This is аn action brought by W. R. Gillihan, the owner of certain lands in Izard County, to recover damages alleged to have been done to the lаnds by defendant railway company in constructing its road. He alleged that he conveyed to the defendant a right of way one hundred fеet wide through said lands, but that afterwards defendant entered upon and took an additional strip '7% feet wide through said land; that defendant’s аgents and employees took and destroyed one thousand cedar rails of the value of $100; that said agents and employeеs, without plaintiff’s consent, made roads through plaintiff’s lands, and thereby damaged it in the sum of $100; and that said agents arid employees unlawfully and withоut authority threw down and destroyed plaintiff’s fences, exposing the crops on said land to depredation of stock, which destroyеd same, to his damage in the sum of $500. Judgment was asked in the total sum of $800.
The answer denied that any of the acts complained of were committed by the agents or employees of defendant, and alleged that the railroad was constructed by an independent cоntractor under a written contract with defendant, and that defendant was not responsible for the acts of said contractor.
The jury returned a verdict in favor of the plaintiff, assessing the damages upon each separate item as follows:
For taking land outside of right of way... .$ 25.00
For destroying rails.................... 50.00
For making roads on land.............. 10.00
For destruction of crops................ 75.00
Total ................................. $160.00
The undisputed testimony shows that the railroad was constructed by an independent contractor under a written contract, and that the railway company exercised no control over the work except the general right of supervision and inspection, so as to ascertain whether or not the work came up to the requirements of the contract. The testimony tended only to show that the acts cоmplained of were committed by the contractors or their agents and servants. A railroad company is not responsible for the wrongful or negligent acts of an independent contractor in the construction of its work. Railway Company v. Yonley,
“An independent сontractor" may be defined as one who, in the course of an independent occupation, prosecutes and direсts the work himself, using his own methods to accomplish it, and representing the will of the company only as to the result of his work. Generally, where an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable for the wrongful acts or negligence of such contractor; and in order that the сompany shall be liable in such a case it must appear that it either exercised or reserved the right to exercise control over the work, or had the power to choose, direct and discharge the employees of the contractor. In gеneral, it may be said that the liability of the company depends upon whether or not it has retained control and direction of thе work.But neither the reservation of the power to terminate the contract when in the discretion of the engineer the work is not рrogressing satisfactorily, the right to exercise general supervision and inspect the work as it progresses, nor the right to enforcе forfeitures, will change the relation so as to render the company liable.” 3 Elliott on Railroads, § 1063, p. 1586.
The same learned authоr says: “Eor trespasses by contractors, or subcontractors, which were not the natural result of-the work, or were not authorized оr directed by the company, no liability attaches to the company.” Vol. 3, p. 1591.
The same principle is announced by Judge ManseieED in Railway Co. v. Knott, supra.
Now, applying these settled principles to the facts of this case, it is easily discovered that the liability of the railway company for the acts of the contractor or their servants is not established.
The alleged act in destroying сedar rails was plainly an unauthorized act, and not essential to the performance of the contract. The making of roads also falls within the same category.
The testimony of the plaintiff covering this item was as follows :
“Q. Now, I will ask you to state, Mr. Gillihan, for what purрose they made these roads?
“A. Well, as to their purpose, I guess they did it just probably to save going around. There was a good road to their works they could have used just by going a little further around. They either did it for that, or else just to show what they could do.”
The item of damage for destruction of crops is within the same class. If the fences were on the right of way, it was necessary to throw them down, and either the railroad com-■party or the contractor had the right to do so without subjecting themselves to liability for damages; if they were off thе right of way, the act of- the contractor in throwing them down was unauthorized, and the railroad company is not liable.
The plaintiff undertоok to show that the railway company 'agreed, by verbal contract at the time he conveyed the right of way, to replace the fences in time to protect the crops; and the court instructed the jury that the company would be liable for damagе to crops resulting from its failure to rebuild the fences. The defendant objected to the introduction of the evidence, as well аs to the instruction of the court, and saved its exceptions. This evidence tended, if sufficient for any purpose, to establish a contract and violation thereof; and the instruction permitted a recovery thereon. The complaint does not allege а contract, but a tort. The allegation concerning this item of damage is that “said defendant by its agents and employees unlawfully and withоut authority threw down and destroyed his fences, thereby exposing his entire crop to the stock,” etc.
It was error to admit this testimony and tо give the instruction. White River Ry. Co. v. Hamilton,
As to the remaining item of damage for taking land outside of right of way, it is shown that this was necessary in .order tо “borrow” sufficient dirt to construct the high “dump” or roadbed, and that the deed executed by plaintiff to the company conveying the right оf way provided that the company could take additional dirt outside of the right of way. The deed was not introduced in evidence, but а witness for the railway company was permitted, without objection, to testify as to its contents, and the same stands undisputed in the record.
On account of the insufficiency pf the evidence and the errors already indicated, the judgment must be reversed, and the cause remanded for a new trial, and it is unnecessary to discuss the instructions given and refused, or to determine whether any other errors were committed in that respect.
Reversed and remanded.