282 Mass. 584 | Mass. | 1933
The defendant excepts to the denial of its motion to direct a verdict in its favor, to the refusal to give certain instructions with reference to the liability of an independent general contractor for negligent injury due primarily to the fault of a subcontractor, and to portions of a charge dealing with such liability. There was contradictory evidence from which a jury justifiably could find that at the moment of the accident the employees at fault were in the immediate employ of the defendant under the control of its superintendent. The judge could not determine this question of fact. Whatever might be the law applicable to an independent contractor where his own employees were not concerned, there was a possible liability if, in fact, the negligent persons were in the defendant’s employ. The plaintiff while at work in a cellar on the westerly side of a public way in a city was struck and injured by a log hurled against him by a blast discharged in a cellar upon the easterly side of the street. The defendant was under contract with the owner of the premises on the easterly side of the street to erect a building thereon; and, in the course of the work, to excavate the cellar to a certain grade. It let out the work of such excavation to Flavien Cote, who, by written contract, undertook “to furnish all labor and material and all tools, drills and necessary steam or compressor power, and all teaming and trucking, all dynamite, blacksmith work, and all personal supervision for the blasting and removing from the premises all the rock and ledge in the basement of the site . . for a round sum of $2,200. There was evidence that Cote was an experienced man of good repute in the work, and that the blasting was entirely controlled by him; but there, also, was evidence that a day or so before the accident he had finished work under the contract, had been paid more than $2,200, and had returned to the work under an oral employment to complete excavation which had been left undone. Cote did not deny that he made all the preparation
The requests for instructions which the defendant contends were improperly refused in substance required the judge to instruct the jury (8) that the burden was on the plaintiff to show that the defendant was in control of the blasting operation; (9) that there was no evidence of such control; (10) that if the defendant’s superintendent inspected Cote’s work regularly and took reasonable precaution to see that Cote was carrying out his contract with all proper care then the defendant had satisfied its duty; (11) that the defendant, as general contractor, satisfied its duty by subcontracting for the entire blasting with an experienced blasting contractor, and if the jury found Cote to be such a contractor there was no liability; (12) that the defendant was not held to the same degree of care as an owner, but if it reasonably and carefully chose a competent contractor for the blasting, and had no control of the means used with only the ordinary right to come upon the premises to see that the work was being done according to the contract, and had exercised the right with ordinary care, it could not be held liable; arid (13) that the presence of the superintendent for the purpose of inspecting and seeing that the contract was being complied with was no evidence of the exercise by the defendant of control over Cote. The exceptions to the charge were to language of the judge with reference to the defendant’s liability which was opposed to the contentions embodied in these requests. It now argues the exceptions to the refusal to give, and to so much of the charge as contradicted, requests 11,12 and 13.
The judge charged the jury that it was for them to say whether or not the danger from the operations was so great
In this he was instructing in substantial accordance with the principles laid down in Woodman v. Metropolitan Railroad, 149 Mass. 335, and Wetherbee v. Partridge, 175 Mass. 185, cases which have been many times cited in our decisions, always without question even where distinctions have been pointed out which made them inapplicable in the matter there being dealt with. A number of these decisions are referred to in Levesque v. Hildreth & Rogers Co. 276 Mass. 429, at page 434, where the rule is stated at length in a quotation from Curtis v. Kiley, 153 Mass. 123. In both the Curtis and the Levesque cases the defendants were owners of the premises where the accident occurred. The defendant contends that the rule does not apply to independent contractors employed by any one not an owner of the premises where the work is to be done or by one upon whom by statute or common law an antecedent duty to see that care be used has been placed and who cannot delegate it. This contention disregards the essential point on which the exception to the rule of nonliability for acts of an independent contractor is based. The liability does not rest on the principle of respondeat superior, which holds an employer for the negligence of his servants; it rests upon a principle of the law of torts that one for whose benefit an act is done relative to and upon real estate must see to it that harm does not occur in the progress of the doing, if necessarily from the nature and circumstances of the work harm will occur unless guarded against. This duty is not performed merely by using care in the selection of a capable and trustworthy person to do the thing desired, ordinarily all the care that reasonable prudence calls for. The necessarily dangerous character of the work requires a higher standard of care; and this the law seeks to secure by making each person concerned in the work responsible if, through any lack of reasonable care on his own part in guarding against the known dangers of the undertaking, injury results from the negligence of those to whom he entrusts its performance. The law refuses, in such a case, to
The last sentence of the charge: “If you are satisfied this blast was caused by negligence, then the plaintiff here would be entitled to recover” must be taken with the rest of the charge. The jury must have understood this to be true only if they found also the other things which the judge had instructed them were essential to recovery. So understood there is no error. Blasting is a dangerous business when carried on close to a city street in a neighborhood where many are at work within the range of missiles from an uncovered or negligently covered blast. One who employs another to do it must use all reasonable care to guard against injury to others, and may be found not to meet that degree of care merely by employing a suitable person to do it. The charge sufficiently stated the applicable rules of law. There was no reversible error in refusing to charge as requested. The refusal to direct a verdict for the defendant was right.
Exceptions overruled.