| Va. | Dec 3, 1896
delivered the opinion of the court.
From the evidence set out in the record it appears that the plaintiff was injured by an iron ball falling from the roof of a lumber dry kiln being erected on a lot adjoining the street along which she was walking.
The material and uncontradicted facts are that "W. B. Uollona, a contractor and builder, made an agreement with the defendant, John C. Emmerson, the owner of the property, to do the wood work on the dry kilns. The defendant was to furnish the materials, and the contractor was to employ the labor, superintend the same, and erect the buildings according to plans furnished by the patentee of the kilns. The measure of compensation received, by the contractor was a per diem for himself and the hands employed by him, the amount due under the contract being paid by the defendant in two payments, one of $200 before the work was finished, and the balance after its completion. It appears that the defendant did not know the men employed on the work and assumed no control over them; that they were employed and discharged by the contractor, who alone controlled and directed them in their work, and received a profit on their labor. The building was situated seven feet from the street, and Peter Showard, one of the men employed by the contractor, was on the roof handling the iron ball in question when it slipped and fell with the result mentioned.
As a general rule, where a person is employed to perform a certain kind of work which requires the exercise of skill and judgment as a mechanic, the execution of which is, because of his superior skill, left to his discretion, without restriction upon the means to be employed in doing the work, and he err ploys his own labor, which is subject, alone to his control and direction, the work being executed either according to his own ideas or in accordance with plans furnished him by the person for whom the vi ork is done, such a person is not a servant under the control of a master, but is an independent contractor, and the fact that his compensation is to be measured by a per diem to himself and those employed by him does not affect the independent character of his employment, nor does the circumstance that his employer is to furnish the materials to be used in doing the work alter his status as an independent contractor, and create the relation of master and servant.
The defendant was not liable for the injury sustained by the plaintiff, if the person employe^ by him to build the dry kilns was selected with due care, and exercised an independent employment. It is essential, in order to establish a liability against a party for the negligence of others, that the relation of master and servant should exist.
The exception by the plaintiff in error to the instruction given by the court is well taken. That instruction in its first clause ignores the important question of the defendant’s liability, and in the latter clause the proposition is stated in
What constitutes an independent employment is a question of law to be decided by the court, and not by the jury. Whether or not under the facts proven Collona was an independent contractor was a question of fact for the jury to determine. The court should have informed the jury what constituted an independent employment, or should have told the jury that if they believed from the evidence certain facts, stating them, that then W. B. Collona was an independent contractor and the defendant not liable. It was also error to use the word “special” in referring to the contract between the parties. There was nothing special about the contract, and the use of the word was calculated to mislead the jury by creating upon their minds the idea that some unusual and peculiar conditions were necessary in order to warrant them in believing that the contractor exercised an independent employment. ,
The second exception is to the ruling of the court in refusing an instruction offered by the defendant. This instruction does not embrace all the facts proven which tend to show that W. B. Collona was exercising an independent employment, and is defective in assuming that it was necessary for Peter Showard to have been actually discharged by Collona in. order to make the latter an independent contractor. It was only necessary that Collona should have employed Shaward, and have had the power to discharge him.
The third bill of exceptions is to the ruling of the court in refusing to set aside the verdict of the jury as contrary to the law and the evidence, and to grant the defendant a new trial.
Without reviewing the evidence farther than has been already done, it is sufficient to say that the facts proven clearly show that W. B. Collona was an independent contractor, occupying the relation of master to his employee, Peter Show
The ease at bar is controlled by the case of Bibb's adm'r v. N. & W. R. R. Co., 87 Va. 711" court="Va." date_filed="1891-02-12" href="https://app.midpage.ai/document/bibbs-admr-v-n--w-r-r-6808659?utm_source=webapp" opinion_id="6808659">87 Va. 711. The subject under consideration has been there fully discussed and authorities, English and American, cited, and it is only necessary to refer to that case as authority for the conclusion reached in this, without discussing the law further, and repeating what has been there said.
The contention of the defendant in error here that the work to be performed in this case was wrongful per se, or was a nuisance, and therefore the owner and contractor were both co-tres passers and both liable as such to the plaintiff cannot be sustained. The construction of a building seven feet distant from the street line is not a nuisance or wrongful per se. The contract in this case was to do an act in itself lawful, and it is to be presumed in a lawful manner. It did not necessarily involve injury to any one, hence the defendant cannot be held liable on this ground;
For the foregoing reasons the. judgment of the lower court must be reversed, the verdict of the jury set aside, and a new trial had in accordance with the view s expressed in this opinion.
Beversed.