35 N.J.L. 17 | N.J. | 1870
The opinion of the court was delivered by
The reason mainly relied on for making the rule absolute is, that the plaintiff failed to establish the liability of the defendants for the wrongful act or neglect from which the death resulted. The Newark and New York Kailroad Company, at the time in question, were engaged in constructing a railroad from Newark to Jersey City. The injuries which the deceased sustained were received upon that part of the work which was known as section four. The graduation and masonry upon that section were contracted
The contract between Flanagan & Sage and the company contained the following clauses: “ The contractor shall not be at liberty to sub-let any part of the work without the consent of the engineer; no sub-contract, however, shall relieve the contractor of his liabilities under this contract, should the sub-contractor fail to perform the work undertaken by him.” “ The contractor shall employ competent foremen and workmen, and experienced mechanics; and he shall immediately discharge, whenever required to do so by the engineer, any men considered by the engineer to be incompetent and disorderly, or disposed to foment discontent or mischief on the work.” These provisions were not incorporated in the contract of Flanagan & Sage with Shaffner, except that it was declared therein that Shaffner should have the same privileges that were enjoyed by Flanagan & Sage in the use of the railroad company’s grounds for the constructing of houses, shops, &c., required for the carrying on of the said blasting.
It will be assumed on the present occasion, in order to reach at once the merits of the controversy, that the magazine,
The liability of the company to respond for the injuries received by the deceased, was sought to be placed on two grounds: First, that Burns, under the circumstances of this case, was the servant of the company; and Second, that the injury'resulted from a nuisance, erected and maintained on their lands by their consent.
In Bush v. Steinman, 1 B. & P. 404, it was held that the owner of lands was liable for all injuries resulting from the negligence of employees engaged in executing work upon the land, though the work was done by a contractor who had contracted to do the work, and who employed the servant through whose negligence the injury happened. In that case, the action was against the owner of lands' for causing a quantity of lime to be placed oil tlie highway, by means of which the plaintiff and Ms wife, in driving along the highway, were overturned and much injured. The defendant, having purchased a house by the roadside, contracted with a surveyor to put it in repair for a stipulated sum. A carpenter, having a contract under the surveyor to do the whole business, employed a bricklayer under him, and he again contracted for a quantity of lime with a lime-burner, by whose servant the lime in question was laid in' the road. The defendant was held liable. After a recognition as authority for a time, Bush v. Steinman was overruled. At first, its authority was restricted to liability for negligence in relation to real estate, .making a distinction in .this respect between the owners of
The rule is now firmly established, that where the owner of lands undertakes to do a work which, in the ordinary mode of doing it, is a nuisance, he is liable for any injuries which may result from it to third persons, though the work is done by a contractor exercising an independent employment and employing his own servants. But when the work is not in itself a nuisance, and the injury results from the negligence of such contractor or his servants in the execution of it, the contractor alone is liable, unless the owner is in default in employing an unskillful or improper person as the contractor. Ellis v. Sheffield Gas Consumers’ Co., 2 E. & B. 767; Peachy v. Rowland, 13 C. B. 182; Hole v. S. & S. Railway Co., 6 H. & N. 488; Steel v. The S. E. Railway Co., 16 C. B. 550; Rapson v. Cubit, 9 M. & W. 710; Reedie v. London & N. W. R. R. Co., 4 Exch. 244; Knight v. Fox, 5 Exch. 721; Milligan v. Wedge, 12 A. & E. 737; Overton v. Freeman, 11 C. B. 867; Packard v. Smith, 10 C. B., N. S. 470-480; Butler v. Hunter, 7 H. & N. 826; Allen v. Hayward, 7 Q. B. 960; Chicago City v. Robbins, 2 Black 418; Storrs v. City of Utica, 17 N. Y. 104; Scammon v. City of Chicago, 25 Ill. 424; McGuire v. Grant, 1 Dutcher 356.
The counsel of the plaintiff, on the argument, did not attempt to sustain or resuscitate Bush v. Steinman for the support of this branch of their case. With much ingenuity
There are cases in which persons who have contracted to have work done have been held liable for negligence in the manner of doing it; but those are cases in which the contract created only the ordinary hiring for service, or the party who let the work retained and exercised the control and direction of the, employees by whom the manual labor was done, or personally participated in the wrong complained of. Randleson v. Murray, 8 A. & E. 109; Sadler v. Henlock, 4 E. & B. 570; Burgess v. Gray, 1 C. B. 578; Fenton v. Dublin Steam Packet Co., 8 A. & E. 835.
These cases do not infringe upon the rule that the relation of master and servant must substantially and really exist, in order to raise a liability on the part of the former for the negligent acts of the latter; on the contrary, they recognize the rule and deduce the liability from the fact that the employees doing the work were really the servants of him under whose .directions they were engaged in executing it, or the entire control of the work to be done had not been abandoned to the contractor.
There is another class of cases in which municipal corporations have been held answerable for the negligence of the servants of their contractors in making excavations in the public streets: and railroad companies have been held for damages sustained by passengers by reason of defects in the platforms of their depots, occasioned by the carelessness of
Except under the special circumstances above indicated, ¡'none of which exist in this case,) the rule is invariable, that the master only is responsible for the acts of the servant. In some cases it is difficult “to say whose servant a person is that does the injury ; when you decide that, the question is solved.” Per Williams, J., Milligan v. Wedge, 12 A. & E. 737.
In Quarman v. Burnett et al., the defendants, who were the owners of a carriage, and were accustomed to hire horses ro draw it for a, day, or a drive, of a livery man, who provided a driver, were held not liable for an injury done to a third person through the negligence of the driver, although they provided him with a livery and paid him a fixed sum for each drive. In that case there -was some evidence that the, ddeudand had «('looted the particular driver. Qu this hitler point, Baron Parke says : “ If the driver be the servant, of a job master, we do hot think he ceases to be so by reason of the owner of the carriage preferring to be diiven by that particular servant, where there is a choice amongst more, any more than a hack posi-boy ceases to be the servant of an innkeeper, where a traveler has a particular preference of one over the rest on account of his sobriety and carefulness; if, indeed, the defendants had insisted upon the horses being driven, not by one of the regular servants, but by a stranger to the job master, appointed by themselves, it w'oukl have made all the difference.” The employment of an engineer
The case of Blake v. Ferris is an illustration of the inability of third parties to take advantage of stipulations inserted in the contract for the protection of the partios to it, or out of abundant caution to provide for any contingent
A case directly in point with that under consideration will be found in Reedie v. Railway Co., 4 Exch. 244. That was an action by the administratrix of a person -who wss killed while passing under a viaduct in the course of construction as part of the defendants railway. The work of constructing the viaduct had been let by contract, and the injury which occasioned the death, happened through the carelessness of the contractor’s servants, in permitting a large stone to fall on the dec-eased. By the terms of the contract, between the company and the contractor, they had a general right of watching the progress of the work, and if the contractors employed incompetent workmen, the company had the power of dismissing them. The court held that the company were not liable, and in pronouncing judgment, Rolfe, B., said: “Our attention was directed during the argument to the provisions of the-contract, whereby the defendants had the power of insisting on the removal of careless or incompetent workmen, and so it was contended they must he responsible for their non-removal. But this power of removal does not seem to us to vary the case. The workman is still the servant of the contractor only, and the fact that the defendants might have insisted on his removal if they thought him careless or unskillful, did not make him their servant.” In State v. Williams, 1 Vroom 102, this court held that a landlord did not make himself responsible for the nuisance of his tenant in keeping the house in a disorderly manner by a failure to
The stipulations in the contract between these defendants are of the same nature with the power last adverted to. They were designed for the benefit of the company, to enable them .to determine whether the work should be sub-let or not, and to prevent the annoyances and delays incident to disorders fomented by evil-disposed workmen among their fellows, and the loss and injury resulting from insufficient or improper ■execution of the work. Their office was not to create obligations or duties on the part of the company to third' persons. The obligation lies in contract. No stranger can maintain an action on the contract. It does not create the relation of master and servant, nor raise a duty from the non-performance of which an action will enure to third persons.
The principle upon which the superior who has contracted with another, exercising an independent employment for the doing of the work, is exempt- from liability for the negligence of the latter in the execution of it, applies as between the contractor and his sub-contractor. Rapson v. Cubitt, 9 M. & W. 710; Knight v. Fox, 5 Exch. 721; Overton v. Freeman, 11 C.B. 867.
The verdict cannot be sustained against any of the defendants on the first ground on which their liability is endeavored
The company did not use the premises, except as they were occupied by the contractors in the execution of the work. They were not then in that actual possession which would raise a liability for acts done upon the property, without regard to the agency by which they were done. They can only be held for what they contracted to have done, and consented that others should do, upon their property.
The consent of the company was that the magazine should be used for the stoi'age of the nitro-glycerine necessary for the operations of blasting on the works. At the time of the accident, there was in the magazine only one can of nitroglycerine, containing about ten pounds, which belonged to Shaffner, for that purpose. Without the knowledge of th& engineer or any officer of the company, or. of Flanagan & Sage, Shaffner had stored in the magazine sixteen cans of the oil, which belonged to the United States Blasting Company, and which had been removed clandestinely from the county of Bergen, to avoid an execution about to be issued against that company, and secreted by Shaffner in the magazine, and kept there for sale on the orders of the company. Of these things the defendants were entirely ignorant. On the occasion of the accident, one Merritt came to the premises with an order, signed by a director of the blasting company, for Ihixty pounds of glycuxiuo. Buxns, at tlxat time, bad quit the duties of his ordinary employment, and had gone to bed. Riehols, the foreman of Shaffner, waked him up, and directed him to fill the order. In obedience to his command, Burns procured from the magazine a can of the blasting eomnanv’s oil and an empty can, and carried them a distance of about one hundred and fifty yards, near to the blacksmith’s shop, and proceeded to open the can containing the oil. While so doing, the explosion took place, from which the death of the deceased resulted.
In the aspect in which this case lias been considered, the liability of the railroad company is fixed, if the injury com
The leading case ou this subject is Vicar v. Wilcox, 8 East. 1. The defendant there had charged the plaintiff with cutting his cordage ou his rope-walk. The special damages alleged were, that the employer of the plaintiff believing the charge to be true, discharged him, and that the plaintiff after-wards applied to R. P. for employment, who refused to em-play him in consequence of the words, and because his former master had discharged him for the offence imputed to him. The plaintiff was non-suited, because the injury was too remote to sustain the action, and the non-suit was sustained by the court in banc.
So far as respects the denial of the plaintiff’s right to recover damages for his discharge by his masier, if such discharge was caused by the words communicated by the defendant himself to the master, Vicar v. Wilcox cannot be reconciled with the earlier as well as later authorities; but if the words were communicated to the employer by the unauthorized act of third persons, that case lias been completely sustained. See 2 Smith’s L. Cases, 6th Am. Ed. 532, note to Vicar v. Wilcox; Lumley v. Gye, 2 E. & B. 237, per Whitman, J.; 1 Starkie on Slander 205; 2 Ib. 64; Ward v. Weeks, 7 Bing., 211. In the case last cited, it was held that in tin action of slander the allegation of special damage could not be supported by proof that the defendant had spoken the words to i and that damage ensued in consequence of B.’s repeating them as the words of the defendant. In delivering judgment, Uncial, C. J., says : “Every man must be taken to he answerable for the necessary consequence of his own wrongful acts ; but such a spontaneous and unauthorized communication cannot be considered as the necessary consequence of the original uttering of the words. For no effect whatever followed from the first speaking of the words to Bryce; if he
In Rich v. Basterfield, 4 C. B. 783, the owner of premises built a chimney upon it and leased the premises. The tenant, after he entered, lighted a fire, from the smoke of which the plaintiff was injured in his occupation of adjoining premises, and sued the owner to recover damages, on the ground that having erected the chimney and let the premises with the chimney so erected, he had impliedly authorized the lighting of a fire therein. It was held that the injury resulted from the act of the tenant, and the action would not lie, although, as was said by Cresswell, J., the defendant “ enabled the tenant to make fires if he pleased.''
In other cases the intervention of the independent act of a third person between the wrong complained of and the injury sustained, which was the immediate cause of the injury, is made a test of that remoteness of damage which forbids its recovery. Ashley v. Harrison, 1 Esp. 48; Mylne v. Smith, 2 Dow’s Parl. Rep. 390; Fitzsimons v. Inglis, 5 Taunt. 534; Hoey v. Felton, 11 C. B., N. S. 142; Daniels v. Potter, 4 C. & P. 262; Haddan v. Lott, 15 C. B. 411; Walker v. Goe, 4 H. &. N. 350; Parkins v. Scott, 1 H. & C., 152; Crain v. Petrie, 6 Hill 522; Stevens v. Hartwell, 11 Met. 542; Toomey v. Railway Co., 3 C. B, N. S. 145; Williams v. Jones, 3 H. & C. 256; Mangan v. Atterton, Law Rep. (1 Exch.) 239; Bank of Ireland v. Evans, 5 H. of L. Cases 389, 397.
Tested by- the principle above stated, it is obvious that the injury received by the deceased, from which death resulted, is too far removed from the act of the company to impose a liability for it upon them. It did not result naturally or proximately from the nuisance they permitted on their lands, but was caused directly by the unauthorized and independent act of a third person intervening between the nuisance they consented to and the injury.
A places a log in the highway, which B casts into an adjoining' close — or puts an obstruction upon the sidewalk, which passers-by throw into the roadway of the street, and a traveler is injured by coming in contact with it: A cannot be held for the trespass in the one ease, nor for the injury in the other. Or, to take an illustration more nearly connected with the facts of the case, suppose Burns, loy command of Shaifuer, had. carried the can to Jersey City, and there, by his
The Chief Justice, and Justices Woodhull and Van Syckeu, concurring, the rule is made absolute, and a new trial granted.
Affirmed post p. 574.
Cited in Del. Lack. & West. R. R. Co. v. Salmon, 10 Vr. 308.