97 Iowa 509 | Iowa | 1896
The motion to direct a verdict was' based upon the grounds;' first, that there was no evidence to shoAV that defendants owned the real estate or the building Avhich Avas being erected thereon, or that they were in any manner interested therein; second, that no negligence was charged in the petition as against them; third, that the evidence shows that the negligence, if any, was that of a fellow-servant of plaintiff; fourth, that the relation of master and servant did not exist as between plaintiff and these defendants; fifth, that plaintiff knew of the alleged defects in the construction of the floor, and voluntarily remained in his employment, without complaint or promise of repair;1 and sixth, that, by the exercise of ordinary care, he might have known of the defects; but that, notwitstanding, he voluntarily remained at his work, without complaint or promise of repair.
Appellant relies largely upon the use of the word “direction,” as employed in the contracts referred to. We do not regard this, as in any sense conclusive. When we look at the whole contract, it is apparent, that the only direction the architect or the owner could give, was, as to what should be done to accomplish the ends aimed at by the .contract. He could not dictate the means or methods to be employed. This is the interpretation which has uniformly been placed upon such contracts. Hughbanks v. Investment Co., 92 Iowa, 267 (60 N. W. Rep. 641); Callahan v. Railroad Co., 23 Iowa, 562; Nevins v. Peoria, 41 Ill. 502; City of Erie v. Caulkins, 85 Pa. St. 247; Eaton v. Railway Co., 59 Me. 520; Kelly v. Mayor, etc., 11 N. Y. 432; Miller v. Railway Co., 76 Iowa, 655 (30 N. W. Rep. 138). It is perfectly manifest, that the defendants
The doctrine of respondeat superior has no application as a general rule, to such a case, for the contractor is in no sense a servant of the employer. Kellogg v. Payne, 21 Iowa, 575; Waltemeyer v. Railway Co., 71 Iowa, 626 (33 N. W. Rep. 110); Wood v. School District, 44 Iowa, 27; Miller v. Railway Co., supra; Wood v. Cobb, 13 Allen, 58; Kelley v. Norcross, 121 Mass. 508; Fanjoy v. Seales, 29 Cal. 244. There are some exceptions to the rule above stated; for instance, if the injurious act complained of was contemplated by the contract, or if the work was necessarily dangererous or harmful per se, and in some other cases, the contractee is liable. Wood v. School District, supra. But this case is not claimed to come under any of these exceptions, and no further attention need be given them.
Appellant relies upon the cases of Fink v. Ice Co., 84 Iowa, 322 (51 N. W. Rep. 155), and Haworth v. Manufacturing Co., 87 Iowa, 765 (51 N. W. Rep. 68, and 62 N. W. Rep. 325). Neither of these cases is in point. In the Fink Case, the defendant constructed the trestle work, and the plaintiff was in the employ of the defendant, — was its servant, engaged in its work. In the Haworth Case, plaintiff was in the employ of the defendants, in the erection of a building near its works, under the personal supervision of the firm, and defendants furnished the material upon which plaintiff was working, which proved unsound. The distinction between these cases and the one at bar is so manifest that wo need not say more. The learned district judge correctly sustained the motion to direct a verdict. Our conclusions find support in the cases of Tredwell v. Mayor, etc., 1 Daly, 123, and Mercer v. Jackson, 54 Ill., 397. The judgment is affirmed.