38 Cal. 691 | Cal. | 1869
This is an action to recover damages for personal injuries sustained by falling through a sidewalk into the area underneath, in the city of San Francisco; which sidewalk was in front of the property of the defendant, and was being repaired at the time.; it being alleged that the repairs were being made by the defendant negligently, and in such a manner that the plaintiff, who was passing that .way, fell through the sidewalk, without any fault on his part.
It was contended at the trial, on the part of the defendant, that the repairs were not being made by him or his ser
The Court also charged the jury that the defendant could not relieve himself from responsibility by showing that the repairs were being made by a contractor and not by himself or his servants, to which the defendant also excepted.
Of these rulings the defendant predicates error.
The question presented by these exceptions is not an open one in this Court. In Boswell v. Laird (8 Cal. 469), it was most elaborately argued by counsel, and considered by the Court, and it was held, after a review of all the cases, that the responsibility in cases of this character is upon him Avho had the control and management of the work; or, in other words, that the doctrine of respondeat superior has no application where the relation of master and servant does not exist; that unless the relation of master and servant exists between the defendant in an action of this character and the person through whose negligence the plaintiff sustained his injury, the very reason upon which the doctrine of respondeat superior is founded is wanting; that where there is no power of'selection or direction there can be no superior; and that where a man is employed to do the work with his own means and by his own servants, he has the power of selection and direction, and he, and not the person for whom the work is primarily done, is the superior. The doctrine of that case has been since recognized in the case of Fanjoy v. Seales (29 Cal. 243.) We are entirely satisfied with it, and find no occasion to renew the discussion.
Judgment and order reversed, and a new trial granted.