58 Minn. 337 | Minn. | 1894
For the purposes of this opinion, it may be assumed that on the trial below it was clearly shown that, when letting the contract to Pinz for the repairing of the highway, the supervisors of defendant town required of the contractor that certain brush which had previously been cut and piled up in the way be destroyed by Are, and also that, through negligence, it was this Are which escaped and consumed plaintiffs’ property. But, with this assumption, it does not follow that the town can be held liable in damages. The loss sustained by plaintiffs was not on account of the act required of Pinz by the supervisors, but on account of the careless and negligent manner in which the act was performed.
It was lawful for the town, through its supervisors, to obligate Pinz to remove and destroy the brush by Are, that the road might be made passable, and it was lawful for those engaged in the work to set the Are. The loss, and the liability therefor, arose out of the manner in which, and the circumstances under which, the Are was set, for negligence in the setting is the gist of such an action. Dewey v. Leonard, 14 Minn. 153, (Gil. 120); Day v. H. C. Ackley Lumber Co., 54 Minn. 522, (56 N. W. 243.) And consequently the damages are attributable only to the person guilty of the negligence.
Pinz was an independent contractor, and the town reseiwed no right, and made no effort, to direct the manner in which he was to perform his part of the contract. He was to do certain work upon the road, including the burning of the brush, — an innocent and lawful act in itself. At what time and under what circumstances he should do this was wholly within his control, and plaintiffs’ loss resulted from the way in which he caused this part of his contract to be performed. The defendant town cannot be held for its contractor’s negligence when setting a Are, any more than it could have been made liable had the contractor been negligent towards an employé, and damages had resulted.
Plaintiff’s counsel calls attention to Peters v. Town of Fergus Falls, 35 Minn. 549, (29 N. W. 586.) The acts complained of there were alleged to have been those of the supervisors, who were doing work directly for the town, there being no intervening contractor. Even
Order affirmed.
(Opinion published 59 N. W. 1050.)
