Priоr to June 10, 1935, the United States Gypsum Company maintained a water tower on the premises upon which its St. Paul plant is situated. The tank was supported by three legs which rested upon the top of the walls of one of its buildings. Each leg consisted of two channel irоns held together and reinforced by steel straps riveted to them. In May, 1935, defendant by contract with the United States Gypsum Company undertook to manufacture steel *502 plates to replace the straps on the lower legs and to attach the plаtes to the legs. Defendant manufactured the plates but delegated the task of attaching them to one Nelson, an exрerienced steel erector. In order to attach the plates it was necessary first to remove the steel straрs. To compensate for the weakening of the leg from which the straps were first removed, Nelson erected a 6 x 6 timber nеxt to the weakened leg and placed a jack on the upper end of the timber so as to lend support to the tank. Two hours after the work of removing the straps was commenced on the morning of June 10, the tank for some cause fell onto the building upon which the legs rested, demolishing a part of it. The property damage was paid by the plaintiff insurance comрanies, which, under their subrogation rights, bring suit on the theory that the fall of the tank was due to the negligence of Nelson in the performance of his contract with defendant, and that defendant is subject to liability for such negligence.
For the purpose of this appeal it may be conceded that Nelson was an independent contractor. The trial court instructed the jury that if he wаs, defendant was not liable. After a verdict for defendant, plaintiffs moved for judgment notwithstanding or for a new trial. A new trial was granted on the ground that the court erred in charging the jury in the above manner. Defendant appeals from the order granting a new trial, and plaintiffs appeal from the order denying their motion for judgment notwithstanding. The appeals were argued together and will bе decided together.
The questions presented are (1) whether a contractor is liable to his contractee for damage to the realty of the latter caused by the negligence of an independent subcontractor while performing а part of the contractual duties of the contractor; and (2) whether it conclusively appears that the contractee was not negligent.
As a limitation to the doctrine of
respondeat superior
this court has laid down the rule that an employer is not liable for the consequences of the nеgligent acts of an independent contractor (Aldritt v. Gillette-Herzog Mfg. Co.
One exception is the rule imposing liability upon a lessor for harm suffered by his lessee because of the negligence of an independent contractor employed by the lessor to make repairs which the lessor is bound by covenant with the lessee to make. Restatement, Torts, § 419; Peerless Mfg. Co. v. Bagley,
Plaintiffs claim that the evidence, regardless of the view taken, does not justify a verdict for defendant. Plaintiffs attempt *504 ed to prove that the accident was caused by the subcontractor’s negligent failure to compensate adequately for the weakening of the leg from which the straps were removed; defendant sought to show that the collapse was due to the weаkness of the wall upon which the leg rested, and that the contractee’s negligent failure to empty the tank before the сommencement of the work contributed to the fall of the tank. There was some evidence to support each оf these claims. The question of the cause of the accident was properly for the jury.
Several hours after the accident and shortly before he died, the subcontractor’s helper made the following statement: “The building was rotten, Mother, it cоllapsed, the shoring held. The tank was full of water.” Plaintiffs contend that the trial court erred in admitting this into evidence. Although the questions previously decided are decisive of the case, this point will be treated for the guidance of the court upon a retrial. While it may be that the circumstances under which it was spoken make the statement unobjectionable on the ground of afterthought or lack of spontaneity (Jacobs v. Village of Buhl,
The order of the trial court denying the motion for judgment notwithstanding and granting the motion for a new trial is in all things affirmed.