86 Ind. 476 | Ind. | 1882
Property belonging to the appellee was burned by fire, negligently and wrongfully set out by the son of the appellant. The son had contracted with the father to clear the parcel of land on which the property was situated for a designated price, and, in carrying out this contract, set out the fire which destroyed appellee’s property. At the time the contract was made the son was not of full age, and was living with his father and treated as a member of his family. The appellant asked an instruction affirming that, if the work of clearing the land had been let to the son as an independent contractor, and the injury resulted from his negligence, the appellee could not recover. The court refused to give this instruction, and this ruling presents the principal question in the case.
A son not of full age, who undertakes to do work for his father, can not be regarded as an independent contractor in such a sense as to shield the father, who employs him to do work, from injuries resulting from his negligence. It would be pushing the rule absolving an employer from liability for the negligence of an independent contractor to an unwarrantable extent to extend it to the case of a father who contracts with his minor son. The reason, upon which rests the rule holding employers not liable for the negligence of indepen
An instruction which assumes that certain facts constitute contributory negligence should be refused unless the facts stated are such as would make it proper for the court to decide the question of negligence as one of pure law. In this case, the question of contributory negligence was one of fact for the jury, and the court did right in refusing to instruct
The appellee was the tenant of the appellant under a lease demising to him the property described in it, and containing this provision: The lessee agrees to allow the lessor “one-half the pasturage on said land,” and it is contended that the instrument did not give the appellee such possession as enabled him to maintain this action. This position is untenable. The lease vested in the lessee a right of possession to the land subject only to the lessor’s right to one-half the pasturage, and this right of possession was sufficient to entitle the lessee to his action for a wrongful and unlawful entry upon the land. The general rule is that a tenant in rightful possession • may maintain trespass against his landlord, and the lease under examination did not affect the operation of the rule except in so far as to vest in the landlord a right of pasturage. It is clear that it did not entitle him to enter for the purpose of burning logs, stumps and brush, thus endangering the tenant’s property.
Judgment affirmed.