3 Colo. App. 414 | Colo. Ct. App. | 1893
delivered the opinion of the court.
The three cases embrace the same questions and issues, and were by stipulation of counsel submitted upon the same briefs and arguments of counsel. The suits were in the nature of trespass to real property, for the breaking or cutting of fences, entry upon the lands of the respective plaintiffs (defendants in error), and alleged damages; were originally brought before a justice of the peace, trials had resulting in each instance in a small judgment against plaintiff in error. Appeals were taken to the county court, trials had to a jury, verdict and judgment in each against plaintiff, and appeals taken to this court.
Plaintiff is a corporation operating a railway. By an act of 1874, Gen’l Stat., sec. 2796, page 811, it was provided that every railroad corporation operating lines of road within the state should, each year, plow fire guards on each side of its line. In compliance with the requirements of the statute, in the year 1891, the plaintiff, by contract, let the plowing of the fire guards, from some point in El Paso county to the eastern line of the state, to one Webb at a given price per mile, the work to be done in accordance with the statutory specifications. A part of the distance the land or right of way of the plaintiff was of sufficient width to allow the plowing to be done within its limits. A part of the way, if plowed at all, it had to be upon the land of abutting owners. Defendants were such owners, upon whose lands it
The only question necessary to be determined is whether, under the facts, a case was made where the doctrine of respondeat superior could be invoked and applied. The work contracted to be done was not only legal, but was required by the statute and obligatory upon the corporation. By the contract, the entry upon the land of others was to be legal under the consent of the owner — to be obtained by Webb previous to the entry.
Admitting that the relation of master and servant existed, as contended, it is very doubtful whether the corporation could be held responsible for the torts of the servant under the circumstances. The weight of authority, both English and American, is against it, but we do not find it necessary to decide the question in this case. In Mechem on Agency, § 747, the rule of law deduced from the authorities and lawfully stated is : “ Where, however, the principal has not this right of control a different rule prevails. Neither reason nor justice requires that he should be held responsible for the .manner of doing an act when he had no' power or right to direct or control that manner. If, therefore, the principal,
In Forsyth v. Hooper, 11 Allen (Mass.), 421, — a well considered case — it is said: “ When, however, the person employed is engaged under an entire contract,Tor a gross sum, and in an independent operation, not subject to the direction or control of his employer, the relation is not regarded as that of master and servant, but is said in modern phrase to be that of contractor and contractee; and the negligence of such contracting party, or of his servant, cannot he charged upon him for whom the work is contracted to be done. The question whether the relation he that of master and servant or not, is mainly determined by ascertaining from the contract of employment whether the employer retains the power of directing and controlling the work, or has given it to the contractor.”
In Hilliard v. Richardson, 3 Gray (Mass.), 349, the court, in speaking of the tort, said: “ It was not done by one whom the defendant had the right to command, over whose conduct' he had efficient control, whose operations he might direct, whose negligence he might restrain.”
In Fuller v. Bank of Galion, 15 Fed. Rep. 875 (U. S. C. C. N. Dist. of Ohio), the court said: “If you find from the proof that the defendant let the whole work of excavating
In Blake v. Ferris, 5 N. Y. 48, the court says : “ When a man is employed in doing a job or piece of work, with his own means and his own men, and employs others to help him, or to execute the work for him and under his control, he is their superior, who is responsible for their conduct, no matter whom he is doing the work for. To attempt to make the primary principal or employer responsible, in such cases, would be an attempt to push the doctrine of respondeat superior beyond the reason on which it is founded.”
In a recent case, Hexamer v. Webb, 101 N. Y. 383, the court said: “ In' the case considered, we think that, by the contract between the defendant and Burford, the relation of master and servant was not created. Burford was a mechanic, engaged in a particular kind of business which qualified him for the performance of the work which he was employed to do. By the arrangement with the defendant he was an independent contractor, engaged to perform the Avork in question. He was employed to accomplish a particular object by obviating the difficulty which he sought to remove. The mode and manner in which it Avas to be done, and the means to be employed in its accomplishment, were left entirely to his skill and judgment. Everything connected with the work was wholly under his direction and control. No right was reserved to the defendant to interfere •with Burford, or the conduct of the work. It was the result Avhich was to be attained that was provided for by the contract, without any particular method or means by which it Avas to be accomplished. So long as the contractor did the work the defendant had no right to interfere with his way of doing it.” See also, Steel v. Railway Co., 16 C. Bench,
It follows that the court erred in the law of the case, and that the instructions were erroneous. The instructions assume the only question, or first important question, to be determined, viz.: That the relation of master and servant existed. The court said: “ If the jury believes, from the preponderance of the evidence, that the defendant’s servants or employees cut the fences,” etc.
The judgments will he reversed and the causes remanded.
Reversed.