Ullman v. Hannibal & St. Joseph R. R.

Hough, J. In the year' 1872 the plaintiff was tenant in possession of certain land in Buchanan county, belong [121] ing to William Eowler. During the existence of the-lease the defendant purchased of Eowler a right of-way over said land, for the purpose of constructing thereon a branch railroad. There was no condemnation of the plaintiff’s leasehold interest in that portion of the land over which the right of way was granted by Eowler, nor was said interest acquired by the defendant in any other manner. About the 1st of September, 1872, during the existence of the lease, James M, Singleton, under and by virtue of a contract made by him, with the defendant, to construct said bi’aneh road, entered for that purpose, with a force of men, upon the right of way aforesaid, and in the execution of said work, destroyed the crops of the plaintiff'. Plaintiff instituted the present action to recover damages for the injuries thereby sustained, and obtained judgment in the circuit court. The defendant resisted a recovery on the ground that the injuries were not inflicted by its officers, agents or servants, but by the servants and employees of the contractor, Singleton, who was exercising an independent employment, and who employed, paid and controlled the hands engaged upon the work. The right of way acquired by the defendant was subject to the leasehold interest of the plaintiff; it is clear that the defendant had no right to enter upon the land in question without the plaintiff’s consent; and having no such right itself, it could confer none upon the contractor and his workmen. The contractor and his wo. ..ion were, therefore, trepassers? and having gone there at the instance and by the direction of the defendant, for the purpose of constructing its road, the defendant was also a trespasser with them, and as such was jointly liable for all damages directly resulting from the work done by them in the execution of the contract. Williamson v. Fischer, 50 Mo. 198. The case of Clark v. The Hannibal & St. Jo. R. R. Co., 36 Mo. 202, cited by defendant’s counsel, is not in- point. In that case the defendant had acquired a complete and perfect right [122] to enter upon the land of the plaintiff and construct its road, and .the trespasses and injuries complained of were committed by the servants and employees of the contractor who had engaged to do the work. It was held that the principle of respondeat superior applied to the contractor only, and not to the corporation. If the defendant in this case could have lawfully entered upon the land of the plaintiff, that case would be decisive of this. Rut here the defendant was a joint tortfeasor with the contractor and his servants, and the principle of respondeat superior has no application. Binding no substantial error in the record, the judgment will be affirmed. All concur. Affirmed.