93 P. 586 | Kan. | 1908
In 1904 plaintiff in error entered into a contract with Isaac Gregory to burn the grass on a strip 300 feet wide on each side of its right of way in Cowley county for a distance of seven miles. While engaged in burning this strip the fire escaped from his control, ran over the land of defendant in error and destroyed the grass on the ground and the hay in stack. The owner of the land recovered a judgment against the railroad company for the amount of the damages and attorneys’ fees. The defendant brings error.
The sole contention of the railroad company is that Gregory was an independent contractor, not an employee of the company, and inasmuch as the relation of master and servant did not exist the company is not responsible for his negligence.
The contract between the railroad company and Gregory was in writing but was not put in evidence. It appears, however, that he had no other employment with the company, and the work was to be completed within a specified time, for which he was to be paid the sum of twelve dollars per mile. He testified that he was his own boss, and that he procured from the owners of adjacent lands their consent to enter thereon for the purpose of burning the fire-guard. On the day the fire was set out there was a strong wind blowing in the direction of the land of plaintiff, and it was this which caused the fire to escape control. Gregory testified that he was ordered by the foreman of the section gang of defendant to do the work that day, and that in pursuance of such order he set out the fire which caused the damage.
The single question to be determined, therefore, is whether under the circumstances of this case the railroad company is liable for the negligence of Gregory. The general rule is that the employer cannot be held responsible for the negligence of an independent con
Of course, the fact that the owner exercised control over the work during its performance would furnish some ground for the inference that he had reserved the right to do so by the terms of the contract itself. It is also apparent that in a case where the injuries resulted directly from his interference it would make no difference whether or not the relation of master and servant existed, because, under such circumstances, he would be regarded as the principal tort-feasor. (Davie v. Levy & Sons, 39 La. Ann. 551, 2 South. 395, 4 Am. St. Rep. 225; Tutrix v. Sellers & Co., 39 La. Ann. 1011,
Some of the exceptions we have noted above apply with more or less force to the present case. It is th& contention that the.railroad company made itself liable by directing that the work should be done at a time' when a strong wind was blowing. It directed the work to be done on a certain day. Presumably this was in accordance with the contract. There was evidence' showing that the fire escaped from the control of Greg
There are two exceptions, however, to the general rule relieving an employer from liability caused by the, negligence of an independent contractor which, in our opinion, govern this case and take it out of the operation of the rule. Whenever an injury to a third party
A railroad company is liable in damages' to any person whose property is injured by fire caused by the negligent operation of its railroad. Our statute (Gen. Stat. 1901, § 5923) recognizes this common-law liability and provides that in actions against railroad companies to recover such damages certain rules of evidence shall obtain. It also allows the person injured to recover a reasonable attorney’s fee in the action. (Gen. Stat. 1901, § 5924.) Thus there is cast upon the railroad company an obligation to the owner of property injured by fire caused by the operation of the railroad which is in many respects different from the obligation resting upon an individual who negligently permits fire to escape. This obligation is one which the railroad company cannot escape by farming out the contract for a part of the operation of its railroad to an independent. contractor. In Fowler v. Saks, 18 D. C. 570, 7 L. R. A. 649, the owner of a building who let a contract to repair his building which required the taking down of a party wall was held liable to the adjoining owner for damages resulting therefrom. It appeared in that case that there was a building regulation in the District of Columbia requiring the owner of a building taking
“Another exception to the rule would be where a party is under an antecedent obligation to do a thing, or to do a thing in a particular way. In that case he cannot get rid of his responsibility by deputing it to somebody else.” (Page 585.)
It was also said that the duty in that case rested upon defendant by operation of the common law, aside from any building regulation, and was one which could not be delegated to an independent contractor.
The object of burning the fire-guard which caftsed the injury to plaintiff’s property was to enable the railroad company to operate its railroad without injury to the property of others. The purpose for which the work was performed was the same as a railroad company has in view when it provides screens and sparkarresters upon its engines. The work was therefore performed by the company in the operation of its railroad. Thus, in Pound v. Port Huron & S. W. Ry. Co., 54 Mich. 13, 19 N. W. 570, the railroad company employed a contractor to grade its road-bed. Cattle escaped upon the right of way by reason of his failure to keep up the fences along the right of way. The company was held not to be released from its liability for the damage, for the reason that the duty to keep its right of way fenced was imposed upon it by law.
The present case falls within another exception to the general rule, which may be stated as follows: One who has a piece of work the performance of which is in its nature dangerous to others is under an obligation to see that it is carefully performed so as to avoid injury, and he cannot delegate the obligation to an independent contractor and thus avoid his liability in case the work is negligently done to the injury of another. That such is the law is settled by the weight of reason and authority. Thus, in Bower v. Peate, 1 Q. B. Div.
“That a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else — whether it be the contractor employed to do the work from which the danger arises or some independent person — to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from.which mischievous consequences will arise , unless preventive measures are adopted.” (Page 32.6.)
In Hardaker v. Idle District Council, (1896) 1 Q. B. 335, a contractor was employed to construct a sewer for defendant. Owing to his negligence a gas-main was broken and gas escaped into the house where plaintiffs resided, causing injury to them and their property. Defendant was held liable because it owed a duty to the public, including plaintiffs, so to construct the sewer as not to injure the gas-main, and it was said that this duty could not be delegated to another so as to relieve it from liability. (To the same effect see Tarry v. Ashton, 1 Q. B. Div. [Eng.] 314; Dalton v. Angus, 6 App. Cas. [Eng.] 740; Storrs v. The City of Utica, 17 N. Y. 104, 72 Am. Dec. 437; Water Company v. Ware, 83 U. S. 566, 21 L. Ed. 485; Black v. Christchurch Finance Co., (1894) App. Cas. [Eng.] 48.)
The case of Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N. E. 618, 76 Am. St. Rep. 375, also a party-wall case, was ruled the same way. In that case the court said:
“The duty need not be imposed by statute, though such is frequently the case. If it be a duty imposed by law, the principle is the same as if required by statute.*88 [Citing Bower v. Peate, 1 Q. B. Div. (Eng.) 321.] It arises at law in all cases where more or less danger to others is necessarily incident to the performance of the work let to contract. It is the danger to others incident to the performance of the work let to contract that raises the duty and which the employer cannot shift from himself to another, so as to avoid liability, should injury result to another from negligence in doing the work.” (Page 224.)
In Circleville v. Neuding, 41 Ohio St. 465, and Railroad Company v. Morey, 47 Ohio St. 207, 24 N. E. 269, 7 L. R. A. 701, the same doctrine was declared. In the latter case the railroad company employed a contractor to do for it certain plumbing which involved the opening of the public highway for the purpose of laying a drain. Plaintiff in the night-time fell into the ditch by reason of the negligence of the contractor in not protecting it. The railroad company was held liable. It was said in the syllabus:
“One who causes work to be done is not liable, ordinarily, for injuries that result from carelessness in its performance by the employees of an independent contractor to whom he has let the work without reserving to himself any control over the execution of it. But this principle has no application where a resulting injury, instead of being collateral and flowing from the negligent act of the employee alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable though the negligence is that of an employee of an independent contractor.”
The same principle is also one of the grounds upon which the exception was predicated in Fowler v. Saks, 18 D. C. 570, 7 L. R. A. 649. Indeed, authorities might be multiplied in support of the proposition that where the work is inherently dangerous to others the employer is under an obligation to see that it is carefully performed, and cannot escape liability by the employ-' ment of an independent contractor.
In the last-mentioned case one of the justices dissented, and an important question involved was whether there was such an interference on the- part of the employer as to destroy the independent character of the contract.
The case of The Wabash, St. Louis and Pacific Railway Company v. Farver, 111 Ind. 195, 12 N. E. 296, 60 Am. Rep. 696, is apparently opposed to this doctrine. There the railroad company was engaged in constructing a well from which to supply water for its engines. The running water interfered with the work, and the railroad company contracted with the owner of a small portable steam-engine to pump out the accumulating water in order to keep it out of the way. The plaintiff, driving on the highway, was injured by reason of his horses’ fright at the engine. It was held that as the railroad company had no control over the use of the
The general rule and the particular exception we are considering were well stated by Lord Blackburn in Dalton v. Angus, 6 App. Cas. (Eng.) 740, in the following language:
“Ever since Quarman v. Burnett [6 M. & W. 499] it has been considered settled law that one employing another is not liable for his 'collateral negligence.unless*91 the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it.” (Page 829.)
Let it be conceded that the burning of the fire-guard was a part of the operation of the railroad and the conclusion irresistibly follows that the defense of an independent contract is of no avail. The statute places upon the company an additional and peculiar obligation to the owner of property injured by fire in the operation of its road; it is made liable not only for all damages sustained but for reasonable attorneys’ fees in an action brought to recover therefor. No obligation to pay attorneys’ fees rests upon an individual through whose negligence damage by fire results to the property of another, and in order to recover against such individual the plaintiff would be obliged to prove negligence, while the statute provides that where the action is brought against a railroad company, and the fire was caused by the operation of the road, negligence is presumed as soon as these facts are shown.
We find no difficulty in determining that the work of burning the fire-guard was a part of the operation of the road. The company could not, therefore, absolve itself from the liability by letting out the work to an independent contractor, for the reason that it owed to the plaintiff an obligation, placed upon it by the law, to respond in damages for all injuries by fire thus caused; and for the further reason that it employed a dangerous agency which in the experience of every one required that precautions be taken to prevent damage to the property of others. Thus a second duty was cast
The judgment is affirmed.
