14 N.Y.S. 616 | N.Y. Sup. Ct. | 1891
We think that, within the rule as established in this state, the nonsuit was properly directed. Hexamer v. Webb, 101 N. Y. 377, 4 N. E. Rep. 755; Blake v. Ferris, 5 N. Y. 48; Pack v. Mayor, etc., 8 N. Y. 222; Kelly v. Mayor, eta., 11 N. Y. 432. The defendant directed McGuire & Cady to accomplish in their own way, with their own tools and workmen, a certain result. While engaged in trying to accomplish this result, McGuire & Cady pursued such methods as they thought proper, and in pursuing them the negligence occurred of which the plaintiff complains. McGuire & Cady were independent contractors, familiar with this kind of work, and supposed to be able, by their own resources and skill, to use the proper methods of accomplishing it. The workmen who spilled the water were their servants, and it was their duty, as their masters, to see to it that in obeying their orders these servants did not by their negligence injure third persons. The learned counsel for the plaintiff, while assenting to the rules laid down in the cases cited, contends that they do not exempt this defendant, for the reason that although he did not give any directions as to the details of the work, and only desired that the existing difficulty should be remedied, yet it was, under the circumstances, a question for the jury whether he did not reserve to himself such a control over McGuire & Cady as entitled him to give them particular directions as to the details, if he saw fit to do so; and, if so, then McGuire & Cady and their workmen were the servants of the defendant, and thus their negligence was his negligence. If the defendant did reserve the right to interfere with and control the work, then he is liable; for in such case obedience in details, as well as in the general plan, would be due as the defendant might command. But there is no evidence that any such right was reserved. It was said in Hexamer v. Webb, supra, that the fact that no price was fixed, and no specifications made, did not make the contract one of mere hire and service, or create the relation of master and servant; also, that the work was charged for by the day made no difference.' In this respect the authorities are not quite in harmony with those in some of the other states. Tiffin v. McCormack, 34 Ohio St. 638; Brackett v. Lubke, 4 Allen, 138. Clute’s consent to the employment of Crandall to bail out the water before the contractors could begin their work upon the job did not make Crandall his servant. The contractors employed and paid him; besides, his work in no way contributed to the injury. The contractors were employed to find out the cause of the difficulty, and remedy it. They ascertained that the sewer-pipe leading from under the houses to the street sewer was stopped somewhere. They worked until they ascertained that part of the sewer leading from the houses was a wooden box sewer and part made of pipes. They then concluded that, instead of trying to remedy the old sewer, it would make a better job to dig it all up, and lay a new one; that is, to abandon the job they had undertaken, and enter upon a new one. This they proposed to Clute, and he then told them to stop present work, and when the digging should become easier he would lay the new sewer. Thus by mutual consent the old job was stopped, and the new one postponed. Everything which the contractors did for the defendant they did, to use the language of Hexamer v. Webb, “representing the will of their employer only as to the result of their work, and not as to the means by which it was to be accomplished.” So far as they did anything, the work was under their independent control. It was the proposed new work which Clute reserved control of, and as to that no complaint is made. Judgment affirmed, with costs. All concur.