Lenderink v. Village of Rockford, 135 Mich. 531

Lenderink v. Village of Rockford

135 Mich. 531

| Mich. | 1904

Lead Opinion

Grant, J.

{after stating the facts). 1. The instruction was correct. Counsel for plaintiff cite several cases, including City of Detroit v. Corey, 9 Mich. 183 (80 Am. Dec. 78). Thatcase involved the. liability of tbemunicipal corporation to travelers upon its highways, holding that the municipality cannot defend, as against strangers in the lawful use of the street, by setting up an independent contract to perform the work. Such cases have no application here. They also cite Ostrander v. City of Lansing, 111 Mich. 693 (70 N. W. 332). That was a case where the sewer was being constructed by the city, in whose employ the plaintiff was. That case has no application. This case is within the rule enunciated in Wright v. Manufacturing Co., 124 Mich. 91 (82 N. W. 829, 50 L. R. A. 495), and authorities there cited. The contract was with an independent contractor, and for certain results. How the digging was done, what means or methods were used, were matters which did not concern the defendant, which had no control over them. The sole duty of the inspector was to see that the tile were laid to the proper depth, and in the proper manner, after the trench was dug. It had no control in any way whatever over the workmen employed by the contractor, or over the method used in digging. In such cases the relation of master and servant does not exist, and the neglect of the contractor is not imputable to the party for whom the work is done. In other words, the rule of respondeat superior does not apply. 2 Dill. Mun. Corp. § 1028.

2. Plaintiff assumed the risk. He was a man of experience in digging sewers. The contractor spoke to him about cui'bing, but plaintiff did not think it was necessary; he thought it was safe enough. The president of the village also suggested that the trench needed curbing, and *534plaintiff told him he thought it was safe. Knowing the situation as well as any one, and having it in his own power to determine the question, and to refuse to work, he continued to work, without protest.

3. If there was any negligence, it was the negligence of plaintiff’s fellow-servant, Mr. Vogt. The contractor had furnished plenty of sound material, and a competent man to attend to the work of curbing. Under these circumstances, the employer had performed his full duty towards the plaintiff.

Judgment affirmed.

Carpenter, Montgomery, and Hooker, JJ., concurred with Grant, J.

Concurrence Opinion

Moore, C. J.

I concur in the result upon the second ground stated in the opinion.