141 N.W. 134 | N.D. | 1913
(after stating the facts as above). There are but two questions for decision in this case: 1. Was the witness Kerr, who moved the machinery, an independent contractor? 2. Even if an independent contractor, was the moving of the engine in its then condition so intrinsically dangerous a transaction or guilty of such negligence in relation thereto that he would be liable for the losses occasioned thereby ?
We are satisfied that the witness Kerr, who moved the engine, was an independent contractor. There was no right of control reserved by the defendant. Kerr hired and controlled his own men, and was free to haul or run the engine as he saw fit, and at any time and in any manner, provided that the work was done before October 20. 1 Thomp. Neg. §§ 622, 639; 26 Cyc. 1546; Leavitt v. Bangor & A. R. Co. 89 Me. 509, 36 L.R.A. 382, 36 Atl. 998, 1 Am. Neg. Rep. 605 ; Note to 65 L.R.A. 445 ; Shearm. & Redf. Neg. 5th ed. § 164.
Counsel for appellant, we know, relies upon the decision of this court in Ruehl v. Lidgerwood Rural Teleph. Co. 23 N. D. 6, — L.R.A. (N.S.) —, 135 N. W. 793, as tending to support a contrary rule. We do not, however, so interpret the opinion in that case. In it we did not place our decision upon the proposition that the man who dug the post holes might not possibly have been an independent contractor, but upon the theory that the telephone company had contracted to place a telephone in the house, and that a part of that undertaking was the implied contract to do the work in a reasonably safe way and with the exercise of such ordinary care that the occupants of the house would not be in danger. The liability in such cases would be the same whether the work was done by a servant or agent, or by an independent contractor. In the case at bar, however, the injury was not done to the second party to the contract, nor was the action brought by him. The action is based upon an injury done to an outsider merely, and the liability, if any, must be based upon a duty and obligation to that outsider which is not contractual in its origin.
The judgment of the County Court is affirmed.