Jessup v. Sloneker

Per Curiam : The court below left to the jury the question of the defendant’s connection with the ditch in question, with the instruction that, if they found he was the party actually constructing and having the control of it, he would be responsible to the plaintiff for any negligence connected with it, by reason of which the plaintiff was injured. On the other hand, he instructed the 'jury that, if the defendant was merely employed under McClune, doing the work under his direction, and himself having no charge of it except as directed by McClune in doing the work, he would not be liable. The jury settled this question of fact in favor of the defendant, and we do not find any error in the manner in which it was submitted to them. There was not any negligence in the mere digging of the ditch. For anything that appears, it was a lawful act, and may have been a necessary one. The negligence, if any, consisted in not having the excavation properly guarded at night. This duty devolved upon the person who procured the excavation to be made, and who had the direction and control of the work, not upon the laborer employed to do it. Judgment affirmed.