51 Tex. 503 | Tex. | 1879
Justice.—The principal question underlying this case,.and which arises upon the judgment overruling the demurrer of the plaintiff to the answer of defendant and upon the charge of the court to the jury, may be briefly stated as follows:
Is the defendant-company liable in damages for the act of Douglas, Brown, Beynolds & Go., independent construction contractors, for an alleged negligent management of one of defendant’s trains, used and controlled by Douglas, Brown, Beynolds & Co., for construction purposes, upon that part of the road not completed and delivered to defendant ?
There is a marked distinction between the liability of the master for the acts of an ordinary servant in the usual scope of his duties as such, and that of an employer for the acts of an independent contractor.
This distinction rests upon the reasonable principle that, in
In the first relation, that of master and servant, the master has the right to direct the conduct of the servant and the mode and manner of doing the work, and hence his corre•sponding liability for an improper execution of the same. (Wood on Master and Servant, sec. 281.)
“ He is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate result of the work, but in all its details.” (Shear. & Red. on Neg., sec. 73.)
In the second relation, that of employer and independent contractor, there is no such control and direction by the employer over the servant in the details of the work.
“ The true test * * * by which to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of the work, and not as to the means by which it is accomplished.” (Shear. & Red. on Neg., secs. 76-79; 1 Red. on Railways, 505 ; Pack v. Mayor of City of New York, 4 Seld., 222.)
The leading case of Bush v. Steinmau, 1 Bos. & P., 404, upon which is based the cases in England and in those States of the Union which hold the doctrine that the employer is liable for the acts of an independent contractor; has been shown by subsequent decisions not to be founded upon principle, and has been overruled by the great weight of authority. (Shear. & Red. on Neg., secs. 79, 82, and authorities cited; Hilliard v. Richardson, 3 Gray, 349, where, in an elaborate opinion, the leading authorities on this subject are collected and reviewed; Chicago v. Robbins, 2 Black, 418, 428.)
The subsequent and, in our opinion, better-considered decisions than that of Bush v. Steinman now follow the leading cases of Reedie v. London and Northwestern Railway Co., 4 Exch., 244, to the effect that such employer is not thus liable for the acts of an independent contractor. (1 Red. on Railways, ch. 20; Pierce on Amer. Railroad Law, 235, and authorities cited; Hilliard v. Richardson, 3 Gray, 349; Railroad Co. v. Van Bayless, Tex. Ct. of App., in manuscript.)
In the case of Railroad Co. v. Meador, 50 Tex., 87, this court, in commenting upon the above case of Railroad Co. v. Van Bayless, and which in principle was the same as the one now before the court, says:
“ The charge asked embraced a general principle which has been recognized by the Court of Appeals in a well considered opinion reviewing the authorities. The correctness of the opinion reached in that case is not doubted. Whilst the road was being constructed by independent contractors, a construction train ran over and killed a mule belonging to Van Bayless, and it was held, that the railroad company was not liable. There was no duty to Van Bayless devolving upon
That Douglas, Brown, Reynolds & Co. may have used, as a means to assist in carrying out their contract to construct the road, a train belonging to, the defendant-company, and operated by servants primarily employed by it, would not, of itself, make the company liable for their acts, unless it bad the immediate control and management of the train.
To hold otherwise would virtually forbid parties to construct works of improvement, or perform many other acts, except by their own servants, unless at great peril for liability for actions of others over whom they have no immediate control. (Hale v. Dutant, 39 Tex., 669, and the following authorities cited: Blackwell v. Wiswall, 24 Barb., 356, and 26 Barb., 618; Felton v. Deall, 22 Vt., 173; Blake v. Ferris, 1 Selden, 51; Murch v. Railroad Co., 9 Foster, (N. H.,) 32; Fiske v. Framingham Man. Co., 14 Pick., 493; Blattenberger v. Schuylkill, 2 Miles, (Penn.,) 313; Peachey v. Rowland, 76 Eng. Com. Law, 181.)
In this case the evidence shows that the defendant used commendable diligence, more perhaps than the strict letter of the law might have required, to prevent the carriage of passengers on the construction trains, and it reasonably appears that this was known to the plaintiff. His act in riding upon the train against the express wishes of the company, and before the road had been received and transportation of passengers invited or allowed or the sale of tickets permitted, could not in law have constituted a contract upon the part of the company with him, and would, under the circumstances, have constituted such contributory negligence on the part of the plaintiff as should prevent his recovery against the defendant for a tort, unless willfully or wantonly committed, even had a right of action existed. (Robertson v. Railroad Co., 22 Barb., 91; Railroad Co. v. Montgomery, 7 Ind., 474; Shear. & Red. on Neg., sec. 264.)
Thus, after having first procured the right of way, the company can delegate to another lawful authority to enter upon the same and make its road-bed and perform other proper acts of construction; but it cannot delegate such lawful authority without having first secured the right of way by donation, purchase, or the exercise of the right of eminent domain. (Meador v. Railroad Co., supra; Pierce on Amer. Railroad Law, 239, 240, and note.)
There being no error apparent of record, the judgment of the court below is affirmed.
Affirmed.