Stone v. Cheshire Railroad

19 N.H. 427 | Superior Court of New Hampshire | 1849

Gilchrist, C. J.

The principle involved in this case is one of sufficient importance to require an investigation into the authorities upon the question now presented. In Heine v. Nichols, 1 Salk. 289, in a case for deceit, it was held that a merchant was answerable for the deceit of his factor abroad, because it was more reasonable that he that puts a trust and confidence in the deceiver should be a loser, than a stranger. In Jones v. Hart, 2 Salk. 441, the servants of A., with his cart, run against another cart, wherein was a pipe of sack, and spoiled the sack; held that an action would be against A.

These eases illustrate the general principle that, for the negligent conduct of a person’s servant, the master is answerable in damages.

The question here is, whether the workmen employed upon the road, by whose negligence the accident happened, can be considered the servants of the corporation ? Cases analogous to this have undergone considerable investigation, both in the courts of England and America, and principles have been settled which seem to comprehend the case before us. And the inquiry is, what is the principle upon which the defendants should be charged or discharged?

In Stone v. Cartwright, 6 T. R. 411, the action was case for so negligently working a coal mine that the plaintiff’s buildings were undermined. The defendant had been appointed manager of the mine by the court of chancery, the mine belonging to an infant ward of that court, and the defendant employed a bailiff, who superintended the work, and hired and dismissed the colliers at his pleasure, but the defendant took no personal concern in the business, and had given no directions as to the manner of working it. It was held that the action would not be against the defendant, but should have been brought either “ against the hand committing the injury or against the owner, for whom the act was done,” and the plaintiff was nonsuited.

Here, between the owner and the persons who did the injury, there were two intermediate agents, the defendant and the bailiff, and the case settles that the owner is answerable.

Littledale v. Ld. Lonsdale, 2 H. Black. 267, 299, was case for a similar injury, and held rightly brought against the owner of the coal mine.

We come now in the order of time to Bush v. Steinman, 1 B. & P. 404, which is a leading case upon this subject.

The defendant bought a house by the road side, but had never occupied it. He contracted with a surveyor to put it in repair. A carpenter, having a contract under the surveyor to do the whole business, employed a bricklayer under him, and he again contracted for a quantity of lime with a lime-burner, by whose servant the lime was laid in the road. The plaintiff brought case against the defendant, the owner, for injury sustained by himself, by being overturned in a chaise, by means of the lime.

Here, between the owner of the property and him who actually did the wrong, there were four intermediate agents.

Lord Ch. Jus. Eyre says that he found some difficulty in holding the defendant liable, because he was so far removed from the immediate author of the nuisance, and that he hesitated in carrying the responsibility beyond the immediate master of the person who committed the injury. But he concurs with his brethren that the action will lie, although he says that he finds great difficulty in stating with accuracy the grounds on which it is to be supported. He, however, cites with approbation the cases of Stone v. Cartwright and Littledale v. Ld. Lonsdale, and states that in the latter case the defendant was liable, on the ground that the work, being carried on for his benefit and on his property, all the persons employed must have been considered as his agents; whether he worked the mine by agents, by servants, or by contractors, still it was his work. He concludes that the case cannot be distinguished from Littledale v. Ld. Lonsdale, and, consequently, is of opinion that the action lay. But he somewhat inconsistently goes on to say that he still feels some difficulty in stating the precise principle on which the action is to be supported.

Mr. Justice Heath founds his opinion on this single point, that all the sub-contracting parties were in the employ of the defendant.

Mr. Justice Roolee says that he who has work going on for his benefit, and on his own premises, must be civilly answerable for the acts of those whom he employs. The law intends that he has a control over all those persons who work on his own premises, and he shall not be allowed to discharge himself from that intendment, by any act or contract of his own. If the employer suffer by the acts of those with whom he has contracted, he must seek his remedy against them.

In Laugher v. Pointer, 5 B & C. 547, the question of the extent of the liability of the owner of property for the negligence of his servants, was much discussed. The owner of a carriage hired of a stable keeper a pair of horses to draw it for him a day, and the owner of the horses provided a driver, who had no wages from his master, but depended on receiving a gratuity from the persons whose carriages he drove, and the hirer gave him 5s. for his day’s work. Through the negligence of the driver, an injury was done to the plaintiff’s horse, and the plaintiff brought case against the owner of the carriage. There being a difference of opinion upon the bench, the case was argued before all the twelves judges, except the lord chief baron. A nonsuit had been directed, and a rule nisi for a new trial was granted. But the judges of the king’s bench were still divided equally, and the rule was discharged. Mr. Justice Littledale thought the action would not lie, because the driver could not be considered as the servant of the defendant, not being hired by the defendant, and receiving no wages from him, but only a gratuity, and not being subject to be dismissed by him. He held that the rule cannot be carried so far as to establish the doctrine that the only thing to be looked to is, whether, in the end, the principal pays for the employment in the course of wrhich the injury is sustained. He criticises the doctrine of Mr. Justice Heath, in Bush v. Steinman, that if a person hires a coach upon a job, and a job coachman is sent with it, and does any injury, the hirer of the coach is answerable. He thinks that Bush v. Stein-man does not rest upon the same basis as it would had it not been for the doubts expressed by the Lord Ch. Jus. Eyre. But without impugning the substantial correctness of. that decision any further, he admits that the rule of law may be, that in all cases where a man is in possession of fixed property, he must take care that his property is so used and managed that other persons are not injured, and that, whether his property be managed by his own immediate servants, or by contractors or their servants. The injuries upon land or buildings are in the nature of nuisances, for which the occupier ought to be chargeable, when occasioned by any acts of persons whom he brings upon the premises.

The Lord Ch. Jus. Abbott says that Stone v. Cartwright, Littledale v. Lonsdale, and Bush v. Steinman do not afford a rule by which the present case before him should be governed. “ Whatever,” he says, “ is. done - for the working of my mine, or repair of my house, by persons mediately or immediately employed by me, may be considered as done by me. I have the control and management of all that belongs to my land or my house, and it is my fault if I do not so exercise my authority as to prevent injury to another.”

Mr. Justice Holroyd, one of the most eminent of modem English judges, says the responsibility is not confined to the immediate master of the person who committed the injury, and “that the action may be brought against the person from whom the authority flows to do the act, in the negligent execution of which the injury has arisen, is established in the case of Bush v. Steinman,” and Mr. Justice Bayley agreed with him that the action was maintainable.

It is to be noticed that Abbott, C. J., and Littledale, J., did not deny the soundness of the judgment in Bush v. Steinman. They denied its applicability to the case then before them, and that was the extent of their criticism upon it, except the remarks of Littledale, J., upon the dictum of Mr. Justice Heath.

In the subsequent case of Randleson v. Murray, 8 Ad. & E. 109, the defendant, a warehouseman, employed a master porter to remove a barrel from his warehouse. The porter employed his own men and tackle, and through the negligence of his men, or rather through the insufficiency of the •tackle, the barrel fell and injured the plaintiff. It was held that the action -was maintainable. Mr. Justice Littledale remarked that it made no difference whether the persons whose negligence occasioned the injury be servants of the defendant, paid by daily wages, or be brought to the warehouse by a person employed by the defendant, and that the law was the same in each case. See also Harris v. Baker, 4 M. & S. 27.

We have discussed this question at more length than might seem to be necessary, because it is an important one in itself, and increases in importance as roads of this description increase throughout the country. And it is desirable that their rights and liabilities, and those of individuals in relation to them, should be definitely settled, as soon as may be. It appears that the case of Bush v. Steinman has sometimes been supposed to be questioned by subsequent decisions. In the case of Randleson v. Murray, the counsel for the defendant so alleges. But we have not been able to find any case where its soundness has been doubted upon the facts of the case. It is said in one of the most scientific of our professional treatises, Hammond on Parties 92, that the case settles, in effect, that the lime-burner might have sued the owner of the house, on the contract made by the latter with the carpenter, and that it is at variance with the decision of the court in Bramah v. Ld. Abington, 13 East 66. But this able writer implies no doubt of the decision.

Milligan v. Wedge, 12 Ad. & Ell. 737, which is cited by the counsel for the defendant, was an action on the case. The facts were, that the buyer of a bullock employed a licensed drover to drive it from Smithfield. By the by-laws of London, no one but a licensed drover could be so employed. The drover employed a boy to drive the bullock, together with others, the property of different persons, to the owner’s slaughter-house. Mischief was occasioned by the bullock, through the careless driving of the boy. It was held that the owner was not liable for the injury, the boy not being in point of law his servant. Lord Chief Justice Denman said “ the party sued has not done the act complained of, but has employed another who is recognized by the law as exercising a distinct calling. The butcher was not bound to drive the beast to the slaughter-house himself; he might not know how to drive it. He employs a drover, who.employs a servant, who does the mischief. The drover, therefore, is liable, and not the owner of the beast. I may remark that one might perhaps be reconciled to the distinction between cases of fixed and of moveable property, by considering that to hold the owner of land or buildings liable to injury done in respect of that property, will enable the party injured to know more readily from whom he is to seek redress. In Randleson v. Murray, the work was in effect done by the defendant himself, at his own warehouse; if he chose, instead of keeping a porter, to hire one by the day, he did not thereby cease to be liable for injury done by the porter, while under his control.”

Mr. Justice Williams said, “ the difficulty always is to say whose servant the person is that does the injury; when you decide that, the question is solved. To say that that party is liable from whom the act ultimately originates, is indeed a rule of great generality, and one which will solve the greater number of questions; but its applicability fails in one ease. For where the person who does the injury exercises an independent employment, the party employing him is clearly not liable. I agree in the decision of Randleson v. Murray, for the warehouseman’s servant, whether daily or weekly, is equally under the control of the warehouseman. And that is the way in which Mr. Justice Story puts this point; he brings it to the question, who employed-the person that did the injury.” Story on Agency, chap. 17, sec. 452, &c.

Now in this case, the soundness of the decision in Bush v. Steinman is not questioned, nor is there any inconsistency between the two cases. If the solution of the question depends upon ascertaining whose servant the person is that does the injury, there can be little doubt in the ease before us. The railroad corporation made a contract with certain persons to construct a part of the railroad. The contractors were in the immediate employment of the defendants. It is entirely immaterial whether the contract were written or verbal. The contractors were none the less the servants of the defendants, that there was a written, agreement between the parties, setting forth with precision what each party was to do. Nor is there in this case that “independent employment” exercised by the contractors, which is mentioned in the ease of Milligan v. Wedge. The sole object of the corporation was to build a railroad. This they might do either by employing laborers by the day, or by contracting with different persons to construct different sections of the road. The defendants employed the persons that did the injury, and we are not aware that to such a state of facts the case of Bush v. Steinman, and the other cases in accordance with it, have been held to be inapplicable, or their doctrine considered as unsound. In the case of Duncan v. Findlater, 6 Clark & Fin. 894, Lord Chancellor Cottenham and Lord Brougham both recognize the case of Bush v. Steinman as law.

In the case of Allen v. Hayward, 7 Ad. & Ell. N. S. 960, commissioners were appointed by an act of parliament for improving a navigation. They were not to be personally liable on contracts made, or for damages incurred in relation to any thing done in pursuance of the act, but might be sued in the name of their clerk. The contractor, in executing part of the work contracted for, made a drain which, from a defect in the materials, could not resist water, and without having any authority to do so, he turned in the water, which broke through and flooded the neighboring land. In an action on the case, against the commissioners, sued by the clerk, the declaration stated that they made the diversion and executed the work so negligently that, in consequence thereof, and from no other cause, the water broke through and flooded the plaintiff’s land. It was held that on these facts the defendant was not liable. It was said by Lord Denman, in delivering the judgment of the court, that “ if the commissioners constructed a weak and dangerous bank, they would be liable for the damage done by water improperly let in, whether by their servant or by a stranger, or by some natural accident. Supposing this to be true, we are then brought to the question whether the commissioners are responsible for this ill construction; whether the contractor is to be regarded as their servant, so that they may be called the makers of this work by his agency.”

After referring to several cases on this subject, his Lordship says,<! It seems perfectly clear that in an ordinary case, the contractor to do works of this description is not to be considered as a servant, but a person carrying on an independent business, such as the commissioners were fully justified in employing to perform works which they could not execute for themselves, and who was known to all the world as performing them. We find here none of the reasons which have prevailed in cases where one person has been held liable for the acts of another, as his servant.”

In the case before us, tire corporation might have employed an agent to superintend the building of the road, and to hire and contract with workmen and to pay them on behalf of the corporation. Lord Denman says, in Allen v. Hayward, that the opinions delivered by Lord Tenterden and Littledale, J., in Laugher v. Pointer, 5 B. & C. 547, “ must be taken to lay down the correct law.” Now Mr. Justice Littledale says, in the course of his opinion, “ If the owner of a farm has it in his own hand, and he does not personally interfere in the management, but appoints a bailiff, or a hirer who hires other persons under him, all of them being paid out of the funds of the owner, and selected by himself, or by a person specially deputed by him, if any damage happen by their default, the owner is answerable, because their neglect or default is his, as they are appointed by and through him.” The case of Allen v. Hayward is put upon the ground that the contractor is to be regarded as a person carrying on an independent business. In the present case, if Dillon & Co. make a contract to build a certain section of the road, they are to be regarded as carrying on an independent business, it would seem. But suppose they had merely agreed to work upon the road for an indefinite period, is there any reason for holding the first contract to be an independent business, which would not equally apply to the second? It seems to us that the effect of making such a very subtle discrimination between the two cases, is merely to involve the question of the liability of the owner in greater uncertainty than before, and that the distinction between the two cases is too subtle to be of practical use. It is difficult for us to perceive why, in each case, the contractors would not be equally the servants of the corporation, and the illustration quoted from Mr. Justice IAtlledale is, we think, pertinent to the case.

In Quarman v. Burnett, 6 M. & W. 499, 510, it is held that where a man is in possession of fixed property, he must take care that his property is so used and managed that other persons are not injured, and that 'whether his property be managed by his own immediate servants, or by contractors or their servants.

The case of Lowell v. The Boston amd Lowell Railroad, 23 Pick. 24, is also in point. It was case for the negligence of the defendants, by leaving open a deep cut, into which the plaintiff drove in the night. The ground was taken that the defendants were not liable, because, at the time of the accident, that section of the road had been let out to one Noonan, who had contracted to make it for a stipulated sum, and who employed the workmen. But it was held that this circumstance did not relieve the defendants from responsibility, as the work was done for their benefit, under their authority, and by their direction. And it is said by Mr. Justice Wilde, that this question was very fully discussed and settled in the case of Bush v. Steinman.

It is the opinion of the court that there should be

Judgment on the verdict.