106 Ga. 270 | Ga. | 1898
The Brunswick Grocery Company sued the Brunswick & Western Railroad Company for the value of certain salt, stored by the plaintiff with the defendant as a warehouseman. The defense relied upon was, that the:salt, was-destroyed by'fire-
But we do not deem it necessary to pass directly upon this; question in the decision of this case. Even if the onus probandi was upon the defendant to the fullest extent claimed by the-plaintiff in error, we think it was successfully carried by the uncontradicted testimony in the cáse. The theory of plaintiff’s, counsel evidently was that the fire was communicated to the: warehouse from the engine that was being operated by the contractor Brown, and was the result of negligence in not having the engine provided with a spark-arrester, or with some contrivance to prevent the spread of fire, and that, this contractor being an employee of the defendant company, this negligence was attributable to the company. There was no question, under the testimony, that the party engaged in the operation of this engine was an independent contractor, and was not subject to any direction and control in the management of his machinery and in the operation of his business by the railroad company. Civil Code, § 3818, declares: “ The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer.” The work and business of the employer in this particular'case did not fall within any of the provisions of § 3819 of the Civil Code. The work was not wrongful in itself, nor was it a nuisance. From previous experience and knowledge of the defendant’s agents the work was not in its nature dangerous to others. The act which the contractor was doing was in violation of no duty imposed by contract with the employer, nor in violation of any duty imposed by the statute; and the employer did not retain the right to control the time and manner of executing the work, or interfere and assume control so as to create the re
Judgment affirmed.