Railroad Company v. Hanning

Mr. Justice HUNT delivered the opinion of the court. The first objection presented by the defendant below is, that the wharf in question was not a public wharf; that the plaintiff' came upon the same without business, invitation, or inducement; that he was a trespasser, and if he suffered injury it was in consequence of his own wrong. We are not furnished with the evidence necessary for the decision of this question. The record does uot state whether this was the wharf of an active steamboat company, where all travellers were permitted and substantially invited to come and go; whether the plaintiff' was there upon the special invitation of some one connected with the wharf; whether by public use- and general permission he might deem himself invited to be there, or whether he was an idler without pretence of right or business. The judge submitted the question to the jury, whether the whai’f, at the time of the accident, was, and for many years had been, a public place, upon which all people were permitted by law to come and go, and did come and go at pleasure. The jury found the affirmative of this proposition. The only evidence set forth on this point contained in the record, is the legislative resolution of March 6th, 1869, certain conveyances of property adjoining the wharf, as described in maps annexed, and the contract of the company with Carvin. The resolution authorizes the defendants to inclose and occupy for its use, certain portions of the levee, batture, and wharf, in the city of New Orleans, and provides that no vessel shall occupy *656 said wharf except by the permission of the company. The contract with Carvin is important upon another branch of the case, but has no significance upon the question of the manner of occupying the wharf, or to show how or why the plaintiff was on the wharf, at the time he received the injury. So far as it states general rules and propositions, the charge of the judge seems to be correct. Whether it was sound, as applied to the case presented by the evidence, we have not the means of ascertaining. No error appears, and we cannot assume that it is erroneous. The second objection urged by the defendant below, arises upon the contract with Carvin, already mentioned. It is insisted that the wharf at the time of the accident was in the possession of Carvin; that the negligence, if any, was his, not that of the company; and that the company is not responsible for any negligence by him or those employed by him. By this contract Carvin agrees.: 1, to furnish the materials and the labor necessary for the rebuilding of the wharf in question; 2, to build it with such mooring-posts, cluster-piles for fenders every twenty feet, rows of piles on boundary lines above and below, slips or inclines, as the company, through their engineer, may require, making the old wharf as good as new, and the new in the most workmanlike manner; 3, to complete the whole within a month; 4, to submit to the supervision and direction of the engineer of the company; 5, to do the work to his satisfaction. The company do not yield to Carvin the possession or control of the wharf. They may direct the number of mooring-posts,; cluster-piles for fenders, rows of piles, slips, and inclines, paying according to the number of square feet covered. They are at liberty to direct how much material shall be. used, and how it shall be laid to make the old wharf as good as new, and to make the new of the best workmanship. They are to supervise the work to be done. They are to direct how.it shall he done. This includes the power of controlling and managing the entire performance of the *657 work, within the general limits mentioned. It includes the possession of the wharf, the direction, management, and control of all the details of the work. It makes Carvin their agent and servant, receiving a larger or smaller compensation, as they may expand or contract his work. The rule extracted from the cases is this: The principal is liable for the acts and negligence of the agent in the course of his employment, although he did not authorize or did not know of the acts complained of * So long as he stands in the relation of principal or master to the wrongdoer, the owner is responsible for his acts. When he ceases to be such and the actor is himself the principal and master, not a servant or agent, he alone is responsible! Difficult questions arise in the application of this rule. Nice shades of distinction exist, and many of the cases are hard to be reconciled. Here the general management and- control of the work was reserved to the company. Its extent in many particulars was not prescribed. How and in what manner the wharf was to be built was not pointed out. That,'rebuilt, was to be as good as new. The new was to be of the best workmanship. This is quite indefinite and authorizes not only, but requires a great amount of care and direction on the part of the company. The submission of the whole work to the direction of the company’s engineer is evidence, although not conclusive, that' the company retain the management and control. The reservation of authority is both comprehensive and minute. The company have the general control, and it may prescribe where each pilé shall go, where each plank shall be laid, where each stringer shall be put down, where each nail shall be driven. All the details are to be completed under their orders and according to their direction. The contractor undertakes in general terms to do the work well. The company reserve the power not only to direct what shall be done, but how it shall be done. This is an important test of liability. † Camp v. The Wardens, ‡ was a ease arising in Louisiana, *658 and very much like the present in its facts. The owners were there held liable. All the authorities are cited and commented upon by the court, both of the common and the civil law. The civil law, it was said, held the same rules on this subject as the common law. * In Painter v. Mayor, † Strong, J., holds the defendant not to be liable, and says, “ The defendants have no control over the men employed by the contractors or over the contractors themselves. They could not dismiss them or direct the work.” The cases are reviewed and the rule laid down as it is herein above stated. Knight v. Fox, ‡ and Steel v. Southeastern Railroad Co., § are cited by the defendant. The first contains nothing in hostility. to the suggestion made. In Steel v. Southeastern Railroad Co. it was held that the company was not liable for any injury done by the contractor, and the contract contained an authority to the company to superintend and direct the work. The ease shows that the act which caused the injury was committed in violation of their orders. They expressly forbade the digging of a certain channel. It was dug in violation of this direction, and for the damage resulting therefrom, the court held them not to be liable. This order to the contrary does not necessarily exempt the principal, but it is a circumstance of weight. ǁ It is said that by the act of the General Assembly, passed January 21st, 1870, the liability of this corporation is defined in a number of cases. The second section of the act declares “that the said corporation, its officers, or employés, shall not, in any case, be liable for any debts contracted or liabilities incurred by any person or persons who shall have contracted, or who shall contract with it, to construct any por *659 (ion of its road, buildings, or appurtenances, or its rolling stock, or to furnish any materials or labor to be used for such construction, or for its maintenance or operation. Nor shall said company, its officers, or employes, be liable for any injury to person or properly, or loss of life, which shall be caused by any act or omission of any person or persons so contracting with it, or any of his or their employes or agents.” This was doubtless intended as a declaration of the rights of the company convenient to be embodied in its charter, and is in affirmance of the existing law. It contains two general principles: 1st, that the corporation shall not be liable for the debts to third parties of those contracting to construct its road or to furnish materials therefor. It would not be upon general principles of law. The statement, in fact, confers no exemption. 2d, that it shall not be liable for injury to person or property caused by the acts of such contractors or their servants. In each of these instances the exemption is in the case of contractors, who are themselves the principals, not when they are the agents or servants of the company. In each ease there could be no liability at common law had the statute not keen passed. We think that, upon general principles of law, the company in this case are responsible for the negligence of Carvin, and that this statute does not alter its position. It would seem that, prior to the passage of the act authorizing the defendants to occupy and possess the wharf, it had been opeu to the public, free to the passage of all, at their pleasure to come and go. The judge charged, in substance, that this right of passage to the public continued until some notice should be given to those accustomed to use it that their rights hád ended. This principle is one of quite general application. A railroad or steamboat company, by the departure and arrival of their conveyances, give an invitation to all who desire to approach their boats oi* cars to pass over their wharf or platform. One accustomed so to pass cannot be deemed a trespasser in repeating his act after a new station or landing has been adopted and the cars or boats have ceased to use the old one. To exclude the *660 passer’s right so as to make him in fault, and to prevent his recovery for an injury sustained by leaving the place in a bad condition, notice must have been given of its changed character, and that the rights of passers are terminated. This principle is so familiar, and exists in so many forms, that it is unnecessary to elaborate it. * Upon the whole record we are all of the opinion that the judgment should be Affirmed. Footnotes [*] Story on Agency, § 452; 2 Addison on Torts, 343, 2d edition. [†] Kelly v. Mayor, 11 New York, 432. [‡] 7 Louisiana Annual, 322. [*] Pothier on Obligations, g 121, 453; Droit Civil, de Touillier, Book 2, tit. 8, § 284, vol. 2. [†] 46 Pennsylvania State, 213. [‡] 1 English Law and Equity, 477. [§] 32 Id. 366. [ǁ] Pack v. Mayor, 8 New York, 222; see also Storrs v. City of Utica, 17 Id. 104; Higgins v. The Watervliet Turnpike Co., 46 Id. 23; Robbins v. Chicago, 4 Wallace, 679. [*] 2 Addison on Torts, 141; Corby v. Hill, 4 Common Bench, N. S. 556.