Mississippi Central Railroad v. Holden

Smith, J., delivered the opinion of the court. The general doctrine with respect to the liability of an independent solvent contractor, and nonliability of a railroad for which said independent contractor constructs a line of railway, is thoroughly well settled and needs no restatement. But there are exceptions to that general rule, as well settled as the rule itself, and one of them is that where the injury results, not from negligence in the doing of the work by the independent contractor, but from the doing of the work at all, as illegal, or as constituting, when done, a nuisance, the railroad company is liable, especially where, as here, the work was contracted to be done, and was done, “according to the plans and specifications prepared and to be prepared by the chief engineer of the railroad company, which plans and specifications were to be furnished to the construction company, and to be attached to and .become a part of the contract,” to quote the language of the contract itself. Hor full discussion, see the able note to Thomas v. Harrington, 72 N. H. 45, 54 Atl. 285, in 65 L. R. A. 742. That contract further provided that the construction company was to obtain all necessary rig’hts of way, which should “in no case be less than one hundred feet wide, unless otherwise specified in writing by the chief engineer.” It further provided that “all ground for stations, switches, yards, turnouts,” etc., should be built by the construction company, “as needed and specified by the chief engineer and the plans and specifications.” We do not think there can be any doubt on the evidence that the doing of the work which resulted in the injury was the doing of work constituting a nuisance, and that it was the doing of the work at all [131] ■which gave the plaintiff a canse of action, and not any negligence merely on the part,of the independent contractor, in the manner of doing the work. We do not feel authorized, in view of all the testimony, in disturbing the amount of the verdict. The suit was for five thousand dollars, and the judgment was for only three hundred dollars. There is testimony that the property was worth two thousand and five hundred dollars before the work was done, and there is very much testimony that it has been materially damaged in respect to ingress and egress to and from the place, and some evidence that there was other damage by reason of cinders, smoke, vibrations, etc., which-last kind of damage does not, however, seem to have been much insisted upon. One of the most earnest contentions, and it has received our careful consideration, is that the demurrer to the special plea was improperly sustained. We do not think the special plea meets the case made by the declaration, the contract being a part of this declaration, in view of the averments in the amended declaration, which we have quoted above. The special plea does not fairly, construed clearly and definitely, deny the allegations of the declaration referred to, to the effect that the construction company was to construct the road according to plans and specifications furnished to the construction company by the chief engineer, etc., as quoted above. In other words, if the plea had been replied to, and the jury had found that plea true, it would have constituted no defense, under the law of the ease, as to the exception to the general rule above set out, for-the reason that the plea fails to deny the allegations of the declaration which brought the case within the exception and took it out of the general rule. We do not think, therefore, any error was committed in sustaining the demurrer to the special plea, because it falls short of setting up facts which prevented the application of the exception stated to the general rule. [132] Non constat but that the railroad company would be liable, even if all the things set up in the special plea were true, when the declaration is looked at in the light of all its averments. We have examined all the assignments of error, and we do not think any reversible error is presented for our consideration. Affirmed.