a .question for the trial judge to determine, and his finding in this respect must have the same effect and weight as the verdict of a jury. There is no such preponderance of evidence as would justify us in overruling his decision. There is no positive testimony, in fact, that any sparks came from the crack in the door at any time, or that the crack in the door had anything to do with the conflagration. The evidence, indeed, as far as it goes, shows that the crack was plastered with mud during the whole of the journey. There is, in fact, no positive evidence whatever as to the cause of the fire. There is, it is true, evidence that a year or so before the accident in controversy the engine occasioned several other fires, but as an offset to this there is evidence that at the end of the season the engine was in better condition than during the same, and that before the engine was moved the crack in the door was plastered up, and that new grates were placed in the fire box. There is, in fact, no direct testimony that the crack in the door, which is the only defect concerning which there is any positive evidence, had anything to do with the conflagration; and it is a matter of common knowledge that prairie fires are not only occasioned by defective machines, but by carelessness in operation, the dropping of matches, the scattering of ashes, and the pulling out of burning straw. It may possibly be that if the suit had been brought against the contractor the burden would have been upon him to afford some explanation for the fire under the peculiar circumstances of the case. There could hardly be such a burden, however, upon the defendant in this case. It may also be that if the finding of the trial court had been other than it was, we would not have interfered with it. We must, at any rate, £ive to the finding in this case the same weight and effect as if it had been the verdict of a jury. The judgment of the County Court is affirmed.